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Max Planck Encyclopedia of Comparative Constitutional Law [MPECCoL]

The Ottoman Constitution of 1876

Ergun Özbudun

Subject(s):
Ottoman Constitution (1876) — Freedom of religion — Islamic states

Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law. General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.

A.  The Making of the Constitution

1.  The Ottoman Constitution of 1876 has a special significance being the first written constitution in the Muslim world, with the arguable exception of the 1858 Tunisian Destour of Ahmed Bey, which did not create an even partially elected legislative body (Perkins 18–19). Politically, the proclamation of the Constitution was the culmination point of the nineteenth-century reforms. These reforms affected large areas of public life, such as the modernization of the armed forces and the civilian bureaucracy, a more modern taxation system, the introduction of secular education (secularism) and the adoption of a number of secular laws, and the reorganization of local administrations with partly representative councils (Davison; Findley). The driving force behind these reforms was a group of high-level bureaucrats and intellectuals called the ‘Young Ottomans’. This group saw the adoption of a European-style constitutional monarchy as the only way to save the Empire from disintegration and collapse (Mardin; Lewis 170–174; monarchical constitutions).

2.  This group under the effective leadership of Mithat Pasha, an able provincial governor and a former grand vizier, organized a coup d’état in 1876 with the support of certain key military figures, to depose the increasingly autocratic Sultan Abdülaziz, and put on the throne Murat V, known as a liberal. In a few months, however, he developed mental problems, and was replaced by his younger brother Abdülhamit II. Abdülhamit had also promised Mithat Pasha and his colleagues to proclaim a constitution.

3.  Indeed, Abdülhamit ordered the formation of a Commission under the chairmanship of Mithat Pasha to prepare the draft of the Constitution. The Commission was composed of 28 members, 16 of whom were civil officials, 10 were ulema (members of the Ottoman religious institution), and two were generals; among the civil officials, 5 were Christians. The commission was divided between reformers led by Mithat Pasha and conservatives who tried to keep royal prerogatives as large as possible, obviously encouraged by the Sultan himself. Among the concessions made to the Sultan was the notorious Art. 113, which empowered him to expel from the country anyone deemed dangerous for the security of the government on the basis of a simple police investigation (Devereux 41–59; Shaw and Shaw 174–175). Ironically, a few months later Mithat was the first victim of this provision. The draft that emerged from the commission was predictably a compromise document, which was agreed to by Mithat and the liberals because of their anxiousness to obtain the immediate approval of the Sultan (Devereux 61). Finally, the Constitution was promulgated on 23 December 1876.

B.  General Characteristics of the Constitution

4.  Predictably, the Constitution confirmed the monarchical character of the state. Sultanate, together with the title of Caliph, belonged to the Ottoman family and would be inherited in accordance with the principle of primogeniture (Art. 3). The person of the Sultan would be considered sacred and would not be responsible to any other entity for his acts (Art. 5). The religion of the state was Islam (relation of religion to state and society); however, members of all known religions within the Ottoman territory would be free to exercise their religion, and all privileges previously granted to different religious communities would be under the guarantee of the state (Art. 11). All subjects of the state, regardless of their religion and sect, were called Ottomans (Art. 8), and were equal before the law (Art. 17). The official language of the state was Turkish (official languages). All subjects, regardless of their religion, had the right to become public officials according to their merits and ability, subject only to the requirement that they knew Turkish (Arts 18, 19).

5.  It has been argued that the first Ottoman Constitution was inspired by the Belgian Constitution 1831 and even more so by the Prussian Constitution of 1851 (Üçok). However, the Ottoman Constitution was far from establishing a European-style genuinely parliamentary regime. The Sultan remained the cornerstone of the constitutional system, as will be spelled out.

C.  The Sultan

6.  Art. 7 enumerated the Sultan’s prerogatives in a long list, which included the powers to appoint and dismiss ministers, to declare war and make peace and conclude treaties with foreign powers, to command land and sea forces and to direct military operations, to implement the provisions of laws and of the Sharia (constitutions and Sharia provisions), to issue administrative regulations, to pardon or commute criminal sentences (pardon power), to summon and prorogue the Chamber of deputies and to dissolve it on the condition of calling new elections.

