Turkey will go to the polls on April 16th, to vote on a set of constitutional amendments which would change the country’s system of government to presidentialism. Though it seems that in Turkey, the current system is generally referred to as ‘parliamentary’, Turkey has actually been semi-presidential (specifically, premier-presidential) since the country’s first direct presidential election was held in 2014.
The amendments passed the three-fifths legislative majority necessary to put them to referendum with support from the Nationalist Movement Party (MHP). Introducing presidentialism has long been president Erdogan’s express wish. The idea has apparently been around in Turkish politics for a while before it was adopted by the Erdogan and his party, AKP. Full presidentialism seems to have been ‘plan A’, so introducing semi-presidentialism (passed in 2007, entering operation in 2014) was perhaps only ever meant as a way-station toward this goal.
The main details of the amendments are as follows:
- Establishing presidentialism:
As stated above the president is already elected directly, specifically using a two-round system. The president is to become both head of state and head of government, with the power to appoint and fire ministers and the vice president. There is no requirement for the Grand National Assembly to confirm appointments. Executive office is incompatible with assembly membership. Interpolation of ministers is to be removed from the constitution, leaving MPs with written questions.
- Legislative powers:
The president is to have veto power over legislation, subject to absolute majority override in the assembly. He is to have the power to issue decrees in “matters concerning the executive power” and regulations “to provide for the enforcement of the laws, provided they are not contrary to them”. These cannot affect fundamental rights, except under a state of emergency; an emergency can be declared by the president without confirmation by the assembly, but the latter must be notified immediately and can shorten or end it at any time. These decree powers are essentially the same as those currently held by the cabinet. The president would also dominate the budgetary process: the complete budget is to be proposed by the president and put to a straight up-or-down vote in the assembly without possibility of amendment, with failure to adopt a budget within a timeframe leading to continuation of previous arrangements.
- Term lengths and dissolution power:
The assembly’s term in extended to five years (from the current four) and legislative and presidential elections are to be held concurrently. If the presidency becomes vacant, fresh presidential elections must be held. If parliamentary elections are due within less than a year, then they too are held on the same day as early presidential elections; if the parliament has over a year left before its term expires, the newly elected president serves until the end of the parliamentary term, after which presidential and parliamentary election cycles are held concurrently again.
The president is to be limited to being elected twice, but there are some exceptions, the first of which is that a mid-term vacancy-filling election doesn’t count towards the total. The current presidential power to dissolve the assembly is retained, in addition to a new clause which enables the assembly to dissolve itself, by three-fifths majority vote – in either case, fresh elections are held for both president and assembly, who serve new five-year terms. Early concurrent elections triggered by the assembly can always be contested by the president.
The president or any member of the executive is indicted by two-thirds majority in the assembly (upon which many powers, including dissolution, are suspended), which takes the decision on removal to the Supreme Court. A president which has thus been removed is ineligible for re-election.
The acts of the president, previously protected, are now to be subject to judicial review. The structure of the judiciary will not change much – with the role of the president in appointments remaining quite strong. Of the Council of Judges and Prosecutors, the president is to appoint 6 and the assembly is to appoint 7 (4 of whom must be judges from the highest courts) – for renewable four-year terms. The Council appoints most (two-thirds to three-quarters) of the judges of each of the highest courts, with the rest being appointed by the president directly.
According to the BBC, Erdogan claims that the new system will ‘resemble those in France and the US’. There is clearly little truth to this. First of all, France is semi-presidential, specifically the premier-presidential variant. This means that the prime minister, while appointed by the president, can formally only be removed by the assembly – in other words, what Turkey has now. These amendments would outright abolish the prime ministership and parliamentary responsibility, granting the president (already in a position to play a dominant role in the country’s government) absolute control over the executive branch.
Does that mean that the new system will essentially be the same as the US? Not really. Presidential or not, the proposed system includes numerous features bearing little resemblance the American model of checks and balances. The amendments would invest the Turkish president with extensive constitutional decree powers, allow him to all but dictate the budget, but on the other hand leave him with a substantially weaker veto than the US. The absence of assembly confirmation vote for ministers, not to mention presidential dissolution power, are also alien to the US constitution. Overall, the proposed institutional framework is to bear far greater resemblance to past and present constitutions of Latin America, where assembly confirmation is non-existent, emergency and decree powers are common, while some of the other institutions in question have featured occasionally, e.g. presidential dissolution power (Ecuador, formerly Chile and Argentina) and weaker veto (Brazil, formerly Venezuela).
