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By Professor Selin Esen, Professor of Constitutional Law in the Faculty of Law at Ankara University, Turkey. Professor Esen is a member of the IACL executive committee.
The Grand National Assembly of Turkey (GNAT) passed the Law No. 6771 on amendments to the Constitution on January 21, 2017 with the votes of MPs of the pro-Islamist Justice and Development Party (JDP), that has been ruling the country for almost 15 years and the Nationalist Movement Party (NMP) which adheres to Turkish nationalism. The law was approved in the GNAT by 339 votes out of 550, surpassing the 330-vote threshold to hold a referendum but falling short of the 367-vote threshold needed to enact the amendments directly. The law was published in the Official Gazette on February 11, 2017. The referendum will be held on April 16, 2017.
This package of controversial constitutional reforms largely aims to replace the Republican form of government from the premier-presidential system to the presidential system, the so-called “Turkish style presidency” or “a form of government peculiar to Turkey” by its advocates. The Law No. 6771 invites severe adverse criticism regarding meeting requisites of the principle of separation of powers and other fundamental elements of democracy.
The main characteristic of these changes is to place the president in the center of political power. In accordance with the presidential system the constitutional reforms design the executive branch as unipersonal, i.e. the president is both head of government and head of state. Accordingly, it abolishes the office of prime minister and council of ministers and gives the president the authority to appoint the ministers (Art 16).
Law No.6771 provides a relationship between the Parliament, i.e. GNAT and the president in favor of the president by reducing the powers of the Parliament and expanding the powers of the president. According to the Law, parliamentary and presidential elections will be held quinquennially on the same day (Art 4). That shall make it difficult for voters to express dissension at the national level during the president’s term, because there shall not be held midterm elections. The amendments maintain the holding of by-elections under certain circumstances. Clearly, by-elections designed for the parliamentary system will not serve the same purposes as midterm elections in the presidential system. Differently from one of the basic requirements of the properly functioning presidentialism, the amendments provide for both the president and the GNAT to call early elections. According to Law No. 6771, while the president can exercise this power without any reservation, the GNAT can call an early election only by a resolution passed by minimum three-fifths of the total number of its members (Art 11). Obviously, this is a very high quorum to obtain. So, it will yield to only the president to dissolve the Parliament easily at any stage. Yet, the constitutional reforms provide a considerable exception to the rule that a person shall not be elected to the office of the president more than twice (Art 7) by providing the incumbent president on his/her second term to run for one more term in case of the decision of the GNAT to renew elections (Art 11). This provision attenuates the power of the Parliament against the president.
The constitutional reforms substantially curb legislative and monitoring powers of the Parliament. It limits the GNAT’s legislative power with presidential decrees and emergency decree-laws (Art 8 and Art 12). According to the Law no. 6771, the president will have the power to issue presidential decrees on matters related to executive power. It seems like the law limits this power in certain respects. Accordingly, fundamental rights, individual rights and duties included in the first and second chapters and the political rights and duties listed in the fourth chapter of the second part of the Constitution, shall not be regulated by presidential decree. Any regulation specifically required by the Constitution to be legislated on by the Parliament and matters clearly regulated by law shall not fall within the scope of presidential decrees. Should the Parliament issue a law on that specific topic, the presidential decree shall become null and void. Obviously, this provision enables the president to regulate a matter that is not regulated previously by law or to fill legal loopholes by decree.
We may raise some criticism on this provision. First, the constitutional amendments empower the president directly to enact by decree in a broad number of matters, such as the establishment and abolishment of ministries (Art 10), the functioning of the State Supervisory Council, the term of office of its members and other matters relating to their status (Art 16.Ç), organization and duties of the General Secretariat of the National Security (Art 16.B), establishment of public corporate entities (Art 16.B), the principles and procedures regarding appointment of high ranking officials (Art 8). Second, the power of issuing presidential decrees is much broader than the power of issuing decree-laws that the 1982 Constitution in effect provides to the council of ministers. According to the 1982 Constitution, the council of ministers can issue decree-laws within the frame of the empowering law that shall define the purpose, scope, and principles of the decree-laws, the operative period of the empowering law, and whether more than one decree will be issued within the same period. Still, decree-laws must be submitted for the approval of the Parliament (Art 91). The constitutional reform eliminates the control of the Parliament for the presidential decrees by repealing the requirement of an empowering law and approval of the GNAT. The law empowers the Constitutional Court (CC) to conduct constitutional review of the presidential decrees. Nevertheless, lack of a priori control and absence of a time limit for the CC to make a final decision will allow the president to abuse this power.
