A Brief Overview of the 1982 Constitution

The 1982 constitution was at the centre of many debates from the moment it was adopted. One of the most used words to describe it was prohibitionist. The constitution was drafted almost with the intention of not recognizing and safeguarding the rights and liberties but rather of establishing the circumstances in which these rights would be restricted (Kabasakal, 2016).

The 1982 constitution created two main problems which are the human rights issue and democracy issue. The democratic and libertarian provisions of the 1961 constitution created an atmosphere in the 1960s where human rights could be respected and protected. In the 1970s the violent and polarized atmosphere of the country ended up with several human rights violations and a state of emergency in many provinces. However, the main period of the decline in human rights was the time of the military regime (Akşin, 1995). So many people were imprisoned, tortured, and executed in the prisons and outside. The rules and regulations passed during this period continued to have an impact long after democracy was restored, so the military regime's impacts persisted even after 1983. 

When religious education became compulsory with the 1982 constitution, it influenced freedom of belief and religion negatively. Some of the state institutions such as the Ministry of Education, Presidency of Religious Affairs and TRT were making propaganda of one sect which is Sunni Islam (Akşin, 1995). It was against the principle of secularism and it endangered the rights of other religious minorities. Articles 141 and 142 obstructed class-based organizations. With these articles defenders of the domination of the working class were punished, meaning that prohibiting the propaganda of communism in Turkey (Zeyrek, 2017). The inclusion of these articles in the constitution from 1936 to 1991 makes sense. The provisions were added to prevent any action that supported communism and the USSR because of the Cold War and the threat posed by the USSR. These articles were tools to limit freedom of thought. 

The most famous articles of the 1982 constitution were articles 13 and 14. Article 13 defined the general restrictions on the rights and freedoms. Every right could be restricted according to its relevant provisions, but also article 13 sets the framework for cumulative restrictions. Because the “essence of the rights” guarantee was replaced in the 1982 constitution when it is compared to the 1961 constitution. Any kind of restrictive measures were taken to make sure that those rights were not enjoyed by the individuals. The state and its interests such as its independence, integrity and indivisibility were given priority over individuals. And it is the most obviously stated in the preamble.

The blurry concepts such as “Turkish national interests, the indivisible integrity of the Turkish entity with its state and territory, and Ataturk nationalism” set the limits of the freedoms and rights roughly. Because these concepts were blurry, one wouldn’t know exactly when and under which conditions her statements would violate these limits. Hence, the 1982 constitution was an anti-liberal constitution which gave priority to the state over individuals. It formally includes all the rights that should be included in a modern democracy, but limits them to Article 13 (Kabasakal, 2016).

The other problem with the 1982 constitution is the democracy issue. The 1982 constitution and the political parties law of 1983 that followed restricted the party life to a great extent. Before the transition to the normal order after the military regime, party formation was allowed but with very strict rules and regulations. First, even after being forgiven, those who had committed crimes against the president or the government were not allowed to organize a party. Before the coup, the majority of those who were involved in politics were restricted from returning to politics. Also, there were strict rules on the party membership. For example, students and public servants couldn’t be members of a political party. There were ideological restrictions oonthe party formation. Fascist, anti-laic, communist, and separatist parties were not allowed to be formatted and be a part of the politics in Turkey (Akşin, 1995).

However, it is doubtful to what extent these concepts were clearly defined. The aim was to make it harder for the party founders to join the political life for the sake of democracy. Hence, all these show that there is a depoliticization process which aims to remove people from the politics in the country. The other result of this depoliticization process was that the narrowing of democracy served the decline of secularism which is a great deal since one of the founding factors of the republic was secularism.

Democracy issue was a constitutional issue. The constitution existed not for the consolidation of democracy with its libertarian and pluralistic character but for the limitation of individuals and society. Thus, the Constitution served the administration more than the public. Almost all of the regulations and laws that control daily public and political life are the works of this period. Despite all the hindrances of the constitution to democracy, why would it not have changed then?

TTwo main reasons cananswer this question.  The first is a technical one, namely that changing the constitution requires a special and strengthened majority of votes. The second one is motivated by politics. Instead of being pluralist, the right side that is in power is more majoritarian (Akşin, 1995). While the decisions taken in a pluralist democracy are constrained by things such as rules, minority rights, and the separation of powers, the decisions made in a majoritarian democracy are unrestricted and absolute. Thus, the ruling right-wing acted like they could do whatever even if it didn't conform to democracy as long as it was a decision taken by the majority. 

The true rule of law can be established when the limited state authority is integrated with the dimension focusing on protecting the rights and freedoms of tndividuals. And this is possible only when the state adopts every understanding including the constitution that protects and respects individual rights and freedoms (Kabasakal, 2016). However, the 1982 constitution wasn’t prepared for the sake of individuals. On the contrary, it is prepared with a prohibitive and authoritarian mentality. And its approach to freedoms and rights based on the limitations. (Kabasakal, 2016)

Kaynakça:

Kabasakal, Mehmet. Türkiye’de Siyasal Yaşam Dün Bugün Yarın. İstanbul: İstanbul Bilgi Üniversitesi Yayınları, 2016.

Akşin, Sina. Bugünkü Türkiye 1980-1995. İstanbul: Cem Yayınevi, 1995.

Zeyrek, Deniz. “141-142, 163, 8, 301, 220…” Hürriyet, 22 Ağustos 2017. https://www.hurriyet.com.tr/yazarlar/deniz-zeyrek/141-142-163-8-301-220-40534262.