—Neslihan Çetin, PhD candidate at the University of Paris I Panthéon-Sorbonne

Presidential and parliamentary elections in Turkey will take place in 2023. The debate around the presidential candidacy of Recep Tayyip Erdoğan is particularly impassioned among jurists in Turkey. Notwithstanding the recent announcements by the government-party AKP spokespersons of his candidacy, the question is whether he could run for office for the third time while the Constitution sets a two-term limit for the presidency.

According to article 101 § 2 and its exception in article 116 § 3, to stand as a candidate in elections, Erdoğan needs a three-fifths majority in parliament. After going through the potential alliances in parliament and crunching the numbers, passing this threshold seems unlikely for Erdoğan, if not outright impossible. In a bid to square this circle, his supporters present another argument that draws on the “blank slate theory” of presidential terms: when a new constitution with term limits is passed, these limits do not apply retrospectively, but only prospectively ( for blank slate theory, see; Versteeg, Horley, Meng, Guim, Guirguis 2020). The premise of the pro-re-election argument, hence, is that the 2017 amendment would be so profound that its legal effects would be equivalent to those of a brand-new constitution.

The 2017 amendment is the most significant change the 1982 Constitution has undergone. The amendment, approved by a referendum on 16 April 2017, transformed Turkey’s parliamentary system into a “presidentialism à la Turca“. The disclaimer “à la Turca” is indeed a game-changer. It is not a presidential system at all but a fusion of powers or a hyper-presidential system putting a complete end to the separation of powers (Insel, 2017). The Constitution became a tool in the hands of a leader for consolidating his rule.

The question raises itself: Did the 2017 constitutional amendments in Turkey go beyond the substantive limits of the Constitution?

Could a mere amendment bring about such wide-ranging change?

An amendment cannot be so radical as to replace the constitution with something completely different to be regarded as a new constitution (Roznai 2021). A revolutionary or a “total” change that creates an outright break with the existing design of the constitution cannot be qualified as an “amendment” because from a procedural standpoint, the amending power is not meant to be a substitute for the power to establish a new constitution. The latter belongs exclusively to people’s primary constituent power. Whereas a “partial” alteration which is consistent with the foundational presuppositions of the constitution is for the delegated organs (Quiriny 2015). Amendment power, a limited notion by definition, implies that any exercise of this power must abide by the rules and prohibitions stipulated in the constitution. These prohibitions can include explicit or implicit limits.

Explicit unamendibility

According to the positivistic approach, when a constitution foresees that certain constitutional subjects pivotal to its essence are protected from alteration, a constitutional amendment can only be undertaken after the protection provisions are reviewed. As Roznai puts it, the unamendable provisions that function as a “barrier of change” comprise the “genetic code” of the constitution (Roznai 2017).

This is precisely the case in Turkey. Under Article 4 of the current 1982 Constitution, Articles 1, 2 and 3 may not be amended. However, the Article 2 states that “The Republic of Turkey is […] based on the fundamental tenets set forth in the preamble.” So not only the principles mentioned in the Article 2, but also those which are expressed in the preamble, are part of the unamendable provisions. Accordingly, the preamble to the Constitution emphasizes that “The understanding that separation of powers […] reflects a civilized division of labor and mode of cooperation restricted to the exercise of specific state powers […]” This corroborates that the principle of the separation of powers is set out in the preamble and should therefore be shielded from any transformation.

Likewise, the preamble asserts that “[…]no individual or body empowered to exercise it [sovereignty] on behalf of the nation shall deviate from democracy based on freedom, as set forth in the Constitution and the rule of law instituted according to its requirements.” The liberal character is manifested through various articles, including Article 13, which subjects any restriction of fundamental rights to respect for the principle of proportionality and the requirements of a democratic social order, understood broadly as the general and universal characteristics of liberal democracies. However, with the 2017 amendments, Erdoğan’s promise of “advanced democracy” instead resulted in the “death of Turkish democracy.”

