Presidentialism in Turkey: Is it Already Here?

By Ozan Varol, 24 November 2015
photo credit: Peter Schrank (The Economist)
photo credit: Peter Schrank (The Economist)

The call for a new Turkish Constitution came on the heels of an unexpected election victory for the Justice and Development Party (Adalet ve Kalkınma Partisi) (AKP). After losing its parliamentary majority in the June 2015 elections, the AKP gambled on a snap election and emerged victorious, claiming 317 of the 550 parliamentary seats.  The snap election was called by President Recep Tayyip Erdoğan after the June election resulted in a hung parliament and coalition negotiations broke down.  Between the June and November elections, the AKP deftly increased its appeal to nationalist voters by ramping up attacks against the Kurdistan Workers’ Party (PKK), and the economic and political turmoil the country experienced in the interim period sent voters flocking back to the promise of stability under a majority AKP government. A jubilant Ahmet Davutoğlu, Prime Minister, was quick to call on “all parties entering parliament to form a new civilian national constitution.” He ended on a conciliatory note:  “Let's work together,” he said, “towards a Turkey where conflict, tension and polarization are non-existent and everyone salutes each other in peace.” 

The AKP’s quest for a new Turkish Constitution is not new.  It is part of a larger constitutional reform agenda that the AKP has been spearheading since assuming power in 2002.  The current Constitution, ratified in 1982 following a military coup, is widely viewed as illiberal and a blemish on Turkey’s democracy.  

Although the 1982 Constitution undeniably contains illiberal elements, Davutoğlu’s call for civilianizing the Constitution to remove its military taint rings hollow. The Turkish military, once a formidable force that staged multiple coups, has already been brought to heel through extensive legal-constitutional reforms as part of Turkey’s accession process to the European Union and criminal prosecutions against hundreds of military officers.  Many argue, instead, that AKP’s vision for a civilian constitution is democratic window dressing for a nefarious agenda to erode checks and balances, weaken the opposition, and create an “American-style” presidency to bolster the powers of President Erdoğan. 

Despite the angst that the possibility of presidentialism has generated both domestically and globally, adopting a presidential system might be nothing but a red herring.  President Erdoğan has already informally consolidated control over the Turkish political system, and will continue to do so, regardless of any formal changes to the constitutional text.  As a result, a civilian presidential system may already have arrived in Turkey.

Civilianizing Turkey’s 1982 Constitution

The calls for constitutional reform in Turkey—including Prime Minister Davutoğlu’s recent call—focus on the military authorship of its current Constitution, which was ratified in 1982 following a military coup.  The 1982 Constitution was drafted to rectify what the coup leaders believed were the pathologies of the previous 1961 Constitution: a weak presidency, extensive individual rights guarantees, and strong checks and balances by counter-majoritarian institutions. These deficiencies, the coup leaders believed, had produced decades of weak coalition governments and legislative impasses in Turkey. To that end, the 1982 Constitution abolished or curbed the authorities of counter-majoritarian institutions, favoring a strong, central government. The Constitution bolstered executive power by giving the President extensive appointment powers—including the power to appoint all members of the Constitutional Court.  The Constitution exalted the state over the individual, permitting the curtailment of individual rights and liberties in the name of national security and unity.  In invoking Turkish ethnicity to describe citizenship, it also failed to protect the rights of ethnic minorities. 

The 1982 Constitution further bolstered the role of the military in democratic politics. In the new Constitution, the National Security Council—an advisory body to facilitate exchange of views between civilian and military leaders—comprised five military members and five civilians, with the Council’s civilian President frequently voting with the military. The 1982 Constitution also required the Cabinet to give “priority consideration” to the Council’s “decisions” (which no longer were mere “recommendations”).  Military representatives on the Council also gained control of the Council’s Secretary General, giving them power to set the Council’s agenda.

Since its ratification, the 1982 Constitution has been amended 17 times with alterations to 113 different provisions.  Many of these changes were directed at curbing the constitutional authorities of the military as part of Turkey’s accession to the European Union. To establish effective civilian control of the military, the amendments to the 1982 Constitution increased the number of civilians on the National Security Council, emphasized the Council’s advisory role, deprived the Council of its executive powers, and replaced the Council’s military Secretary-General with a civilian leader.  Under the amendments, the government would no longer give priority consideration to the Council’s views and would merely assess its recommendations.  In addition, the military judges serving on the state security courts (Devlet Güvenlik Mahkemeleri)—which had jurisdiction over cases involving crimes against state security—were removed and the courts became entirely civilianized (and were later abolished).  The armed forces were also brought under the jurisdiction of the Turkish Court of Accounts (Sayıştay), which is authorized to audit state departments.  

