What is a Constitution – The constitution is the social contract that determines that the sovereign rights over the country are given to the state as stated in the content of the usage authority. According to Hans Kelsen’s Hierarchy of Norms, it is superior to all other legal rules and structures, and no law or structure can be unconstitutional.
The constitution specifies the form of government of a state. Sovereignty rights of societies over the country are the basic laws that determine the conditions under which the fundamental rights of individuals can be exercised by the state. It determines how the basic institutions of the state will function. In general, general provisions have sections that define fundamental rights and freedoms, duties and responsibilities of individuals towards society, and constitutional state organs such as the legislature, executive, and judiciary.
What is a Constitution
The word “constitution” is used in contemporary Turkish as the equivalent of the French word “constitution”. In Turkish, this word was used as “kanun-u Esasi” in the Ottoman period, and “the law of the organization” in the first years of the Republic Period.
Constituent Power – Established Power Distinction
In constitutional law, the power to make and amend a new constitution is called the “constituent power” (the original founding power). The state body, which has the power to amend the current constitution, in which its formation and working limits are determined, within the framework of the legal rules drawn by the current constitution made by the primary founding power, is called the “established power” (secondary founding power). The permanent establishment of the original founding power, that is, the frequent changes of the constitution, which forms the basis of the entire legal structure, outside of the procedures envisaged, lead to chronic revolution and anarchy in the constitutional order.
The founding power is an illegal power. In other words, it is the power that is formed in an environment of “legal vacuum”, that is, in an environment where there are no legal rules binding it. A legal vacuum can occur in two ways. An ongoing legal vacuum “from the beginning” or a legal vacuum that arises “later”.
In an environment where there is a legal vacuum from the beginning, there is no legal situation that binds the original founding power, that is, there is no constitution that precedes the new constitution. In this case, the original founding power took advantage of the existing legal vacuum without destroying the old constitution to make a new constitution. Such legal gaps arise when a new state is established. These can be listed as the independence of the colonies, the unification of independent states, the separation of a state into more than one independent state. The constitution created in this way by the original founding power is the first constitution of a new state.
The created legal vacuum is created by the abolition of the existing constitution. Such legal gaps emerge after situations such as revolution, government coup, civil war. The original founding power that emerged after such situations fills the legal vacuum created by a new constitution by destroying the existing political regime and “abolishing” the constitution (by repealing it). In these cases, the political regime generally changes.
The established power is a legal power. The legal rules that determine who will use the authority and within what limits are set by the constitution made by the main founding power. The sub-constituent power’s methods of changing the constitution are also determined by the constitutions themselves. The secondary founding power is therefore a limited power.
In the countries governed by the Republic and Democracy, the secondary founding power is not “the people”, but by acting as the founding power, since it is not created by the “valid votes” of those who are accepted as “voters” among the citizens according to the procedures laid down by the constitution, and in some countries with a limited representation situation due to the electoral threshold. It cannot abolish the existing constitution and make a new one in its place. The main established organs of the state are the legislature, the executive and the judiciary.