Tag Archives: Turkey

Turkey – Is Erdoğan’s Competitive Authoritarian Regime Stable?

Christopher Carothers argues in his recent article “the Surprising Instability of Competitive Authoritarianism” that many competitive authoritarian (CA) regimes have not achieved stability over the past ten years.(1) The data suggest that only a small number of CA regimes seem stable; the rest either democratised or turned into fully authoritarian regimes. According to his observations, there are four factors leading to breakdown in CA regimes: losing elections (national, local/mayoral) due to poor electoral strategies; manipulated elections triggering massive public protests and anger; achieving successful election rigging but turning the regime fully authoritarian out of fear of rising opposition; and finally losing ideological legitimacy for their regime.

Turkey is an interesting case study testing all these theories. Upcoming local elections will be held on 31 of March, 2019 and current polls suggest that the ruling AKP’s vote share is around 34-35%. If the opposition wins mayoral elections in big cities like İstanbul, Ankara, and Kocaeli, this might not only create an electoral alternative as suggested by Carothers, but it would also cut the patrimonial ties controlled by municipal authorities. In the Turkish context understating neo-patrimonial relations as a source of de facto power for President Erdoğan and his party, the AKP, is important to grasp the dynamics of the Turkish regime. (2) Neo-patrimonialism sets hierarchical patronal relations based on transferring collective interests from the big patron to the loyal group in exchange for political loyalty.(3) The selective transfer of collective interests in the forms of public aid, power and even public service is mostly controlled by local authorities, which also possess knowledge about electors in their area. Losing local elections would cut those ties which are already beginning to be severed by the deepening economic crisis.

Allegations of election/referendum rigging have been voiced for quite some time in Turkey without massive public protests.(4) This can be seen especially in the 2017 constitutional referendum, which established a hyper-presidential legal ground for Erdoğan’s patrimonial CA regime. The Higher Election Board accepted unstamped ballots, despite the clear ban in law no. 298, art.10. Furthermore, the fear of massive public protests like the Gezi protests in 2013 pushed the Erdoğan regime into passing repressive laws and being more aggressive. For instance recently 13 liberal academics and human rights activists were arrested and accused of spreading and organizing the Gezi protests, which more than 3 million people attended. Freedom House data confirms Carother’s arguments that the regime is turning seemingly more authoritarian spreading fear among the public in case they decide to take streets again.

As for losing its ideological legitimacy, the AKP’s CA regime faces the same danger. President Erdoğan still claims that Turkey is a democratic and free country where people enjoy basic rights despite overwhelming evidence suggesting otherwise. Erdoğan’s regime increasingly compensates for the weaknesses of this argument by turning to Islam as a source of legitimacy, especially at the local level however high corruption rates and patrimonial relations potentially damage the religion and its power as source legitimacy increasingly in divided Turkish society even though it is hard to measure its extent at the moment. Also Erdoğan’s regime has enjoyed performance legitimacy due to its good economic performance in the past. Nowadays high inflation and unemployment, lower economic growth and bad economic performance will test Erdogan regimes’ performance legitimacy.

In short, the immediate state of the Turkish regime points in a towards more authoritarian direction, however it will be very hard for the AKP regime to stabilise it in the long run.

Notes

  1. Christopher Carothers, “the Surprising Instability of Competitive Authoritarianism”, Journal of Democracy, vol.29/4, October 2018, p. 130.

2. Fatih Çağatay Cengiz, “Proliferation of Neopatrimonial Domination in Turkey”, British Journal of Middle Eastern Studies, 2018. DOI: 10.1080/13530194.2018.15096938.
https://doi.org/10.1080/13530194.2018.1509693.

3. Gero Erdman, – Ulf Engel, “Neopatrimonialism Revisited – Beyond a Catch-All Concept”, Giga Working papers, no.16, 2006. P.20.
http://www.giga-hamburg.de/de/system/files/publications/wp16_erdmann-engel.pdf.

4. Koray Çalışkan, “Toward a New Political Regime in Turkey: From Competitive Toward Full Authoritarianism”, New Perspectives on Turkey, vol. 58,2018, p. 12-16.