In addition to these legal reforms that curbed the military’s prerogatives, the military became a target of criminal investigations and charges. Under the Ergenekon and Sledgehammer prosecutions—which alleged a conspiracy to overthrow the AKP government by a coup—scores of high-ranking military officers were arrested and imprisoned. The clash between the AKP government and the military culminated in the mass resignation of Turkey’s military high command in late July 2011. The resignations, according to Turkish columnist Yavuz Baydar, represented a “new phase, a sharp curve towards pushing the military to adapt to the current changes in Turkey” and “showed how toothless the military has become compared to the civilian authority.”  Because the military leaders chose to resign rather than dig in, Henri Barkey described the resignations as “the day the military threw in the towel.”

Reform and Recreate:  The AKP’s Constitutional Reform Agenda

Although the military has already been subordinated to the civilian authorities, the AKP has continued to champion reforms to civilianize the military-authored 1982 Constitution. Prime Minister Davutoğlu’s recent call for a new constitution is but a minor part of a larger political agenda on the AKP’s part to reform Turkey’s constitutional order. But reform is not synonymous with improvement.  Rather, the AKP, under the façade of reforming the 1982 Constitution, appears to be recreating its authoritarian features under a different, civilian form.

Among the numerous amendments to the Constitution since the AKP took office, two amendment packages deserve special mention. The first package was adopted by a referendum in 2007 and amended, among others, several provisions of the Constitution relating to the presidency.  Although the 1982 Constitution bolstered the powers of the President, the presidency remained a largely ceremonial, non-political office. The President could not hold a party affiliation and was elected by the Parliament.

The 2007 amendments altered the election procedures for the presidency, permitting the election of the President by popular vote, rather than by the Parliament. Then-Prime Minister Erdoğan himself advocated for this change, arguing that, as a political position, the President should be elected by the public. This change elevated the status of the President, who could now claim a popular mandate to push his views of public policy. The seeds of a presidential system were thus sown in 2007.

A second set of amendments arrived in September 2010, in a referendum symbolically held exactly thirty years from the date of the 1980 coup.  The amendments, according to the AKP, were intended to accelerate Turkey’s accession process to the European Union and to democratize the anti-democratic 1982 Constitution.  The amendments proposed a sweeping set of reforms. Among other things, the AKP proposed to empower the Parliament to pass affirmative-action laws for women, children, veterans, and the elderly; expand the constitutional right to privacy; and prohibit military courts from trying civilians except during wartime. Tucked into this broader amendment package were provisions that altered the structure of the Turkish Constitutional Court and the Supreme Council of Judges and Prosecutors (Hâkimler ve Savcılar Yüksek Kurulu), which is empowered to make judicial and prosecutorial appointments. The provisions expanded the size of both institutions, permitting the government to pack them with members favorable to its ideology.

The 2010 referendum exacerbated already existing divides within Turkish society.  The supporters of the amendments underscored the importance of the reform package to Turkey’s accession to the European Union. The supporters also argued that, with the amendments, both the Constitutional Court and the Supreme Council of Judges and Prosecutors would become more inclusive institutions. In contrast, the opponents argued that the reforms were democratic window dressing. They contended that the reforms would not eradicate or weaken anti-democratic institutions, but simply bring them within the AKP’s control. In a resounding victory for the AKP, the Turkish voters approved the amendment package by 58% of the vote. Although the amendment package included changes to twenty-six different provisions, the referendum required the voters to accept or reject the entire package, with no possibility to vote on individual amendments.

Riding on the coattails of its 2010 referendum victory, the AKP pushed forward with more extensive constitutional changes.  Its ultimate goal, made clear in campaign promises in the lead-up to the 2011 parliamentary elections, was to discard the existing Constitution and rewrite it from scratch.

