Following weeks of debates and unprecedented scenes of inter-party violence, Turkey’s parliament passed constitutional amendments that seek to establish a presidential system.
If approved by voters in a referendum expected to be held in April, the amended constitution will provide the Turkish president with an unprecedented degree of authority. But a lack of clarity and consensus have left serious questions about the democratic credentials of the reforms.
The proposed changes will be put to a public vote, but with the government cracking down on dissent more than ever, it remains unclear whether the referendum will take place in a free and fair environment. The fundamental nature of the changes to the political system means they require serious debate and scrutiny that goes beyond partisan politics, however the country is more polarized now than ever.
Though violence on the streets and in parliament is far from novel, tensions reached all-time highs last week when MPs belonging to the main opposition party, the Republican People’s Party (CHP), alongside NGOs and civil-society groups, were attacked by the police outside of parliament. While inside, during the parliamentary sessions on the amendments, opposition MPs were physically attacked by members of the ruling Justice and Development Party (AKP) for filming violations of secret ballot rules and seeking to protect an independent MP who handcuffed herself to the speaker’s podium in protest.
Another CHP MP has been accused of biting an AKP parliamentarian’s leg during a brawl, a charge he denies so vehemently he is offering to take a medical test to prove his innocence. Turkish politics has often been fraught, been it has rarely been this farcical.
This farce has in fact helped to obscure the significance of the matter. Reduced to petty squabbles and personal politics, a detailed evaluation of the proposed system and its potential implications beyond the current political status quo under AKP rule have not been forthcoming in public debate.
What do the proposed changes mean?
The AKP’s amendments seek to transform Turkey’s current, parliamentary political system into a fully presidential system with completely separate legislative and executive branches.
The president alone will form the executive and, unlike under the current constitution, will be permitted to have ties with a political party. The president and parliament will be elected in simultaneous elections. But the government, appointed by the president, will not require approval through a parliamentary vote of confidence. MPs who become ministers will not be able to keep their parliamentary seats.
Perhaps the most controversial aspect of the proposed changes is the strength of the executive powers granted to the president. Under the AKP’s proposal, the president will get to issue decrees “on issues that pertain to his power to execute, but decrees will be overridden if they contravene existing laws or if parliament passes a new law addressing their content.
However, critics say that whether or not the content of a decree already clearly exists in law is subject to interpretation; making the fair application of this principle rather problematic given the well-established partiality of Turkey’s legal system. As Mustafa Erdoğan, a former professor of law at Istanbul Ticaret University, wrote in a report last month, the AKP’s proposals do not clearly define which issues pertain to the executive, potentially providing unlimited room for the president to identify issues as falling within his realm.
The ambiguity about the checks on the president’s new powers also extends to civil service appointments and the budget. The president will be able to appoint and remove senior civil servants without parliamentary approval and regulate these procedures by decree. In comparison, while the U.S. president can also make such appointments, they are subject to senate approval. And though the budget prepared by the president requires parliamentary approval, if this cannot be obtained, the budget of the previous year is adjusted for inflation and goes into effect by default.
The proposed amendments also make it harder to impeach a president. Currently, a president can only be impeached following an accusation of treason put forward by a third of MPs and passed by the votes of three-quarters of parliament. Though no longer requiring such an accusation, impeachment would now require a proposal put forth by at least half of MPs, before again being ratified by a three-quarter majority.
Taking the status quo for granted
Though AKP parliamentarians argue that the envisioned changes would bring a much-needed separation of powers to the political system, in reality, the proposed amendments set out a system where the survival of the legislature and the executive are not independent of one another.
The amendments permit both the parliament and president to call for new elections which triggers the renewal of both parliamentary and presidential elections. However, while parliament needs a three-fifths majority to call for new elections, the president can do this on his own, yielding the president a greatly asymmetrical advantage over parliament.
But little attention has also been paid to the chaos that could result in cases of cohabitation where the president and the legislative majority belong to different parties. Potentially, both parliament and the president could call for new elections, and a legislative battle could take place between presidential decrees and parliamentary laws.
This is rather ironic given the AKP’s emphasis on the inefficiency of the current parliamentary system and the frequent references it makes to the coalitional turmoils Turkey experienced throughout the 1990s and early 2000s. However, the characteristics of the AKP’s envisioned presidential system indicate that the party anticipates little problem in maintaining its years-long hold over the legislature.
Nonetheless, a report assessing the AKP’s preliminary constitutional draft by Ergun Özbudun, a leading scholar of constitutional law at İstanbul Şehir University, argued that the ability of the executive and the legislature to dissolve each other in favour of new elections threatens stability.
Özbudun stressed the possibility of repeat elections that would not deliver different results, enhancing the risk of complete political deadlock, an experience not unfamiliar to Turkey. Similar risks exist with regard to the president’s right to issue decrees. The prioritisation of laws over decrees when they address the same issue, combined with the leeway granted to the president to issue decrees, could turn into fraught legislative battles likely to cause much instability.
These problems demonstrate a lack of understanding of what constitutes a true separation of powers. Indeed, the preamble to the proposals confusingly states that “both powers (the executive and legislature) gain their legitimacy from the people, and both the executive and legislature are responsible to the people. Both powers are separate, but they unite in serving the people under the supervision of the people,” but in reality they are able to terminate each other’s terms and therefore mutually dependent.
For the last 14 years that the AKP has been in power, the executive has enjoyed a majority in parliament, except for the few months in summer 2015 when elections resulted in a hung-parliament. The AKP’s proposals hinge on the assumption that this unity between the executive and legislature will remain intact. However, dangerous situations may come about if and when future elections result in a more fractured outcome. And though the political space permitted for opposition has narrowed considerably since, the recent experience of hung parliament demonstrates that the AKP is not infallible.
A referendum under the state of emergency
Given that the referendum will be held under the recently extended state of emergency, it is also important to consider what the AKP’s proposal puts forth in this regard. Though martial law has been scrapped with the amendments, the president, as now, will still be able to declare a state of emergency subject to parliamentary approval.
However, unlike the current constitution – which states that basic rights and freedoms may be put on hold, provided that the limitations do not infringe on international treaties – the proposed amendments no longer make this demand.
Prime Minister Binali Yıldırım has said that a referendum is likely to take place within 60 days of the completion of the parliamentary procedures. And with the state of emergency recently extended for another three months, it is now well-accepted that the presidential referendum will take place under emergency conditions.
The fact that there are not even nominal guarantee of rights and freedoms under the state of emergency, for which no end is in sight, has provoked concern among opponents. Though the proposal stipulate that joint parliamentary and presidential elections would be held in November 2019, it also states that in the case of early parliamentary elections, a new presidential election would be held simultaneously, without waiting for 2019.
That the referendum will be held under emergency law also highlights the asymmetric playing field between the AKP and the opposition has characterised Turkey’s recent elections. From outright repression to more traditional irregularities such as power cuts, discarded, and overprinted ballots, the outcome of elections has often been stacked in the government favour. A delegation from the Organization for Security and Cooperation in Europe, which monitored the elections last November, concluded that the campaigning process was “characterized by unfairness and, to a serious degree, fear.”
The detention of four people in Adana on Friday for handing out flyers against the presidential system already demonstrates that the referendum campaigning process is unlikely to be different than recent elections, If anything, it looks likely to be worse given the unprecedented repression against media and any form of opposition since the failed coup attempt in July.
With no clear understanding of how much support exists for the presidential system within the electorate due to contradictory polls, and little substantive debate on the proposals anyway, there is a serious risk that rather than reflecting the will of the people, the new political system simply reflects the will of the AKP.