Marién Durán – ‘Dual Presidentialization and Autocratization: Turkey at a Critical Crossroads

This is a guest post by Marién Durán. It is based on an article that was recently published in Mediterranean Quarterly (2018) 29 (3): 98-116. https://doi.org/10.1215/10474552-7003192.

The article argues that dual presidentialization has accelerated Turkey’s movement toward autocracy in several ways: a greater control over the judicial branch and over public freedoms, in general, and freedom of the press, in particular.

This idea of dual presidentialization, a new concept proposed in this article, is useful for explaining autocratization and its implications. That the system is presidential does not always imply authoritarianism or autocratization; problems arise when a presidential system is designed with no adequate checks and balances or when the country is not a democracy.
What does dual presidentilialization mean in Turkey? It means that there has been a convergence or combination of two forms of presidentialization: legal reforms, and contingent or informal factors. In the first place, the article explores the legal and constitutional reforms that created presidentialization. The second relates to the presidentialization of Turkish politics, with an analysis of both the executive and the electoral and party aspects of the process, in accordance with the analytical framework provided by Thomas Poguntke and Paul Webb (2005). The objective is to explain how the resources of power have increased through both institutional reforms and the informal aspect.

The study of Turkey’s constitutional reforms is key to understanding the importance and impact of the institutional changes increasing the ruler’s power resources. The article analyzes constitutional changes that began with the 1982 constitution of the Third Republic, including the role of the president and the prime minister, the reform of the constitution in 2007 that enabled the direct election of the president of the republic, and the reforms approved in the 2017 referendum that converted Turkey to a presidential system. Both the 1982 constitution, without any adequate check and balances, and its successor in 2007 paved the way for a system in which priority is given to granting greater powers and control to the executive branch. Finally, the reforms approved in the 2017 referendum favor a presidential system without any constraints.

These constitutional reforms in Turkey have been accompanied by a process of presidentialization in which a charismatic figure has a particular and personal style. What does the presidentialization of Turkish mean? In this case, it refers to “the process by which regimes are becoming more presidential in their actual practice without, in most cases, changing their formal structure, that is, their regime-type.” (Poguntke, Webb, 2005). We refer to Poguntke and Webb work, because in the case of Turkey, this process has accompanied Turkish politics for decades, which became more pronounced since 2002 when the AKP came into power. Consequently, independently of any legal and constitutional factors, there have been contingent and structural factors leading toward a more presidential manner of acting, contributing in the end to a change in the form of the state.

Given we have clarified what dual presidentialization is, how has Turkey’s dual presidentialization accelerated the movement towards autocracy? The article analyzes that impact in terms of three key indicators: judicial power, civil liberties in general, and press freedom.
Why these areas specifically? This is because the judiciary and the media are horizontal and vertical checks and balances respectively on executive power. Certain power resources, such as electoral victories, the control of the main institutions and agencies, and the support of the ruling party, have helped President Erdoğan control appointments to the main positions in the judiciary.

Important reforms to the judiciary began in 2010 and continued in 2013 (due to corruption cases in AKP). The philosophy of these changes was to guarantee that there were no judicial decisions that could be negative for the AKP in important trials. Consequently, since 2013 onwards the judiciary has been under considerable pressure from the executive, damaging the separation of power.

Regarding civil liberties, the media and civil society constitute vertical checks and balances that have been eroded significantly in recent years by reforms and by the government’s authoritarian style. The AKP’s majority in parliament has allowed these reforms to be carried out. They also include Erdoğan’s continued leadership and ideology, with his belief in a “pious generation” and the imposition of certain values (including declarations regarding LGBT rights, couple relations, and so forth); as well as the control of the main institutions and media.

Finally, the AKP has continually degraded the freedom of the press since 2002, both in legal and constitutional terms and in the executive aspects of presidentialization. In this latter regard such pressure has been carried out in various forms: by creating communications media outlets close to the party and by placing pressure on the communications media. Pressure on journalists is common and Reporters without Borders lists numerous violations. Some indices such as Freedom House have reduced Turkey from the status of partially free to not free.

