Mehmet Semih GEMALMAZ*
TO UNDERSTAND TURKISH DEMOCRACY:
MODERNIZATION PROCESS TOWARDS
HUMAN RIGHTS IN LATE OTTOMAN STATE
INTRODUCTION This artiele İntends to draw the framework of the general
of pOIİtico-judicial system of Iate Ottoman State which
was the maİn basİs of the modern Turkish Republic established in 1923,
after the confiscation ofOttoman State. The period analysed here has to
be İdentified as a modernİzation process and in order to understand the
modern Turkish State and up and downs of the Turkish democracy, the
mentioned process has to be carefully examined. 1
characterİstics
* Assoc. Prof. Dr. İn public and human rights law, at the Faculty of Law, University
of Istanbul, Turkey.
1. Robert Devereux, The First Constitutional Period: A Study of the Midhat
Constitutİon and Parliament, Baltimore, 1983; Uriel Heyd, "The Ottoman Ulema
and Westernization in the Time of Selim III and Mahmud II" Scripta
Hierosalymitana IX: Studies in Islamİc History and Civilization, 1961; Ernst
Edmondson Ramsaur, The Young Turks: Prelude to the Revolution of 1908,
Prİnceton, 1957; Bernard Lewis, The Emergence of Modern Turkey, London,
1968; Rustow-Ward (eds.), Political Modernizatİon in Japan and Turkey,
Princeton, 1964 (Dobbs Ferry, New York, 1962); David Kushner, The Rise of
Turkish Nationalism: 1876-1908, London, 1977; Ezel and Stanford Shaw,
History of the Ottoman Empire and Modern Turkey Vol: I-II, Cambridge Uni.
Press, 1977; Şerif Mardin, The Genesis of Young Ottoman Thought: A Study in
the Modernization of Turkish Political Ideas, Princeton, 1962; Carter V. Findley,
Bureaucratİc Reform in the Ottoman Empire: 1789-1992, Princeton, 1980; Frank
G. Veber, Eagles on the Crescent: Germany, Austria and the Diplomacy of the
Turkish Alliance: 1914-1918, Cornell Uni. Press, 1970; Metin Kunt, The Sultan's
Servants: The Transformation of the Ottoman Provincial Government: 1550 ­
1650, Columbia Uni. Press, 1983; Bülent Tahiroğlu, "Osmanlı İmparatorlu­
ğunda Kölelik", İHFM, C. XLV-XLVII, 1982; Bülent Tanör, "Anayasal Gelişme­
lere Toplu Bir Bakış" Tanzimat'tan Cumhuriyet'e Türkiye Ansiklopedisi (kısaca,
32
TURKISH YEARBOOK OF HUMAN RIGHTS
THE LEGAL SYSTEM IN THE OTTOMAN STATE
BEFORE "TANZIMAT" (1839)
The Ottoman State's legal system and type of laws which were
enforceable can be classified as follows:
SHARIA LAW (ISLAMIC LAW)
Sharia Law was applicable for the Muslim Ottoman people. The
fundamental characteristics of this law which developed with the spread
of Islam come from two main sources.
Theyare the "Koran" and the uSunna" (the prophet Muhammed's
traditions, speech and deeds). The Koran contains provisions particularly
Türkiye Ans.) İletişim Yay., C. 1, s. 10-26; Tarık Zafer Tunaya "1876 Kanun-i
Esasiye Türkiye'de Anayasa Geleneği", Türkiye Ans., C. 1, s. 27-39; Hüseyin
Hatemi "Tanzimat ve Meşrutiyet Dönemlerinde Derneklerin Gelişimi", Türkiye
Ans., C. 1, s. 198-204; Coşkun Üçok, "Tanzimat'tan Önce Osmanlı Devletinde
Hukuk" Türkiye Ans., C. 2, s. 574-576, C. 3, s. 579; Bülent Tahiroğlu,
"Tanzimat'tan Sonra Kanunlaştırma Hareketleri", Türkiye Ans., C. 3, s. 588-601;
Ülkü Azrak "Tanzimat'tan Sonra Resepsiyon", Türkiye Ans., C. 3, s. 602-606;
Sıddık Sami Onar, "İslam Hukuku ve Mecelle", Türkiye Ans., C. 3, s. 580-587;
İlber Ortaylı, "Osmanlı İmparatorluğunda Millet" Türkiye Ans., C. 4, s.
996-1001; Sina Akşin, "Jön Türkler", Türkiye Ans., C. 3, s. 832-843; Yıldızhan
Yayla, "Osmanlı Devleti'nde Meşrutiyet Kavramı", Türkiye Ans., C. 4, s.
