16 December 2022

Back to the Future

A Review of The Turkish Opposition Coalition’s Comprehensive Constitutional Amendment Proposal

After over nine months of preparatory meetings, the Turkish opposition coalition consisting of six political parties – which pose the biggest challenge to the ruling AKP in the upcoming elections in June 2023 – have announced their constitutional amendment proposal. While it has been plausibly argued in this blog (here and here) that constitutional restoration in the case of Turkey can be conducted without necessarily amending the Constitution, the main cause unifying the opposition coalition at the moment is a comprehensive proposal for constitutional amendment that allegedly aims for transitioning towards a ‘strengthened’ parliamentary system. In this blogpost, I will evaluate several key provisions of the opposition’s proposal and explain its likely path towards adoption in the aftermath of the upcoming general elections.

‘Strengthened’ Parliamentary System

Both the rhetoric of the opposition coalition’s leaders, and the title of their constitutional amendment package underline that they are not pursuing a simple return to the status quo ante from the current hyper-presidential system, but rather that they want to switch to a ‘strengthened’ parliamentary system. From a political perspective, it appears that the opposition coalition is using this term to highlight that their proposed system of government will be more effective and capable to respond to crises in contrast to both the current presidential system, and also the parliamentary system Turkey had before the 2017 Amendments. Lacking a common definition of ‘strengthened parliamentary system’, we can trace how the current amendment proposal attempts to strengthen the parliamentary system by reviewing its provisions concerning the formation of the government and the powers of the parliament.

As the first pillar of switching to a parliamentary system, the proposal reintroduces the Prime Ministry and the Council of Ministers, which were abolished in 2018 after the presidential system took effect. The amendments foresee the President to appoint a Member of Parliament (MP) as the Prime Minister (PM). The PM, together with the Cabinet, would need to receive a vote of confidence from the Parliament within 15 days after their appointment. Provisions concerning the duties and the responsibilities of the PM and the Cabinet are a return to the status before the 2017 Amendments.

One key justification for the switch to a presidential system in 2017 was the claim that the parliamentary system was “prone to crises and deadlocks”. Before the AKP’s decisive election victories from 2002, Turkey had indeed seen multiple short-lived coalition governments and government crises, especially in the 1970s and 1990s where the average term of a government did not reach 2 years. To address this ‘instability’, the opposition coalition proposes a constructive vote of no confidence to oust an incumbent government. In this case, an absolute majority of the Parliament can vote out the incumbent government only if they put forward a new PM who will directly take on the role, provided the vote of no confidence succeeds.

Recent empirical research shows that the constructive vote of no confidence mechanism is indeed successful in maintaining more durable governments in comparison to countries that have a regular vote of no confidence procedure. While the requirement to agree on a new PM in order to initiate the vote of no confidence can be seen as a limitation of the Parliament’s prerogative to hold the government accountable, it is nevertheless a fair compromise to ensure government stability.

A Symbolic President by Popular Vote?

As the second pillar of transitioning to a parliamentary system, the amendment proposal significantly curtails the role of President and its powers. According to the proposed text, a person can be elected President for only one term of seven years. The neutrality obligation of the President is reintroduced, and they can only be impeached for treason by a qualified majority of the Parliament. The President will no longer lead the Cabinet meetings and will not have the power to issue executive decrees. Therefore, the opposition coalition seeks to establish a new system within their proposal whereby the President will be the official head of State – and have only symbolic duties.

Yet, the main problem that stands in the way of having a symbolic President in this proposal concerns the election of the President: the direct election by popular vote remains unamended. It is astounding to see how the opposition coalition disregarded Turkey’s experience with a directly elected President who had de jure symbolic powers between 2014 and 2018. This period was described by Kemal Gozler as a time of “deconstitutionalisation”, where either the provisions of the constitution were not followed, or straightforwardly violated without consequence.

President Erdogan was elected for the first time in 2014 as a publicly voted President with symbolic powers and had to resign from his party due to the neutrality obligation. Yet, he still had significant political power and legitimacy as a result of the mandate that comes directly from the popular vote. This caused conflicts between the PM and the President even though they were from the same political party, where President Erdogan used his political power and connections within the AKP to oust PM Davutoglu, in search of a ‘low profile prime minister’.

A directly elected, yet symbolic President together with a PM who carries the executive powers do work without conflict in some systems such as Austria, Iceland or Finland. However, in Turkey we have seen constitutional crises arising from conflicts between the PM and President even when the President was being indirectly elected by the Parliament before 2014. Additionally, although the new proposal requires the President to resign from a political party if they are a member of one, the direct election also risks their neutrality as they will be campaigning to receive votes in order to get elected. In a deeply divided and polarised society as Turkey, direct election of the President increases the likelihood of conflict between the top officials of the State and jeopardises the claims that this position will only have a symbolic role.

Court-packing and Re-packing

The amendment proposal envisions significant reforms in the judiciary, especially concerning the composition of the Constitutional Court (CC) and the Council of Judges and Prosecutors (CJP). The opposition coalition’s solution to a packed constitutional court seems to be simple: to re-pack the court! The CC’s panel is increased from fifteen to twenty-two judges. Twenty of the judges will be appointed by the Parliament and the two remaining judges are to be appointed by the President.

