Last year, Turkey changed its 1982 Constitution and adopted a presidential form of government. These changes will be implemented after the first scheduled presidential and assembly elections which will take place on the same day in 2019, unless early elections are called. There was only a limited debate about what type of presidential system there would be before the referendum in 2017 and there has been no public debate afterwards. It is still unclear for many people what to expect from the so-called ‘Turkish type of presidential system’.
There are different ways of distributing power in presidential systems. The president’s legislative powers are especially important, since those powers challenge the very logic of the separation of powers by delegating legislative power to the sole executive authority. According to Cheibub, Elkins and Ginsburg, high legislative powers separate the Latin American version of presidentialism from the US model.1 Presidential decrees that have the force of law are one important instrument of a president’s legislative power. It is also one that is easily abused and that can lead to a hyper-presidential system in the hands of populist presidents.2
In this respect, the 2017 reform created an important new instrument (presidential decrees) that Turkish presidents will be able to use for many different purposes. Under the new amendments, there are three different types of presidential decrees.
The first replaced the former type of executive decrees. Previously, the Council of Ministers3 could issue decrees with the force of law after the Turkish Grand National Assembly (TGNA) had passed a framework enabling law. Such decrees had to be presented before the TGNA on the same day they were published in the Official Gazette and reviewed by assembly upon presentation. Now, the president may issue decrees without an enabling law or presenting them before the TGNA. The new version abolishes any assembly control over the executive law making. However certain limitations relating to the topics that are allowed to be regulated are similar to the older version. The new Article 104 states that they can be issued for all areas relating to executive authority except individual and political rights, though the president can still issue decrees on economic and social rights.
According to the amended Article 104, presidential decrees cannot be issued on topics that are clearly regulated by legislation. If there were to be a contradiction between the two, legislation would overrule presidential decrees. Presidential decrees would be annulled if the TGNA were to adopt a law on the same topic. Does this mean that presidential decrees are secondary in the hierarchy of rules? The answer is “no”. This is because subordinate rules obtain legality because they comply with the higher rules. Their existence depends on the continuity in the chain of rules. Here, though, we have a special regulation giving legislative power to the president. These decrees supplement legislation in cases when the assembly is unable to legislate. Presidential decrees can be issued when there is no legislation or no clear legislation in a particular area. Bear in mind that the president has the power to veto legislation which is passed by a simple majority. In that case, the president’s veto can be overruled only by an absolute majority. So, presidents could delay or at least make it difficult for the assembly to regulate a particular topic and meanwhile could issue decrees overnight.
This situation might occur in a presidential system if the president’s party were a minority in a divided assembly. If no single party controlled the legislative agenda, the president could rule by decree. However, if the president’s party controlled the assembly, then the majority could gladly surrender its legislative power to the president simply by not doing anything. The Turkish party system, which is now a hegemonic party system,4 previously has had predominant, moderate and extreme pluralist phases since 1950s. These two scenarios are the most likely outcomes considering the previous or current state of the Turkish party system. In sum, presidential decrees resemble supplementary or temporary laws until the assembly regulates the topic clearly. It is also highly likely that the situation where an area is not clearly regulated by legislation could cause a legal confusion which could be misused by presidents.
The second type of presidential decree are ones with an exclusive jurisdiction. For example, creating or abolishing ministerial offices, the powers and responsibilities of ministerial offices, organizing central and local institutional structures, the procedures and rules regarding appointment and dismissal of higher civil servants will be regulated by presidential decrees exclusively under the new Articles 104 and 106. Public legal personalities can be also created by presidential decrees. All structural decisions regarding National Security Council and State Supervisory Council are also to be made by presidential decree (Art.118 and 108).
These two presidential decrees can be reviewed by the Constitutional Court and only a very limited group of people (the majority and second biggest political party group in the assembly or one fifth of the assembly) can bring these decrees to the Constitutional Court, the majority of whose members (12 of 15) are also appointed by the president.
The final type of presidential decree replaces emergency decrees. They are no limitations to them except the emergency situation. The president may declare a state of emergency alone and then issue regulations that could suspend, interfere with, or limit all basic rights without any constitutional review. The only control here is supposed to be undertaken by the Assembly within three months. If not they are terminated automatically.
In sum, presidents are given quite strong legislative power constitutionally in the new system and the TGNA has lost a large portion of its leverage over presidents compared to its previous position under the 1982 constitution.
1. J. Cheibub, Z. Elkins and T. Ginsburg, “Latin American Presidentialism in Comparative and Historical Perspective” , Texas Law Review vol.89/7, 2011.
2. See R. Ackerman,D.A. Desierto and N. Volosin, “Hyper-Presidentialism: Seperations of Powers without Checks and Balances in Argentina and the Philipines”, Berkley Journal of International Law, Vol.29/1, 2011.
3. The signature of the president of the republic was also required formally.
4. See G. Sartori, Parties and Party Systems a Framework for Analysis, Cambridge Uni Press, 2005, p. 204-211.