In summary, the progressive concentration of institutional power, aided by personal factors, has led to a process of autocratization. Since Erdoğan came to power, he has been able to gather enough resources to erode and virtually destroy certain checks and balances. His absolute control over the AKP, his ideology, the consecutive electoral victories (parliamentary, local, and presidential), his charismatic leadership, the control of the main institutions and state agencies, social networks, and media control have repressed freedom and institutions. In other words, the system has been damaged in terms of the functioning of government, rights, and public liberties.

Turkey – Putting an entire state structure under construction

Turkey’s move to a presidential system with the 2017 constitutional amendments came into force following the general elections in June 2018. This move necessitates a transformation of the entire state structure, administrative law, and institutions. Since the foundation of the Republic in 1923 Turkey has not faced such a vast institutional transformation. It would not be wrong to label the new era as “the second republic”.

Since the first Ottoman Constitutional period in 1876, the chosen political system was mostly parliamentary system. The convention system (1920-24), and the semi-presidential system (2014-2018) were briefly tried, but served as transitional periods mostly. A presidential system has never been implemented until now. Therefore, the new presidential republic signifies a big departure in the political history of the country as well as the state tradition. Accordingly, almost the entire state structure has to be adapted to the new system.

In the former republican state structure, the executive branch was dual; there was the council of ministers headed by prime minister, and the president. The ministries were designed hierarchically from the centre towards the periphery under the authority of ministers. Political decisions were made in the council of ministers and parliament. Accordingly, political responsibility to parliament was shared by all members of the council. The political centre was parliament. Ministers were mostly members of parliament. The administration of state institutions was executed in accordance with acts of parliament. Governments needed a vote of confidence from parliament and parliamentary legislation in order to put their program into practice. Political parties holding a majority of seats were also influential over the executive and legislative practice.

Now, the president has replaced the council of ministers. Ministers are not the hierarchical administrative superiors for the lower ranking civil servants. The administrative structure is not designed in accordance with legislation any more. Presidential decrees have replaced legislation to designate ministries, all state institutions, the duties and responsibilities of civil servants etc. Former structures have been abolished by presidential decrees. The president has already issued 15 decrees to reorganise the state. Most of the former bureaucrats and civil servants had to be retired early. The current condition for many state institutions is chaotic. Some of them have been abolished under decree no.703; some of them have been renamed, united under single institution and reorganised Twenty-six ministries have been reduced to sixteen. There are also newly founded offices and policy committees under the presidency. In addition to ministries, there are four specific offices and nine policy committees in ministerial service eras such as health, education and economy that are directly under the presidency. Ten other separate institutions are also directly run by the president such as national intelligence service, the presidency of religious affairs, Turkish sovereign wealth fund.

There are four important characteristics of the new system:

a. It is created to unite, not to divide the state structure. The separation of powers cannot be seen in the structural organisation. Accordingly, hardly any checks and balances are left in the system. State power is organised and united under the presidential office and regulated by presidential decrees.

b. The assembly lost a big chunk of its former powers including a general law-making power in every subject. The assembly does not even have new parliamentary procedures currently. It does not have important permanent committees to engage in checks and balances, or committees of inquiry as in strong legislatures such as the US or Chile.

c. Ministerial offices have also lost their former position. It seems there are superior and parallel offices under the presidency to plan and execute policies. All important decisions are to be made by the president or presidential office. This potentially slows the bureaucracy down to a great degree.

d. The organisational structure resembles a holding company. The president intends to run the state like a company, and eliminate the old bureaucratic elite by creating superior and more loyal inner offices. He even appointed some outsiders like former CEOs or businessmen as ministers.

While the Turkish state structure has been reshuffled, President Erdoğan is having the most difficult time in his political carrier due to the deepening economic crisis. It is hard to predict how Turkey is going to manage to transform its state structure and perform efficiently under such bad economic conditions. It will also test President Erdoğan’s argument that the new system is capable of good management. So far he has managed to put the blame on foreign forces, such as USA for deliberately rising exchange rates and waging an economic war on Turkey, but eventually he will need to tackle the country’s economic problems and get good results under the new system as he promised to his voters.

