Constituent Assembly of 1961 Constitution

This thesis is presentation of Constituent Assembly which makes 1961 Constitution and the constitution-making process. Even though we put an emphasis on assembly debates of the representative body of constituent assembly, last term of the rule of the Democratic Party, the rule of National Unity Committee after the military takeover and process of establishment of the Constituent Assembly have also been explained. As the work of the Constituent Assembly besides constitution-making, some important topics of the law-making process of Parliamentary Elections has also been illustrated. Keeping in mind that this is a master degree thesis, we tried to focus on the most significant and crucial topics of assembly debates, which have a sum of forty join sessions and more than seventy representative assembly sessions.In the first chapter of thesis, the period before coup d?état which is the last term of Democratic Party rule is tried to be explained. We tried to analyze Democratic Party governance partly, because of the scope of our thesis, and we focused on the authoritarian tendency of the party. While elaborating on the state governance of Democratic Party, which has been deteriorating in a manner that leads to a chaotic atmosphere in society, ant-democratic authoritarian policies have been dealt with, rather than economic and foreign policy of Democratic Party. Afore mentioned policies have been examined regarding the opposing dynamics outside of the parliament such as mass media, labour class and military bureaucrats. Also in this chapter, Democratic Party?s relationship with the opposition party, Republican People?s Party, in the parliament have been evaluated particularly authoritarian policies after 1957. Having in mind that this is a thesis of public law, books of recent history and significant legislations have been assessed in terms of law-making.The first chapter has been concluded with the occurrence of coup d?état. In the second chapter of the thesis, state governance of National Unity Committee, who took over the government in the morning of May 27, has been elaborated restricted with the time period until the establishment of the Constituent Assembly. In the first part, we give an account of the legitimization of the coup d?état with the support of academia; and explain the state apparatus run by National Unity Committee communiqués, until the promulgation of the Law no: 1, on a theoretical basis. At this point, the structure of National Unity Committee and its goals orchestrating the coup d?état, together with the committee?s post-intervention decisions are analyzed. In brief, I looked for the traces of the succeeding constitutional/legal order within the interim administration, still lacking any legal basis.After the period governed by National Unity Committee?s communiqués was discussed, the constitutional order established by the Law no:1 was explained. The partial abrogation of 1924 Constitution by Law no:1 constitutes a new period, and the topic discussed is National Unity Committee?s state administration. But in this period, the state administration is conducted by a legal system. In order to gain a deeper understanding concerning this legal system, two segments of the executive, the president and the council of ministers have been deeply discussed.In this part elimination policies carried out during the constitutional order established by the Law no:1 have been featured. As the examples of these elimination policies and as a sign of enforcement of unlimited powers vested by Law no:1 to National Unity Committee, we prioritize ?EMINSU? incident. After ?EMINSU? incident was discussed, the illegal replacement of professors tried to be analyzed in the scope of legal order. As a last point, ?the elimination of fourteen members National Unity Committee? and effect of this execution has been explained.In the fourth chapter of thesis, the Constituent Assembly is elaborated. Right in the beginning of the chapter, the institution of ?the constituent power? and its types have been discussed. Furthermore the type of the constituent power emerged right after the 27 May coup d?état is questioned. Subsequently, we have focused on how and why National Unity Committee?s role was to establish a new constitution and National Unity Committee was planning to establish a commission which is composed of ten professors of law to draft a constitution and then submit the draft to people?s vote. But then, the National Unity Committee changed its consideration about this process, and we tried to examine how and why this alteration occurred and afterwards, how the idea of the Constituent Assembly gained strength and was accepted by National Unity Committee, and how was the public opinion on the subject.In the fifth chapter, it has been elaborated on which grounds the idea of the Constituent Assembly was transferred to constitutional order. The chapter firstly discusses the idea of constituent assembly with a brief theoretical definition and continues with the clarification of the establishment process of the constituent assembly. Following the aforementioned remarks, thesis classifies the expanded constitutional order in consideration of the Law No: 157 and question the type of the Constituent Assembly that law foresees. Also in this chapter, it has been discussed how the legislative chapter is split between National Unity Committee and the Representative Assembly, and mentioned about the power balances drawing attention.After the fifth chapter in which the formation of the Constituent Assembly is explained, Representative Assembly of the Constituent Assembly is discussed. The Representative Assembly was composed of members who are elected by the people, but not by general vote. The conditions set out in Law no: 157 in order to be elected as a member of Representative Assembly and the preparation process of the Law no: 158 have also been handled. Furthermore, the election of the representatives from different levels of the society, the determination of the representatives of political parties and state president quota are explained.In the seventh chapter of the thesis, the debates about two important laws in the Representative Assembly are handled. One of the laws was on the referendum for the draft of the constitution and had a narrow scope application. However, the second law was on the elections after the termination of the mandate of Representative Assembly and comprised some topics which caused days of discussions in the assembly sessions. The discussions about the amendment of the Law of Elections which was enacted during the Democratic Party rule are also mentioned. The most significant topics of these discussions were age of voters, political rights of military officers and electoral register.The eighth chapter handles with the negotiations on the draft of the constitution in the Representative Assembly. While stating the discussions on the draft of the constitution in Representative Assembly and some provisions of the draft in the joint session in the Constituent Assembly, the systematic order of the constitution is followed. This longer chapter on the fundamental rights and freedoms handles with the debates about the