Necessary reforms or borderline authoritarianism? A legal analysis of Turkey's constitutional reform
On 16th April, over 58 million Turkish citizens were called to cast their ballot on the constitutional reform proposed by the AKP led government that would transform the country to a presidential system.
On 16th April, over 58 million Turkish citizens were called to cast their ballot on the constitutional reform proposed by the AKP led government that would transform the country to a presidential system. While critics around the world deemed it to be the key step away from Turkey’s republican tradition towards authoritarian rule in the hands of an all-dominant president Erdogan, its proponents praised them as necessary changes to an encrusted and antiquated system that proofed itself to be incapable of facing the current political challenges. Although the opposition alleged massive irregularities and manipulation benefitting the faction in favor of the reforms, as of today the Turkish central election commission has upheld the scarce victory of the government camp, thus steering deep concerns in international media and western ministries alike. But are these concerns justified? Is Turkey really on the verge of getting under authoritarian rule? In the following, we will explore in more detail the most important reform provisions and what they will mean for the future of Turkey’s political system after the reform’s coming into force in November 2019.
Concentration of executive powers in the hands of the president
One of the key elements of the reform poses the elimination of the Council of Ministers as well as the position of the prime minister and the bundling of their competences in the position of the president. President Erdogan as head of the Council of Ministers does already enjoy numerous competences under Article 104 of the current Constitution. However, this did not entitle him to any individual executive decision-making powers as decrees had to be determined as collective. The new reform means consequently a concentration of executive powers in the hands of the president who will now dispose of the final decision-making competences.
Presidential decrees will thus replace the legislative decrees of the council of ministers and contrary to them, the president will not need authorization by the parliament to issue any decrees. However, unlike those of the council of ministers, presidential decrees do neither dispose of the power to issue regulations that are reserved by law nor change existing laws, although the latter is contested and may become subject to a clarification by the Turkish Constitutional Court in the future to avoid any dangerous loop holes. In return, the judicial oversight of presidential decrees has been noticeably reduced. Notwithstanding their right to challenge a decree’s constitutionality before the Constitutional Court, the right of everybody directly concerned by a legislative decree to contest it before the State Council in its function as highest administrative court of the Republic has been fully erased in the revised constitution. Not only does the Constitutional Court possess the exclusive competence to control the constitutionality of a decree after the reform, but instead of everybody directly concerned, the right to introduce a constitutional challenge has been restricted to certain parliamentary groups.
Repeal of the presidential duty to neutrality
Another key aspect of the reform is the compatibility of the position of president and party functions. According to article 101 of the current Constitution, all links of the president to his party must be canceled and although it is even as of today illusionary to assume that decoupling one’s party functions would erase one’s influence on the party’s members of parliament, due to the hierarchic structures of Turkish political parties and the dependence of members on their party executive, the combination of party leader and president of the state is highly problematic. Aside from the pro-Kurdish left wing party HDP, all political parties in Turkey rely on powerful party leaders, without whose approval no party member has a realistic chance of getting elected. As the draft constitution foresees, that the president will usually be the leader of the party who holds a majority in the National Assembly, out of their very interest to get reelected, by exercising their control function, members of parliament will come into conflict of interest. As will be discussed in more detail, this provision severely impairs the capacity of the parliament to exercise their control functions, oversee the constitutionality of the president’s actions and guarantee a separation of powers that meet democratic standards.
The balance of power between president and national assembly
The position of the president towards the parliament has been severely improved to the detriment of the latter. The president does not only keep his right to veto laws under article 89 of the Constitution, the threshold of the parliament’s right to repeal his veto has been increased from a simple majority to a majority of all members of the Grand National Assembly. As stated above, the revised constitution foresees that the majority party will usually provide the president and due to their personal reliance on him, an effective control by the members of parliament should rather not be expected.
As a concession to constitutionality, the new constitution provides the parliament with a broader range of grounds for the impeachment of the president which will not only cover treason, but all criminally relevant behavior. However, this reform goes hand in hand with a severe limitation of other parliamentarian control mechanisms: Neither a motion for censure nor a vote for confidence are foreseen by the revised constitution. Moreover, as the strongest party has great influence on the composition of the committee for inquiry and thus its results, the control function of the impeachment process is highly questionable (see above).