7.  Even though the list itself was quite formidable, it was nowhere clearly stated that the royal prerogatives were limited to those enumerated in Art. 7. Thus, while under the Constitution a law must have originated from Parliament, the Sultan liberally issued decree laws having the force of law (Devereux 65).

8.  Another major weakness of the Constitution was the absence of a clear provision about the political responsibility of ministers before the Chamber of Deputies, the distinguishing feature of a parliamentary regime. Although Art. 30 stated that the ministers would be responsible for the acts connected with their office, what was meant was their criminal, not political, responsibility; furthermore, their referral to the High Court for trial upon a resolution of the Chamber, adopted by a two-thirds majority, was ultimately subject to the approval of the Sultan (Art. 31).

9.  On the other hand, Art. 35 could be interpreted as a highly vague and timid acceptance of the principle of political responsibility of ministers. It stipulated that

in matters of conflict between Ministers and the Chamber of Deputies, if the Ministers insist and this is clearly and repeatedly rejected by the deputies by an absolute majority, it shall be solely within the royal prerogatives of the Sultan either to change the Ministers or to dissolve the Chamber and order new elections within the legally prescribed period.

10.  Predictably, this never took place during the brief First Constitutionalist period. Thus, it is clear that the Sultan was the sole source and possessor of the executive power. However, he also had an important role in the legislative process, as will be spelled out.

D.  The Parliament

11.  The major novelty of the Constitution was its creation of a partially elected bicameral legislature (bicameralism), called General Assembly (Meclis-i Umumî). It was composed of the Chamber of Deputies (Heyet-i Mebusan) and the Senate (Heyet-i Âyan). The number of deputies would be one male member for every 50,000 male subjects of the state (Art. 65), and the elections would be carried out in accordance with the principle of secret vote (Art. 66). A knowledge of Turkish was among the requirements for eligibility (Art. 68). Elections for the Chamber of Deputies would be held every four years and re-election was possible (Art. 69). Deputies enjoyed the classical parliamentary immunity of freedom from arrest (Art. 79; immunity of legislative body members).

12.  The president and the members of the Senate were to be appointed by the Sultan for life from among people who have performed distinguished services to the state. The number of senators should not exceed one-third of the number of deputies (Arts 60–62). Legislative power is equally shared between the two Houses. Among the functions of the Senate was to review the bills adopted by the Chamber of Deputies from the point of their conformity with the Constitution, the principles of religious affairs, and the royal prerogatives of the Sultan (Art. 64). Interestingly, this can be considered as one of the early examples of the political control of the constitutionality of laws.

13.  While legislative power was supposed to belong to Parliament, this was subject to a number of limitations. Legislative bills could be proposed by the Council of Ministers. Members of the Senate and the Chamber of Deputies had to obtain the permission of the Sultan in order to propose a bill, and in case such permission is obtained, the text of the proposal would be prepared by the Council of State (Art. 53). Bills were debated first in the Chamber of Deputies and then in the Senate. Upon their adoption by the two Houses, they were presented to the Sultan for final approval (Art. 54). Thus, the Sultan had an absolute veto power over the bills adopted by Parliament, which could not be overridden in any way. This ‘condemned the Parliament to being little more than a debating society and a sounding board for grievances’ (Devereux 70).

14.  On the other hand, the Parliament still had some meaningful powers, such as the adoption of the yearly state budget (Art. 98). No spending would be allowed outside of the budget unless specified by a special law (Art. 100). If an urgent need arose for out-of-the budget spending when the General Assembly was not in session, the Council of Ministers, assuming the responsibility, could carry out the spending with the approval of the Sultan, provided that they submit such bill to Parliament when it is in session (Art. 101). To aid the Chamber of Deputies in its review of the spendings, a special Court of Accounts (Divan-i Muhasebat) would be established (Arts 105–107).

