Turkey – Erdoğan is closer than ever to his dream of a hyper-presidential system

On January 21 the Turkish parliament passed a constitutional reform package introducing a presidential system. the reform was passed with 339 votes in favour, slightly more than the minimum threshold of 330 votes. The ruling AKP party had the support of Devlet Bahçeli, the leader of the pro- nationalist MHP (Nationalist Movement Party) and some of his party’s MPs, despite the fact that considerable number of the MPs and party supporters opposed the proposal. Now the reform bill is going to be sent to the President Erdoğan’s Beştepe Palace  for promulgation. He has two choices, either send it back to the Grand National Assembly for reconsideration, or refer it to a referendum. It is expected that he will refer it to a referendum, which will take place in April.

The reform package has no provisions enhancing basic rights or correcting the defective Turkish democracy. The constitutional amendment has two important and interconnected intentions; one is to change the current semi-presidential system into a hyper-presidential system and the other is to reform the judiciary so that the president can have a major role in the formation of judicial supervisory body, the Council of Judges and Public Prosecutors.

The reform package abolishes the dual executive and replaces it with a president who is the sole executive authority. He appoints all ministers, undersecretaries, and bureaucrats without the approval of the assembly. He has the power of legislative decree. He may regulate any issues that are not enacted by the assembly in detail, except individual and political rights, and he may do so without an enabling law or any prior conditions, such as necessity or urgency. When it comes to issues enacted by the assembly, the president may claim that the parliamentary act is not detailed enough or that his decree is covering another aspect of the issue. There is no retrospective examination of decrees by the assembly either. This type of regulation is always likely to create legal chaos. The constitutional court has the power of judicial review over presidential decrees. However, the president’s power to appoint 12 of the 15 court members for a 1- year term creates certain doubts that the court may not be independent enough to actually challenge the presidential will.

Furthermore, the president may create or abolish any public legal entity, regulate the duties, powers and the structure of ministerial bodies from top to bottom, and change the whole administrative structure by decrees without needing a parliamentary act. This means that he may reorder the main principles of administrative law without a parliamentary act. This is a big change in Turkish administrative law, since one of its main principles is that administrative law has to be enacted by parliament (the legality principle). If the reform is accepted in the referendum, the person who makes the rule will be the same person who implements that rule. There will be no external oversight of the administration, making administrative courts meaningless.

In addition to above-mentioned powers, the president will also have the power to declare a state of emergency and issue emergency decrees which may infringe or suspend all constitutional rights without any judicial review. Such a powerful legislative decree authority is hard to find in any Latin American Constitutions, even though almost all the current Latin American constitutions give presidents the power of legislative decree. In this region, they either require prior enabling laws (Chilean Constitution art. 32/3), or they can only be issued if the usual law-making procedures in parliament are not working properly and when there is an urgent need for such decrees (Argentinian Constitution art.99/3, Brazilian Constitution art.62). Such power also comes with retrospective control exercised by the assemblies, which is not the case for ordinary decrees (only for emergency decrees) in the current Turkish constitutional reform proposals.

The president is also responsible for determining and implementing national security policies as well as having the power to decide to use the army. Under the current constitution, this type of decision making traditionally involved chiefs of staff, the council of ministers, and the parliamentary assembly.

In addition, the president also has the power of parliamentary dissolution, again without any prior conditions or time limits attached. The parliament would mean that an early presidential election is held as well, since the two elections have to be held concurrently to help guarantee that the party led by the president can also win a majority of parliamentary seats. The parliament may also decide to call an early election, but this would require a three-fifths majority of the whole members (360 of 600). Clearly, a single person is more likely to make such a decision than an extraordinary majority. The president may dissolve the legislature if there is a conflict with the majority, or when he is about to be impeached and right before the decision to send the case before the constitutional court, or simply at a convenient time. Dissolution power is quite rare in presidential systems. However, it is often seen in competitive or electoral authoritarian presidential systems such as Pinochet Chile before 1989, Venezuela, Syria, Guinea.

This amendment also alters one of the main principles regarding presidents, namely that they cannot lead a political party. Instead, they need to be impartial towards all political parties. With this change, presidents are no longer required to be neutral. They can be the chairman of a political party and lead this party’s parliamentary majority. Traditionally, Turkish parties are leader-oriented, and internal democracy is quite weak. The party leader decides who gets to be nominated.

As for the structure of the Council of Judges and Public Prosecutors, which is responsible for overseeing the appointment, promotion, discipline, and dismissal of judges and public prosecutors, six of the thirteen members of the Council will be appointed by the president; the rest will be selected by the parliamentary majority. Since the president will be the head of a political party, he may lead the parliamentary majority. In the light of the current conditions in Turkish politics, the president is highly likely to control the parliamentary majority, which would make him indirectly involved in the selection process of the other members of the Council of Judges and Public Prosecutors.

The council selects the members of the High Court of Appeal (yargıtay) and three-quarters of the Council of State (the rest are appointed by the president). Their term of office is four years and they can be re-elected. The head of the council is the minister of Justice and his undersecretary is a permanent member. As pointed out above, the president also appoints a majority of the members of the Constitutional Court. In short, the President may shape all the high courts and the Council which control all the courts. This would potentially affect the independence of the courts from executive authority. Article 6 of the ECHR and Art. 38 of the current constitution state that there is the right to a fair trial, which includes being tried by an independent and impartial tribunal. Independence requires being free from the executive’s influence. The European Court of Human Rights uses four criteria to define independence; “the manner of appointment, term of office, existence of guarantees against outside pressures, and appearance of independence”. Under this amendment, none of these criteria are fulfilled. Without independent judiciary there is no fair trial for anyone and no rule of law. Furthermore, the manner in which the constitutional court judges are appointed by the president breaches a universal principle in law, whereby “no one can choose her judge” as the court is responsible for impeachment trials as well as examining decrees the president issues.

Overall, the reform package creates a very strong presidency without any checks and balances. It also supports the fact that in competitive authoritarian regimes presidents opt for new constitutions that consolidate their power, such as Venezuela (1999), Bolivia (2009), and Ecuador (2008). Currently, Turkey shows the signs of being a competitive authoritarian system. There is no free and fair competition among parties. It is a clientelistic and patronal system, which punishes the opposition (tax law, criminal law, etc) and rewards political loyalty by using state wealth and facilities. Selahattin Demirtaş and Figen Yüksekdağ, the co-leaders of HDP, the third largest party as well as many MPs of the same party are currently in jail; the main opposition, CHP, works under constant treats and some of its members are in jail too. Under the state of emergency the opposition faces especially tough constraints. Organising demonstrations and rallies are severely restricted.

Despite these facts, the AKP leaders still needs the support of MHP voter in the upcoming referendum according to the latest polls. If the right is unified, possibly with the help of a highly populist discourse, the reform package is likely to be accepted by the popular vote. However, “the no front” is getting ready for a tough struggle. It is going to be very tense three months in Turkish politics.

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