-Deyimsel-kavramsal düzeltimler: 17 md.

In the aftermath of the coup attempt in July 2016 and under a state of emergency, Turkey’s political agenda is currently dominated by a new constitutional amendment proposal for a radical change to the system of government. The new motion ushers in a presidential system with vastly and disproportionately enhanced powers for the state president vis-à-vis the parliament. It also completely changes the normative principles of constitutional design regarding legislative primacy and the derivative nature of executive legislation.

As a long-held unfulfilled desire of the right-wing political elite for many years, the presidentialism motion seems this time more likely to be accepted. The votes of the motion owners, the ruling party AKP and minor opposition MHP, have enough support to pass, despite the protests of the main opposition CHP and pro-Kurdish opposition HDP. The proposal received 339 votes which exceeds the three-fifths majority of the deputies necessary to pass, but not the two-thirds majority required to avoid referendum. Thus, unlike the constitutional amendments on democratic consolidation in 1995, 2001 and 2004, the proposal will now be decided at referendum.

Background: Origins of presidential arguments in Turkey

Turkey’s constitutionalism could be divided into two episodes from perspective of governmental design. The first episode covers the period from the adoption of first codified constitution in 1876 to the military intervention 1980. The second one begins with the 1982 Constitution and proceeds with the current presidentialism package of 2017. In the first episode all constitutional developments have solidified the rise of parliament and parliamentary constitutionalism. In the second episode, the elements of presidential constitutionalism enter into the scene as a phenomenon and become gradually more salient.

The implementation period of the 1982 Constitution, defined as “attenuated parliamentarism” has seen repeated pro-presidential arguments from right wing leaders. Especially the state presidents Özal and Demirel, both former prime ministers and popular figures with massive voter support, have often extolled the virtues of presidentialism such as stability, strength and economic development. Özal’s support for presidentialism was related to his desire to sustain control over his own political party and agenda setting in parliament. Demirel, on the other hands, sought to extend his own tenure and governmental stability due to fragile coalitions in parliament.

Yet, the period beginning from the 2007 constitutional amendment and its application in 2014 seems to have moved the presidentialism debate to a new level. The 2007 amendment provides for the election of the state president by direct popular vote. This was not the result of a consensus-based or rational choice approach, but the rapid reaction of the ruling party AKP to the political crisis induced by the decision of the Constitutional Court on the rules for election of the president in 2007 which was not in line with AKP’s preferences. The Court found that a majority of two-thirds of parliament, rather than the AKP’s position of one-third, was necessary for election of the president as the initial quorum, forcing the AKP to seek broader consensus for their presidential candidate. As a result, the AKP proposed the 2007 amendment which was subsequently approved at referendum, providing direct popular legitimacy for the president, although it was not operationalized until presidential elections took place in 2014.

Inspired from his previous political success as prime minister for 11 years, the current state president Recep Tayyip Erdoğan has begun to push for his presidentialism design forcefully. A proposal was first submitted to the Constitutional Conciliation Committee process in 2012, but the Committee could not reach consensus, and the AKP has been persistently pushing for presidentialism ever since, despite continued resistance from other political parties.

Distinctive nature of the current amendment proposal

The current amendment seems quite distinctive compared to the previous presidentialism discussions. First, it is put forward after a political and social trauma, i.e. the 2016 coup attempt, and under extraordinary circumstances of a state of emergency and continued fears of terrorist attacks. Here, Turkey proves the link between securitization and the rise of presidentialism in times of crisis. The amendment could be easily perceived by the voters as a constitutional solution for better governance of the security crisis by a powerful president that may provide stability and peace by rapid responses.

Second, there is currently a highly polarized political climate in Turkey. The main opposition CHP is vehemently against the amendment package, defining it as a plan for one-man-rule or dictatorship. Since CHP and pro-Kurdish HDP are both outsiders to the process, the amendment also reflects a unilateral approach to constitutional revision by AKP and its supporter MHP.

Third, the ruling party AKP deems presidentialism as a guarantee for its governmental hegemony in the highly polarized politics of Turkey. As a reminder, AKP’s political success was questioned in the June 2015 elections where it lost its chance for the first time to form a single party government. It did not accept the electoral results and pushed for snap elections. Its strategy was based on the presidential power to dissolve parliament that has not been exercised since the adoption of 1982 Constitution. Under the Turkish Constitution, the renewal of parliamentary elections can be decided in principle by the parliament itself. Seeking to avoid governmental crisis symptomatic of the pre-1980 period, the 1982 Constitution provides also an exceptional clause where the president can dissolve parliament under clearly defined and limited circumstances of governmental instabilities. The AKP did not form any governmental coalitions which enabled president Erdoğan a call for new elections in November, which returned significant gains for AKP.