In any case, the proposed amendments represent an immense consolidation of power in the hands of president Erdogan. It would probably allow him to serve beyond the supposed limit of two five-year terms. Judicial appointments involve a somewhat greater degree of presidential influence over a judiciary that has already lost a great deal of independence in recent years. Judicial review, needless to say, will not amount to much. Furthermore, the requirement for judicial ratification may leave impeachment ultimately toothless even in the unlikely event that the requisite majority were achieved in the assembly. Meanwhile, the weak veto and the assembly’s own (weaker) power to call early elections is unlikely to provide much balance in practice. Though dissolution would entail new elections for both president and assembly, a president armed with the power to dissolve the assembly still seems more likely to have the upper hand in the exceptional situation his party ever lacks a majority there – exceptional because of the country’s majoritarian system, and because the president’s very power of calling early elections enables him to do so opportunistically, as Erdogan did in 2015.
The Venice Commission’s report characterises the proposed changes as “a dangerous step backwards” for democracy in Turkey. It certainly feels hard to disagree.
 One might add (as the Venice Commission does) the fact that elections will be concurrent, which is certainly true, though, as we have recently seen, it’s certainly possible (though still uncommon) for countries to elect a president in the second round that was not of the legislative majority elected concurrently with the first round (e.g. Argentina, Peru), while more generally, two-round systems cause vote fragmentation in the first round. If elections in Turkey remain competitive, it may be that the two round system will, in the long run, cause fragmentation which will spread to the assembly. Perhaps more likely is that once in a while, the concurrent elections could result in divided government as in the first scenario I mention here. A situation like that might provoke Linzian scenarios, but is probably most likely to simply result in early elections at some point, whose outcome would most likely be a reversion to the regular unified control.
The example I thought of when looking at the proposal was Francophone Africa, which had post-independence constitutions (which were, of course, largely democratic window-dressing for dictators) that listed specific powers for the legislature, and reserved all other powers to the Presidency and cabinet to be exercised using decrees (the Cabinet was appointed without legislative approval and generally only removable with a supermajority). This is somewhat similar to existing French arrangements (the key difference being that these decrees are issued by a government responsible to the legislature).
In Latin American Constitutions, do all of them just let the President appoint cabinet positions without legislative confirmation? That seems odd, is the US confirmation of cabinet members by the Senate unusual? One would have thought that it would be the House approval over the Senate, but the founding fathers made it this way, was there another possibility or another mechanism of cabinet approval, is it needed or necessary, why do parliamentary democracies not need it?
Is thus referendum likely to pass? Sounds like super presidentialism to me. The dissolution powers should be mutually concurrent, Presidential and Parliamentary never be out of sync, this constitution reminds me bits of Sri Lanka’s sans the Prime Minister.
Mixing Presidential term limits that are fixed with unfixed parliamentary doesn’t seem right, need to have fix terms for parliament as well like Norway or the Swedish method of extra election. There should be a Vice President to ensure no by election for President as well.
These amendments look questionable, semi presidentialism should be good enough. Are Presidents more or less powerful than Prime Ministers?
Some US states do not have legislative confirmation for the cabinet. Many Latin American countries do not have legislative confirmation for the cabinet. Nigeria has senate confirmation. Ghana has unicameral confirmation. Kenya has assembly confirmation. It is not completely unknown to have confirmation for cabinet dismissals. Kenya, Mexico and Ghana are examples. Presidential systems in Africa tend to require that ministers be members of parliament.
And in North Carolina the picture appears to change day by day.
And then there are some US states where various executive positions beyond the chief executive and the “vice” (i.e., governor and lieutenant governor) are directly elected.
JD is much more familiar with these than I am. There are (to my knowledge) no such examples from the national level anywhere in the world.
Mexico has some very strange arrangements:
I by no means guarantee that I have found the whole set of rules.
It is, by the way, extremely unusual that the US president cannot appoint people to act in vacant executive positions pending confirmation.
American state executives are generally (at least apparently) structured quite differently from their federal counterpart. The *vast majority* of states (more than 40) directly elect executive positions in addition to the Governor, usually 3 or more, and usually including a Lieutenant-Governor with few formal executive tasks beside acting as the Governor’s substitute (other positions usually include a Treasurer and Attorney-General. Among the states that don’t, the difference is often limited to the same positions being elected indirectly, specifically by the legislature. The significance of these executive positions varies and is not always clear. All I can say is that there’s almost certainly places where these separate executive positions are almost irrelevant compared to those ‘cabinet’ positions appointed by the governor (with or without confirmation), and some places where those positions are quite powerful, with the others being somewhere in between.
I don’t know what to make of those Mexican provisions, they seem ambiguous or even outright contradictory to me. Shugart & Carey (1992) say Mexico has no confirmation.