Turkey’s new presidential system enters into force with Erdoğan’s election win

Turkey held a snap election on 24th June. This was the first time that concurrent presidential and assembly elections were held. The constitutional amendments installing a presidential system enter into force with this election. President Erdoğan was re-elected as president at the first round with 52 percent of the votes. He becomes the first president of the new political system. His party, the AKP (Adalet Ve Kalkınma Partisi/ Justice and Development Party),  won 42 percent of the vote and its partner, the MHP (the Nationalist Movement Party),11%. It’s highly likely that there will be a conservative/nationalist coalition formed by the AKP and the MHP.

Elections were held under the continuing state of emergency since the coup attempt in 2016. One of the major political actors, Selehattin Demirtaş, the leader of the Kurdish HDP (Halkın Demokrasi Partisi/ Peoples’ Democracy Party) has been in prison for political speeches he made. There were regular assaults and violent attacks on opposition parties even on the election day and threats of internal war by supporters of the ruling AKP. The ruling party also used state facilities, had financial support, and controlled state and private media to ensure greater coverage for themselves and block opposition candidates’ appearances, creating immense electoral inequalities.

The AKP and the MHP formed an alliance called “Cumhur/Public” and supported Erdoğan. At the beginning of the campaign period, it appeared as if President Erdoğan had two particular targets. One was to prevent the IYIP (İyi Parti/the Good Party), from taking centre-right votes from the AKP. The other one was to push pro-Kurdish HDP under the ten percent threshold by portraying the party supported by nearly six million people as the supporter of terrorism. If he could  do so, the AKP would win the HDP’s seats, as it was the second party in the regions where the HDP is strong.

However opposition parties, especially the left wing CHP (Cumhuriyet Halk Partisi/the Republican Peoples Party) and its candidate Muharrem İnce, challenged this strategy by visiting Demirtaş in prison, promising recognition of the right of Kurds to be educated in their mother tongue, and abolishing the state of emergency. The HDP asked for strategic help from left wing voters to reach the threshold and in return promised to support the runner-up opposition candidate in the second round of presidential race. Even though the opposition parties failed to capture the assembly majority, the HDP did passed the infamous 10 percent national threshold and won 67 MPs in the 600-person Assembly.

Despite the great unfairness they faced, the opposition put up a credible struggle to change Erdoğan’s increasingly authoritarian rule. The opposition alliance, “Millet/the Nation”, which was formed by the CHP, the IYIP, the SP (Saadet Partisi/the Happiness Party), and the DP (Demokrat Parti/ the Democratic Party) agreed on a transition period during which a new constitution for a parliamentary democracy would be drafted. They all ran their own candidates in the first round of the presidential election, but agreed to support whoever won through to the second round. They also affirmed their intention to form a coalition government to democratise the country and tackle the serious economic problems. The HDP declared its support for a new democratic = constitution recognising certain minority rights, too. Their received 47 percent in the presidential race and 46 per cent in the assembly election.

The country will now embark upon a new Turkish type of presidential system with almost no outside checks and balances. President Erdoğan created a highly politicized judiciary after the coup attempt, removing nearly 5,000 judges and appointing politically loyal supporters. The army was also restructured. Now, all state institutions will be redesigned around the presidential office. President Erdoğan controls almost all media (state and private) and the private sector. It appears that the MHP’s supporters are willing to receive some of the benefits of state patronage (1) by forming a coalition.

In short, Turkey’s competitive authoritarian regime is getting consolidated under a patronal hyper-presidential system despite nearly half of the nation’s will for true democracy.

Notes:

1. H. Hale, Patronal Politics Eurasian Regime Dynamics in Comparative Perspective, Cambridge Uni Press, 2015, p. 9-10

Turkey – First Concurrent General Elections under the New Presidential System

Concurrent presidential (first round) and legislative elections are to be held, one year earlier than the original date, on 24th of June, for the first time since the adoption of presidential system in a highly debated referendum in April 2017. A majority runoff system will be used for presidential election and the D’Hondt system with a 10 percent national threshold will be used for legislative elections.