The 2011 parliamentary elections landed the AKP a total of 326 seats in the 550-seat Parliament—four seats short of the supermajority that the party needed to submit a new Constitution to a referendum. The AKP thus enlisted the assistance of other political parties in the constitution-making process. In October 2011, the AKP-led Parliament authorized a Constitutional Conciliation Commission, comprising three members from each of the four major parties in the Parliament, to draft a new Constitution.

In the constitutional negotiations, a proposed transition to a presidential system assumed center stage.  According to the AKP, a strong, “American-style” president was necessary to bring much-needed stability to Turkey and eliminate the problems that the political system suffered in the past from weak coalition governments. The opposition argued that this asserted reason was a fig leaf.  At the time, then-Prime Minister Erdoğan was serving his third, and under his party rules, final term as Prime Minister. The opposition believed—correctly, it turned out—that Erdoğan would run for President, providing him a strong incentive to bolster the powers of the office he would soon occupy.

Although the Constitutional Conciliation Commission reached consensus on numerous provisions, the AKP’s insistence on a presidential system was at least partially responsible for derailing the constitution-making process. The executive proposed by the AKP had sweeping powers and resembled the Russian, not the American, mold. According to reports, under the AKP proposal, the President was empowered to veto legislation; issue executive orders that have the force of law on all “subjects necessary to execute the laws”; unilaterally appoint and remove all Cabinet members and heads of all administrative agencies; unilaterally appoint and remove all university rectors; and unilaterally appoint half of the members of the Constitutional Court, the Council of State (Turkey’s highest administrative court), the Supreme Board of Judges and Prosecutors, and the Higher Education Council.  The President was also authorized to declare martial law (sıkıyönetim) and “a state of exception” (olağanüstü hâl), allowing the curtailment of individual rights and liberties. Under the AKP’s proposal, the executive could not be removed by the Parliament through a no-confidence motion, but could only be impeached upon the commission of a crime. 

The proposal of a strong president without adequate checks and balances troubled many within Turkish society. Indeed, the provisions in the proposal allowing the President to declare a “state of exception” replicated the authoritarian components of the 1982 Constitution that the new draft ostensibly sought to transform. In addition, the problem of weak coalition governments—which the AKP’s presidentialism proposal sought to rectify—had largely faded into the past under AKP’s stable one-party rule since the early 2000s.

Presidential System: A Red Herring

With Prime Minister Davutoğlu’s renewed call for a new constitution following the November elections, the debate over presidentialism was once again pushed to the political fore. Selahattin Demirtaş, the Co-Chair of the Peoples’ Democratic Party (Halkların Demokratik Partisi) (HDP), was quick to react to Davutoğlu. Although he acknowledged the need for a new, more liberal Constitution, he argued that the AKP’s proposed system was not a presidential system, but a one-man system, impliedly referring to President Erdoğan. 

Despite the attention it has generated, a possible transition to presidentialism is largely a red herring. Turkey is already operating under a de facto presidential system. Although presidential powers have remained formally unaltered since Erdoğan took office, he has dramatically expanded his powers through informal means.  After assuming the Presidency, Erdoğan installed a malleable loyalist as Prime Minister.  He also took over many of the functions traditionally exercised by the Prime Minister, including presiding over Cabinet meetings. World leaders, such as President Obama and Chancellor Merkel, continue to woo Erdoğan, not Davutoğlu, in diplomatic overtures.  With over 1,000 rooms, Erdoğan’s massive presidential palace—constructed in brazen defiance of several court orders—is emblematic of his ever-growing authorities.

In addition to aggrandizing his own powers, Erdoğan has also undermined the opposition through a series of stealth authoritarian tactics. For example, tax audits and fines have become a popular tool for punishing political dissidents. In 2009, a massive $2.5 billion tax fine was levied against a major media company, Doğan Media Group, a few months after Erdoğan asked the Turkish public to boycott its newspapers for publishing critical commentary. Although the fine was reduced to approximately $600 million, the Group was forced to downsize by selling two of the country’s largest newspapers and its main television station. Erdoğan has also filed a dizzying amount of libel lawsuits against his critics. These attempts to muzzle opposition voices have been relatively successful in converting the Turkish media into a pliant group that reliably toes the government line. 