To answer Rob’s question, as Matthew stated, as far as I can tell it is indeed the case that no presidential Latin American countries have confirmation votes for cabinet appointments. Overall, the US is indeed an unusual presidential system in general – Shugart & Carey (1992) state this and suggest that the US model might be particularly balanced and good for stability.
I’m pretty sure Colombia is unique in having real (majority rather than supermajority) censure votes (and I still think that means we shouldn’t call it ‘presidential’).
I wonder how we should classify Ghana?
Kenya has an almost identical provision.
Presidential, despite limits on the president’s discretion.
I do not view the ability or requirement of cabinet members (or even presidents) being members of the assembly as an important question in classifying executive formats.
A small sidenote. Recently the high court of Australia held that Family First candidate Bob Day was not validly elected to the senate, and the seat was filled by a countback of his votes. The ratio was that his business dealings with the Commonwealth were a breach of Section 44 which, among other disqualifications (adherence to a foreign power, various crimes, bankruptcy, etc etc) makes anyone with a direct or indirect pecuniary interest in a contract with the Commonwealth ineligible. I may have been guilty of suggesting to a group of Americans that every constitution needs a Section 44.
> “I may have been guilty of suggesting to a group of Americans that every constitution needs a Section 44.” [Alan]
I prefer Graeme Orr’s approach to the question:
“… We should wipe the slate clean by scrapping section 44 of the Constitution as it applies to elections – especially the barriers to millions of dual citizens and people holding public office offering themselves and increasing electoral choice. Even if electors wish to elect a fellow elector who is in prison, why not let them? It’s unlikely to happen, but the symbolism could be used effectively, as experience showed at Westminster during the Ulster “troubles.” Rules already exist to cause MPs to lose their seat if they physically miss several sessions of parliament.
“In its place, we need a rational but firm system dealing with the real integrity problems that arise during the life of a parliament. Draw up a clear list of offices that MPs may not be appointed to. Since the finance department had concerns about Mr Day’s lease, why not empower the auditor-general to rule on the contract, based on a proper code about conflicts of interest and duty? If an MP takes out a new citizenship during their term, he or she could renounce the seat from that date – quite a deterrence to such an unlikely personal decision.
“Most of all, we need to clean up the perennial sore of the misuse of parliamentary allowances by allowing a federal court to rule that MPs must forfeit their seat if found to have intentionally rorted [= gamed, manipulated, corrupted] benefits. It is these kinds of ethical transgressions that undermine electoral democracy, not technicalities about candidacy.”
– Graeme Orr, “Entitled to vote? Then you should be entitled to run. The High Court keeps fertilising the thicket of rules disqualifying candidates. Simplification is long overdue”
Inside Story (10 April 2017)
I disagreed with that article when I read it. The nationality rules are relatively simple since the (admittedly surprising) discovery that Elizabeth II is a foreign prince. Sykes v Cleary made clear a candidate only needs to take reasonable steps to disavow a second nationality. Those steps are not necessarily even effective in terms of the laws of the foreign country. The confusion in 44(i) does need to be cleaned up, but I think the rest of the section uncontroversial, particularly 44(iv) and (v).
On the other hand, the legislative treatment of New Zealanders is a disgrace. I know kiwis who have lived here legally since early childhood but are still not eligible for naturalisation, because even though all New Zealanders have the right to live in Australia that does not count as qualifying residence under the Australian Citizenship Act. The sad result is that the vast majority of New Zealanders living here are not eligible seek citizenship, let alone vote or stand for the parliament.
I don’t think there is any Latin American (pure) presidential system where cabinet appointments require confirmation by either house of the congress.
In Peru, the cabinet requires investiture, but this is actually a semi-presidential system.
There are a few cases with “censure” in Latin America, including Colombia. But these don’t require confirmation of appointees. And there are some countries with positions called something like cabinet coordinator, which require confirmation, but are not particularly important posts.
In the Philippines there is a Senate committee on appointments that must confirm cabinet members. There are also here and there some specific posts needing confirmation (from memory: the attorney general in Mexico, although I am not actually sure this is classified as a cabinet post).
Basically, yes, the US is unusual in this regard.
Funny the US is the only Presidentialist country to require cabinet confirmation by the legislative body, the Senate. The Founding Fathers should have made it for both chambers ideally a joint sitting or just the house.
It seems like a very slow moving procedure, is it needed? Why does no other Latin American country does this? Brazil and Mexico lets the President appoint cabinet ministers without approval? Do these countries have less qualified cabinet ministers because of the lack of legislative approval?
As MSS and Alan stated, the US is not completely unique in this, only unusual (other examples being Philippines, Kenya, Ghana). In the Americas, it probably IS unique.
I’m not sure what you mean by “Mixing Presidential term limits that are fixed with unfixed parliamentary”. Both president and assembly are to be able to go to early election, which will almost always be concurrent.