948-952; Recai Galip Okan'dan Amme Hukukumuzun Ana Hatları, İstanbul,
1977; İlhan Akın, Türk Devrimi Tarihi, Beta Yay., İstanbul, 1989; İbrahim Ö.
Kaboğlu, "Türkiye'de Hukuk Devletinin Gelişimi", İnsan Hakları Yıllığı, C. 12,
1990, Ankara, s. 139-166; Gökçen Alpkaya, "Osmanlı Hukuk Reformu ve Kişi
Özgürlükleri", İnsan Hakları Yıllığı, C. 12 1990, Ankara, s. 167-182; Reşat
Kaynar, Mustafa Reşit Paşa ve Tanzimat TTK Yay., Ankara, 1985; Şükrü
Hanioğlu, Osmanlı İttihad ve Terakki Cemiyeti ve Jön Türklük (1989-1902),
İletişim Yay., İstanbul, 1986; Sıddık Sami Onar, İdare Hukukunun Umumi
Esasları, İsmail Akgün Matbaası, C. 1, İstanbul, 1966; Münci Kapani, Kamu
Hürriyetleri, AÜHF Yay., Ankara, 1981; Mesut Gülmez, "The First Document on
the Establishment of the Police Organisation and its Source". Turkish Public
Administration Annual, Vol. 9-10, 1982-1983, Ankara, s. 53-69; Mehmet Semih
Gemalmaz, "Historical Roots of Martial Law within the Turkish Legal System:
Perspectives and Texts", Turkish Yearbook of Human Rights, VoL 13, 1991,
Ankara, s. 73-145; Ziya Umur, Türk Hukuk Tarihi, Beta Yayınları, İstanbul,
1987; Coşkun Üçok - Ahmet Mumcu, Türk Hukuk Tarihi, Ankara, 1981; Bülent
Tanör, Osmanlı İmparatorluğunda Anayasal Gelişmeler, Der Yayınları, İstanbul,
1991; Hıfzı Veldet Velidedeoğlu, "Kanunlaştırma Hareketleri ve Tanzimat",
Tanzimat, C. 1, Maarif Vekaleti Yayınları, İstanbul, 1940; Tarık Zafer Tunaya,
Türkiye'de Siyasal Partiler, C. III, Hürriyet Vakfı Yayınları, İstanbul, 1989.
TO UNDERSTAND TURKISH DEMOCRACY
33
in the field of marriage, diyorce, inheritance and penal laws. These
provions are caııed "ayet" and theyare, basicaııy absolute and
unchangeable in character. After Muhammed's death in 632, the Sunna
was passed from one generation to another. This is named "hadis".
Sharia Law has also two more sources. Theyare "Ijma" and "Qiyas".
In some certain fields, the religious scholars (Jurists) reach a consensus
on particular subjects and by the way some rules gain a legal norm effect.
This is Ijma. Qiyas is the title of a process, to use the main sources of
Islamic Law as abasis and to interpret them in concrete cases. This
method created the Islamic jurisprudence.
In the classical Sharia system, there was no hierarchical structure,
such as that of the Roman Catholic Church. And also the Islamic tradition
does not provide any particular model of what the Church-State
relationship should be in the Western sense. In principal, Sharia is
regarded as "the main source" of legislation (rather than "a source") in
many Muslim countries. This was also the case in the Ottoman State.
When we focus our attention on the Qiyas as a source oflslamİc Law,
it is possible to underline that thİs source was the cause of one of the most
complex problems in this law. Thİs is because, according to abasic
Islamİc rule accepted by Ijma, bU Qİyas judgements have and equal value
and effect. In other words, none ofthese decisİons can caneel the previous
one. It is obvİous that, this resulted İn a multİ-norm and multi-judgement
system in whİch many decisions were contrary to one another. This was a
serİous obstacle to a codificatİon in Islamic Law. In the light of these
İssues, it is understandable why the first Cİvil Code ("Meceııe") of
Ottoman State was so Iate (İt was in the 19th century). AIso, its
importance for the Islamic World can be appreciated. One may keep in
mind that, even İn modern times in most of the Muslim Countries, wİth
just a few exceptions, Islam has become established as State religion.
Islamİc religion has two main parts or interpretations -ie., "Sunnı"
and "Shn"- as denominations. They have different kinds of rules in law.
There are certain distinctİons between these compartments of Islamic
Law. Among Ottoman people, the officİal religion of the State was based
on the "Hanefi School", which is a branch of the Sunni denomİnation.
This phenomenon determined the judicial system of the Ottoman State
34
TURKISH YEARBOOK OF HUMAN RIGHTS
and as a rule, the religious judges ("kadı") who were appointed by the
Ottoman administration all adhered to the Hanefi SchooL. In practice, the
above mentioned policy caused an unwillingness to take the cases before
these judges among the Ottoman masses who held Shii School beliefs.