These gains were enough for the time being as it enabled the AKP to form a government, but their eyes are now set on guaranteeing power also into the future. The popular leadership of Erdoğan as recognized by a large block voters is deemed as the key for perpetuation of AKP’s power in long term. None of the AKP prime ministers after Erdoğan have proved such an impactful leadership profile among the voters. The AKP’s political future seems constitutionally and politically secured in the current presidential amendment. The presidentialism amendment thus offers not only the president, but also his own political party AKP, the opportunity to lock in power.

New constitutional paradigm: Shrinking the parliament, expanding the presidential power and ramifications on unchanged structures

The package changes the established constitutional paradigm which still rests on a pivotal role for parliament and the primacy of statutory regulation in the normative order. At present, the parliament is perceived not only as a legislature, but emphatically as the deliberative headquarters of daily politics with all the oversight tools of parliamentary system. Accordingly, the legislative process often means not just legislating, but the deliberative criticism of governmental policies and open public debate through parliamentary discussion. The parliament serves also as a public forum where the elites of the government and the opposition parties meet as equal partners under the same institutional structure. The amendment package weakens the parliament in many ways, including removing parliamentary mechanisms such as the motion of censure and the vote of confidence. At the same time, presidential power is greatly expanded through new powers of executive decrees and ineffective checks and balances.

Presidential control over the parliament

The amendment aligns the election date of the parliament with that of the president. The president will be able to control the list of candidates within his/her party since under the current amendment he/she can be the leader of a political party due to removal of the impartiality clause from the Constitution. The leadership oligarchy, paternalist character of the political parties, limited use of primary elections for candidates and strong party discipline in Turkey are factors which would increase the presidential control over the parliament under the new design. Under such circumstances, not only the composition, but also the agenda setting power of the parliament can be easily controlled through his/her party by an influential and popular president.

Here, the change in electoral system is also a matter of concern. The amendment provides an incidental exception from article 67 of the Constitution. Article 67’s final paragraph prevents electoral manipulation by stating that revisions to electoral laws shall not apply to elections held within one year of the entry into force of the relevant revisions. However, this prohibition will not apply to the first election held after the passage of the amendment. Does a single case exception from this clause signal a radical change in electoral system for the very first parliamentary elections? The current electoral system is based on proportional system, which allows for a good deal of diversity within parliament despite a 10% national threshold. However, the ruling party and its supporter MHP propose minimizing the district magnitude and introducing a sort of “the first past the post” model of majoritarian system, which would increase the control of the President Erdoğan over the new parliament compared to the more fragmented legislature of proportional system.

Furthermore, the new presidential veto may additionally serve as a control mechanism by raising the majority needed to over-ride the veto from the current absolute majority, to a more difficult two-thirds.

Like in Argentina, Chile and Taiwan, the amendment prescribes that only the president can introduce the budget and the parliament cannot increase expenditures. To prevent deadlocks, as sometimes plagues the US system, the amendment declares the previous year’s budget remains in force (after making an increase according to the rate of reassessment) if the budget statute cannot enter into force in due time. Such a budgetary design which is also subject to a short discussion timetable, i.e. 55 days, limits further the legislature’s check on the president.

A hardly workable system of checks and balances

Rather than acting as a check and balance of presidential power, the proposed amendment may turn parliament into a rubber stamp, and this is only aggravated further by the proposals regarding dissolution and impeachment. The amendment allows for dissolution of the parliament by the president without prescribing any conditions as opposed to the current system described briefly above. In turn, the parliament can call for presidential elections as a possible counter mechanism, but only by a qualified majority of three-fifths of its members. If the president calls for the renewal of the parliament, this would mean also his/her own renewal of elections automatically. If the parliament calls for presidential elections, this would mean also renewal of parliamentary elections. Further, if the parliament calls for the renewal of the presidential election during the second term of the incumbent president, he/she will have the opportunity to pursue candidacy for a full third term without any detriment to his/her new tenure. Such a design is pretentiously based on mutual checks, but is in fact open to political maneuvers and manipulations of powerful presidents controlling the parliament who wish to evade term limits and extend their tenure for the third time.

Presidential decrees without statutory authorization

The amendments regarding presidential decrees completely changes the current paradigm of normative hierarchy based on legislative primacy. Under the present constitutional order, the executive does not have any reserved or autonomous area of regulation. Since the executive is presumed as a derivate power, its regulatory work is also defined as secondary, i.e. secundum legem. This premise shapes also all basic presumptions of administrative law based upon the principle of legality strictly requiring the statutory justification grounds. At present, “decrees having the force of law” can be released, therefore, solely on the basis of a specific statute providing authorization for the government. Decrees having the force of law are to be also submitted to the parliament for ex post oversight as soon as they come into force.