There are two major election alliances. The ruling AKP (the Justice and Development Party) and its partner the MHP (the Nationalist Movement Party) formed an alliance called “Cumhur/Public”. The main opposition party, the CHP (the Republican Peoples Party), formed an alliance called “Millet/the Nation” with 3 other parties (İyi Parti/the Good Party, Saadet Partisi/the Happiness Party, Demokrat Parti/ the Democratic Party). The pro-Kurdish HDP (the Peoples Democracy Party) has not participated in any of the alliances so far but remains an important player despite the fact that its leaders and many of its MPs are currently in jail.

The ruling party and its partner favoured concurrent elections and changed the electoral rules in order to avoid divided government. According to the new system, each partner in an alliance needs to pass the ten percent national threshold if the total votes are higher than the threshold. This is a great incentive for smaller opposition parties to join an alliance to pass the national threshold in the legislative election. Each party can have their own list under the umbrella of an alliance. The total number of seats that each alliance gets will be decided by looking at their total votes. After the total numbers of seats are known, they will be distributed by party according to their portion in the total votes by the D’Hondt method. According to this system, the more votes remain under the threshold the larger the share of the biggest party within the total numbers. Accordingly, the main opposition party’s (the CHP) strategy to include other three opposition parties into the alliance aims to make the ruling party’s share more proportionate.

As for the effect of concurrent elections together with the majority runoff system generally, the results of legislative elections echo the results of the first round of presidential elections in presidential systems (1). Research shows that the majority run off system encourages a larger number of candidates at the first ballot in the attempt to gain a better bargaining position in coalition building at the second round as well as increasing the number of parties in the assembly (2). In that respect, the majority runoff system encourages coalitions before the election, especially before the second round (3). On the other hand, concurrent elections lower the effective number of parties in the assembly (4). Creating friendly majorities in assemblies still depends on the party system’s level of fragmentation (5). For instance, in a country where the political party system presents signs of polarised pluralism (6) (highly fragmented and ideologically polarised political parties) concurrent elections tend not to produce a solid majority in the parliament. The higher the level of fragmentation, the lower the possibility of a single party majority in the assembly. In such situations, presidents face uncompromising opposition in assemblies which can lead to a constitutional crisis such as in Guatemala and Peru in the 1990s (7). In both countries the presidents (Serrano and Fujimori respectively) ordered the military to close the assembly and arrest the opposition leaders. In Peru Fujimori succeeded whereas in Guatemala Serrano was abandoned by the military and removed from office. Either way the result was not supportive of democracy.

Concurrent elections can help to lower the possibility of divided government and strengthen elected presidents only under the right conditions, such as high popularity of a single strong presidential candidate. The Turkish case seems to confirm this general wisdom. The ruling party’s strategy is to win the much-needed support from its smaller partner in order to win the presidential race in the first round as well as alienating and pressuring the leaders and members of the HDP in order to push the party below the threshold in legislative elections. Meanwhile all the parties in the opposition alliance are running their own candidates in the first round of the presidential race and have decided to support whoever reaches the second round. Their strategy is to push the presidential election into a second round and win a majority of the assembly.

This situation encourages certain outcomes. First, there is the likely increase in the number of parties represented in the parliament. It is highly likely that President Erdoğan’s coalition will gain fewer assembly seats than at present and might even lose its majority in the assembly.

Secondly, there may be more coalitions under then presidential system than previously because of the majority runoff system. Despite the fact that President Erdoğan defended presidential system for not needing coalitions, he has been forced to form a coalition with the MHP in the first round. Whichever alliance wins, it is clear that there will be coalitions in both the legislature and the executive.

Thirdly, the pro-Kurdish HDP seems to be treated as an “anti-system party” (8). Its ideology has been alienated and it has a polarising effect on other electors. For that reason, other opposition parties have refrained from being in a coalition with it. However, the HDP may yet the key to victory for both alliances since the polls are showing a close race.