According to article 98 of the revised Constitution, inquiries cannot anymore be addressed to the president directly. Instead, they are directed to his deputy and his ministers and shall be answered within 15 days in written form. Neither is it necessary for the deputy or the ministers to defend their position in person before the parliament, nor does the constitution provide any sanctions if the inquiry is not answered at all.
Presidential influence on the Judicative
Regarding the judicial control of the executive, it must be noted favorably, that presidential decrees are now eligible for control by the Constitutional Court (see above). Likewise, it is pleasant to notice, that the structure and independence of the Constitutional Court itself remains principally untouched. The number of the Court’s judges is reduced to 15 of whom 4 are directly appointed be the president as well as 3 by the parliament. Even assuming, that the president’s party holds the majority in the Grand National Assembly and given the repeal of neutrality of the president as well as his position as a party leader, only a minority of 7 out of 15 judges will be directly dependent on the president. However, as the executive has a strong saying in the lineup of the Academic Council, who as well sends a contingent of judges to the Constitutional Court, one must await the further developments to see if this will tip the scale to the advantage of the president.
It is indeed not the Constitutional Court that records the most worrisome development, but instead the High Council of Judges and Prosecutors, that fittingly enough has lost the attribute “High” under the revised constitution. Principally the highest control organ of the judicial branch, its members are now dependent on the president and his usually adherent parliament as 6 members are appointed by the president and his subordinates while the rest of the 13 members are affirmed by the parliament. The highest courts in opposition, have lost all their influence on the composition of the council. This might have extensive consequences for the standard of neutrality that can be expected of such a committee as the highest organ for the supervision of the entire judicative is now to a worrisome extent under the control of the president. Under this preconditions the in article 9 newly established criteria of “judicial independence of courts” has an almost mocking tone to it, the more if one considers that the tenure of its members is strictly limited and in opposition to the US system, they have to be reappointed by the very people who are subject to decisions by the judicative they oversee: Ipso facto the ideal basis for a biased and politically obedient court system.
A sinister outlook and a glimpse of hope for constitutionalism?
Although all these changes do officially only serve the one purpose to strengthen the political stability of a country on the verge of crisis, the referendum’s outcome leaves a bitter taste for supporters of a democratic Turkey that hold deer to a clear and unchallenged separation of powers and an efficient parliament supervision to balance the acts of the executive. The president’s action will remain majorly unchallenged in the event that he is able to gain an absolute majority or a stable coalition in the parliament. Likewise, one must be skeptical if his influence on the Constitutional Court will result in a neutral supervision of his presidential decrees that need no parliament authorization whatsoever.
But despite all this, it remains the possibility of a “cohabitation”, that means a divergence between parliament majority and president. In this event, the parliament would indeed be able to outbalance the president’s extensive competences. Although this might appear as a glimpse of hope for constitutional democracy, the unlikeliness of such an event and the major crisis this would certainly provoke render this scenario as unappealing as the other options. Whatever the outcome of the upcoming presidential and parliamentary elections in 2019 will be, Turkey is most likely facing a sinister outlook in its constitutional future.
 Cf. article 104 of the revised Constitution.
 Cf. article 112 of the current Constitution.
 Cf. article 104 of the revised Constitution.
 Cf. Article 87 of the current Constitution.
 Cf. article 155 (1) of the revised Constitution.
 Cf. article 150 of the revised Constitution: Eligible to challenge a decree before the Constitutional Court are the two strongest factions in the Grand National Assembly or at least two fifth of its members.
 Cf. Ayan, Pelin: “Authoritarian Party Structures in Turkey: A Comparison of the Republican People’s Party and the Justice and Development Party” Turkish Studies, 11: 2, June 2010, pp. 197 – 215.
 Cf. article 89 of the revised Constitution.
 Cf. article 105 of the current and revised Constitution.
 Cf. article 98 of the revised Constitution.