How do presidents and prime ministers compare, power wise? I’m not sure how to answer that. There is quite a big variety when it comes to the powers held by both types of chief executive, especially presidents – and especially when semi-presidential systems are included.
Sorry, I didn’t mean just how they ‘compare’ in a general sense but the more specific questions of ‘what is the more powerful position, president or PM?’
I mean the President is term limited to two terms Constitutionally, but parliamentarians are not, early Presidential elections, and a new President can be elected midway and that does not count as part of the two term limit, South Africa President is similar to that, albeit not elected by the people in a direct vote, elected by parliament, functions as a Prime Minister. Rather than two terms, no president serves more than 15 years would be a better provision. Doesn’t Botswana or Zambia something similar to this?
The main point is that there are so many exceptions to the two-term limit in the proposed Turkish amendments that make the promise of term limits pretty hollow. Even having a (strict) three-term limit, though it also allows far too long a tenure, might be better than these proposals.
Having legislative term limits would make things even worse; they’re a really bad idea in almost any context. A lot of Turkish parties do enforce term limits on their own MPs, though. I’m not sure why, but I have not heard of such a practice anywhere else.
First of all, I’d like to thank my classmate, Ipek Bahceci, for helping out with the translation of the amendments!
I’ll be getting to some of the above questions soon.
It seems the referendum has passed. Very close, perhaps only 51% (whether fraud-free or not I can’t say).
The important thing to note is that this is almost the same vote percentage Erdogan personally obtained in the first direct election of the president in August, 2014. It is also in the same range as the AK Party’s vote in the most recent assembly election in 2015 (the second such election of that year).
In other words, despite the attempted coup, purges of opposition, restrictions on media, etc., there is no growth in Erdogan’s support. And a major constitutional change is being passed as essentially nothing more than a deeply divided country’s referendum on Erdogan himself.
That does seem to be the case. Turkey is split right down the middle, with just a slight weight advantage to Erdogan. He’s going to use it as much as he can, it seems to me. How minorities — secularised Muslims, Alevis, Kurds, Yezidis, Bahais, Jews, Greeks (both Orthodox and Catholic), Armenians, and Georgians — fit into the new, less liberal, Turkey with fewer mechanisms of expression and a more powerful president is anyone’s guess.
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Was the Constitutional Referendum a package that voters had to vote Yes or No or considering the amount of articles being amended, did the voters had the ability to cherry pick which ones they wanted? Odd that the BBC considers this a new constitution, when ever is amending a constitution substantially considered a new one.
For amending formula procedures, in Turkey’s case and other countries, submit a package of amendments to a referendum (yes or no on the whole package) or does each article’s amendment have to be ratify by the voters separately?
Rob, not only was it a single package, there was no question on the ballot.
I would like to know what the head orchardist (and the rest of y’all) thinks of this article by Gretchen Helmke:
and this thread seems like as good a place as any to inquire.
On form to date I can see Donald Trump going orders that amount to a coup d’état, perhaps without understanding that his orders are unconstitutional. I just cannot see him following through in the face of opposition. And within 24 hours he would be insisting that he meant something completely different.
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I would like to add some additional explanations to your findings. Decree powers are not exactly the same as those the powers of the cabinet. Yes some of restrations on the decrees seems look a like but president hold some of exclusive decree powers in specific areas such as ” The functioning of the State Supervisory Council, the term of office of its members, and other personnel matters relating to their status
shall be regulated by presidential decree.” So there are four specially reserved topics as well as other areas to president decree powers. The question is what will happen if the decrees conflict with the laws in these special areas ? Also cabinet had to take the “authority” from the parliament through the law to issue a decree. Besides on the day when the decree entered into force, it was submitted for the approval of parliament again. This approval process was also carried out by law. Now there are not any kind of approval or taking authority from parliament to enforce a decree. I can increase these additions, I would be happy to discuss this with you.
Demet has a point here (although the recent direction of presidential power in Turkey is still concerning). Analogy: in the USA, Cabinet-level Departments can only be created, merged, split or abolished by Act of Congress, whereas in Australia (and I’m guessing, other Westminster systems) everyone is entirely relaxed about the Prime Minister (effectively – officially, the Governor-General) having power to make such changes by regulation or even by mere administrative arrangements (which are not disallowable by parliament, unlike regulations). So the US Right spends decades agitating for, eg, HUD or the federal Department of Education to be abolished, but can’t get it through House and Senate, and meanwhile, as long as these departments exist and are vested with legal powers, the President… well, saying “legally must appoint a Secretary” is incorrect, but more correct to say there’s a big pothole in the sidewalk if the President doesn’t fill it.
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