15.  Another positive aspect of the Constitution was that all laws must be duly adopted by Parliament. In other words, the Sultan and the Council of Ministers had no power to legislate alone. However, an exception was made by Art. 36, according to which when the General Assembly was not in session and a pressing and urgent need arose to protect the state from a danger or to prevent a damage to public security, the decrees of the Council of Ministers, subject to the approval of the Sultan, would carry the force of law till the convening of the Chamber of Deputies and its decision on the matter.

16.  Finally, the procedure for constitutional amendments was regulated in the Constitution (amendment or revision of constitutions). Thus, proposals for such amendments could be made by the Council of Ministers, the Senate, or the Chamber of Deputies. If the proposal were adopted first by the Chamber and then by the Senate with a two-thirds majority of their full membership, it would be submitted to the approval of the Sultan and enter into force with his approval (Art. 116). This provision clearly shows that the Sultan had no power to abrogate or change the Constitution unilaterally. The supremacy/primacy of the Constitution was also confirmed by stating that ‘no article of the Constitution can be suspended or its implementation prevented for any reason whatsoever’ (Art. 115).

E.  The Judiciary

17.  The section of the Constitution under the title of ‘the Courts’ (Mehakim) was considerably more liberal and modern than those concerning the executive and the legislature. Thus, the principle of the irremovability of judges was recognized (Art. 81). The public conduct of court proceedings was guaranteed (Art. 82). Denial of justice (Art. 84) and the creation of extraordinary courts or commissions to try a particular case (Art. 89) were prohibited. Everyone could use all legitimate means before the court to defend his rights (Art. 83). A High Court was established to try ministers, members of the Court of Cassation, and those who committed offenses against royal prerogatives and the security of the state. The High Court would be composed of ten members from the Senate, ten members from the Court of Cassation, and ten members from the Council of State, all to be chosen by lot (Arts 92–95).

F.  Public Liberties

18.  The Constitution recognized many public rights and liberties commonly found in the constitutions of the period, such as personal freedom (Art. 10), freedom of conscience and religion or belief (Art. 11), freedom of the press (Art. 12), freedom to form commercial organizations (Art. 13), freedom of education (Arts 15, 16), the principle of equality before law (Art. 17), the right to property (Art. 21), the inviolability of domicile (Art. 22), the right to natural judge (Art. 23), the prohibition of confiscation (state interference with private property), prohibition of forced labour, prohibition of torture, and prohibition of mistreatment (Arts 24, 26).

19.  On the other hand, in cases of signs of an impending rebellion in a certain part of the country, the Council of Ministers was entitled to declare martial law in that region (Art. 113). A sentence added to this article at the last moment on the insistence of Abdülhamit against grave doubts of Mithat Pasha, empowered the Sultan to exile anybody deemed dangerous for the security of government on the basis of a police investigation.

G.  The Implementation of the Constitution

20.  The first session of the Chamber of Deputies opened on 19 March 1877, and ended on 28 June. Since there was yet no law on the election of deputies in accordance with the Constitution, deputies were chosen in accordance with the Provisional Electoral Regulation (Talimat-i Muvakkate). The Regulation (Art. 2) provided that because of the necessity to proceed without delay, the deputies would not be elected by the people directly but by the members of the administrative councils of the provincial capitals, sanjaks (sub-provincial districts), and districts. The Regulation argued that since these councils were already the result of popular suffrage, their choice would have the same value as direct election by the nation. Since Istanbul did not have an administrative council at that time, the election of its deputies took place under a government decree issued on 2 January 1877 (Devereux 123–135; Armagan).

21.  Despite the indirect nature of the elections and the interventions of government authorities in many locations,

the deputies represented every social and economic stratum of the Empire, virtually every religious community and every ethnic and linguistic group. The Chamber was the mosaic of the Empire in miniature; … regardless of how undemocratic were the elections and regardless of how much the Porte and the provincial authorities exerted undue pressure to secure the election of candidates of their own choosing, the Chamber was a truly representative body in the fullest sense of that term (Devereux 147–148).

22.  Thus, of the total of 130 deputies as fixed by the Provisional Regulation, 71 were Muslims, 44 were Christians, and 4 were Jews (Devereux 144; Ortayli).

