What did the Constitutional amendment and Presidential system bring, and what did it take? Today, these questions are on everyone's mind in Turkey. This article aims to answer these questions, and examines Law on the Amendment to the Constitution of the Republic of Turkey numbered 6771 ("Constitutional Amendment") that leads to the system change, and the new system of government. In our next article, 'Key Legislative Compliance Updates,' the organizational structure, and the affiliates of the Presidential institution shall be examined.
Turkish citizens went to the polls to vote on the constitutional amendment on 16.04.2017 and the Constitutional amendment was approved with 51% of votes. Since the main aim of the amendment of 18 Articles of the Constitution was the transition to a Presidential system, Turkey's transition to a Presidential system has begun.
Eligibility to be a Deputy
Firstly, the number of deputies in the Grand National Assembly of Turkey ("Parliament") was increased from 550 to 600. The amendment aims to reduce the number of voters per deputy. At this point, it should be noted that according to Turkey's current electoral system, the deputy candidates are determined by the political parties, not by the voters.
The age of candidacy was reduced to 18 from 25. Prior to the Constitutional amendment in 2006, this age had been 30. The requirement of mandatory military service to become a deputy candidate has been abolished and, instead, the requirement of "having no link or relationship with military service," was introduced. Thus, a Turkish citizen who has not yet achieved the minimum age for military service, or who has deferred his military service, may be elected as deputy, and his military service may be postponed.
Parliamentary and Presidential elections are held on the same day, every five years. This amendment is detrimental to the legislative and executive bodies' function of holding each other up to inspection. If the legislative and executive bodies are elected on the same day, these bodies may hold parallel views, since they are formed under the same circumstances of the same election process.
President of the Republic
The President is the head of the State, and the executive authority belongs to the President. The heading in the Constitution "Qualifications and Impartiality of the President" was amended to "Candidate and Election." Plus, the administration of a political party in the legislative body by the President has become possible, as well as the administration of the executive body.
The President's term of office shall be five years. A person may be elected as President for two terms at most. In the second term of the Presidency, if the Parliament decides to renew the elections, the President could run once again for another term. In such case, the provision that allows the same person to be elected as President "for a maximum of two terms" may be rendered ineffective.
Duties and Powers of the President
"Inspecting the Council of Ministers and Ministers" had been an authority of the Parliament arising from the Constitution. The Parliament could authorize the Council of Ministers to issue decrees on certain issues. In the new system, the Council of Ministers is abolished, the authorities of the Council of Ministers are transferred to the Presidency, and the President is given the authority to issue "Presidential Decrees." The Parliament, however, holds no rights of inspection over these decrees.
The President may issue a Presidential decree in matters concerning executive authority. However, the 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, shall not be regulated by Presidential decrees. A Presidential decree cannot be issued in matters that are foreseen to be regulated exclusively in the Constitution or that which are clearly regulated in the law. If there are different provisions on the same subject in the laws and in Presidential decrees, the provisions of the laws shall apply. If Parliament issues a law on the same subject, the Presidential decree becomes null and void. The President may also issue regulations to enforce the application of laws, providing that there are no provisions to the contrary. It is also possible to establish a public legal entity through a Presidential decree.
The President appoints and dismisses vice-presidents, ministers, and top-level public officials. The Vice-President title has been newly introduced. The appointment depends solely at the President's own discretion, and the appointment decision cannot be argued. The Vice-President acts on behalf of the President, as required, and exercises the executive and legislative authorities of the President during this period. Moreover, this person may serve as President for up to one year when the Presidential office is vacated. This is not democracy, since this person is appointed by the President and not the public. As in the US presidential system, for instance, the Vice-President would have been elected by the public. In the US, the Presidential candidate chooses his vice-presidential 'running-mate' and they are voted upon under the same 'ticket'. Moreover, unlike the US presidential system, appointment of ministers by the President is not subject to any Parliamentary approval, proposal or inspection. The political obligations of the Vice-Presidents and ministers are not towards Parliament, but towards the President.
The quorum required for the adoption of laws sent back to Parliament by the President was increased in a way that would be contrary to the legislative body. In the previous system, the President could send the laws that he deems unsuitable for promulgation, along with the justification, back to Parliament for reconsideration. If Parliament adopted the law that had been sent back for reconsideration through a "simple majority" without any amendment, the law was to be promulgated by the President. But now, these laws would be promulgated only if it is adopted by the absolute majority of Parliament. Therefore, the executive body holds the authority to consider the decisions of the legislative body. Thus, veto power, with a complicating effect, instead of a delaying effect, is granted to the President.
In the new system, the budget of the state is determined by the President and presented to Parliament. Previously, Parliament was mandated to prepare the budget. In addition, if Parliament does not approve the budget prepared by the President, the President is then able to increase the previous year's budget by the re-evaluation rate. This means that another inspection authority of Parliament on the executive body has been abolished.
Further, the President is granted the authority to declare a state of emergency. Formerly, this authority was exercised by the Council of Ministers meeting under the chairpersonship of the President.
