Introduction to Law Dersi 4. Ünite Sorularla Öğrenelim

What is the main subject of constitutional law?

The main subject of constitutional law is the form and main organs of the State, structure and functions of State organs and fundamental rights and freedoms. Constitution is, among other rules, at the heart of Constitutional Law.

How can constitution be defined?

Constitution is defined as a body of fundamental principles or established precedents according to which a state or other organization is acknowledged to be governed.
A constitution is found either with an establishment of a new state or after a war or a revolution.

What are the documents that served as constitutions in Turkey?

-Senedi İttifak (1808)

-Gülhane Hattı Humayunu/Tanzimat Fermanı (1839)

-Kanuni Esasi (1876)

-Teşkilatı Esasiye Kanunu, namely the Constitution of 1921

-The Constitution of 1924 was the first constitution of the Turkish Republic.

-The Constitution of 1961

-The Constitution of 1982

What was the importance of The Constitution of 1924?

The Constitution of 1924 was the first constitution of the Turkish Republic. It consisted of principles for both assembly government and parliamentary system at the same time. Sovereign powers of the nation –legislative and executive– were vested in the Grand National Assembly. 

What were the characteristics of the Turkish Republic according to The Constitution of 1961?

The Constitution of 1961 was the second constitution of the Turkish Republic. The characteristics of the Republic were stated to be “nationalistic, democratic, secular and social State governed by the rule of law, based on human rights and the fundamental tenets set forth in the preamble.” Supremacy and binding force of the constitution was guaranteed by article 8 that stated, “Laws shall not be in conflict with the Constitution. The provisions of the Constitution shall be the fundamental legal principles binding the legislative, executive and judicial organs, administrative authorities and individuals.

What did The Constitution of 1961 state regarding fundamental rights and freedoms?

Every individual is entitled, in virtue of his existence as a human being to fundamental rights and freedoms, which cannot be usurped, transferred or relinquished.” In addition, it is stated in the article 10 that “the State shall remove all political, economic and social obstacles that restrict the fundamental rights and freedoms of the individual in such a way to be irreconcilable with the principles embodied in the rule of law, individual wellbeing and social justice. The State prepares the conditions required for the development of the individual’s material and spiritual existence.” Moreover “the fundamental rights and freedoms shall be restricted by law only in conformity with the letter and spirit of the Constitution” according to the article 11 of the Constitution of 1961.

How does The Constitution of 1982 define the State of Turkish Republic?

The characteristics of the Republic are stated in the article 2 as “The Republic of Turkey is a democratic, secular and social state governed by rule of law, within the notions of public peace, national solidarity and justice, respecting human rights, loyal to the nationalism of Atatürk, and based on the fundamental tenets set forth in the preamble.

What does The Constitution of 1982 say on equality?

Equality before the law is granted in the article 10 as “Everyone is equal before the law without distinction as to language, race, colour, sex, political opinion, philosophical belief, religion and sect, or any such grounds.”

How has the idea of sovereignty changed since the foundation of Turkish Republic?

In The Constitution of 1924, sovereign powers of the nation –legislative and executive–
were vested in the Grand National Assembly.

The sovereignty was vested in the nation
unconditionally and without reservation in The Constitution of 1961.

The Constitution of 1982 suggests that sovereignty that belongs to the nation
unconditionally and without any restriction is vested in the authorized organs designated in the constitution as prescribed by the principles set forth in the Constitution. It is guaranteed under the Constitution that exercise of sovereignty shall not be delegated by any means to any individual, group or class. 

What are the duties and powers of the Turkish National Assembly?

• to enact, amend and repeal laws,
• to scrutinize the Council of Ministers and the ministers,
• to authorize the Council of Ministers,
• to issue decrees having the force of law on certain matters,
• to debate and adopt the budget bills and final accounts bills,
• to decide to issue currency and declare war,
• to approve the ratification of international treaties,
• to decide with the majority of three-fifths of the Grand National Assembly of Turkey to proclaim amnesty and pardon, and
• to exercise the powers and carry out the duties envisaged in the other articles of the Constitution

Why does administrative law have a distinct nature compared to other branches of law?