Notes

1. J. M. Carey, “The Impact of Constitutional Choices on the Performance of Presidential Regimes.” Journal of Social Science and Philosophy 11, no.1 (1999), p. 97, and F. Nunes and M.F. Thies, “Inflation or Moderation? Presidential Runoffs Legislative Party Systems, and Coalitions.”, p.9 . Available at http://felipenunes.bol.ucla.edu/runoff.pdf, accessed 20 March 2015.

2.Carey, “The Impact of Constitutional Choices,” p. 95; Nunes and Thies, “Inflation or Moderation?”, p. 8-9.

3. Nunes and Thies, “Inflation or Moderation?”,p. 26.

4.Ibid., p. 18.

5.Carey, “The Impact of Constitutional Choices” p.101.

6.G. Sartori, Parties and Party Systems a Framework for Analysis, ECPR Press, 2005 , p. 117-118.

7.Carey, “The Impact of Constitutional Choices,” p.96.

8.Sartori, Parties and Party Systems, p. 118.

New publications

Yonatan L. Morse, ‘Presidential power and democratization by elections in Africa’, Democratization, Online first pp. 1-19.

Yonatan L Morse, ‘Electoral authoritarianism and weak states in Africa: The role of parties versus presidents in Tanzania and Cameroon’, International Political Science Review, Volume 39, Issue 1, January 2018, pp. 114–129.

Marino De Luca, ‘The end of the French primary? Measuring primary election impact on electoral performance in the 2017 French presidential election’, French Politics, Online First.

Cynthia McClintock, ‘Reevaluating Runoffs in Latin America’, Journal of Democracy, Volume 29, Number 1, January 2018, pp. 96-110.

Fortunato Musella, Political leaders Beyond Party Politics, Palgrave Macmillan, 2018.

Battal Yılmaz, The Presidential System in Turkey: Opportunities and Obstacles. Palgrave, 2018.

Dan Slater, ‘Party cartelization, Indonesian-style: presidential power-sharing and the contingency of democratic opposition’, Journal of East Asian Studies, Online First.

Sarah Shair-Rosenfield and Alissandra T. Stoyan, ‘Gendered Opportunities and Constraints: How Executive Sex and Approval Influence Executive Decree Issuance’, Political Research Quarterly, Online First.

Gregory J. Love and Leah C. Windsor, ‘Populism and Popular Support: Vertical Accountability, Exogenous Events, and Leader Discourse in Venezuela’, in Political Research Quarterly, Online First.

Marina Costa Lobo, ‘Personality Goes a Long Way’, Government and Opposition, 53(1), 159-179, 2018.

Łukasz Jakubiak, ‘Formulas of cohabitation in rationalised parliamentary systems of government. The cases of France and Poland’, Journal of Comparative Politics, vol. 11, no. 1, pp. 51-65, Jan. 2018.

Rolando Tarchi, ‘La forma di governo del Messico: dal presidenzialismo imperiale alla “parlamentarizzazione” del presidenzialismo?’ [The Mexican form of government: from the “imperial presidentialism” to a parliamentarization of the presidential system?], Vol. 33, No. 4, (2017): DPCE Online 4-2017, available at: http://www.dpceonline.it/index.php/dpceonline/article/view/468

Machiko Tsubura, ‘“Umoja ni ushindi (Unity is victory)”: management of factionalism in the presidential nomination of Tanzania’s dominant party in 2015’, Journal of Eastern African Studies, Online first pp. 1-20.

Turkey – The President’s Decree Power in the New Presidential System

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.

Notes

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.

Turkey – A drastic transformation into a hyper-presidential, competitive authoritarian state

According to President Erdoğan, last year’s coup attempt by Fetö (an organisation led by a clerk called Fettullah Gülen who previously was closely allied to the president Erdoğan) was a blessing from God. This statement may sound like an odd claim since the President’s life was also said to be targeted on the night of July 15, 2016. However, sadly it is true that it gave Erdoğan an opportunity to declare a state of emergency, pass 28 decrees with the force of law reorganising many institutions without being bound by the constitution, and that violated many human rights conventions that Turkey has ratified such as the ECHR.

