Erdoğan’s presidency and the Constitution

Editors note: On-line magazine Mezinarodní politika set cooperation with turkish English-language magazine Turkish Review. This article was originaly published in Turkish Review and it has been kindly contributed for our June Turkish issue by Editor-in-Chief Kerim Balci.

President Recep Tayyip Erdogan saluting the presidential guard of Turkey, after taking the oath for his first term in presidency. August 28, 2014, Ali Unal.

İhsanoğlu was right: Erdoğan’s campaign was built on the idea that a president elected directly by the people must be active and make the most of his constitutional powers. Erdoğan, along with his supporters in the ruling Justice and Development Party (AK Party) and in the public at large, made use of political language to justify unprecedented presidential powers. In addition to the reference to direct electoral approval, much has been said about “ending the struggle with the tutelary regime,” establishing a “new Turkey” by “popular revolution,” etc. By using such radical political vocabulary, Erdoğan and some prominent members of the party, such as Bülent Arınç, have shown that they are aware that the constitution will have at the very least to be amended -- if not totally rewritten -- for the installation of a presidential form of government. This can only occur after winning a parliamentary majority -- i.e., a minimum of three-fifths, meaning 330 seats -- in the June 2015 elections. Until then, Erdoğan can only force de facto changes in the system. What can he do or not do? This is the basic question.

The general status of the president

The status and powers of the president are laid out in Part 2, Chapter 2 of the Constitution, entitled “Executive Power.” According to the first article of this chapter (Article 101/1), describing the necessary qualifications and impartiality of the president, the president has to be either a member “of [the] Grand National Assembly of Turkey who [is] over forty years of age and ha[s] completed higher education, or [a] Turkish citizen who fulfills these requirement and is eligible to be a deputy.” Nomination of a presidential candidate in both instances requires a “written proposal of twenty deputies” (Article 101/3).

These stipulations were amendments made to the Constitution in 2007, which observers of recent Turkish politics will remember as a democratic response to the “political-constitutional crisis” triggered by the Turkish Constitutional Court’s unjustified decision requiring a parliamentary quorum of two-thirds to elect a president. The 2007 changes stipulating a president elected by direct popular vote, however, at least partially retained the critical role of the parliament for the nomination of candidates. In view of the other “parliamentary” aspects of the existing 1982 constitution, it is clear that the AK Party majority has sought to change the governmental system to a presidential one. This is reflected in the fact that the AK Party majority did not touch a word describing the “impartiality” of the president, including the clause (Article 101/3) that requires the president-elect to sever party ties and divest their deputy status. The Constitution regards the role of president as that of an “impartial” executive organ. The impartiality of the president is further reinforced in the text of the oath taken by President Erdoğan.

Despite this, the attitude displayed by Erdoğan and his supporters before and after the election reveals some ambiguities. These became clear to the general public in November 2012, when the AK Party submitted a proposal to Parliament opting for a form of presidential system. This proposed system, best described by Ahmet İyimaya, chairman of the Parliamentary Justice Commission, as a “Turkish-type presidential system,” combines aspects of the US presidency with some authoritarian elements. The most significant aspect is providing the president with quasi-legislative powers, i.e., enabling him to rule the country via presidential orders. This has a prima facie resemblance to the “executive orders” granted by the US constitution, but with one very substantial difference: In the US system the executive orders gain their validity from the Constitution, the laws, and the president’s duty to act in loyalty to the Constitution and the laws. In the AK Party proposal, on the other hand, the president has the power to issue “orders” on matters without being regulated by law. Since this means a partial transfer of legislative powers to the president, this proposal renders presidential orders immune to judicial review.

In view of the 2012 proposal and the themes vigorously repeated during the presidential election campaign, it seems justified to wonder how President Erdoğan and his supporters will act. Erdoğan has frequently said that a president elected by direct popular vote cannot be a passive figure, and that being passive for him is synonymous with being an agent of the tutelary regime he is trying to dismantle; he will push the constitutional limits to the extremes.

Does this mean that Erdoğan is defying the constitutional definition of the president as “impartial”?

A tentative “yes” is suggested by Erdoğan’s post-election attitude: As mentioned above, Article 101/3 stipulates very clearly that “[i]f the President-elect is a member of a party, his/her relationship with his party shall be severed and his/her membership of the Grand National Assembly of Turkey shall cease.” Accordingly, as soon as the publication of the election results is made by the Supreme Election Board (YSK), Erdoğan’s AK Party membership has to end, his membership of Parliament (and hence his position as prime minister) must end. However, Erdoğan has interpreted these rules as if all his pre-election titles remain intact until he takes the presidential oath and became president (as opposed to president-elect) on Aug. 28. Thus he assumed that he was able to continue to act as AK Party chairman and participate in his party’s Aug. 27 congress where the new party chairperson was elected. This attitude and his continuous use of “we” (indicating an us-them distinction) when talking about party politics imply that he is not willing to be impartial.

This suggests that Erdoğan’s presidency promises to be an unprecedentedly interesting one, with arguments already in the air over what the president can and cannot do in accordance with the Constitution.

How powerful is the president?

It is true that the Turkish constitution, tailored in 1982 in accordance with the requisites and demands of an authoritarian military rule under President Gen. Kenan Evren, provided the president with important powers pertaining to the legislative, judicial, and executive branches of government. However, this does not make Turkey’s current governmental system semi-presidential or presidential.

The constitutional provisions on the “duties and powers” of the president begin as follows: “The President of the Republic is the head of the State. In this capacity, he/she shall represent the Republic of Turkey and the unity of the Turkish Nation; he/she shall ensure the implementation of the Constitution, and the regular [orderly] and harmonious functioning of the organs of the State” (Article 104).