The disputes between the latter group were generally put before their
own religious leaders. Thus, it was a fact that Sharia Law was not
applicable for all Ottoman Muslim population, but only for the adherents
of the Hanefi SchooL.
CUSTOMARY LAW
One of the most important criteria of Islamic legitimacy was the full
respect and obedience to rulers showed for Islamic Lawand their
commitment to its enforcement. The basis of this approach is that, rulers
are bound to apply Islamic Lawall over the country. So traditionally,
rulers supervised and supported the Islamic legal system.
The Sultan (Ottoman monarch) who held the legislative monopoly
decreed some codes, especially in specific fields, such as Financial Law or
Taxation Law, which was not regulated in detail by Sharia Law. In the
terminology of the Ottoman system, this law was called Customary Law.
As it can be seen, this is not a traditional or customary law in the technical
sense. it was directly created and promulgated by the Ottoman monarchs
in the form of concrete legal instruments, called "Kanunname".
LAWS FOR NON-MUSLIM POPULATION
Particularly after the Ottoman's control of Istanbul in 1453, the
emergence of a multinational state rnight be used as a fundarnental
characteristic of Ottoman society. Firstly, the Orthodox Christian
population under the Ottornan sovereignty increased. One may note as a
historical fact that, the Orthodox Church has always had a tendeney to
act on behalf of the State (any state which they have a relationship),
which is contrary to the historical practice of the Catholic Church.
The first Ottoman Sultan in Istanbul, Mehmet II, used his influence
in the election of the Patrİarch of Istanbul, (bishop Gennadious). After
thİs eleetİon, all Orthodox Chrİstİans were connected agaİn to the
Istanbul Patrİarch. A Decree was put İnto force by the Sultan which
empowered the Istanbul orthodox Church to hear and settle the legal
TO UNDERSTAND TURKlSH DEMOCRACY
35
disputes of all Orthodox believers. So this Church became the sol e
cornpetant organ which recognized and regulated·legal matters, such as
marriage, diyorce, inheritance, ete. of the Orthodox population.
Later on, the same entitlements were recognized for the other
groups of religious, such as the Gregorian, Jewish and Catholic peoples,
by granting authority to their higher religious institutions, -eg., the
Gregorian Patriarch for the Armenians.
it may be add~d that, the competance of the Church was so wide that
it not only examined the cases in the fields that are mentioned above, but
also studied criminal cases and was entitled to convict erirninals. They
only refered to the Ottoman authorities for the enforcement (execution)
of the sentences.
THE ORGANIZATION OF JUDICIARY
In general, three types of court were established in the Ottoman
organization of judiciary. They were:
Sharİa Courts: The Sharia Courts were entitled to settle legal
disputes among Muslim Ottoman individuals and other citizens, and of
course dealt with the legal problems of all Muslim Ottoman peoples.
Comrnunity Courts: The Community Courts were .established for
non-Muslim Ottornan persons on the basis of their religion or religious
denomİnations.
Consular Courts: The rights which were derived from the capi­
tulations were used as the legal base of the Consular Courts. Hence, these
courts were entitled to examine and to finalize the legal disputes which
had arisen in the relationship between non-Ottoman citizens to whom
privileges were granted by the capitulations. The first capitulation was
issued in 1673.
GENERAL CONCLUSION
As a result, there was no uniformity in the legal system of the
Ottoman State. Principally, the Islamic law was dominant, but dependİng
on the different periods and locations both the type and practice of the
law could vary.
36
TURKISH YEARBOOK OF HUMAN RIGHTS
FROM TANZIMAT TO THE REPUBLIC OF TURKEY: A POLITICAL AND LEGAL SURVEY IN HUMAN RIGHTS GENERAL CHARACTERISTICS OF THE TANZIMAT MOVEMENT
Reformist Movement
In its narrow meaning Tanzimat was the Charter of Lİbertİes
(Gülhane Hattı Humayunu) declared on November 3, 1839. But in a
wider sence, Tanzimat was a reformist movement eoneerned with the
strueture of the Ottoman State and the relationship between state and
individual. In this second perspeetive, origins of the reformist movement
can be traeed baek to the end of the 18th century, -ie., the period of
Sultan Selim II and Sultan Mahmut II.
There İs a general consensus that, the Tanzimat Aetion was
improved upon by İmportant statesmen (such as, Mustafa Reshİd Pasha,
Ali Pasha, Fuat Pasha, ete.). In another words, the reformİst Ottoman
intelligentsia played an active and leading role in the Tanzimat
movement rather than the Sultan himself.
Historieal Background
The Tanzimat Aetİon was obviously based on historieal neeessities.
lt may be eonvenİent to classify these eonditions under the subtitles as
shown below.