Many of these emergency decrees passed by the government are not even related to the cause of the crisis, even though under the constitution the subject of an emergency decree has to be limited to the cause of the given emergency. Despite their apparent violation of many articles of the constitution, and the ECHR, the constitutional court, two members of which were dismissed from their posts a year ago as a result of one of those decrees, refused to examine the constitutionality of the decrees, waiving its previous jurisdiction stating that the emergency decrees are limited to matter related only to the cause of emergency, and that they may be applied only during an emergency.

The Constitutional Court’s free pass merely reflects the country’s current repressive climate created by the emergency laws. These decrees reregulated public institutions including the National Intelligence Service, the army, local municipalities, and served to dismissed== more than 103000 public servants, university lecturers, appointed trustees replacing elected mayors and other local authorities (mostly pro-Kurdish HDP’s). They enforced new policies at full speed in the light of the AKP’s Islamist political beliefs, such as changing school system to promote religious schools as tools of transformation into a more Islamic country, closing down more than 150 media outlets, 1000 associations and foundations, and seizing private companies worth more than 10 billion dollars. But the most crucial change is the reorganisation of the judiciary, the ministry of justice and criminal enforcement. Currently, more than 4300 judges have been dismissed for being related to the Fetö organisation, some based on their previous decisions. Any judge who passes a judgement contradicting the President’s goals will be accused of being a member of Fetö, and can be easily dismissed since the president has a full control of the Council of Judges and Prosecutors, which are appointed by him and the majority of the members of the Grand National Assembly which the AKP controls.

Since the coup attempt, more than 50.000 people and 166 journalists have been imprisoned as a result of the government’s crack-down operations. This has created a serious climate of fear and intimidation reflected in the number of people who are seeking asylum. In this climate one important change has also been made; the constitutional reform package introducing a hyper-presidential system was adopted by the AKP and its partner, the MHP, and was approved in a referendum in April that was neither free nor fair. Despite the huge advantages that the government forces enjoyed, their proposal was accepted by the margin of only one percent and with the help of the High Election Council, which ignored Law number 298, article 101 which openly states that unsealed ballot paper are invalid, thus accepting an unknown number of invalid votes that otherwise would not have been counted. The High Election Council’s decision was taken after the actual counting had started. This sparked a reaction that the counting was also not fair. The Organization for Security and Co-operation in Europe (OSCE) and the Council of Europe’s observers criticized the referendum process for not living up to the democratic standards, including the counting procedure. The main opposition party, the CHP, also claimed that “no votes” were in fact in the majority and that unsealed ballot papers were fakes, filing a case before the European Court of Human Rights. The case is still pending.

This summary of events tells only the final part of Turkey’s transformation from parliamentary democracy into hyper-presidential autocracy within a decade under AKP rule.

President Erdoğan is free from any checks and balances. He enjoys full control of every state institution and most of the media. Due to the state of emergency, constitutional guarantees of basic rights are currently suspended, giving the president the opportunity to transform a formerly parliamentary democracy into an hyper-presidential system (changing laws to fit the new regime such as election law, parliamentary rules and procedures, laws of political parties etc) which will be fully in force in 2019 after the elections to be held then.

Turkey – Two weeks until the most important referendum in the country’s constitutional history

With two weeks to go until the most important referendum in Turkey for decades, the situation is looking increasingly tense and people are more and more divided. The stakes are high for both sides. If the “no” vote wins, this would shake Erdoğan’s long-standing populist rule. However, if Turkish voters prefer a “yes” vote this would  mean not only leaving behind the parliamentary tradition, but also turning the country’s back on basic European ideals, including liberal democracy.

The proposed Turkish type of presidential system would grant President Erdoğan the power to redesign the country’s state structure and rule pretty much as he pleases. This system has been promoted as a neo-ottomanist, pro-Islamist reform that would create a national, home-grown system.