The constitutional amendments also curb legislative powers of the GNAT under the state of emergency by empowering the president to issue emergency decree-laws. Differently from the ordinary presidential decrees, emergency decrees have the force of law and almost all matters shall be subject of the emergency decrees. The Law No. 6771 provides the GNAT to approve emergency decree-laws within three months. Otherwise they will be null and void. We may claim that this provision will strengthen political control of the Parliament over the president in emergency regimes. However, this control will probably be inefficient because of the lack of any legal restriction for the president to reissue the same decree.
The Law No. 6771 also substantially weakens the budgetary powers of the Parliament. Constitutional reform stipulates that, should the draft budget not be adopted by the GNAT before the beginning of the fiscal year, a provisional budget law shall be approved by the Parliament. If it fails, the previous year’s budget will be implemented by increasing the revaluation rate until the new budget law is enacted (Art 15). This provision enables the president to spend without the Parliament’s approval. Budgetary power is one of the oldest and most influential functions of parliaments. This provision renders the GNAT’s budgetary power widely ineffective by providing the president to execute without seeking a compromise with the Parliament.
Besides, the constitutional reforms remarkably reduce the powers of the Parliament regarding monitoring of the executive. The Law No. 6771 revokes motions of censure and votes of no confidence in accordance with presidentialism (Art 16.Ç). It also repeals the right of oral questions of parliamentarians to the executive. It only provides written questions to the vice presidents and ministers. However, such a process shall probably be very ineffective as a means of control over the executive branch, since it is silent regarding the content of the questions and the time limit to answer them. The law preserves general debates of a specific subject relating to the community and the activities of the state at the plenary sessions and parliamentary inquiries. Note also that parliamentary inquiries are not formed as an effective means to control the executive by not providing them significant powers.
The constitutional amendments also make it considerably more difficult to impeach the president than the 1982 Constitutional provision in force (Art 9). Thus, Parliamentary investigation concerning the president may be requested on allegations of an offence through a motion tabled by at least an absolute majority of the total number of members of the GNAT. The Parliament shall consider and decide to initiate an investigation by three-fifths of the total number of members of the GNAT. The decision to bring the president before the CC shall be taken by two-thirds of the total number of members of the Parliament. Yet, the president will remain in office unless he/she is sentenced to an offence which is among the conditions of presidential eligibility. To put another way, while overwhelming majority of the Parliament withdraws its confidence from the president, and being tried by the CC he/she will continue to exercise his/her full powers. Also, even if he/she is sentenced by the CC, he/she will remain in office unless the offence does not infringe conditions of the presidential eligibility. The president who will continue to exercise his/her full powers despite the strong opposition of the Parliament will inevitably rise to severe political crisis. Yet, the constitutional reform stipulates these special procedures for the offences alleged against the former president of the Republic within his/her time in office. Clearly, such weak parliamentary and judicial control will provide a wide mantle of immunity for the president. The provision obviously infringes the principle of accountability, as well as proportionality between the power and the responsibility.
The Constitutional reforms stipulate that the president will be directly elected by people with a two-round system for a five year term. To have a higher education degree and to be over forty years of age are among the requirements to be eligible. Considering the facts that 63,87% of the population of Turkey is between 0-39 years of age and only 13% of the population has a degree from higher education institutions these requirements leave the majority of the population not eligible for the presidency. Hence, this indicates an elistist political view of the drafters of the reforms and will give rise to an unnecessary restriction on the right to be elected. Besides, these requirements contradict with the alteration introduced in the constitutional reforms that reduces the minimum age limit to 18 from 25 to be elected a MP.
Another criticism to the constitutional reforms that is different from the 1982 Constitution is that impartiality of the president shall not be a requirement. Accordingly, the president can be a member and the leader of a political party. The reforms ignore the struggle to ensure the impartiality of the president that holds a significant place from 1950s in the history of democracy in Turkey. The political culture in Turkey is based on the dominance of the leaders. The party system is formed on a lack of intraparty democracy with leaders who hold broad powers, including designating the candidates in elections and strong party discipline. For this reason, there is some merit in the criticism that this reform will yield to a “party state”.
Another noteworthy characteristic of the constitutional change is to furnish the president with broad powers. According to the Law No. 6771, among others, the president will call the elections for the GNAT, determine national security policies and take necessary measures, submit draft budget and final accounts bills to the GNAT, issue decrees, emergency decree-laws and regulations, declare state of emergency, veto laws enacted by the Parliament, appoint and dismiss the vice presidents, ministers, high-ranking officials, appoint judges of the CC, members of the Council of Judges and Prosecutors (CJP) and members of the Higher Education Council, appeal to the CC for the annulment of laws and Rules of Procedures of the GNAT on the grounds that they are unconstitutional, and submit constitutional amendments to referendum. Yet, the powers are not exhaustive. The president shall also exercise powers of election and appointment, and perform the other duties conferred on him/her by laws. Among others, the president’s appointment powers are extremely broad, since the amendments do not require parliamentary approval.
