İrem Özbilgin

Faculty of Law, Özyeğin University, Turkey
Erasmus student at Faculty of Law in University of Maribor, Slovenia
Research interests: Civil law, International law, EU law

 

Since 15 July 2016 coup-attempt in Turkey, there were many speculations on creating a new constitution. On 10 December 2016, new constitution draft has been proposed to the Parliament. On 10 January 2017, the draft passed the primary voting with 338 votes in favour; on whether to vote on clauses or not. Debate on the individual articles began on 12 January 2017 and it is planned to be concluded by 24 January 2017. After the debates, the draft will be put to a nationwide referendum.

The new constitution draft involves a lot of significant changes such as a transition from parliamentary system to a presidential system which is more or less an executive presidency. According to the proposed draft, the prime minister position will be abolished. Thus, Turkey won’t have two executive authorities anymore, it will only have a President who will be able to keep his/her position as head of a ruling political party.

Another significant change that is proposed in the draft regards the elections of the Parliament and the President. Elections for the Parliament and for the President will be held on the same day. Both the Parliament and the President will have the power to renew elections and once this power is used by either party, both elections will have to be renewed. Presently, Parliament can decide to renew elections by a vote of 139 MPs, whereas the draft demands a qualified majority of three fifths (360 votes) of the proposed 600-seat parliament (currently there are 550 seats in the Parliament). Mentioned qualified majority is the same majority needed to make a change in the constitution which alludes to how difficult for the Parliament to decide to hold new elections. On the contrary, there are no conditions that are foreseen for the President to renew elections. Subtle purpose of this change seems to be having the President and the majority of the Parliament from the same political party which consequently hints at a shift from the separation of powers to the unity of powers. In addition to these, the draft prescribes the President to have a right to be elected twice. However, there seems to be no restriction for the President to run for a third time if (s)he calls for the renewal of elections during his/her second term. As a result, the President may continue his position as long as (s)he lives.

The draft also gives the power to the President to issue decrees, to declare states of emergency, and to rule the country with resolutions during states of emergency solely. (Turkey declared a state of emergency on 21 August 2016 after the coup attempt and this state has been prolonged on 19 October 2016 for 90 more days because of continuing terrorist attacks all over the country.) The decrees that may be issued solely by the President will be related to executive powers;  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 are proscribed to be regulated by presidential decrees. Furthermore, neither an empowering law nor a ratification will be needed from the Parliament to be issued for the presidential decrees to be issued and enforced. There will only be an exception to this rule during the times of a state of emergency.

Moreover, the draft grants the President the authority to appoint and restructure all ministries and  resturucture public institutions by aforementioned presidential decrees. Criteria for appointments of senior civil cervants will also be regulated by presidential decrees, resulting in the appointment of chancellors of universities, police heads and military force commanders by the President.

Additionally, impeachment proceedings against the President will be able to commence with a signature of 301 MPs in the proposed 600-seat parliament. Parliament shall set up a commision of inquiry by secret ballot of 360 deputies. If the inquiry commission adjudicates to send the President to the Supreme Court for a trial, a secret ballot of 400 MPs will be required for the President to be tried. The number of MPs to vote in favour of a trial is so high that it can be said that a trial for the President is practically inapplicable.

On top of all these new regulations, majority of the juidiciary will be appointed by the President according to the proposed draft. The High Council of Judges and Prosecutors (HSYK) will be reduced to 12 members from 22 members. Half of the members of the Board will be appointed by the President whereas the other half will be elected by the Parliament; meaning that if the President and the majority of the Parliament are both from the same political party (which is what is most likely to happen as explained earlier), a single authority will be electing the members of high juidicial bodies. This will reflect badly on independent juidiciary, resulting in the unity of powers as mentioned before.

Finally, the powers granted to the President such as dissolving the Parliament, appointing and dismissing ministers, ambassadors, senior officials and juidiciary powers without the approval of the Parliament seem to be unconditional, unlimited and not subject to inspection. Under this proposed draft, not only the Prime Minister’s office will abolish but also the Parliament’s role will be highly dilluted.

The ruling Justice and Development Party and others in favor of the proposal argue that this reform will help the system to be more stable and will prevent a return to the fragile coalition governments of the past. Though, opponents of the proposal fear the reform will inflame authoritarianism. As time passes it will be more evident to which purpose this reformed constitution will serve. Nevertheless, from a realistic point of view, the proposed constitution draft seems like the perfect example of what is coined by David Landau as abusive constitutionalism.