Economic Developments v. Juridic Context
The ma İn eeonomie eharaeteristies of that period were the Industrial
Revolutİon and its soeio-eeonomie eonsequenees with the rise of
Capitalism. if the same period can be observed in the eontext of legal
development, it can be seen that there was a radical reform of legal
thought. Some new eoneepts were introdueed to legal theory and more
broadly, serious attempts at eodifieation were made. Espeeially in the
field of Commereial Law (both in Land and Maritime Commeree) a mueh
eodifieation was evident.
In the light of these issues, it is understandable that there was no
progress in the eeonomie and eommereial relationship between the
TO UNDERSTAND TURKISH DEMOCRACY
37
Üttoman State and the other European states. In other words, there was
really no chance to continue and improve this relationship because of the
Islamic Law. It is necessary to remember that, there was no real
Procedural Law, Exchange Law -interest was not accepted- and
Company Law -only limited company was recognized-. The only way for
the liberation of the Üttoman economy and effective economi'c and
commercial co-operation was to make new laws that would respond to
new needs.
The 1838 üttoman-British Commercial Agreement was one of the
most important economic treaties. This was followed by similar
agreements between other European States and the üttoman State. They
were important not only in creating the commercial privileges of the
European parties, but also in playing a role in formulating their political
and administratİve demands upon the Üttoman State. This concerned the
protection of the Christian population and, in particular, wİth the
recognition of their equal rights under Üttoman sovereignty.
Deformation of the Socio-Political Structure
The political structure of the üttoman State had two ma İn columns:
It was an absolutist and theocratic state. The Sultan, on the one hand, was
the highest religious leader of the whole Islamic World and on the other
hand, entİre power and authority was put in his hands.
The Üttoman political system was based on the balance of three
main sources (political powers). They were, the "Sultan" together whh
the "Ulema" (religİous scholars) and the "Yenİçeri" (the military arm).
From the beginning of the 1 7 th century, in this system, the harmony and
the balance among these institutions evaporated. Sharp political conflicts
arose causing bloodshed from time to time. The central power in the
system began to los e its efficiency and the integrity of the system suffered
because of the demands made upon it by the strenghening local feudal
powers.
When these internal negative conditions were taken together with
the impact of the Great French Revolution in 1789, the death of the State
became inevitable. The development of the concept of the nation and the
ideology of nationalism, would soon lead to nationalist movements, which
were, in fact, separatist movements in the eyes of Üttoman officialdom.
38
TURKISH YEARBOOK OF HUMAN RIGHTS
This movement became stronger, especially in the region of the
"Balkans" and heavily supported by some of the European states in the
cause of imperialism (1829 Greece separation; July 1876 war among
Ottoman and Serbia -Sırbistan-).
In short, the deformation, diffusion and erosion of the Ottoman
political structure and system, created a suitable atmosphere for ideas
related to its modernization and reorganization. Of course, the modern­
ization of the juridical system was covered in this process.
Codification Movement
Public Law
Constitutional Steps
Pact of Alliance (Senedi İttifak): October, 1808: The Sultan was
forced to sign this Pact with the feudal lords of Macedonia. In the legal
perspective, two parties signed the Pact. The sanctions of the Pact were
moral and religious. In that sense, it was neither a legal instrument nor a
constitution.
It was the first time in the Ottoman State that, with this Pact, the
Sultan was put into a position that guaranteed the rights of those feudal
powers. According to the Pact, the Sultan would no longer arbitrarily
govern the lives and property of the people. This means that, the "de
facto" feudal order or system became "de jure", stable and permanent.
This Pact is often compared to the Magna Carta Libertatum of 1215.
Even though the Pact may be regarded as a step towards the Rule of
Law in the Ottoman State, in the final analysis, it was a kind ofinstrument
that provided feudalism with legitimacy and legality.
Charter of Liberties (Gülhane Hattı Hümayunu): November 3, 1839:
This Charter was declared in 1839 and was mainly prepared by the
Ottoman Minister of Foreign Affairs of the day, Mustafa Reshid Pasha
and approved by the Sultan Abdülmecİd ..
It was a typical example of an auto-Iİmitatİon consideration, but did
not contain any provision on sanctions for the Sultan's disobedİence. In
other words, there was no control mechanİsm İn the legal sense.
TO UNDERSTAND TURKISH DEMOCRACY
39
Some of the individual rights were established: personalliberty and
security; personal inviolabilty; right to property; just and equal taxation,
ete., and the equality of all individuals before law irrespective ofreligion,
language and denomination.
The 1839 Charter would soon be superseded.
The 1856 Charter (Islahat Fermanı): February 18, 1856: This was
prepared by Ali Pasha (Ottoman Prime Minister of the day) and Fuad
Pasha (Minister of Foreign Affairs of the day) with the consultation of the
British, French and Austria ambassadors in IstanbuL. Its main feature
was the recognition ofthe rights of Christian people in the Ottoman State.