First things first: In contrast to the claim by Erdoğan and his supporters that the president is the head of the executive, the Constitution stipulates that the president is “the head of the State.” The final part of the clause makes this very clear: “[T]he President shall ensure the orderly and harmonious functioning of the organs of the State,” a duty that cannot be performed by the head of a single branch of government, such as the executive.

As the first President of Turkey elected by direct vote of the public, Recep Tayyip Erdogan took his certificate of election from the Speaker of the Parliament, Mr. Cemil Cicek. August 28, 2014, Mustafa Kirazli

Article 104 enumerates the duties and powers of the president pertaining to three sections: to the legislature, the executive, and the judiciary. Before doing this, however, the Constitution orders that the president can use these powers only “in accordance with the conditions stipulated in the relevant articles of the Constitution” (Article 104/2). So the president’s powers are restricted by the conditions entrenched in the specific articles of the Constitution or other statutes.

For instance, the president has the power “to decide to renew elections for the Grand National Assembly of Turkey,” but unlike the French president’s legally unrestrained power in this respect, the Turkish president can only decide to renew parliamentary election if a cabinet cannot pass a parliamentary vote of confidence to form a government within 45 days of a general election, or if no new government has been formed 45 days after the resignation of an incumbent cabinet.

Most of the significant presidential powers given by the Constitution pertain to the appointment of the chief of General Staff, members of high judicial bodies, university presidents, etc. These and many other powers require, albeit with a few exceptions, the involvement of other executive and public administrative bodies. The president, for example, appoints 14 out of 17 members of the Turkish Constitutional Court, but all the candidates have to meet specifications written in the Constitution.

Presidential accountability

Before dwelling upon the executive powers of the Turkish president, we have to pay attention to Article 105 of the Constitution, which stipulated the accountability of the president. Conforming to the general features of an unaccountable, ceremonial presidency in a parliamentary system, Article 105/1 of the Constitution reads as follows:

“All presidential decrees, except those which the President of the Republic is empowered to enact individually without the signatures of the Prime Minister and the minister concerned in accordance with the provisions of the Constitution and other laws, shall be signed by the Prime Minister and the ministers concerned; the Prime Minister and the minister concerned shall be accountable for these decrees.”

Now it is clear at the outset that the president is “empowered to act individually” only in very exceptional instances and those exceptional instances are indicated explicitly in the Constitution. This is a natural, logical and ethical corollary to the general principle adopted by the Constitution that the president is “non-accountable.” Simply put, if the president is non-accountable, he/she has to be “powerless,” or share his/her powers with other “accountable” parties like the prime minister and the ministers.

Thus Article 112 of the Constitution states, again very explicitly, that the general policy of government is determined by the Council of Ministers. This is another important constitutional norm: The president does not have powers to determine governmental policies; governmental policies are determined by the Cabinet, and the Cabinet in turn is subject to parliamentary review.

The ‘state of emergency’ threat

All the above suggests that, regardless of the intentions and political ambitions of Erdoğan and his supporters, the Turkish constitutional-legal system leaves very little room for a transition to de facto presidentialism. This does not exclude President Erdoğan’s potentially having the opportunity to exercise his rule through his capability to control the AK Party, the parliamentary majority and the Cabinet. This capability, however, cannot hide the other side of the equation: Erdoğan’s ability to control the AK Party, the parliamentary majority and the Cabinet depend also on the willingness of the AK Party, the Parliament and the Cabinet to submit to the directives of President Erdoğan.

Be that as it may, there is one important crack in the Turkish constitution through which authoritarianism could leak in. This is what might be called the “state of emergency.”

According to the Constitution, the president has the power “to proclaim martial law or state of emergency, and to issue decrees having the force of law, by the decisions of the Council of Ministers under his/her chairpersonship” (Article 104/b). There are of course conditions such as natural disaster, epidemics, widespread acts of violence threatening the existence of the constitutional order, etc. Such an event would make necessary the proclamation of martial law and a state of emergency -- these conditions are specified in Article 119-123 of the Constitution.

As clearly indicated in the Constitution, the proclamation of a state of emergency is made by the Cabinet, chaired by the president, and has to be approved by Parliament. Once a state of emergency or martial law proclamation is made and approved by Parliament, the president then has the power to preside over the Council of Ministers. Thus, in a state of emergency, the Constitution provides the president with an upper hand in ruling by decrees having the force of law; these decrees may restrict fundamental rights and liberties of individuals and are exempt from judicial review.

This is quite a different situation from the ordinary power of the president to chair the Council of Ministers whenever he sees fit. This ordinary presidential power, a power that also existed in the earlier and purely parliamentary 1961 constitution as well, has been very rarely used by previous presidents, including Gen. Evren. Now, if Erdoğan wishes to use this power to chair cabinet meetings more regularly, he can do so. Erdoğan has been saying that just as the first president was elected by direct popular vote and not bound by previous customs, so he too can try to establish new ways. But this path has been rendered complicated by the marginal electoral victory he enjoyed.

To conclude, if Erdoğan, as he gives every impression of doing, intends to act as a powerful president, the best way will be for him to wait for a comprehensive constitutional amendment favoring his powerful “Turkish style” presidentialism. If Erdoğan’s impatience prevails, he may call for a state of emergency, but that would mean the end of (albeit flawed) Turkish constitutional democracy.

About the author:

Dr. H. Levent Köker is a Professor at Yakın Doğu and Atılım University.

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