23.  The first Chamber of Deputies was dissolved on 28 June, and elections for the second session took place again under the Provisional Regulation, since the Law on the Election of Deputies prepared by the Chamber had not yet entered into force. The second session lasted a short time from 13 December 1877 to 14 February 1878, when it was indefinitely prorogued by the Sultan, who was displeased with the critical statements of the deputies especially on the conduct of the Turco–Russian war. With the prorogation of the Chamber (prorogation of the legislative body) a 30-year period of royal absolutism started.

H.  The Restoration of the Constitution and the Amendments of 1909

24.  Abdülhamit’s autocratic policies led to the emergence of a new constitutionalist opposition generally called the ‘Young Turks’. It was composed mostly of the members of the new intellectual/bureaucratic class. As Zürcher (at 86) points out,

Abdülhamit’s major weakness was his failure to instil loyalty in the new generations of bureaucrats and officers, the Ottoman intelligentsia, which his own expanded educational institutions were producing. … The new generations being trained in schools like the Mülkiye and Harbiye (War Academy) continued to be attracted by the liberal and constitutional ideas …

25.  Bernard Lewis (at 194) similarly observes that

it was ... among the servants of the state that the pioneers of revolutionary change emerged; it was in the schools––those nurseries of the civil and military élite, so carefully tended by the Sultan himself––that the seeds of revolution were sown.

26.  During the 30-year period of royal absolutism, the main opposition organization was the Committee of Union and Progress (‘CUP’), active mostly in Europe. Following the insurrection of certain military units in Macedonia in 1908 and the government’s failure to suppress it, Abdülhamit was forced to restore the Constitution on 23 July 1908. After the deposition of Abdülhamit in 1909, the CUP-dominated Parliament adopted comprehensive constitutional amendments on 3 August 1909. The aim of the amendments was to limit the Sultan’s prerogatives, to broaden the powers of Parliament, and thus to make the Ottoman state finally a Western-style parliamentary monarchy. Some of the major changes can be summarized as follows (Tanör 159–164; Okandan 286–333):

  1. 1.  The Sultan’s rule in the formation of the Council of Ministers was limited to the appointment of the Grand Vizier and the Chief Mufti (Seyhülislam). The rest of the ministers shall be nominated by the Grand Vizier and appointed by the Sultan.

  2. 2.  Individual and collective political responsibility of the ministers before the Chamber of Deputies was clearly stated (Arts 30, 35).

  3. 3.  The Sultan’s power to dissolve the Chamber of Deputies was made subject to the approval of the Senate on the condition that new elections would be held in three months (Art. 7).

  4. 4.  The Sultan’s role in the legislative process was limited. Deputies and Senators were no longer required to obtain Sultan’s permission in order to propose a law (Art. 53). Similarly, the Sultan’s absolute veto over legislation adopted by Parliament was reduced to a partial veto which could be overridden by the two-thirds majority of both Houses (Art. 54).

  5. 5.  The Sultan’s power to conclude treaties with foreign powers was also limited and made subject to the approval of Parliament (Art. 7).

  6. 6.  Certain new public liberties, such as the prohibition of censorship (Art. 12), privacy of communications (Art. 119), the right to assembly and freedom of association (Art. 120) were recognized, and the notorious provision of Art. 113 was abrogated.

27.  Thus, the Ottoman Empire finally seemed to have established a liberal constitutional monarchy. Indeed, the restoration of the Constitution in 1908 was publicly hailed as ‘the proclamation of freedom’ (hürriyetin ilâni). This liberal period (Second Constitutional Period), however, did not last long. With the spring 1912 elections, commonly known as the ‘big stick elections’, and the CUP coup d’état on 23 January 1913, the CUP established its full control of government and transformed the political regime into a de facto one-party dictatorship. This period came to an end with the defeat in the First World War in 1918. During the following period of the War of Independence (1920–1923), the Constitution of 1876 was not formally abolished and considered in force in matters not regulated by the revolutionary Constitution of 1921, enacted by the Grand National Assembly in Ankara. The formal end of the Constitution came with the adoption of the republican Constitution of 1924.

