Turkey: Presidential system will strengthen separation of powers in Turkey, says Constitution Committee head


Presidential system will strengthen separation of powers in Turkey, says Constitution Committee head

The constitutional amendment package to allow Turkey to switch to a presidential system has been accepted by the parliamentary commission after almost 10 days and hundreds of hours of relentless work. The package now will be discussed in Parliament starting today, and the legislation process is expected to be finalized before than end of January.
Professor Mustafa Şentop, the chairman of the Constitution Committee in Parliament, spoke to Daily Sabah about the scope of the amendment package and gave details on the proposed presidential system.
Professor Şentop believes that this constitutional amendment is probably one of the most important of its kind in Turkey's political history. What makes it even more important is that these changes were slated by a legitimate government, elected by the people through free and fair elections, and had the lengthiest discussions in the commission's history.

The amendment package originally consisted of 21 articles, 18 of which passed in the commission. However, Şentop said these changes would not alter the essence of the package. Dismissing criticisms about the package that it might lead Turkey into authoritarian rule, he underlined that the new system would actually consolidate the separation of powers.

Daily Sabah: After lengthy discussions in the Constitutional Commission, the constitutional amendment is to be discussed in Parliament on Monday. How did you proceed in the Constitutional Commission?

Mustafa Şentop: We started working on the draft around 04:00 p.m. on Dec. 20, and it was finished by 07:10 a.m. on Dec. 30, clocking in at around 100 hours of total work. Throughout this process, 266 members of Parliament took the floor for various periods of time. The Constitutional Commission has only 26 members; therefore, the opposition's accusations that they were not allowed to speak against the draft is simply not true and is an attempt to influence public perception. To the best of my knowledge, almost all the deputies of the Republican People's Party (CHP) were given the floor. In addition, they also provided annotations, and virtually everything was discussed.

This commission, on the other hand, is a specialized one, as it discusses changes to the Constitution. Every party in Parliament elected their own representatives who are knowledgeable about the subject matter and could advocate the party's policies for the commission.

The duty of this commission was clear: to evaluate, discuss and criticize the draft. I am not against deputies who were not part of the commission voicing their opinions during commission sessions. However, if each and every deputy starts to talk during these sessions without any time limits, it would clog the whole system. Moreover, some were just repeating concerns they had voiced before, which I believe, were counterproductive.

This constitutional amendment is probably one of the most important of its kind in the political history of Turkey. In a sense, it is also unprecedented. While there were constitutional changes in 1961 and in 1982, those were made by juntas that usurped the elected authority.

This one, foreseeing a significant change in Turkey's political system, on the other hand, was prepared by a legitimate government elected by the people as a result of free and fair elections. Furthermore, it was subject to the lengthiest discussions in the commission's history.

DS: Out of the original 21 articles, 18 were passed by the commission. Could you tell us why three articles were dropped?

MŞ: It is a normal legislative process. Even though the draft was meticulously prepared, it needs to be evaluated and reviewed by others to make it refined through and through.

One of the articles dropped was about the substitute deputies system, which exists in over 20 European countries. Previously, we had proposed this change in 2012; thus, it was not something new.

We were not sure whether we should include this in the constitutional amendment package. While I personally believe that this system should be implemented, other articles that are related to the status of deputies must be changed, and for this reason, it was left out of the reform package.

The other two articles were related, and they were about reorganizing certain structures in the central administration and the appointment of administrators. It was decided that these changes were redundant, as the revision of the articles concerning the presidency and the Cabinet would have the same precise effect.

There were other minor changes beside these three articles. One was the article to regulate candidacy for the presidency. It stated that all presidential candidates should be Turkish-born. This expression understandably discomforted some people, mainly those who have immigrated to Turkey and have been living here for decades. As a member of a family that immigrated from the Balkans, I can relate to their discomfort. Nevertheless, this expression was thus removed.

In summary, the essence of the constitutional amendment package was not altered much, with the exception of the substitute deputy system.

DS: There was criticism that with the approval of the package, the checks and balances system will be dismantled. How would you evaluate this claim?

These are baseless accusations and were made mostly by those who want to preserve the status quo. After the 1960 coup, certain groups in Turkey gained immense political power even though they were a minority in the sense of numbers. Currently, the CHP is the advocate of these people and the status quo.

They disregard the will of the people, and ironically, they do this through the parliamentary system.

In the proposed system, only the legislature can be directly elected by the people, not the executive. The problem is that the executive, thus the government, emerges from Parliament, and it relies on intra-parliamentary balances. If you alter the balance in Parliament, you can depose and implement governments.

For this reason, "unrecorded" political actors have been active in Parliament since the 1960 coup. There are two clear examples of these activities. For instance, in 1971, Prime Minister Süleyman Demirel, whose party had the majority of seats in Parliament, was forced to resign through a memorandum by the military. After that, certain CHP deputies, who were not even prominent figures in their party, became prime minister and cabinet members, and these people governed Turkey for two years.