Duties and Powers of the Parliament
Formerly, nomination of a candidate for the Presidency from amongst its members, or from outside the Parliament, required a written proposal of twenty deputies. Furthermore, political parties with more than ten percent of the valid votes, in sum, in the latest parliamentary elections could nominate a joint candidate. Now, political party groups with more than, jointly or separately, five percent of the valid votes, in sum, in the latest parliamentary elections, and one hundred thousand voters may nominate a candidate for the Presidency. The reduction of electoral threshold from ten percent to five percent, and allowing voters' direct nominations, are positive changes. However, the abolition of the deputies' rights to nominate is another obstacle that is now beyond their mandate.
In the past, the deputies had the authority to request information by asking verbal questions to the Prime Minister and the Council of Ministers, which were the heads of the executive body. In the new system, the President becomes the head of the executive body, by replacing the Prime Minister and the Council of Ministers, and all authority therein is held by the President. Thus, the President is expected to be able to receive questions. However, deputies are not allowed to question the President, and questions may only be addressed to Vice-Presidents and ministers, in writing.
Another manner of inspection used by Parliament had been through Parliamentary investigations. In the past, an investigation concerning the prime minister and the ministers was initiated through the proposal of 55 deputies, which corresponded to at least one-tenth of Parliament. The indictee was then sent to the Supreme Court with the secret vote of 276 deputies, which corresponded to the absolute majority of Parliament. In the new system, an investigation concerning the Vice-Presidents and ministers may be requested, with the proposal of the absolute majority of Parliament, which is comprised of 301 deputies. Parliament discusses the proposal within one month and decides to open an investigation by the secret vote of 360 deputies, which corresponds to at least three-fifths of the total number of members of Parliament. If this condition is met, the file is transferred to a commission. Upon the discussion of the report prepared by the commission, the report concerning the Vice-Presidents or ministers shall be sent to the Supreme Court only upon the secret vote of 400 deputies, which corresponds to at least two-thirds of the total number of members of Parliament. The Vice-President, or the minister, who has been condemned by the Supreme Court for a crime that prevents him/her from being elected, shall be dismissed from his/her office. Comparing these quora shows that Parliamentary investigations have become distant from being an effective inspection channel.
There is a distinction between Vice-Presidents' and the ministers' personal offenses, and offenses related to their duties. These persons are subject to the procedure of Parliamentary investigation described, above, in the event of offenses related to their duties, as well as legislative immunity in the case of personal offenses. As regards the criminal liability of the President, there is no distinction between "personal offenses" and "offenses related to duties." Even personal and simple offenses that are not related to Presidential duties are subject to procedural rules at the level equivalent to "High Treason." The quora are the same as those required in Parliamentary investigations.
As a result of the Presidential system, Parliament's other inspection channels over the Council of Ministers, namely, the motion of 'no confidence,' and the 'vote of confidence' were removed from the Constitution. In the past, 'votes of confidence' could allow ministers to remain in office, and the motion of 'no confidence' could cause a dismissal. Unlike Parliamentary investigations, these channels did not review the criminal liability of the Council of Ministers, but only the political liability.
In addition, three-month time limit for the ratification of Parliament on decrees having the force of law issued during states of emergency has been introduced. Upon the absence of approval of these decrees, they shall be annulled.
Martial law and military courts have been abolished, except in the event of war.
The High Military Court of Appeals and the High Military Administrative Court have been abolished, thus the appointment of members from these institutions to the Constitutional Court is no more. For this reason, the number of members of the Constitutional Court has been reduced to 15 from 17. In the new formation, three members of the Constitutional Court are nominated by the Council of Higher Education and appointed by the President; four members are appointed directly by the President from amongst certain category names; five members are appointed by the President from amongst the candidates nominated by the Court of Cassation and the Council of State; and three members are appointed by Parliament. In the last instance, all members of the Constitutional Court are appointed by the President. When it is considered that the Presidential decrees come under the inspection only of the Constitutional Court, the High Court, which is established by the President, shall inspect the President.
The word "High" in the name of the High Council of Judges and Prosecutors has been removed, and the number of Council members has been reduced to 13 from 22. The Undersecretary of the Ministry of Justice has become a natural member of the Council. In this manner, the President appoints the Minister of Justice, Undersecretary of the Ministry of Justice, and four members of the Council, while the seven remaining members are appointed by Parliament. In a scenario where the President runs the party that makes up the majority in Parliament, all members of the council will be appointed by the President. This example shows how the legislative, judicial, and executive bodies are interdependent under the new system.
The new system has been highly criticized for its damage to the principle of separation of powers, and due to the concentration of all powers in one person. As a result, following the approval of the Constitutional amendment by the Turkish citizens on the referendum dated 16.04.2017, the next election date had been determined as 03.11.2019. However, emergency elections were held on 24.06.2018; thus, Turkey has officially transitioned to an executive presidency after the President took the oath of office on 09.07.2018.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.