provisions starting with the characteristics of the republic.After that, debates regarding the fundamental rights and freedoms on the draft constitution proceeded the discussion of the general principles. Pursuant to the systematic structure of the constitution, the debates regarding the general principles with respect to fundamental rights and freedoms started with the explanation of the differences of the draft?s understanding of fundamental rights and freedoms. Subsequently, deliberations on the provision regarding the protection of fundamental rights and freedoms were handled and the concept of ?essence? was looked into. Prior to the discussion of the parts of fundamental rights and freedoms, the principle of equality before law was slightly touched upon.During the Representative Assembly sessions on the draft constitution, articles within the catalogue of fundamental rights and freedoms were partially touched upon, relying on discretionary power. For instance, not all of the articles in the ?rights and duties of the individual? section of the draft were handled. Those rights and duties which can be considered collectively with regard to the systematic structure of the constitution or the freedom it protects, were categorized. With this respect, stipulating provisions regarding individual?s immunity and respect for private life (under the title of individuals? rights and duties), freedom of religion and conscious as well as its aspects. Under the title of individuals? rights and duties, freedom of thought and provisions regarding the press was contended with.Subsequent to the rights and duties of the individual, debates with regard to social rights and duties were discussed, which can be deemed as the most important categorical gain of the draft. Following a general introduction pertaining to the catalogue which was thoroughly discussed during the debates regarding the constitution as a whole and the principle of social state as well as social justice, debates with regard to the principles of social state and social justice took place. Discretion of power was made use of also during the long lasting debates of the Representative Assembly regarding the property stipulated under social rights and duties. Ideas with a certain legal depth provided during the debates were discussed and those relying solely on ideological arguments were not dealt with. The right to property was handled within the context of three sub-titles, namely, general principles of the right, expropriation and nationalization. Debates with respect to the order of economic and social life were discussed in the catalogue. Finally, a key provision in the social rights and duties catalogue ?limitation of state?s social and economic duties? was touched upon.After explaining debates on social rights and duties, political rights and duties constitute the latter chapter of the thesis. In the political rights and duties chapter, citizenship issue is the first regulation of the draft and debates about the citizenship consists of comparison of 1924 regulation of citizenship and draft regulation. Second political rights and duties regulation is the obligation to pay taxes. Under this title, first discussion was whether this obligation should take place in political rights and duties chapter or in social rights and duties chapter. The second discussion topic under obligation to pay taxes is the basic principles that govern tax law, such as financial power and ability to pay. Addition to these subtopics, ``duties quasi tax?? also discussed in the assembly debates.After the discussions on the fundamental rights and duties part, in compliance with the order of constitution draft, fundamental organs of the republic part took place in the assembly debates. The first organ of republic is legislative. First institution that has been discussed under legislation organ of the republic is the senate of the republic. The pros and cons of bicameral system and authority dispersion between these assemblies were the essential topics those have been discussed in the assembly debates. Following the discussions on the senate of the republic, the powers and duties of legislative power have been examined in the assembly. The interpretation power of parliament and the legislative immunities were some of the institutions those have been discussed in the assembly debates.Pursuant to the legislative power, in compliance with the order of the constitution, executive organ of the draft has been discussed in the assembly debates. In the executive section, the most controversial issue was the president of the republic. The election process and election type of the president (whether he should be elected by general vote or by the parliament) have been discussed as well as the office term of him. Under the title of authority of the president, the regulation of the renewal of the elections for the national assembly by the request of the president of the republic resulted in long discussions. Following the regulations related to the president of the republic, the features of council of ministers have been discussed in the assembly. Under the council of ministers title, the comparison of 1924 constitutional order and the draft order was the first issue in the agenda of the assembly. The second issue that has been discussed under the title of the council of ministers regulation of the draft was whether there should be a non-parliamentarian minister in the council.Third section of the draft was the judiciary section. Under this section, the independence of the courts and the comparison of the regulation with the 1924 Constitution order were the initial topics of the assembly debates. Besides the independence of the courts, there were institutional developments under the title of the judiciary, such as the supreme council of judges and the constitutional court. It is obvious that, the most important and functional institution in the draft was constitutional court, so the debates on the constitutional court were the major topic of the assembly. The organization of the court and the selection of the members of the court were the initial points that have been examined in the assembly debates, whereas the most crucial subject was the powers of the court. The most important power of the court was the annulment of laws, and in this respect, the assembly debates were on the state organs those have authority to initiate annulment suits based on the unconstitutionality of the laws.After summarizing the essence and the chapters of thesis, we have to say a few words regarding research methods. In initial chapters of the thesis, regarding the governance of Democrats and the initial period of NUC, the recent books of recent history, archive of Cumhuriyet newspaper and the official gazette website were the significant sources those made this thesis possible. In the chapters those deal with debates of the Representative Assembly and joint sessions of the Constituent Assembly on the draft of constitution and in the chapters that deal with the legislation of the Constituent Assembly, the official assembly reports of the parliament those we have made copies from the libraries of Ankara University Law School and Boğaziçi University were the significant sources.