The second instance took place in 1997 when another democratically elected government was deposed of by undermining one of the two coalition parties, and another party, which did not have adequate seats in Parliament, formed the government by forcing the others to cast a vote of confidence.

Therefore, since 1960, certain actors of the status quo have been manipulating governments via their activities within the parliamentary system. The Turkish implementation of the parliamentary system, unfortunately, allows such actions. Of course, there are also other problems that are caused by the parliamentary system.

The ruling Justice and Development party (AK Party), especially under President Erdoğan, has been trying to draw attention to this since April 2003 when he first said the parliamentary system did not fit Turkey and a presidential or semi-presidential system should be implemented. This happened in the very first months of the first AK Party government.

The main aim of this package is to grant the people the right to directly elect the government. There will be two ballots, one for presidential elections and the other for parliamentary elections. It will diminish the power of the said extra-parliamentary groups by not allowing them to manipulate governments any further.

Regarding the checks and balances, this system will actually consolidate the separation of powers. We are keeping all the control mechanisms intact and as they were with the exception of interpellation. This is due to the change in the system of governance. Currently, the government has to have the confidence and support of Parliament as it is elected by Parliament. However, in the presidential system, the people directly elect the president. Therefore, there will be no point in having interpellation.

DS: How will you respond to claims that the presidential system will deprive Parliament of all its functions?They are trying to preserve the status quo, and therefore are distorting what is being proposed. Parliament has two main duties: To legislate and determine the budget. These are the same for both the parliamentary and the presidential systems.

Parliament will continue to legislate; however, the president will also have the authority to push executive orders. Supporters of the status quo are trying to keep this authority exclusive to the legislature.

The case here is that executive orders that the president can enact are only about the executive. In this sense, the president cannot issue executive orders in fields identified by law.

Moreover, we have also said if there is no specific law about a subject, the president can enact executive orders. However, if Parliament approves a law about this subject, it will override the presidential enactment. If the law and presidential enactment contradict each other, we have specified that, again, the law will supplant the enactment. Therefore, presidential enactment is a lesser law, unlike the U.S. implementation. The U.S. president's executive order is equal to the law, and we have seen instances of this in recent years. As I have said, ours will be different.

On the other hand, the president's executive orders will be open to scrutiny from the Constitutional Court, as to whether it is in accordance with the law or not. In this sense, Parliament will not be deprived of its functions, as it will continue to be the only legislative institution. In addition, the budget will be prepared by the president, but will be submitted to the relevant parliamentary commission and then will be discussed by the general assembly. In this sense, Parliament will have the last say on the budget.

However, if the discussions do not conclude before the specified deadline, the president will have the authority to implement a temporary budget that still can be supplanted by Parliament when they pass the budget.The new system will also allow the possibility of different parties winning Parliament and the presidency. In the current system, this is impossible.

DS: If the president and a majority of Parliament are from different political parties, won't it result in chaos?

 We believe that there are adequate measures to prevent everything from descending into chaos. Theoretically, this may cause the legislature to not approve any laws of the executive. However, as I have said before, we give the president the authority to push forward executive orders. In such a situation, the president may use his/her authority to enact executive orders in fields that are allowed, which will avert any crisis.

While the president's executive orders mainly aim to implement certain reforms or provide a legal basis, there is also a secondary function: to provoke, so-to-speak, the legislature to take action.

If Parliament is reluctant to make a regulation about a subject, the president may implement an executive order on the subject, which in turn will provoke Parliament to take actions against it, if they are not in favor of the executive order. Therefore, it will prevent a "lazy" legislature.

Let's say these did not resolve the issues and a crisis is imminent. Then both the president and Parliament will go for elections simultaneously. This is different from almost all existing presidential systems in this way, as most of presidential systems foresee the dissolution of Parliament by the president. However, in our system, this will be bilateral. Therefore, if the president wants to dissolve Parliament and force a new election, the president must also go through the same process. This will be an instrument to unclog the system.

On the other hand, there is a false belief in our country that the legislature and the executive should be controlled by opposing political parties, and they should fight every day, whereas in many other countries, they try to reinforce cooperation between these two branches.

For instance, in France, a constitutional amendment was passed to equalize the president's term with the deputies in 2002. The same amendment also stated that presidential and parliamentary elections in France should be held a month apart from each other at most. Still, if the French president does not believe that he/she could work with the elected parliament, they have the right to dissolve the parliament once a year. In this sense, it's harsher than the system we have proposed, but it shares the same aim: To make the legislature and the executive cooperate.

We hope that it will never come to this, but we have added the aforementioned measures to counter any possible crisis that might emerge due to a deadlock between Parliament and the president.

DS: It is foreseen that the transition to this system will continue until 2019, the same year when parliamentary elections will take place. Does the AK Party have any plans to change the electoral system?

We have been working on the electoral system for a while now, but were unable to change it, as there were multiple elections over a short period of time.