The right to life, right to property and right to human dignity were
noted in the Charter once again and equal rights of non-Muslim citizens
(including some new civil and political rights) were added. Furthermore,
economic rights and privileges for aliens were referred to.
The Constitution of 1876 (Kanuni Esasİ): Decemher 23, 1876: In
technical legal terms this was the real constitution in the Ottoman­
Turkish legal history. It entered into force on Dec. 23, 1876.
The first Ottoman parliament was established. 1876 Constitution
was a kind of Charter or legal instrument voluntarily introduced by the
Sultan. The main difference from the previous charters is its objective
language and the system of codification. However, after three months the
Sultan suspended the Constitution and closed the parliament.
The Repromulgatİon of the Constitution (II. Meşrutiyet): July 23,
1908: This occured on July 23, 1980. The "Young Turks" (Jön Türk)
movement which was also supported by some of the army officers and
intellectuals forced the Sultan Abdülhamİt II to reopen the parliament. In
November 1908, the electİons were held and the parliament opened on
December 17, 1908.
A year later the suspended Constitution of 1876 was restored with a
number of important amendments during the period of Sultan Mehmet
Reşad (Mehmet V) who held power on April 27, 1909.
Steps in the Field of Penal Law
Penal Code of May 3, 1840: This code established for the first time
unification in Penal Law context. Both Islamic and Customary penalties
40
TURKISH YEARBOOK OF HUMAN RIGHTS
were incorporated in this code. On the other hand, the importance of
Code of 1840 was that, it covered all Ottoman citizens with no
discrimination.
Penal Code of July 14, 1851: The principle of "talion" (kısas) of
Islamic Law was implemented by the import of the "action of public"
institution so that the inheritor's pardon of guilty party would no longer
be binding on the state.
Steps on Land Law
The Land Code of 1858: This Code is not regarded as a step in the
reformist codification process, because it was basically founded on Sharia
and Customary Law.
Steps on Citizenship Law
The Citizenship Code of 1859: The legal status of non-Muslim
population in the Ottoman State was lacking; so this code for the first time
also determined their legal status.
Private/Civil Law
Code Civil (Mecelle): Mecelle was the first civil code of the Ottoman
State which was completed between 1868 to 1876. It covered 16 books
and 1851 artides.
The characteristic of Mecelle was its pure Islamic Law basis. This
code was continued to be used in some of the Middle East countries such
as Iraq and Syria, after the Ottoman State dissolved.
Adaption Movement
In the legal perspective the essence of the Tanzimat Action was that
it was a "receptionist" movement. it did not abondon Islamİc Law but
rather adopted to Western European Law. It means, historical ties to
Sharia was still kept and so in that sense, it was not radicaL.
It is generally accepted that, there is a distinction among the
concepts of adaption (or reception) and borrowing. Adaption is a kind of
TO UNDERSTAND TURKISH DEMOCRACY
41
borrowing in which codes and als o legal institutions in particular will los e
their original character and will fit to the new system as much as possible.
Adapting the new legal system may be voluntary or the result of foreign
pressure.
The Tanzimat which mainly took place in the first category had some
counterparts. For instance, Italy and Germany adapted Roman Law
institutions, Common Law was adapted by the North American States
and Japan received German Law.
In the process of Tanzimat's adaption, the codified law was largely
based on French models. Indeed, some were direct translations. The
Commercial Codes (Land Law 1850 and Maritime Law 1864), Penal
Code (1858), Commercial Procedural Code (1862), Penal Procedural
Code (1880), Civil Procedural Code (1881) could be taken as examples.
AIso a number of legal institutions were taken from French system, for
instance, "Şurayı Devlet" (Conseil d'Etat, Council of State) and "Divanı
Muhasebat" (Cour des Comptes, 1870).
At this point the question of why the French model was chosen needs
to be adressed. In short, there were two basic reasons. First, in the legal
and administratİve structure of the Ottoman State there was a need of
centralizatİon which might improve the economic relationship between
the Ottoman State and the industrialized Western World. The French
system was effective, it served as a modeL. Second, Ottoman intelligentsia
especially were deeply influenced by French culture.
Legal Dualism
As it is seen from the previous explanation the Tanzimat Movement
caused a legal dualism. Both the recepted codes and the original Islamic
codes came into effect at the same time and this dualism also led to a
serious problem in the integrity of the legal structure.
The Process of
Modernİzation
Modernization may be the most suitable term to define this period.