The amendment, however, removes the necessity of authorization statutes and ex post legislative imprimatur is also removed except for emergency decrees. This brings Turkey closer to the model of presidential decrees of Argentina, Brazil, Colombia and Russia. In fact, the amendment prescribes a rule of conflict and a prohibitory clause. Accordingly, statutory legislation takes precedence over the presidential decrees and there shall be no decrees in areas where legislative exclusivity is stipulated. However, the very same amendment defines also specific areas exclusively for decrees. Here, the question of legislative exclusivity remains still to be answered by political practice and judicial interpretation.

Extended powers of the president

The proposed presidential powers ranging from the field of national security to the various appointments in the higher education and judiciary ranks strengthen the position of the executive leadership not only against the parliament, but also other institutions. The powers of the president in many of the existing structures were granted due to his/her impartiality. Therefore, keeping or furthering them in the amendment text is another matter of concern from the perspective of omnipotent and paternalist presidentialism. Moreover, the constitutionally defined powers of the president are not enumerated powers, since these can be also extended by statutory legislation.

Judiciary

The amendment creates a politically and legally disputable framework in a polarized political climate where the main opposition and civic initiatives could bring the issues open to interpretation before the judiciary, especially the Constitutional Court. Here, it is predictable that long-disputed matters such as the judicialization of politics and the politicization of the judiciary will continue to occur in daily discussions over the interpretation of presidential powers. The main opposition has already declared that it will bring the package itself before the Constitutional Court since the secret ballot principle is violated and the package is undemocratic.

As a reminder, almost all judicial bodies of Turkey have been reshuffled in 2010 either by the constitutional amendments or legislative arrangements. Even though these reforms were supported by the EU, Venice Commission and the liberal pro-government elite as progressive reforms, their implementation patterns have impaired public confidence in the judiciary, in particular through the high politicization of elections of the Supreme Council of Judges and Prosecutors and significant cases against journalists and former military officers. The current amendment reshapes also the composition of the Council for Judges and Prosecutors by providing reserved seats for the presidential and parliamentary appointments. This means another overhaul for the Council shortly after the 2010 reforms. The ministry of justice and the ministerial secretary keep, however, their highly criticized positions in the Council which is responsible for the self-organization of judiciary including disciplinary sanctions. The amendment reduces also the number of judges at the Constitutional Court that had been increased in 2010. The appointment powers of the president for all apex courts including the Constitutional Court under the present system remain untouched in the amendment package.

Conclusion

The discussions surrounding the presidential amendment are also directly related to the failure of the democratic consolidation process in Turkey. Turkey has been defined as a hybrid regime by the Democracy Index in 2015. The reforms enhancing fundamental rights and freedoms have slowed down beginning from the 2007 political crisis which led to the constitutional amendment on the election of the president by direct popular vote. Massive use of penal code and anti-terrorism legislation in investigations against journalists,critical newspapers and authors raises concerns as to a systematic violation of the freedom of press in recent years. Turkey has been categorized as “not free” for freedom of press by Freedom House in 2016. According to statistics of the European Court of Human Rights, Turkey has been ranked at the first place in 2015 on violations of freedom of expression. Democratic consolidation is preempted by the removal of parliamentary immunity of pro-Kurdish HDP parliamentarians, the trauma of a coup attempt, the refugee crisis, terrorist attacks, and the governmental discussions for restoration of death penalty. The political context is highly securitized, sensitive and vulnerable to illiberal policies. Can the ultimate shift favoring presidentialism based on a stability argument provide the stability of constitutional democracy itself in the long-term in a fragile political context? How do the presidentialist shifts shape the quality of democracy in hybrid democracies? What is the role of constitutional revisions of the system of government as regards illiberal consolidations? Turkey’s presidential turn will provide country specific answers to these questions that would ultimately contribute to the presidentialism phenomenon in a comparative context.

Bertil Emrah Oder is the Dean and Professor of Constitutional Law at Koç University Law School, received her PhD in both public and private law from University of Cologne (Germany). Dr. Oder’s research focuses on comparative constitutional law, European Union law and international human rights law. She is a full member of the Science Academy. She served for the ad hoc Constitutional Conciliation Committee of the Turkish Parliament failed to reach consensus in 2013. Dr. Oder holds also LLB and MA/LLM degrees from the University of Istanbul and Marmara University (Turkey). You can reach her at boder@ku.edu.tr