I.  An Evaluation

28.  The first constitutionalist period provided a brief but valuable experience in constitutional government. Even though parliamentary procedures were alien to the Ottoman tradition, deputies quickly adapted to the new situation. As Devereux (at 207) notes,

the Chamber had no reason not be proud of its record, for even if its legislative actions were few in number and even fewer in terms of laws subsequently promulgated and enforced by the government, the Chamber had indeed demonstrated that, contrary to the opinions voiced by Europe’s Turcophobes, parliamentary procedures were not beyond the grasp of Turks, to whom such things had previously been alien. It was a good beginning. Yet a vital element of the constitutional regime––acceptance by the Palace and Porte––was missing, and this was soon to doom the Parliament and to plunge Turkey once more into the darkness of despotism.

29.  The second constitutional period provided a much longer and more genuine parliamentary experience. The period between 1908 and 1912, when the CUP established its one-party dictatorship, was perhaps the freest time in Ottoman–Turkish politics. Many institutions of modern politics, such as political parties and political associations, originated in this period. Freedom of the press was fully established, and many fundamental issues were freely debated. This period of freedom was followed, however, by an authoritarian period, in the familiar sequence of Ottoman–Turkish politics.

Select Bibliography

  • Ahmad, F, The Young Turks: The Committee of Union and Progress in Turkish Politics, 1908–1914 (Clarendon Press 1969).
  • Armagan, S, ‘Memleketimizde Ilk Parlamento Seçimleri’ (‘The First Parliamentary Elections in Our Country’) in Armagan: Kanun-u Esasî’nin 100. Yili (The Centennial of the Ottoman Constitution) (AÜSBF 1978) 147.
  • Davison, R, Reform in the Ottoman Empire, 1856–1876 (Princeton UP 1963).
  • Devereux, R, The First Ottoman Constitutional Period: A Study of the Midhat Constitution and Parliament (The Johns Hopkins Press 1963).
  • Findley, C, Bureaucratic Reform in the Ottoman Empire: The Sublime Porte, 1789–1922 (Princeton UP 1980).
  • Lewis, B, The Emergence of Modern Turkey (OUP 1969).
  • Mardin, S, The Genesis of Young Ottoman Thought: A Study in the Modernization of Turkish Political Ideas (Princeton UP 1962).
  • Okandan, RG, Amme Hukukumuzun Ana Hatlari (Main Lines of Our Public Law) (IÜHF 1977).
  • Ortayli, I, ‘Ilk Osmanli Parlamentosu ve Osmanli Milletlerinin Temsili’ (‘The First Ottoman Parliament and the Representation of the Ottoman Millets’) in Armagan: Kanun-u Esasî’nin 100. Yili (The Centennial of the Ottoman Constitution) (AÜSBF 1978) 169–182.
  • Perkins, KJ, A History of Modern Tunisia (CUP 2004).
  • Shaw, SJ, and Shaw, EK, History of the Ottoman Empire and Modern Turkey vol. II Reform, Revolution and Republic, the Rise of Modern Turkey, 1808–1974 (CUP 1985).
  • Tanör, B, Osmanli-Türk Anayasal Gelismeleri (Ottoman-Turkish Constitutional Development) (Der 1995).
  • Üçok, C, ‘1876 Anayasasinin Kaynaklari’ (‘The Sources of the Constitution of 1876’) in Türk Parlâmentoculugunun Ilk Yüzyili, 1876–1976 (The First Century of Turkish Parliamentarism) (Siyasi Ilimler Türk Dernegi 1976) 1.
  • Zürcher, EJ, Turkey: A Modern History (Tauris 2004).

Select Document

  • Ottoman Constitution (1876) in Ottoman Official Gazette (Düstur), tertib-i evvel (1st series) vol. IV, 4; English translation Röder, T, ‘The Separation of Powers in Muslim Countries’ in Grote, R, and Röder, T, Constitutionalism in Islamic Countries (OUP 2012) 341.