18 th and 19th Centuries Modernization may be referred to as an
"autocratic modernization". it has a rational base. One one hand, it
hasties to classİcal despotism and on the other hand it has not consİdered
42
TURKISH YEARBOOK OF HUMAN RIGHTS
in the terms of contemporary totalitarian society. In essence, the
autocratic modernization is derived from the centralization of a
traditional society.
There were considerable and concrete steps in the process of
institutionalization. A progress in the context of written culture could be
observed. Being aware of the past and seeking to determine one's destiny
and to fashion the future, a historical consciousness was apparent among
the people in the period of Tanzimat. The recognition and the rise of
individual was the characteristic side of the Tanzimat. A tendeney to
create political participation was seen.
In the background of the Tanzimat, there was a period of despotic
intelligentsia.
In the legal context, it was not systematic. For instance, the list of
fundamental rights and freedoms was not complete. The idea of equality
between Muslim and non-Muslim people seems, in part, unrealistic.
Because, it considers all Ottomans as the children of big father (Sultan).
it is possible to say that, under the Ottoman sovereignty the passiye
coexistance of all Ottoman people was expected.
The economic birth of the working class took place in the beginning
of the 19th Century. This had an impact in the Balkans during the 1830
and 1848 revolutions. One of the Police Codes dated 1845 contained
provisions on the dissolution of workers association. In 1871, by general
agreement, the first Workers Association ("Ameleperver Cemiyeti") was
established. Between 1872 and 1876 some important workers strikes
occured. Even in the period of 30 years when the 1876 Constitution was
suspended other strikes took place (1878-1908). it is not true to say that
there is a causal relationship between the workers liberation movement
and the Tanzimat, but it is undeniable that the continuity of the workers
movement was one of the internal factors in the general movement of
modernization.
it is also necessary to pay attention to external factors, particularly at
the beginning of 20 th Century. There was a trend to democratization both
in Europe and Asia. After the Russia's transformation to a limited
political power system in 1905, there was no powerful state which was
administered as a dictatorship. The similar process is seen in Iran
TO UNDERSTAND TURKISH DEMOCRACY
43
(1905-1906) and also in Japan, in the far east. These external
democratization processes deeply encouraged and affected the Ottoman
internal democratic elements. Moreover, England's Macedonia policy
(the King of England and the Czar of Russia discussed the future of the
Ottoman State in Reval) pushed the Young Turk movement into taking
newand radical measures to secure the Ottoman State's future.
Besides these factors, it may be added that, the dominant political
power of "Union and Progress Party's" (İttihat ve Terakki Party's) policy
and its direct and organic ties to the army, might shape the system into a
semimilitary regime. This unavoidably resulted in limitations on demo­
cratic rights and freedoms and the democratic and peceful change of the
government became impossible.
To sum up, it could be said that, the Tanzimat, as a modernization
process, must be recognized both "for its positive and negative conse­
quences.
OBSERVATIONS AND VIEWS ON THE FUNDAMENTAL
HUMAN RIGHTS AND INSTITUTIONS
On Tanzimat
Both the 1839 and 1856 Charters were not regarded as constitutions
in the context of modern legal thought. However, they were important
steps, because it was the first time that the Sultan limited his power ofhis
own volition under the pressure of internal and international dynamics.
This was not a complete limitation of power, but just a kind of
auto-limitation.
The right to life, right to property, right to personal inviolability, the
principle ofjust taxatİon and equality in obligatory military services were
some of the basİc Human Rights contained in these Charters. Moreover,
in the context ofright to life, it was regulated that, the capital punishment
could only be executed under the circumstancens of a fair Sharia Law
triaL. It is worthwhile adding that there was no legal guarantee for these
rights, except the Sultan's oath in obeying and respecting them.
Nevertheless, whatever the handicaps of these Charters, they were
steps towards the Rule of Law.
44
TURKISH YEARBOOK OF HUMAN RIGHTS
1876 Constitution
The first Ottoman Constitution of 1876 was influenced by the
Belgian Constitution of 1851 and the 1830 Prussia Constitution. The
principle of separation of powers in the Belgian Constitution was not
imported to the 1876 Constitution. Rather, the principle of focusing
powers in one organ (or individual) was adopted from Prussian
Constitution. It may be interesting to add that, one of the draft
constitution was prepared by Said Pasha through translating the French
Constitutions of 1848 and 1858.
The specialities of the 1876 Constitution are:
Systematie
A total of 119 artides in 19 Chapters are found in it. Objective and
legallanguage is used and the text is in harmony with legal techniques of
codification.
Institutional Strueture
Sovereignty is collected in the hands of Ottoman Royalty. The Sultan
could practice his entitlements without any concrete restriction and being
sacred, he was not accountable to any institution or person. Islam was a
State religion (Artides, 3-6). So, the system was monarchic and
theocratic.
