Constituent power, constituent assembly, and the Republic

The Republic of Türkiye represents a revolutionary break from the Ottoman Empire in terms of sovereignty. Although there was a certain degree of continuity in terms of bureaucratic mentality and institutions, and although the majority of those who founded the Republic were Ottoman pashas—pashas who had studied in schools opened by Sultan Abdul Hamid II, who had grown up in the political, social, and cultural climate created by Ottoman modernization, and who had emerged as staff officers who were the products of Ottoman military modernization—the young Republic was established through a revolutionary break and through war.

Yes, Mustafa Kemal was an Ottoman pasha. But he was not an Ottomanist pasha. He was not a supporter of the sultanate. He was not a supporter of the caliphate. He was a republican. He was a populist and a revolutionary. He was a proponent of national independence and national sovereignty.

The Ottoman Sultan Vahdettin, on the other hand, was concerned with the sultanate and the caliphate. Because those who governed the Ottoman State were concerned with their own sultanate and their own seats of power despite the Armistice of Mudros and the Treaty of Sèvres, they tried to protect their positions by making great concessions to imperialist states, primarily the British, and by enduring all kinds of humiliation. They settled for a state that was fragmented, whose lands had been seized, which had largely lost its sovereignty and independence, which had fallen under the guidance and control of imperialist states, and which was practically imprisoned within the borders drawn by them. Sultan Vahdettin, who took refuge in the grace, favor, and mercy of the British, fell to the point of saying, "I have tied my hopes to England after God."

Atatürk and the constituent assembly

Under the conditions of that day, no one in the Ottoman Empire held any hope of escaping this situation, with one exception: Mustafa Kemal Pasha. So much so that on March 17, 1920, one day after the occupation of Istanbul on March 16, 1920, Mustafa Kemal Pasha sent a circular to army commanders announcing that a Meclis-i Müessisan, or Constituent Assembly, would be opened in Ankara. He explained the election conditions for this assembly. When some objections were raised to the term "constituent assembly" in this circular of Mustafa Kemal Pasha, he explained the situation in a new circular dated March 19 as follows:

"In the first draft I wrote, I used the term Meclis-i Müessisan (Constituent Assembly). My intention was to ensure that the assembly to be convened would be equipped from the very first moment with the authority to change the 'Regime.' However, because I could not explain the purpose of using this term as necessary, or perhaps because I did not want to explain it, I was warned from Erzurum and Sivas that it was 'a term the public is not accustomed to.' Upon this, I contented myself with using the term 'an assembly possessing extraordinary powers'."

Mustafa Kemal Pasha, among his other qualities and characteristics, as a very distinguished intellectual and an intellectual very curious about the subjects of politics, law, history, economics, philosophy, and sociology, actually drew attention to the concepts of "constituent assembly" and "constituent power," which are among the fundamental subjects of constitutional law. Indeed, in studies related to both the History of the Republic and constitutional law, the period of the first assembly, the initial assembly, the Veteran Assembly (the period of roughly three years and four months between April 23, 1920, and August 11, 1923) is also known as the "constituent assembly" period.

It is clear that the Grand National Assembly, which opened in Ankara on April 23, 1920, and which constituted a very important stage of the War of Independence that Mustafa Kemal Pasha started by landing in Samsun on May 19, 1919, was convened as an assembly "possessing extraordinary powers" as a result of the dissolution of the Ottoman Chamber of Deputies following the occupation of Istanbul on March 16, 1920. This assembly carried out its duties until the Second Assembly took office on August 11, 1923.

Let us name it: the assembly that gathered in Ankara, the Veteran Assembly, is a constituent power. Under conditions where the First World War was lost, the capital of the Ottoman State, Istanbul, was occupied, and the Ottoman sultan did not possess an independent will, what Mustafa Kemal Pasha did was not to move the administration and the assembly to another Ottoman province. It was much more and more ambitious than that. What Mustafa Kemal Pasha did was to gather all the powers of sovereignty in the constituent assembly opened in Ankara. Therefore, the Grand National Assembly was established and operated in a manner contrary to the existing Ottoman Constitution, made a constitution, enacted laws as a legislative body, and carried out its executive actions as an assembly government system. So much so that this assembly enacted and implemented a law that ended the existence of the Ottoman State. In short, in the full sense, in the true sense, and in the sense consistent with constitutional theory, the First Assembly is a constituent assembly and a constituent power.

