The Fall of Turkish Democracy
Codifying Autocracy through Constitutional Amendments
On January 21, 2017, the Turkish Grand National Assembly (TGNA) approved a constitutional amendment by 339 votes — nine more than the 330 required — after two rounds of debate. Members of the ruling Justice and Development Party (AKP) turned the parliamentary debates into a charade. Instead of allowing members of the TGNA to raise their views, engage in debate and explain why the proposal should be rejected, the AKP members chose to insult, assault and silence the opposition. In both rounds of voting the AKP members violated the Constitution (which requires a secret ballot for constitutional amendments) by revealing their votes. It is apparent that the AKP picks and chooses from the Constitution as it likes. And now Turkey is going to have a referendum on constitutional amendments that were undemocratically written and unconstitutionally passed.
If these amendments are passed at the referendum, their main effect will be to concentrate power in the hands of the President eliminating any remnants of checks and balances, most of which have been rendered ineffective already. Many argue that if it is approved the new Constitution will mean a regime change, as it will abolish the parliamentary system and replace it with a kind of presidentialism. The amendments abolish the office of the Prime Minister and the Council of Ministers and give the President exclusive executive power. Although this is characteristic of presidentialism in general, in the case of presidentialism “a la Turca,” as some call it, there will be no limits to the executive power of the President. Ece Goztepe, a law professor from Bilkent University, has called this model “absolutist presidentialism.”
Indeed, according to the amended article 104, the President can promulgate laws, return laws to the TGNA for reconsideration, and appoint and dismiss Vice Presidents, Ministers and senior civil servants. He can regulate appointments through presidential decree, ratify and promulgate international treaties, determine national security policies and take whatever measures he thinks necessary. He will hold the Office of Commander-in-Chief of the Turkish Armed Forces and decide on their deployment. He can also declare a state of emergency. Since the article robs the TGNA of its supervisory capacity, the President will not need parliamentary approval to use these powers. Even the requirement for parliamentary approval of the budget cannot be used as a leverage against the President as, in terms of the amendments, if a proposed budget is not approved by the TGNA, the budget of the previous year will come into effect. These amendments will weaken the TGNA vis-à-vis the President. Further to this, amended article 77 aims to secure one party control over both the presidency and the parliamentary majority by requiring that elections for both must be held on the same day.
Felix Petersen and Zeynep Yanasmayan rightly point out that the President can even bypass the legislative powers of the TGNA by using his power to issue decrees. In issuing decrees, the President will need neither approval from the TGNA nor an empowering law. Ironically, amended article 104 defines the scope and limitations of presidential decrees. It states that the President cannot issue decrees to regulate constitutional provisions, individual and political rights and duties, as they are listed in the Constitution, or issue decrees on matters that are regulated exclusively bylaws. However, as Ece Goztepe notes, the Turkish Constitutional Court (TCC) is not authorized to enforce these limits on Presidential decrees. So who, then, will decide whether a Presidential decree violates constitutional limits? And who will enforce these limits? This failure to hold the President to account is not a simple mistake or omission: it is the main thrust of the amendments.
Moreover, recent decisions by the TCC are ominous. As Maria Haimerl points out, “the TCC chose to pursue a ‘hands-off’ approach concerning state of emergency decrees” in its 2016 decisions, which contradicts its own previous decisions that established limitations over such decrees. Haimerl correctly notes that “[b]y rejecting its former jurisdiction, the TCC has obstructed its own ability to check emergency decrees in the long term.” This indicates that the Court will not do anything to limit the President’s authority to declare a state of emergency, or rule by decree.
The amendments also place the judiciary under the influence of the President. The Council of Judges and Prosecutors, which has always been an obstacle to an independent judiciary in Turkey, regulates judges and prosecutors from admission to the profession to their appointment and promotion. The amendments seek to reduce the number of the Council’s members from 22 to 12, half of whom will be appointed by the President and the rest by the TGNA. As both will be under the control of one party, this means the President will, in effect, determine the membership of the entire Council.
No matter who the President is, this new Constitution will lead to autocracy. This is not to say that the current Constitution provides a democratic system with properly functioning checks and balances, rule of law, and rights protections. Yet, rejecting the constitutional amendments at the upcoming referendum could provide the people of Turkey a significant opportunity to resist Erdogan’s and the AKP’s authoritarianism. That is why many people have emphasized that the ‘No’ campaign must be based on the defense of democratic principles rather than anti-Erdogan rhetoric. However, to understand exactly what the AKP is trying to achieve with this amendment package, and why there is such urgency to pass these amendments, we have to bring Erdogan into the picture. These amendments have three main aims.
The first is to crown Erdogan with executive powers without any of the effective limitations that come from democratic politics or constitutionalism. This will codify the de facto current political situation in Turkey in the Constitution, or, to put it differently, render permanent the temporary state of emergency that the AKP declared since the failed coup attempt in July 2016.
The second is to keep Erdogan in power as long as it is possible. According to amended article 101, “the President of the Republic’s term of office shall be five years. A person may be elected as President of the Republic for two terms at most.” If he is re-elected in 2019 and 2024, Erdogan will remain in power until 2029. However, according to amended article 116, “If during the second term of the President, the Assembly decides to renew the elections, the President may once again become a candidate.” Thus, if there is an early election near the end of his second term, the sitting president can run for office for a third time, which makes it possible for a President to occupy the office for almost 15 years despite the ten year limit.
The third aim is to establish Erdogan’s absolute control over the AKP. According to the present Constitution, the President cannot be a member of a political party. Erdogan does not seem to feel secure even after appointing a completely compliant person as the leader of the AKP like the current Prime Minister Binali Yildirim. Despite his overwhelming influence over the AKP, Erdogan seems to fear the possibility of the slightest opposition to him within the party. The party has to be under his direct control. And this seems to be very urgent for Erdogan. According to article 21, “the amendments shall come into force on the date of the elections for the TGNA and for the President.” This means the amendments will come into force in 2019, except the amendment provision that allows Erdogan to formally become the leader of the AKP, which will come into force immediately after the referendum. It appears everything else can wait. But Erdogan must be the leader of the AKP again as soon as possible.
In the June 2015 elections, the AKP lost the parliamentary majority after 13 years of single-party government. Judging by the June 2015 elections, we can say that if an election or a referendum is held in a free public sphere, where the opposition can organize a campaign, raise their voice and reach voters, Erdogan and the AKP will not be able to retain their political power. On the other hand, judging by how Erdogan and the AKP reacted to the June 2015 elections, they will do anything to keep their hold on power and they will use any means at their disposal to win the referendum. The campaign period, unfortunately, will be difficult and dangerous for those who oppose the amendments. The more Erdogan and the AKP realize that a ‘No’ vote is a strong possibility, the more we will witness voter intimidation and manipulation, criminalization of the ‘No’ vote by associating it with support for terrorism, and even the suppression of the ‘No’ campaign both by police and mob violence.
If they win, what follows? Erdogan first argued that the AKP represents the people. This then evolved into the claim that he is the people. Aiming to eradicate any sign of plurality, Erdogan and the AKP have been delegitimizing and even criminalizing any voice other than theirs. From this populist logic, if he is the embodiment of the people, why would Turkey need a multi-party system? What follows, then, could be the end of the multiparty system in Turkey.