Erdoğan has also gradually eroded constitutional checks and balances on his powers. The Turkish Constitutional Court and the Supreme Council of Judges and Prosecutors were restructured and packed with loyalists.  The 2010 amendments marked a significant, conservative shift in the ideological position of the Turkish Constitutional Court that is increasing in magnitude over time. The Supreme Council of Judges and Prosecutors was likewise transformed into a malleable body as evidenced by the Council’s decision to fire or reassign hundreds of judges and prosecutors involved in the investigation of massive corruption related to Erdoğan and members of his party. Although Erdoğan had to abandon his party affiliation with the AKP upon becoming President, he continues to wield enormous clout over his party and his party base. He has a stronghold on the AKP’s party membership and has pushed out members who do not toe the line. A majority of the Parliament is therefore under his direct or indirect control.

As a result of these changes, the AKP’s invocation of the American executive as a model rings hollow.  The institutions that keep the American executive in check have largely been eliminated or brought within the AKP’s control.

Constitution-Making in a Polarized Society

Under Erdoğan’s leadership, the Turkish Constitution informally morphed into a system with a strong President whose powers continue to expand. Despite this informal transformation, Turkish voters are unlikely to accept a formal transition to a presidential system as a fait accompli. To the contrary, any attempt at constitution-making in Turkey—particularly where that attempt includes a transition to presidentialism—is certain to generate significant resistance. The Turkish political environment remains extremely polarized—more so than it has been in recent history—which makes consensus on a new constitution unlikely, at least in the near term.  

Negotiating and ratifying a constitution in any context—let alone a polarized one—is a delicate consensus building exercise. The process ordinarily brings together representatives from major facets of the polity to agree to a document that will be acceptable to most citizens and respond to their needs. These groups will often have competing visions for the document and will disagree, and do so vehemently, over its content. In Turkey, the 2011 attempt at constitution-making revealed deep conflicts over the formal adoption of a presidential system, the status of the unamendable provisions in the Constitution, the definition of Turkish citizenship, religion-state relations, and the rights of the Kurdish minority.  These conflicts have shown no signs of abating.  If anything, they have gotten worse.

The 317 seats the AKP obtained in the November parliamentary elections falls short of the 330 votes required to submit a new Constitution to a referendum.  The 13-vote gap may appear small, but the current parties in the Parliament view each other with deep suspicion, which makes party defections unlikely. Much of the polarization is fueled by President Erdoğan himself, who uses abrasive rhetoric, particularly during election campaigns, to paint opposition parties as traitors or terrorists and energize his base. His rhetoric has won him votes, but it has also exacerbated tensions within Turkish society, making it difficult, at least in the near future, for the parties to move beyond the paralyzing features of the current divisive political discourse and generate the type of consensus necessary for a new constitutional text.  Constitution-making in this environment would add more polarization to a country that is already seething with it.

Turkey also faces more pressing problems that might distract the polity from constitution-making.  The once-stable Turkish economy is wobbling. A ceasefire between the government and the Kurdistan Workers’ Party (PKK) collapsed in July, resulting in the resumption of a decades-long conflict.  Kurdish towns in Southeastern Turkey have been under intermittent curfew. Two recent suicide bombings—one in Suruç and the other in Ankara—attributed to the Islamic State (ISIS) shook the country, taking over one hundred lives. To top it off, Turkey has had to confront an influx of over two million refugees from Syria.

In this polarized and crisis-ridden environment, consensus on a new constitutional text will prove to be elusive. But even absent formal changes, all indications suggest that President Erdoğan will continue to informally expand his powers, gradually converting what was once a symbolic office into one of substantial power. If the concern about formally installing presidentialism in Turkey is the risk of presidential overreach, that risk has already materialized.

 

Ozan Varol is a native of Istanbul, Turkey, and an Associate Professor of Law at Lewis & Clark Law School in Portland, Oregon.  He is a scholar of comparative constitutional law, with his recent scholarship focusing on constitutional transitions and constitutional design.  He is the author of more than a dozen book chapters or law review articles, and the author of two forthcoming books with Oxford University Press:  The Democratic Coup d’État (monograph) and Comparative Constitutional Law:  A Global and Interdisciplinary Approach (co-authored textbook).  You can follow him on Twitter, @ProfessorVarol. 

Disclaimer: The views expressed in Voices from the Field contributions are the author's own and do not necessarily reflect International IDEA’s positions.

Comments

Post new comment