Administrative Law has not yet been codified to date. As a result, there are no rules in a single document systematically governing procedures that must be conducted in administration or the functioning of Administrative Law as a whole. There exist few exemptions such as Law of Planning, Law of Procurement, and Law of Expropriation. Thus, development of Administrative Law is provided mostly by jurisprudence.

What are the components of the Rule of Law?

• Fundamental Rights and freedoms shall be guaranteed by the State,
• Separation of powers shall be granted,
• Judicial review of acts, actions and activities of State shall be granted, including the Parliament and the administration,
• Independency and impartiality of the courts shall be provided,
• The acts, actions and activities of the State shall be done within the framework of laws,
• Responsibility of the administration shall be granted,
• The principle of “no offence and penalty without law” shall be granted,
• Democracy shall be granted.

How are fundamental rights and freedoms of individuals protected by the Constitution?

With a view of the Rule of Law on the Constitution, firstly, it has to be noted that fundamental rights and freedoms are guaranteed under the Constitution. The nature of fundamental rights and freedoms have been set out in article 12 of the Constitution as the rights that everyone possesses are inherent, inviolable and inalienable.

What are the components that amount to the principle of legality of administration?

The principle of legality covers establishment and functioning of administration.
As acting under the law, the administration shall use powers conferred upon it and shall have competence to act, shall have legal reason to act, shall be hold responsible and accountable and shall be transparent. All of these components would amount to the principle of legality of administration.

What is the basic principle governing administration in Turkey?

The basic principle governing administration in Turkey would be “integrity”. This means central administration and decentralized administration together considered to be one single unit. Article 123/1 of the Constitution underlines this character of administration as follows:
“The administration forms a whole, with regard to its constitution and functions, and shall be regulated by law”.

How is "public personnel" defined in the Constitution?

Article 128 of the Constitution states as regards to public personnel that
“The fundamental and permanent functions required by the public services that the State, state economic enterprises and other public corporate bodies assigned to perform in accordance with principles of general administration, shall be carried out by public servants and other public employees.”

What are the constitutional guarantees for public personnel?

• Obligation to carry out duties with loyalty to the Constitution and the laws,
• Guarantee to enjoy the right to defense and of judicial review in case of disciplinary measures,
• As regards to liability in fulfilling their duties compensation suits shall be directed to the administration,
• As regards to prosecution of offences committed within their duties a permit shall be asked from the administration.

What are the components of central administration in Turkey?

Central Departments

-National Security Council

-The Council of State

-The Court of Accounts

Provincial Departments

-Ministries'  provincial departments

What are some functionally decentralized administrations?

• Universities (under article 130)

• The Council of Higher Education (under article 131)

• The Turkish Radio and Television Corporation (TRT) (under article 133)

• The High Institution of Atatürk, Culture, Language and History (under article 134)

• Public Professional Organizations (under article 135)

• Public Economic Enterprises (Decree Having Force of Law No 233) 

• Independent Regulatory agencies (under article 166 of the Constitution)

How is the power of administration confined by law?

The power administration is entrusted with in order to satisfy common needs, is determined by law. While acting under the principle of legality to serve in public interest, administration is not free to act, rather it is bound by rules confining its power. Thus, administration is on the one hand restricted -by the principle of legality- and on the other hand exercises public power – having different nature and source than
individuals’ subjective rights and which gives.

How is public interest defined by the Constitutional Court? 

According to the Constitutional Court, public interest aims at the “common interest distinct from and superior to and other than individual interest”.

What is the Council of State?

• the last instance court for judgments rendered by administrative courts and district administrative courts and not referred by law to other administrative courts,
• the first and last instance court for judgments specified by law.

What are judicial remedies?

Law on the Procedure of Administrative Justice introduces two types of remedies for disputes arising under Administrative Law; one being “action for annulment” and other being “full remedy action”. Article 2/1 articulates judicial remedies as follows:
a. Action for annulment concerning administrative acts brought by persons whose interests is adversely effected by an administrative act alleged to be unlawful as regards to its components of competence, form, reason, subject and intention.
b. Full remedy actions concerning administrative acts and actions brought by persons whose personal rights have been directly affected.
c. Disputes arising out of contracts to carry out public services, except for the concession contracts for public services in which arbitration is decided.