Constitution-Making in Turkey: Towards a Presidential System?

—Ozan Varol, Assistant Professor, Lewis & Clark Law School

Although recent academic and popular commentary on constitution-making has largely focused on the constitutional transitions in progress across the Arab World, I wanted to take this opportunity to update the I•CON community on the constitution-drafting process currently underway in Turkey.  In this post, I will provide a brief overview of the drafting process and comment on the most recent developments.

In the lead-up to the parliamentary elections in June 2011, the campaign of the incumbent Justice and Development Party (Adalet ve Kalkınma Partisi) (AKP) prominently featured a proposal to write a new constitution.  The current Constitution is widely viewed as illiberal and a blemish on Turkey’s democracy in part because it fails to adequately protect the rights of ethnic and religious minorities and exalts national security and national unity over individual rights and liberties.  The 2011 elections landed AKP a total of 326 seats in the 550-seat Parliament—four seats short of the supermajority that AKP would have needed to unilaterally ratify the new Constitution and submit it to a popular referendum.

AKP thus enlisted the assistance of other political parties in the constitution-making process.  In October 2011, the AKP-led Parliament authorized a Constitutional Conciliation Commission, comprising three members from each of the four major parties in the Parliament, to draft a new Constitution.  The Commission formed a website for the new constitution that features information about past Turkish constitutions, news about the current constitution-design process, and even links to relevant scholarly articles.  On its website, the Commission published a transcript of its initial meeting and of a separate meeting it held with constitutional law professors.

Many observers hoped that these initial developments would portend a transparent drafting process.  Those hopes, however, have largely been dashed.  After the Commission released the transcript of its initial meetings, no new transcripts have been made available to the public over the past year.  Although the applicable parliamentary rules require the Commission, as a general matter, to keep a transcript of its proceedings, the rules also authorize the Commission not to transcribe portions of its meetings at its discretion.  The members of the Commission also have been reluctant to publicly comment on the content of the draft constitution.

Despite this largely opaque drafting process, the Turkish press has reported on the progress that the Commission has made on several controversial constitutional provisions.  According to Turkish newspaper Milliyet, the Commission began drafting the Constitution with the section on fundamental rights and liberties.  The Commission was able to agree on the language of twenty-four out of the forty-one provisions expected to appear in that section.  For the provisions on which the members could not agree, the Commission is expected to include in the final draft all of the alternative formulations proposed by the political parties.  Milliyet also reported that the provisions on equality, rights of children, freedom of speech and thought, and right to education have proved to be particularly contentious.  The Commission has also reportedly debated whether the sixteen express references in the current Constitution to the nation’s founder, Mustafa Kemal Atatürk, should be deleted or replaced.  As I analyzed in an earlier article, those provisions have supported the Turkish Constitutional Court’s use of originalism in interpreting the secularism provisions in the Constitution.

The most recent news, prominently reported in the Turkish press over the past two weeks, focus on the AKP’s formal proposal to replace Turkey’s parliamentary system with a presidential one.  The proposal is the brainchild of Prime Minister Recep Tayyip Erdoğan, whom many believe aspires to be Turkey’s president after a possible switch to a presidential system.   According to Prime Minister Erdoğan, an American-style executive is necessary to bring much-needed stability to Turkey and eliminate the problems that the political system has suffered in the past from weak coalition governments.

The proposed executive has sweeping powers and resembles the Russian, not the American, mold.  Under AKP’s proposal, the President is reportedly empowered to veto legislation; issue executive orders that have the force of law on all “subjects necessary to execute the laws”; unilaterally appoint and remove all Cabinet members and heads of all administrative agencies; unilaterally appoint and remove all university rectors; unilaterally appoint half of the members of the Constitutional Court (Anayasa Mahkemesi), the Council of State (Danıştay) (Turkey’s highest administrative court), the Supreme Board of Judges and Prosecutors (HSYK), and the Higher Education Council (YÖK).  The President is also authorized to declare martial law (sıkıyönetim) and “a state of exception” (olağanüstü hâl), allowing the curtailment of individual rights and liberties.  Under AKP’s proposal, the executive may not be removed by the parliament through a no-confidence motion or otherwise, but may only be impeached upon the commission of a crime.  AKP is also reportedly contemplating whether to authorize the President to unilaterally dissolve the Parliament and whether to grant the Parliament the reciprocal authority.

The proposal of a strong executive without adequate checks and balances is troubling.  Under the façade of reforming the authoritarian components of the current constitution, AKP’s proposal appears to replace one form of authoritarianism with another.  Indeed, the provisions in the proposal allowing the President to declare a “state of exception” replicate the authoritarian components of the current constitution that the new draft ostensibly seeks to transform.  Prime Minister Erdoğan is correct that weak coalition governments have caused significant legislative deadlocks and power vacuums in Turkey.  But the problem, which has largely faded into the past under AKP’s stable one-party rule since the early 2000s, certainly does not warrant the adoption of a strong presidential system that risks turning Prime Minister Erdoğan into Sultan Erdoğan.

Stay tuned for further developments.