Since the beginning of the 19th century, Turkey has adopted a model of modernisation. But now, such a modernisation process, which involves the secularisation of state and society, is increasingly being presented by the ruling party, the AKP, as being different from the country’s Islamic culture, despite the fact that Islam was itself an import from the Arab world. The constitutional reform is defended and legitimised as marking the reversal of an unlucky history and the resurrection of the Ottoman Empire, even though the real Ottomans are now long gone. Anyone who is against the reform is portrayed as being either a traitor or a terrorist. This simple and rather superficial propaganda has been repeated so often by President Erdoğan and other AKP politicians that it has dangerously increased the level of polarisation in the country, and which has already been at a very high level for the past 10 years. One journalist who is close to Erdoğan has branded Turks who believe in western ideals as partly alien to their native culture and claimed that even so, if the “yes” vote wins they will be granted the right to live as a sign of generosity since they are good Muslims. This type of thinking hints at the general ideology that is feeding Erdogan’s one-man rule. He is being portrayed as the saviour of Islam who will end the secular republic founded by Atatürk’s revolution.

Erdoğan has based his campaign on strong nationalist and Islamist ideals, and has used polarisation as a tool to consolidate conservative right-wing votes. To this end, not only has he promoted internal divisions against both secularists and religious and ethnic minorities, but he has also labeled everyone who rejects his vision of Turkey as being on the same side as the terrorists. His aggressive rhetoric is not limited to internal affairs. He regularly targets the Western world. After Germany, Austria and Holland restricted the AKP’s political rallies in their countries, he had the much needed opportunity to exploit nationalist feelings by attacking the governments of those countries as Nazis, despite the fact that the Turkish law itself bans Turkish political parties from campaigning abroad. His tactical choice of using aggressive, popular and polarising language has paid off in previous elections, given he has not lost since 2002. However, it is not certain how the Turkish public will react to this type of rhetoric now. Economic and political ties with Europe are too strong to be suddenly cut off without any consequences.

Erdoğan and other AKP politicians hardly mention the details of the reform. They only claim that a presidential system will make Turkey great and more democratic. There will be no coalitions; therefore the system will bring political stability and economic growth.

Erdoğan is not alone in his campaign. The leader of the Nationalist Movement Party, Devlet Bahçeli, is also on his side, campaigning for a presidential system even though some of his party’s current and former MPs have openly declared that they will say “no” to the change. Also, recent polls have suggested that a majority of the party’s voters are likely to to vote “no”. Bahçeli argues that a presidential system will help to keep Turkey together and that all terrorists will be destroyed if the new system is passed.

Using polarisation as a weapon to unite conservative voters is not the only tried and trusted method of Erdoğan and his supporters. Silencing the opposition has been another aspect of their competitive authoritarian rule for some time. According to a report from the Union for Democracy, an NGO, regarding air time from 1-20 March, the “yes” coalition got 486 hours, the main opposition party, CHP, got 45.5 hours, and the pro-Kurdish HDP got zero hours. In addition, the state of emergency since the failed coup attempt in July is still in force, and opposition rallies and meetings have regularly been cancelled because on security grounds. Systematic obstruction, including physical attacks and death threats, have been commonplace. Yet, despite the uneven competition, polls suggest that this referendum may not be as easy to win as previous elections.

The main opposition party has chosen a softer approach and avoided polarisation. They have not used their party symbols and have tried to unite different groups by emphasising that it is a national matter that is above party politics. They argue that this change will create one-man rule, will weaken the Grand National Assembly, diminish judicial independence, and destroy democracy, which has already had a troubled time in Turkey.

The leaders of the other opposition party, HDP, and many of its MPs are currently imprisoned, and others have been silenced by the mainstream media. This party has also quietly campaigned for a “no” vote, even though there are people claiming that HDP voters of Kurdish origin have lost interest in being part of Turkey’s future and may not prefer to vote at all. The overall picture is not that of a free or fair campaign for the opposition and confirms that Turkey is competitive authoritarian regime as defined by Levitsky and Way in their 2010 book “Competitive Authoritarianism: Hybrid Regimes After the Cold War”. If this proposed hyper-presidential system is approved by the majority of people, avoiding competitive authoritarianism will become much more difficult.

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.