What’s at Stake in the Turkish Constitutional Amendment Proposal

–Ilayda Gunes, The University of Chicago Law School

In the wake of the failed coup attempt of July 15, 2016, Turkey has been struggling to heal its wounds under a state of emergency. Apart from the loss of hundreds of lives and more than 2,000 injured in clashes during the abortive coup, the country has also been facing a string of terrorist attacks from the Islamic State (ISIS) and the Kurdistan Workers’ Party (PKK). This was followed by a decrease in consumer and business confidence, which led to a steep depreciation in the Turkish lira against other currencies.

In the midst of this unprecedented blend of national crises, on January 21, 2017, the Turkish parliament passed a constitutional amendment bill with 18 articles that would, among other measures, augment the powers of the president and convert the country from a parliamentary political system into a presidential one. The bill was proposed by the ruling Justice and Development Party (AKP) and supported by the minor opposition Nationalist Movement Party (MHP).[1] To enter into force, the amendments must be approved by public referendum that will be held on April 16, 2017.

The presidentialism debate in Turkey is not new. The idea of transforming the current parliamentary system — in which the president’s powers are largely ceremonial — into a system that unifies the head of government (prime minister) with the head of state (president) has been on the agenda since the 1980s. Yet it has only recently become a viable option and begun to bear fruit.

A Quick Overview of the Evolution of the Turkish Political System and the Emergence of Presidential Debates

The Turkish political system is a secular parliamentary democracy that recognizes the separation of powers.[2] The executive branch of government includes the president, the prime minister, and the council of ministers. The president, being the head of state, has no ties with any political party, and is elected on the principle of universal suffrage for a period of 5 years.[3] Most of the president’s powers are ceremonial in nature. The prime minister, on the other hand, is the head of the government and is responsible for appointing the council of ministers. The Turkish Grand National Assembly, or the parliament, is the legislative branch of government and consists of 550 deputies elected by the citizens of Turkey. The judicial system consists of a constitutional court, a series of state courts, a council of state, and a high council of judges and prosecutors.

The proposal to introduce presidentialism to Turkey’s political system dates back to the 1970s, when right-wing political parties – affiliated with the National Outlook Movement (Milli Görüş Hareketi) & the Nationalist Movement (Milliyetçi Hareket) – argued that the unification of the head of government with the head of state would make the executive branch more effective and would contribute to the country’s development. The proposal had its greatest advocacy through former Presidents Turgut Özal[4] and Süleyman Demirel[5], although it never gained enough momentum to become viable in influencing policy.

Recep Tayyip Erdoğan is the country’s first political leader who attempted to enhance the elements of presidential constitutionalism. His attempts sparked a constitutional amendment in 2007, whereby the president would be elected by direct popular vote, and Erdoğan became the first president in the history of Turkey elected by universal suffrage in 2014 after the amendment was approved at referendum. Despite the fact that the current Turkish Constitution endows the president with a post more ceremonial than executive, Erdoğan has asserted that his presidential term would not boil down to the exercise of traditionally symbolic powers vested in the president in the Turkish system since his presidency was blessed by direct popular legitimacy. Nevertheless, his de facto political powers were eclipsed by the existence of a dual executive structure of the government, in the form of the office of the prime minister.

The failed coup in July 2016 and the subsequent declaration of the state of emergency gave Erdoğan a rare opportunity to push the button for the long-awaited presidential reform, that is, the unification of the head of government with the head of state. Since the noble cause of saving the state from external and internal enemies was long embedded in the society’s subconscious, he used each and every event in order to raise the specter of a fearsome collapse of the country, consolidating his supporters for his own political ends. Irrespective of the level of ideological and sociological divergence, even some dissidents in Turkey propounded the necessity of supporting Erdoğan and the ruling AKP under the post-coup condition, which included increasing economic instability, terrorist attacks, and the Syrian refuge crisis. Perhaps the most critical development was the support of the minor opposition MHP, since the number of seats AKP had in the parliament was not sufficient to take the amendment proposal to a referendum without MHP’s backing.

Overall, starting from a common denominator of an anti-coup stance and the ultimate legitimacy of the nation’s will, Erdoğan is now one step away from becoming the center of the executive branch in Turkey by dissolving the very institutions that give democracy any proper vitality or legitimacy. As such, the outcome of the referendum on April 16, 2017 will decide the country’s future direction.

A General Overview of the New Amendment Proposal

The constitutional reform package consists of 18 articles. If adopted, the changes will be implemented in 2019, or earlier if the Turkish parliament decides to hold early elections. The president would be allowed to serve for two five-year terms. This means that Erdogan could remain in power until 2029. The most controversial articles are as follows:

• Article 7: Under this provision, the president will no longer be nonpartisan, and thus required to break ties with his or her political party. According to the current Constitution, the president is supposed to fill a largely ceremonial role in order to ensure the impartiality of the post-holder and to avoid any conflict of interest that may arise throughout the term of office. In the new system, there may be a risk of presidential hegemony over government parties, as the president can serve as the party chair and thus influence electoral lists before the elections. Clearly, this would impede the principle of separation of powers, gathering both legislative and executive branches under the same umbrella.
• Article 8: The office of prime minister will be abolished and the president will be the sole authority using the executive power as head of state. The president will also be able to issue decrees. Although decrees derive their validity from statutes produced by the legislature, the president will still be delegated some degree of legislative power, which could in practice be vast.
• Article 9: The new system renders the impeachment process more cumbersome and laborious by establishing a three-stage process. Specifically, the parliament will have authority to propose an investigation and initiate impeachment proceedings with a simple majority (i.e. 301 deputies out of 600). The establishment of an investigation commission will then require the approval of a three-fifths majority (i.e. the affirmative votes of 360 deputies). If the investigation commission decides to refer the proposed impeachment to the Supreme Court, a secret ballot with a two-thirds majority (i.e. affirmative votes of 401 deputies) would be needed.
• Article 10: The president will have the exclusive power to appoint one or more vice presidents. Whether or how many ministers will be commissioned is also to be determined by the president. The approval of the parliament will not be required for the appointments. The only criterion stated in the Constitution in this respect is that vice-president(s) and ministers will be appointed from among those who are eligible to be elected as deputies. Also, despite not being members of the parliament, vice-president(s) and ministers during the term of office will enjoy parliamentary immunity. Granting parliamentary immunity to non-elected officials exercising executive powers may contradict the principle of equality. In addition, perhaps the most problematic aspect of this provision is that vice president(s) will not be elected by the will of nation but they will be able to rule the country and exercise all of the president’s powers in the event of the president’s absence, illness, or death, which is not justified within the framework of a democratic presidential system.
• Article 11: The president will be given the power to decide whether or when to dissolve the parliament. On the other hand, the parliament can dissolve itself with the affirmative vote of a three-fifths majority. Once the parliament is dissolved, the dissolution will entail the end of the president’s mandate and lead to the renewal of both the presidential and parliamentary elections in the country. The mutual renewal of elections may seem, at first glance, to effectuate a checks-and-balances mechanism between the executive and legislative branches, but the fact that parliamentary and presidential elections must always be held simultaneously under the new system will tarnish the essence of the parliamentary election, for it will be doomed to be overshadowed by a far more personal presidential campaign.
• Article 14: In addition to the already-existing power to appoint some of the judges of the Supreme Court and one-fourth of the judges of the Council of State, the president will be able to appoint the minister of justice, in charge of presiding the Council of Judges and Prosecutors, and the ministerial secretary, along with 4 out of its 13 other members. In other words, the president will appoint almost half of the members of the Council. The remaining 7 members will be appointed by the parliament. If the president’s party has two-fifths of the seats in the parliament, the president will be able to fill most of the positions in the Council. If it has a three-fifths majority, all the appointees may in fact be determined by the president. This clearly jeopardizes the independence of the judicial branch since the Council is responsible for the self-organization of the judiciary including the appointment, transfer, dismissal, and disciplining of judges and public prosecutors. The exercise of control over this key institution by a partisan president thus creates a risk of the judiciary’s politicization by the executive branch.

Clearly a presidential system is not a bad thing, per se. The proponents of the presidential system evidently have the U.S. model of an executive presidency in mind, but without the American traditions of separation of powers, together with the presence of loosely-organized and relatively centrist political parties. Judicial independence in the U.S. ensures the appointment of judges and public prosecutors based on their competency, keen intellect, and acumen rather than their subservience to political leaders. Therefore, none of the branches abuse their authority and become prone to terminate one another in the event that they are controlled by different parties. Unfortunately, this is not the case for countries like Turkey where ideological differences among political parties run deep and society is highly polarized.

The recent debate on presidentialism in Turkey has put the country at risk of degenerating into authoritarian rule. The Turkish advocates of the presidential system invariably view parliamentarism as the underlying reason for the long-term political and economic instability in the country. They assert that the current system is doomed to invite crises and deadlocks, handicapping Turkey’s efforts to achieve higher growth and development. Accordingly, the proponents of presidentialism believe that the new system will allow for faster and smoother decision-making and a more stable system of governance. On the other hand, the opposition regards the amendment proposal as an irreversible step towards Erdoğan’s dictatorial leadership.

Conclusion

Turkey is certainly in need of a new constitution to improve its democracy and continue to act in accord with the foundational principles of Ataturk’s Turkey. Nevertheless, the current amendment proposal in no way reflects the well-rooted tradition of parliamentarism in Turkey, but rather seeks a decisive break in the constitutional history of the country. The rationale behind the proposal is not based on the logic of separation of powers, which is characteristic for democratic presidential systems, since it lacks the necessary checks-and-balances required to safeguard against authoritarian one-man-rule. Considering that the history of parliamentarism in Turkey was adopted against the idea of consolidating power around one powerful leader, the introduction of a presidential system in Turkey through the current amendment proposal is the epitome of waking up the long-asleep Sultan figure against Atatürk’s secular republic.

Suggested citation: Ilayda Gunes, What’s at Stake in the Turkish Constitutional Amendment Proposal, Int’l J. Const. L. Blog, Apr. 14, 2017, at: http//www.iconnectblog.com/2017/04/whats-at-stake-in-the-turkish-constitutional-amendment-proposal/.

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[1] The bill has received through 339 affirmative votes out of 550, exceeding the necessary threshold of three-fifths majority (330 votes) but not the threshold of two-thirds majority that is required to bypass the referendum stage.

[2] Article 2 of the current Constitution that is adopted in 1982 states that the country is a democratic, secular, and social state, and is governed by the rule of law.

[3] Before the Constitutional amendments adopted in 2007, the parliament was in charge of electing the president for the period of 7 years. The current president Recep Tayyip Erdoğan was the first president of Turkey who was directly elected by popular vote in 2014.

[4] Halil Turgut Özal was the 8^th President of Turkey from 1989 to 1993. Before his presidency, he also served as the 26^th Prime Minister of Turkey between 1983 and 1989.

[5] Sami Süleyman Gündoğdu Demirel was the 9^th President of Turkey from 1993 to 2000. Before his presidency, he also served as the Prime Minister of Turkey seven times between the years 1965 and 1993.