It is hard to rule out court-packing as a categorically unacceptable practice when it comes to a debate concerning restoring a constitutional system after democratic decay. However, it should be an exceptional measure keeping in mind the democratic context, repetition risk and the process of adopting such a reform measure. The changes in the composition of the Constitutional Court in Turkey already show a problematic, and highly politicised approach. Multiple shifts have taken place in the last decade, starting with the increase of the judges at the CC from eleven to seventeen in 2010 Constitutional Amendments to pack the Court – followed by the reduction from seventeen to fifteen in the 2017 Amendments. Increasing the seats at the CC – yet again – by almost 50% without even seeing how the Court will react to a new political reality seems to be a continuation of this troublesome approach. It would risk the legitimacy of the Court and escalate the risk of repetition: the political majority of the day could think that they can change the composition of the CC at any moment, whenever they deem the Court a threat.

Another major aspect of reform foresees dividing the Council of Judges and Prosecutors (CJP) into two: the Judges’ Council and the Prosecutors’ Council. The current composition of the CJP fails to ensure judicial independence as all of the appointments are made by political actors (the President and the Parliament) without the involvement of the judiciary in the process. The new Judges’ Council would consist of fifteen members, four elected among their peers by the Court of Cassation and Council of State, one by the Union of Turkish Bar Associations, two appointed by the President and eight appointed by the Parliament with a two-thirds majority requirement.

Amendments concerning the composition of the Judges’ Council are leading in the right direction, towards the Council of Europe standards, as a selection by the judiciary among their peers for the Judges’ Council is reintroduced. However, the judges elected by their peers in high courts would amount to only four out of fifteen seats in this Council, less than a third of the membership. Moreover, other judges in lower courts would not participate in the selection of the members of the Council. Therefore, the proposal falls short of complying with the CoE’s recommendation stating “not less than half of the members of such councils should be judges chosen by their peers from all levels of the judiciary”.

Increased Parliamentary Involvement in Judicial Appointments

In strengthening the parliamentary system, the amendment proposal increases the involvement of the Parliament in making appointments to judicial institutions: twenty out of twenty-two members of the Constitutional Court (CC), eight out of fifteen in Judges’, five out of twelve in Prosecutors’ Council, all members of the Court of Auditors and a quarter of the judges of the Council of State will be appointed by the Parliament with a two-thirds majority. In case such a majority is not reached in the first two rounds, the appointment will be done by drawing a lot between two candidates that receive the most votes.

The increased involvement of the Parliament in in the composition of the high courts and judicial councils indeed strengthens its powers. However, this also raises questions about the politicisation of these bodies. A two-thirds majority requirement in the Parliamentary appointments seems to be instigated to counter such politicisation arguments, claiming that only moderate and less politicised candidates would be able to reach such a threshold. Yet, how this supermajority requirement would work ‘on the ground’ depends a lot on the political practice. For example, parties in the Parliament may agree to create quotas based on their parliamentary majorities for their own candidates, and jointly vote for these candidates to surpass the two-thirds requirement. Such gentlemen’s agreements, in turn, may threaten the objectivity that is being tried to be achieved through instigating a supermajority requirement.

Miscellaneous Amendments

Aside from these major amendments concerning the state structure, there are a number of provisions that are designed as a direct reaction to the recent abuses of the AKP government. Such amendments include changing the composition of the state media watchdog, which proved instrumental for the censorship of critical media and constitutionalising its neutrality obligations. The state of emergency decrees are abolished as a response to how they were abused by the executive in the state of emergency established after the failed coup attempt. Additionally, in reaction to President Erdogan’s unilateral withdrawal from the Istanbul Convention, the new proposal clearly states that withdrawal from international treaties requires parliamentary approval.

Yet, the amendment proposal seems to overlook a key element concerning Turkey’s possible democratisation: there are no provisions concerning the lustration of pro-AKP judges that were mostly appointed in the aftermath of the purge in the judiciary in the post-coup era. Recent history has shown numerous unlawful decisions taken by all levels of the judiciary from the courts of first instance to the Regional Courts of Appeals and the Court of Cassation.

Most recent example of such decisions is the sentencing of Istanbul’s opposition Mayor for bogus libel charges to almost three years imprisonment by a court of first instance, clearly in violation of not only the European Court of Human Rights jurisprudence, but also the TCC’s and the Court of Cassation’s precedents. These judges were influential in the outright non-compliance with the European Court of Human Rights judgments, or even the Turkish Constitutional Court’s judgments in politically sensitive cases. Seeing the instrumentality and the bias of such judges in delivering the wishes of the government in violation of the ECHR and the Turkish Constitution, a constitutional basis for an individualised and objective procedure for lustration remains essential to ensure an independent and impartial judiciary.

Beginning of a Conversation

Overall, the proposed amendments are a mixed package. While some of them are necessary improvements, others can be considered contradictory and incoherent. Furthermore, the procedure used by the opposition coalition to create the amendment proposal was very opaque, with no public consultations or deliberation. Instead, the legal experts of the six parties which created the coalition came together and agreed upon the text by themselves with no outside scrutiny.

In any case, the likelihood of the adoption of this text is a long shot: the opposition coalition needs to receive more than three-fifths of the seats in the Parliament to send it to a referendum – unless they receive AKP’s support. That requires a miraculous performance from them in the upcoming elections in June 2023. Therefore, it looks like the constitution-making debate in Turkey will be still on the agenda for a while. Be that as it may – with all its flaws, the proposed amendments may serve as a starting point for a conversation among the public, politicians and academics in determining the future constitutional landscape in a post-AKP era.

SUGGESTED CITATION  Uçarer, Onur Can: Back to the Future: A Review of The Turkish Opposition Coalition’s Comprehensive Constitutional Amendment Proposal, VerfBlog, 2022/12/16, https://verfassungsblog.de/back-to-the-future-2/, DOI: 10.17176/20221217-001702-0.

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