Constituent power and the state

We know from our constitutional law lessons that we read from Mümtaz Soysal, Erdoğan Teziç, and Bülent Tanör that the concept of a constituent assembly stands out as a modern concept in constitutional law and constitutional theory. It is seen to be used especially in conjunction with written constitutionalism. When it comes to the link between constituent power, constituent assembly, and the state, the first names that come to mind when discussing theories regarding the state—John Locke, Rousseau, and Montesquieu—laid out the principles regarding the modern state order. However, in the works of these thinkers, there are no comprehensive or detailed proposals or approaches regarding how constitutions should be made or how constitutions should be changed.

It should be noted that in England, known as the oldest example of democracy, there is no written constitution, and this situation constitutes an important exception. In constitutional theory, no organ or institution referred to as bodies that use sovereign powers or institutions that use sovereign powers was established by a constitution in England. They were established and institutionalized in the flow of history. The three functions of the state—legislative, executive, and judicial—took shape through the sharing of sovereign powers among the British monarch, the British parliament, and the courts.

The theory of constituent power is mentioned along with the first written constitutions. The US, established with the Declaration of Independence dated July 4, 1776; the 1787 constitution, accepted as the world's first constitution; and the French constitution, adopted in 1791 after the 1789 French Revolution, provided the source for the theory of constituent power, processes related to constitution-making, methods and techniques of constitution-making, and discussions on how a constitution should be made and changed. The constituent assembly discussions in the US and France and the experience, memory, and tradition formed on the subject have shaped modern constitutional discussions and quests to a very great extent. This situation remains valid today.

It should be recalled that Thomas Paine in the US and Emmanuel Sieyès in France were the first names to use the concept of constituent power in constitutional theory. Sieyès draws attention to this point: "The constitution is the work of the constituent power, not of the established powers."

The basis of the theory of constituent power is formed by the following view: The power that makes the constitution is one thing, and the power that receives its authority from the constitution is another. The power that receives its authority from the constitution cannot make a new constitution. Its powers are limited by the existing constitution. It is the constituent power that makes a new constitution or changes the existing constitution. The one that governs according to the existing constitution is the established power. In short, the constituent power is different, and the established power is different. The established power, according to the existing constitution, can make partial changes to the constitution. It cannot make a new constitution.

Original constituent power and derived constituent power

Another distinction regarding the theory of constituent power is the distinction between original constituent power and derived constituent power. Original constituent power is the power that makes the constitution. Derived constituent power, on the other hand, is the power that changes the constitution according to the existing constitution.

The authority to make a constitution lies with the constituent assembly. The constituent assembly is known as *meclis-i müessisan* in Ottoman Turkish. A constituent assembly is also called a constitutional convention. The word convention is used in constitutional theory to mean a committee that comes together for the making or changing of a constitution. For example, the committee that made the US constitution was referred to as the Philadelphia Convention. The committee that came together to prepare the European Union's constitution was called the European Convention. When looking at the origin of the word convention, it is seen that it means coming together and means an assembly. In Anglo-American law, political science, and constitutional tradition, the word convention is used instead of constituent assembly.

In summary, every state's constitution reflects the historical, political, social, and cultural experience and accumulation of that state, that society, and that nation. Therefore, constitution-making also changes from country to country, society to society, and period to period. There is no single model or single method on this subject. Holding an election for the committee that will make the constitution for the purpose of making a new constitution can be a method. Accepting the incumbent assembly as a constituent assembly and viewing it as a constituent assembly can be a method. Creating new structures and organs that have not been established until that time for the purpose of preparing a new constitution can be a method. Which of these methods will be preferred is not just a matter related to constitution-making, but more importantly, it is a matter that requires political analysis, economic analysis, class analysis, and power analysis.