Parliament consisted of two parts. Tl1.e first Assembly "Heyet-i
Mebusan", and the second "Heyet-i Ayan". The members of the first
Assembly were elected in a way such that, every 50000 Ottoman "men"
would have a parliamentary representative. The members of the second
Assembly were directly appointed by the Sultan. The most important
right of this second Assembly was that, aminister could be put before the
supreme court ("Divanı Aliye") by the decision of2/3 majority votes ofits
members and the approval of this decision by the Sultan, (Artide, 31).
But it is important to remember that, the above system did not regulate
the responsibility of the government before the Parliament. In other
words, there was no vote of confidence procedure.
The Sultan was also the chief of the executiye. He appointed or
removed government officials.
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45
In principle the judiciary was independent. Judges could not be
removed from office. The principle of natural judge, publicity of the trial,
right to defence, prohibition on creating extraordinary courts were some
of the rules related to the judiciary system in the Constitution.
The structure of the State was neither a confederation nor a
federation. it was a sort of multi-national state and not a nation-state.
It is interesting to notice that, contrary to the British and French
political regimes which recognized the fundamental freedoms and rights
for the people living in their metropolitan territories, but regulated a
colonial type of regime for the people who lived in the colonies, the
Ottoman Constitution attempted to create a monarchic regime for all the
Ottomans who lived under the Ottoman sovereignty on three continents.
List of Human Rights
Except for three basic freedoms (freedom of thought, right to
assembly and right to association), some of the fundamental freedoms
and rights were placed in the Constitution. For instance: Right to life,
(Art. 10); right to property, (Art. 21); right to equality before law, (Art.
17); right to inviolabilty of person, (Art. 10); right to equal taxation
(Artides 20 and 25); right to citizenship, (Art. 8); freedom of conscience
and religion, (Art. 11); inviolability of domicile, (Art. 22); freedom of
press, (Art. 12); right to natural judge and court, (Art. 23); right to
petition, (Art. 14); prohibition oftorture and all kind of cruel treatment,
(Art. 26); prohibition of unpaid compulsory work, (Art. 24).
As it is seen, the list was considerable; but both in theory and
practice this detailed list of Human Rights was, in fact, meaningless.
Because, the list covered only dassical rights and liberties. Thus it was
not a complete list of Human Rights. Second, there was no any legal
guarantee forthe disobedience ofthese recognized rights. Third, Art. 113
of the Constitution gaye power to the Sultan to send people to exile. One
tragic example was the exile of Mithad Pasha on February 7, 1877, who
was the creator of this Constitution. He was subsequently murdered on
May 12, 1884 in Taif.
1876 Constitution in Practice
At the beginning of 1877 general elections were held and the
parliament operated between March 19,1877 and June 28,1877. After
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TURKISH YEARBOOK OF HUMAN RIGHTS
new elections, parliament reopened from December 13, 1877 to
February 14, 1878.
Then the parliament was dosed, but not dissolved and the
Constitution was suspended by Sultan Abdülhamid. This suspension was
continued for a period of thirty years, (1878-1908).
Restoration of Freedoms in the 1908 and 1909 Constitution
The events which began on July 23, 1908 brought about a
dedaration of freedoms once again and restored the 1876 Constitution.
In August 21, 1909 very important amandments were made in the
Constitution.
This was the last but most radical step towards modernization
before the establishment of Turkish Republic. It was an attempt to form a
constitutional monarchy.
First of all, the privileges and powers of the Sultan were restricted.
The prime minister was entitled to choose the ministers. The members of
the parliament had a right and duty to prepare and offer draft codes. For
the opening sessİon of the parliament the automatic and spontaneous
mechanism operated and the Sultan's right to invite members of the
parliament to assemble was abrogated. Secondly, the government
became responsible to the parliament.
The list of Human Rights was widened by induding right to assembly
and right to association, (Art. 120) and freedom of communication, (Art.
119), and by providing effective guarentees ofthese liberties. Artide 113
of 1876 Constitution, which provided a right to Sultan to exile people,
was deleted.
But in1914 the leading political force of that period "İttihat ve
Terakki Party", issued regulations concerning the Sultan's power to
dissolve Parliament and in 1916 this power was returned to the Sultan
without any restriction as previously. The Party's role in recreating the
Sultan's unlimited power, was mainly based on its strategy to strengthen
its own political power and position, as the Party was in the position to
control and determine the actions of the Sultan.
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47
Although the 1909 Constitution was the most concrete step towards
democratization, it is necessary to keep in mind that the sovereignty still
did not belong to the nation.
The Problem of Capital Punishment
According to Islamic Law, anyone who renounces Islam may be
sentenced to death. After the declaration of Tanzimat, particularly by the
pressure of Western states, this punishment became contrary to the
fundamental rights placed in the Charter. Although this crime based on
religion was not completely abolished, it ceased to be practiced after
1844.
