Constitutions, the Law and Judiciaries

1. Constitutions, the Law and Judiciaries Chapter 15

2. Why do you think students of political science are interested in studying constitutions? • What is politics? • Why do we need a constitution? • To define the rules of the society (Higher principles) • To bring stability and order to the actions of government (Guidance) • To bring legitimacy to the political regime (Social Contract)

3. Constitutions • When was the first constitution written? • The Code of Hammurabi (1772 BC) • Holy Books (Torah, Bible and Quran) • Magna Carta (1215) • US Constitution (1787) and French Constitution (1789) • First Constitution in Turkey? • Definition: A constitution is a set of rules, written and unwritten that seek to establish the duties, powers and functions of the governmental bodies. • Defines the relationship between state institutions • Defines the relationship between three types of power • Defines the relationship between the state and individual

4. Classifications of Constitutions • Whether it is written/codified or unwritten/uncodified • Written constitutions are created. • Unwritten constitutions are organic rules like conventions (customs or precedents) that are evolved through history. (E.g. ?) • Common law vs. statute law (British system)

5. Pros and Cons of Codified Constitutions • Pros: • Major rules are safeguarded against government interferences • The power of legislature is limited • Judiciary protects constitutions and prevents violations • Individual liberty is protected as the rights are enshrined in constitutions • It also functions as a way of educating citizens • Cons: • More rigid and less adaptive to changing circumstances • Instead of constraining government power through codified rules it is better to do it true regular elections. • Codified constitutions produce nonelected, publicly unaccountable judges acting as guardians of the political regime • Uncodified rules are considered legitimate and respected • Codified rules are usually biased towards certain values and ideas.

6. Classifications of Constitutions • How easy to amend it (Rigid or Flexible) • Is a referendum necessary to amend the constitution? • Is there any unamendable articles? • What are the criteria to amend the constitution in Turkey? • 1/3 of members is needed to propose amendments • 2/3 majority is needed either to put into practice directly or President can take it to referendum • 3/5 majority take amendments directly to referendum

7. Classifications of Constitutions • How it works in practice (Effective, Nominal or facade constitution) • Effective constitutions exert influence on government activities and limit government behaviour. • Nominal constitutions do not have power/capacity to limit government and effectively control government through judiciary checks. • Sham or façade constitutions do not have any influence on the political system. • What kind of political system it establishes (monarchical or republican, federal or unitary)

8. Constitutionalism: • Constitutionalism is the practice of limited government ensured by the existence of a constitution. • Constitutionalism, more broadly, refers to set of values that aim to protect liberty through the establishment of checks on government power. • Limited government operates within the constraints imposed by a constitution

9. The purpose of a constitution 1) Empowering states • Confers authority upon government • Means exercising sovereignty 2) Establishing values and goals • Always ideologically-driven • Constitutions include a set of unifying values, an ideology, a language of politics 3) Providing government stability • Functions as a guidance or blueprint to be used by the government 4) Protecting freedom • Negative vs. positive rights • Negative rights limit government power vis-a vis individuals. (Freedom of expression, freedom of movement, freedom of religious worship)(Negative freedoms) • Positive rights give authority and responsibility to government to improve its citizens wellbeing. (Economic and social rights such as welfare payments, healthcare) (Positive freedoms) 5) Legitimizing political regime

10. What is law? • Law is a set of public and enforceable rules that apply throughout a political community. • Law defines what can be done and what cannot be done. • Law needs to be enforced by means of enforcement. • Law provides social order and control. • Natural law vs. positive law • Natural law suggests that law is rooted in a moral system. (God-given natural rights) • Positive law suggests that law should be separated from morality or religious beliefs. Law is the law not because it conforms to moral or religious values but as long as it is obeyed. • What is morality? • Morality is concerned with ethical questions such as what is right or wrong, what should be done or should not be done?

11. The rule of law • State of Nature: • Hobbes argues that in the state of nature there is no law that orders society and thus individuals are vulnerable to other individuals’ abuses and threats. • Rule of law: • 1) The law has supremacy over any other thing. Law is above politics. (Hukukunüstünlüğü) • 2) Every citizen is equal before the law and the law is equally applied to every citizen. (Hukuk devleti) • According to liberalism, the rule of law is a universal principle. • Liberal thinkers also argue that law should enhance and strengthen freedoms rather than contract or weaken them. • Law exists to prevent harm to others yet an individual has any right to do whatever he/she wants to do to his/her own body. (Libertarian view)

12. The judiciary • The judiciary decides legal disputes. • The judiciary interprets rules. • Judges can act as arbitrators in disputes between major institutions of government or between the state and the individual. • In liberal-democratic systems • Judges are independent and non-political. (Judicial independence) • Judges are above politics which maintains the separation of powers.

13. Are judges actually non-political? • In the socialist system, judges have to interpret laws in accordance with Marxism-Lennism. • In liberal states where the rule of law is strictly obeyed judges are neutral and only decides in accordance with the constitution and universal principles of law. • Judges can be political in two ways: • 1) External bias refers to the external pressure on the judiciary. Influence of parties, assembly and government on the judiciary. • Judicial independence can be maintained by the principle that judges cannot be sacked (life-long office) and the decisions of courts and judges cannot be criticized. • 2) Internal bias refers to dominant ideology of the judiciary and the dominant ideology that prevails in society. • The social, economic and educational background of judges usually make them biased towards other people coming from different social, economic and educational backgrounds.

14. Do judges make policy? • Judges do not only control the implementation of the law but also they construct law by interpreting it. • The letter of the law vs. the spirit of the law • Kanununlafzı vs. Kanunun ruhu • Judicial review: The judiciary review and possibly invalidate laws, decrees and actions of government (executive and legislature) • Judicial review for some experts guarantees the separation of powers, for some others establishes the supremacy of the judiciary over executive and legislature. • The judiciary produces policies, introduces new rules or invalidates old rules as a result of their decisions on certain cases. If there is no case before a court, there is no judicial decisions about an issue.

15. The Constitutional Court of Turkey: • First established in 1961 • Consists of 11 regular 4 substitute members • Its president is elected for 4 years and can be elected again. • Its members retires at the age of 65. • Its duties: • Review legislations, decrees in terms of their content and their way of enactment in the assembly • Review constitutional amendments in terms of their way of enactment in the assembly • Functions as Supreme Court where ministers, prime ministers, presidents and chief of general staff can be tried. • Also accepts individual applications since the last constitutional amendments in 2010.