Implicit unamendibility

Inspired by the natural law the notion of implicit unamendability brings about the idea that certain principles derive from within the constitutional order and are beyond the reach of the constitutional amender (Roznai 2017).

Albert speaks of “constitutional dismemberment” which is more than a mere amendment that may “alter one or more of the constitution’s essential features (Albert 2018).” The 2017 amendment is, in fact, a “constitutional dismemberment” for all intents and purposes. The dismemberment of constitutional rights occurs above all with the presidential decrees which can regulate or amend any area of law and matters regarding executive power without any effective democratic and constitutional check. A prime example of this phenomenon is the withdrawal of Turkey from the Istanbul Convention with a presidential decree. The dismemberment of constitutional structure equals to the demise of the separation of powers in favor of the one-man rule. Finally, the dismemberment of constitutional identity is the annihilation of constitutionalism. It amounts to the constitutional adjudication not being able to assume the role of watchdog over the fundamental rights and liberties, due to the serious blows to its independence. Hence, we witnessed in 2017 a package of amendments – but amendments in name alone.

Emergency unamendibility

Albert and Roznai propose the concept of “emergency unamendibility” to preserve the constitutional order (Albert, Roznai 2021). In Turkey, the constitutional amendments were signed and submitted to a referendum during a period of emergency. The Constitution does not prohibit constitution amendments during exceptional times. However, theexecutive is not permitted to use emergency powers to make any permanent changes in the legal and constitutional system (Ferejohn, Pasquino 2004). All attempts in this direction would be an “exploitation of emergency powers” (Albert, Roznai 2020).

Another danger of emergency amendments is that they might become the new routine (Ferejohn, Pasquino, 2004). Posner and Vermeule propose that emergencies work like a “ratchet.” Because of the normalization of the emergency powers, the executive ends up with more power after the emergency, so the executive’s power is ratcheted up (Posner, Vermeule 2003). In Turkey we find a case in point where thefunctioning of the executive in an unrestricted manner creates the permanency of the exceptional (Göztepe 2018). The opinion of the Venice Commission stresses that the Government made a number of structural changes to the legislation, which stuck after the emergency had passed. With emergency decree-laws, civil servants were dismissed, organizations and bodies were dissolved, and their property confiscated. Besides, the Inquiry Commission on The State of Emergency Measures continues to stand as another obstacle in the way of accessing justice.

Conclusion: Can a fraudulent change justify the breach of the Constitution?

The argument based on the substantial change in the status of the President to explain his re-election holds no water because the amendment is carried out in a “constitutional bad faith“, by ignoring the unamendibility limits and usurping the constituent power. The fraudulent nature of the amendment prevents Erdoğan from invoking it because, in keeping with the universal standard, Turkish law duly recognizes the principle that “no one shall be permitted to profit by his own fraud.”

Meanwhile, re-election supporters see the vote as the only means of expressing the general will. They seek to justify violating the two-term rule by the approval of the amendment in a national referendum. However, the object of the vote was a “constitutional amendment” – the limit on the number of terms remained unchanged – and not a “new constitution.”

The 2017 amendments are a perfect counterargument to the assertion of Schauer when he said “what makes a constitution constitutional? Nothing […] nor does or can anything make a constitution unconstitutional” (Schauer 1995). Well, apparently, an “unconstitutional constitutional amendment” can.

We will soon discover whether a fraudulent amendment of the Constitution can be used to allow the President to achieve his ends illegitimately.

Suggested citation: Neslihan Çetin, Unconstitutional Constitutional Changes and President’s Term Limit Evasion: a Series of Constitutional Frauds in Turkey, Int’l J. Const. L. Blog, Jan. 23, 2022, at: http://www.iconnectblog.com/2022/01/unconstitutional-constitutional-changes-and-presidents-term-limit-evasion-a-series-of-constitutional-frauds-in-turkey/