In this context the tendency of humanising the criminal law system
can also be observed both in the structure of criminal courts and the
jurisdiction procedures. For instance, the court of "Investigation
Tribunal" (Meclisi Tahkikat), which was established after Tanzimat and
functioned as a criminal court,·was then extended by creating new offices
in the centers of the States. it was composed of the Governor (President
of the Court), "Kadı" (religiousjudge, the representative oflslamic Law),
and the civil members that were appointed by the governor. The
judgements of this Court on the death penalty were to be examined by an
another court located in Istanbul which functioned as an "Appealing
Tribunal", (Meclisi Ahkarnı Adliye). And when the lower.court's decision
was approved by this second court, it was a legal neccessity to obtain the
Sultan's approval to apply the death penalty. The latter tribunal was, in
fact, an administrative organ, but it is imposible to deny that the
additional role of such a Court of Appeals was also another step to protect
the right to life.
Prohibition of Slavery
The slave trade was prohibited at'1839 in England. After the 1848
Revolution, the same prohibition was enacted in France. In the United
States at the end of the Civil War, 1865, the slave trade was banned.
In 1857, Sultan Abdülhamid's order was on the subject of the
prohibition of slave trade. This text was known as, "Esareti zenciyenin
Men'i ile Tüccar ve Mütecasirlerİn Cezalandırılması Hakkında Ferman".
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TURKISH YEARBOOK OF HUMAN RIGHTS
The second step was observed in 1891. At that year Sultan
Abdülhamid II ordered a new prohibition on the same subject. it was,
"Üsera-yı Zenciye Ticaretinin Men'i".
In the early 20 th Century Sultan Reşad who took power in 1909
declared a new order on the ban of the slavery and slave trade. This
decree was entitled as "Çerkez, vs. köle ve cariyelerin üsarayı zenciye
gibi alım satımının yasaklanmasına ilişkin ferman". Thus, with this last
decree the content of the prohibition of slave trade was widened.
Martial Law Regime
The Ottoman legal system also recognized the institution of martial
law at both the constitutional and legal level.
According to the 1876 Constitution (Art. 36), if the General
Assembly (Meclisi Umumi) was not sitting and the time was not sufficient
to convene the Assembly in the case of necessity to protect the State and
public security from appearing danger, the Council of Ministers decisions
which were not in contradiction with the Constitution and approved by
the sultan had temporary effect and force of law until the decision on this
subject was given by the General Assembly.
In the case of the observance of strong indications or marks related
to a rebellion the government was empowered to declare a temporary
martiallaw in those particular places. Under martiallaw, laws and civil
regime were temporarily suspended and martial law region was
governed by a special regime.
As mentioned above, the first Ottoman parliament formed after the
promulgation of the 1876 Constitution was closed down on 13 February
1878. Thereafter until the constitutional regime was redeclared on 23
July 1908, a de facto exceptional regime was applied.
On the other hand, the first special Decree on martial law was put
force on 5 October 1877, the year just after the promulgation of the
Constitution. The Decree of 1877 provided that, the principle of legality
might be restrieted, by regulating that, if the Articles in the 1876
Constitution and other legal texts would be in contradiction with the
Decree of 1877, the former would be temporarily suspended. Further­
İnto
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49
more, the power of the civil government would be transferred to the
military authorities (Art. 1, 2 and 3). A wide power was also given to the
military authorities who could directly limit or suspend and even more
derogate the fundamental rights laid down in the Constitution.
An Amending Law dated 3 July 1909 on the Decree of 1877, limited
the jurisdiction of martiallaw courts and the legislation immunity for the
MPs recognized in the Constitution was thus reaffirmed.
The following step was the enactment of Temporary Law of 3
September 1910 which provides some procedural guarantees; but also
the right to appeal against martial law court verdicts was not recognized.
This negative step was reconfirmed also by another Temporary Law
dated 11 May 1914.
The Decree dated 18 September 1919 provided that, all decisions
produced by the martial law courts should be subject to appeal.
Moreover, death penalty verdicts directly and autoınatically could be
subject to appeal. But contrarily, the Decree of 5 February 1919 and its
amendment by the Decree of 1 7 August 1920 provided the power of
cencorship to the military authorities and provided harsh penalties for
the authors and editors. And finally, the Decree of 23 April 1920
provided that, there would be no public trial in the martiallaw courts and
no defence lawyer was permitted to take part in the trial and martiallaw
court decisions were absolutely final and to appeal against these
decisİons were strictly forbidden.
it may be added that, following the reestablishment of the
constitutional regime in 1908 (a ten years period), except a very short
period less than two months, martial law was the dominant regime
applied in the country.