Almost all of the parties are demanding a change in the electoral laws, and we are currently working on it. I believe it will be completed before ratification of the constitutional amendment package, which will probably be around April this year.

As you know, according to the 1982 constitution, the president does not have any formal responsibilities, but with the amendment, this will change. Could you elaborate on that?

In the current system, the president does not have any responsibility and could only be punished if he/she is found guilty of treason, which is not defined in the Turkish Penal Code. The president has some areas of authority, such as leading the Council of Ministers, announcing state of emergency and approving or disapproving personnel appointments.

However, they cannot be held responsible for their actions and inactions. It's the government that will be held responsible, if something goes wrong. We are also changing this by allowing the president to be held responsible for all of his/her actions and be punished for any crime that might have been committed.

On the other hand, we are making it harder for Parliament to accuse the president of a crime by increasing the threshold to a simple majority, from one third of the votes in Parliament, while decreasing the amount of votes required to make the president stand trial in the Supreme Court from three fourth to two thirds. This will allow only the most serious accusations to pass the threshold, while making it more probable for the president to stand trial for such serious allegations.

DS: Will the Council of Ministers be formed only by officials who are not deputies?

There are no obstacles for a deputy to become a minister. However, if a deputy does become a minister, he/she would have to relinquish the duty as an MP due to the principle of separation of powers. A member of the legislature cannot be part of the executive simultaneously and vice versa.

DS: So, the government will not be able to propose draft laws? 

Yes, it will be the case. In the current system, the government can propose laws; however, in the presidential system, only deputies will be able to propose laws. The executive cannot be present in the general assembly and affect the lawmaking process in any way. Therefore, it is completely the duty of the legislature.

DS: Beside all the aforementioned changes, the package also included some amendments to demilitarize military justice and address some other issues. Could you tell us a bit more about these changes?

It has been a long-discussed issue in Turkish politics. We know that all parties, including the CHP, agree with the demilitarization of the judiciary. In the package, all levels of military justice are being abolished. They will be allowed to form only during wartime conditions.Another important change is that we are decreasing the age of candidacy to become members of Parliaments from 25 to 18, which is widely accepted by most countries, and there are not many countries left that have this kind of high age-limit for candidacy.

There is a change in appointing and electing members to the Supreme Board of Judges and Prosecutors. Some argue that this will result in the judiciary being dominated by political will. How do you respond to that?

I believe it is not true, and once again is the machinations of the status quo. The issue is that political activity is being understood as something only political parties engage in. My question would be whether judges and prosecutors have their own political beliefs. Do they leave their political beliefs aside while electing the members of this board? I do not believe so. Turkey has observed how they were split into groups, opposing each other 2010 onward.

On the other hand, while the people are represented by the executive and the legislature but don't have any say in the judiciary, I believe this makes things problematic. In many functional systems around the world, the people have a say in the judiciary, either directly or indirectly. Therefore, we believe that the people should at least have an influence in the judiciary, if not directly, through certain mechanisms.

Main opposition CHP leader Kemal Kılıçdaroğlu has voiced his criticism regarding the package. How would you evaluate that?

As I have said before, the CHP is a party that reveres the status quo. While they don't believe that they can form the government, their only hope is to become a part of a coalition. With the changing system, this will not be possible. Therefore, they are against the whole change just because they believe they will never have the chance to elect one of their own as president. In addition, as they cannot state these facts -- that they are opposing this change to protect their own interests -- they make wild accusations about the system.

As you mentioned before, the package will be discussed in the general assembly on Monday. How will it proceed?

Every proposal that comes to the general assembly will eventually be put to vote. Despite the opposition, I believe it will pass the general assembly in around two weeks. If it were passed in January, it would be possible to push the constitutional amendment package for referendum in late March or early April.

The present state of emergency will continue during that time. Do you believe it would be possible to have a referendum during a state of emergency?

I believe this is a superficial argument. According to law, it is possible to have it. Moreover, when we look at history, we can see that elections and referendums were held during states of emergency and martial law. It is both possible in terms of application and law. On the other hand, the reasons for the current state of emergency are not related to the constitutional amendment in any way.

It was projected that the transition will continue until 2019, if the amendments are passed. Could you inform us about the transition process?

The package will come into effect after the referendum. However, each amendment will be implemented according to their various timelines. Changes in the political system will come into effect fully during the elections that are to be held on Nov. 3, 2019. On the other hand, many of the amendments will be implemented almost immediately.

The most discussed amendment is the party member president. Even though the president is defined as impartial by the Constitution and swears to be impartial in their oath, it actually means judicial impartiality.

Being a part of political party does not contradict judicial impartiality. Many countries have presidents that continue to chair their political parties. However, in our country, this has been reduced to being a member of a political party. We will be correcting this by allowing the president to have ties with his/her political party. As the people are directly electing the president, it would not be realistic to expect the president to be completely objective.

  • 09 January 2017
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