According to the reforms the president will appoint one or more vice presidents. Because of the executive branch in a presidential system is uni-personal and has broad powers, the president must rely on a strong democratic legitimacy. Law No. 6771 stipulates that in the event that the presidency falls vacant permanently or temporarily, a vice president appointed by the president shall serve as acting president and exercise the powers of the president (Art 10). Accordingly, the exercise of full presidential powers by a vice president who was not elected directly or indirectly by a popular vote, not even approved by the Parliament, will eliminate democratic legitimacy of the executive branch.
Law No. 6771 also implements some alterations regarding the judiciary. At the first glance it seems like changes aim to strengthen the power of judiciary by adding the word “impartial” to Article 9 of the Constitution that stipulates judicial power shall be exercised by independent courts. On the contrary, amendments especially on the CJP and the CC, generally increase the influence of the president on the judiciary, rather than reinforcing judicial independence. The constitutional reforms substantially diminish the number of the members of the CJP from 22 full and 12 alternate members to 13 full members. The President of the Council shall be the Minister of Justice. The Undersecretary to the Minister of Justice shall be an ex-officio member of the Council. Four members of the Council will be appointed by the president, seven members will be elected by the GNAT. Changes augment the impact of the president on the Council by raising the ratio of the total number of members of the CJP appointed by the president and by maintaining the Minister of Justice and the Undersecretary to the Minister of Justice in the Council as ex-officio members. Yet, the law maintains the prohibition to appeal against the decisions of the Council, except those concerning dismissal from the profession, before judicial bodies. Clearly this provision is not compatible with the principle of rule of law.
The constitutional reforms also make some alterations to the CC. The number of its members will be reduced from 17 to 15, with the abolishing of the High Military Court of Appeals and the High Administrative Military Court. Accordingly, they eliminate two members of the CC which are appointed from the members of these courts. As stated above, constitutionality of presidential decrees will be reviewed by the Court. Nevertheless, presidential emergency decree-laws are not subject to the control of the CC. Clearly, this exception severely infringes the principle of rule of law. It will also result in suspension of the supremacy and the binding force of the Constitution (Cons. Art. 11) and consequently the Constitution per se. Besides, the amendments limit the application for annulment directly to the CC on the ground of unconstitutionality of laws by granting the right only to the president, the first two parliamentary groups composed of most of the members, and one-fifth of the total number of the GNAT. We may claim that it considerably restricts the right to apply to the CC, compared to other democratic countries that adopt the abstract norm control.
Law No. 6771 introduces a highly controversial selection method for the members of the CJP and the CC which will be selected by the Parliament. Accordingly, the Joint Committee comprised of the members of the Committee on the Constitution and the Committee on Justice shall reduce the number of candidates to three for each membership by a two-third majority of the total number of members. If the nomination process fails in the first ballot, a three-fifth majority of the total number of members is required in the second ballot. In the event of failure in the second ballot for nomination, each nomination for membership is concluded, among the two candidates who receive the greatest number of votes by lot. The GNAT shall vote for each candidate nominated by the Committee by secret ballot. In the first ballot, a two-thirds majority of the total number of members of the Parliament, and in the second ballot a three-fifth majority of the total number of members of the Parliament is required. If any candidate obtains the required majority election is concluded among the two candidates who have received the greatest number of votes by lot.
In a democratic regime, the winner may be determined by lot when two candidates have received the same vote. Lot method drawn among all candidates who meet predetermined qualifications may even be considered compatible with the principles of democracy because it is equally applied to all candidates under the same conditions. In contrast, determination of a membership by lot drawn between two candidates who have not received sufficient votes to be elected is not consistent with the principles of democracy. Especially, when a candidate chosen by lot has obtained considerably less votes than the other one. It will inevitably raise legitimacy issues.
The 2017 constitutional amendments, among others, introduce a new form of government based on a unipersonal executive branch. Nevertheless, the new governmental system is founded on an unbalanced relationship between the executive, the legislature and judiciary in favour of the executive. It neither strikes a proper balance between the three organs based on monitoring each other, nor establishes the necessary means and mechanisms to provide for cooperation and collaboration between the president and the Parliament. Yet, the constitutional alterations do not restrict the president’s powers through the vertical separation of powers while maintaining the strong central government. Therefore, the constitutional amendments eliminate premiere-presidentialism, but do not provide a presidential system that might work efficiently in a plural democracy. Significant efforts to limit the powers of the executive go back to 1839 in Turkey. The 1876 Constitution for the first time introduced a Parliament consisting of the representatives of the people. Since then the Parliament, the parliamentarism, and the understanding of limited government are the integral parts of the Turkish constitutional regime. Approval of the constitutional reforms in the referendum will inevitably rise to lay aside the significant constitutional and democratic achievements that Turkey has been accumulating since the 19th Century.