THE TURKISH-TYPE PRESIDENTIAL SYSTEM AND ITS COMPARISON WITH THE U.S.

İpek Yağız

University of Turin Global Law

After the wrecking influence of the French Revolution on multinational kingdoms, fall of the Ottoman Empire was inevitable, which paved the way to a Turkish national movement that eventually led to the foundation of what we now know as the Turkish Republic. This republic, however, was made to represent something different from the Ottoman Empire, which had represented the caliphate. The founders of this new republic were heavily influenced by nationalism and Westernism, thus, this new republic was decided to be strictly secular and facing towards Europe.

First step towards the aforementioned objective was the clarification and simplification of the legal language. Teşkilat-ı Esasiye Kanunu (Law of Fundamental Organization) of 1921, although amended prior to the official foundation of the republic, marked a significant step in legal development. This was the only flexible constitution in the history of modern Türkiye.

“There is no provision in the 1921 Constitution (TEK) declaring itself superior to ordinary laws. Likewise, it does not make any provision for its own change. That's why this Constitution is a soft constitution. A soft constitution is defined as a constitution that can be changed by the same procedures and by the same bodies as normal laws. So, it can be concluded that Law of Fundamental Organization (TEK) can be changed like laws” (Balat, 2016, pp. 80).

In 1924, a new constitution was amended. Unlike the previous one, this constitution was a rigid constitution and was in force until 1961. The 1924 constitution was modified over the years to include progressive steps such as the extraction of state’s religion from the constitution, giving women the right to elect and be elected, constitutional secularism, and many more. This constitution was longer and more detailed than the one amended in 1921.

During the 1950s, the economic policies that were implemented throughout the country were proven to be disastrous with the declaration of moratorium in 1958. After this economic hit, government policies shifted to a more interventalist approach and after two years, the military stepped in and overthrew the government in 1960. After the coup d’état, in 1961, a new constitution was amended that the interveners thought better suited the democratic ideals of the republic and the people. For the first time, this constitution ensured the division of powers and the independency of judiciary. Also for the first time the term “social state” was added to the constitution.

After 19 years with the 1961 constitution, there was another coup d’état. The coup of 1980 gave birth to another constitution that was amended in 1982. It’s still the constitution in force and has been modified in 21 instances.

The Turkish constitution of 1982 (modified greatly in 2017) is a rigid constitution made up of 177 articles. Due to the fact that the country is a civil law country, the legal rules are detailed and specific, and therefore law (unless regarding the tradition of a certain small region) is codified. The preamble explains in detail the founding principles of the republic, how Turkish citizens are viewed in the eyes of the state and where the duties and powers of the state actually come from. A small example from the preamble can be given as such:

“The absolute supremacy of the will of the nation, the fact that sovereignty is vested fully and unconditionally in the Turkish Nation and that no individual or body empowered to exercise this sovereignty in the name of the nation shall deviate from the liberal democracy indicated in the Constitution and the legal system instituted according to its requirements, (…)” (Turkish Constitution, Preamble)

The first three articles that are regarding the method of governance (republic), attributes of the republic and finally the provisions of governance are protected by a 4th article:

“The provision of Article 1 regarding the form of the State being a Republic, the characteristics of the Republic in Article 2, and the provisions of Article 3 shall not be amended, nor shall their amendment be proposed.” (Turkish Constitution, art.4)

At this stage, it would be beneficial to see how the constitution in its final form proclaims itself:

“The Republic of Turkey is a democratic, secular and social state governed by rule of law, within the notions of public peace, national solidarity and justice, respecting human rights, loyal to the nationalism of Atatürk, and based on the fundamental tenets set forth in the preamble.” (Turkish Constitution, art. 2)

Among all the 21 modifications made in this constitution, the most striking one would be the one made in April 2017, as a result of a referendum that paved the way to the presidential system of Türkiye today.

In 2016 a coup d’état affiliated with a religious cult was attempted in order to take over the government however it was not successful. This attempt resulted in new measures being proposed by the governing party which involved granting greater competences to the president of the country (abolishing the role of the prime minister) and the reduction of the power of the national assembly.

In the 2017 constitutional reform, mainly 18 articles were changed and many more were affected. The most crucial of these changes were concerning the appointment of Ministers, reduction of competences of the parliament, unclear limits to the President’s authority and so on.

Article 87 which abolished the authority of the Turkish National Assembly to inspect the Council of Ministers and the Ministers individually as well as the issue decrees having the force of law upon the Council of Ministers. With this provision, it is intended that Ministers are appointed and dismissed by the President. Although this seems ordinary for a country with a presidential system, there is a nuanced point to keep in mind:

“The deficiency in the regulation is that the parliament is completely disabled in the induction process of ministers. There is no mechanism that limits the President in appointing ministers. However, an ‘approval’ process in the Parliament could have been foreseen for the ministers, such as those in the USA. In this way, the public could be informed about the ministers and the Parliament could serve as a check and balance” (Coşkun, 2017, pp. 12).

A problem of judiciary independence rises here with the 87th article regarding the Council of Judges and Prosecutors (the disciplinary body of the legal system of the Republic of Türkiye and the national council of the judiciary of Türkiye). Council of Judges and Prosecutors is an administrative body that carries out the personnel affairs of judges and prosecutors in Türkiye and reviews objections regarding them and it does not qualify as a court. The Council is made up of 13 members who are the Minister of Justice (as the chairman), Deputy of Minister, four members appointed by the President and seven other members selected by the parliament. Now that with the 87th article the President can appoint Ministers, he appoints 6 out of 13 of the members of CJP. This number rises even more if we include the parliament members of the party which the President is the leader to that vote in favor of the President. Even in the instance that the President’s political party did not participate in the voting, nearly 46% of the members of Türkiye’s judicial council would be appointed by one political leader only.

“Article 98 which also concerns the parliamentary control over the executive. Under the previous text of the Article, the TGNA (Turkish Grand National Assembly) “exercises its power to control by means of question, parliamentary inquiry, general debate, interpellation, and parliamentary investigation.” It adds “question is simply to ask for information from the Prime Minister or ministers to be answered on behalf of the Council of Ministers orally or in writing.” The 2017 amendment abolished interpellation and oral questions. Since the main aim of the amendment is transition to a presidential system, the abolition of interpellation should be considered natural. In a presidential system based on the strict separation of powers, neither the President has the power to dissolve the legislature, nor the legislature has the power to dismiss the Council of Ministers or a minister by way of interpellation and a vote of no-confidence. In fact, Article 99 which regulates interpellations in detail is also abolished” (Yazıcı, 2017).

The Turkish-type Presidential system has its special name due to its difference from the presidential systems of the world, namely of the United States of America where the division of powers is strict and there is institutional freedom to perform checks and balances. As we have mentioned before in the essay, in the Turkish-type Presidential System, the parliament is barely present in the appointment of ministers whereas in the US the Senate is also present during the process by giving the final confirmation.

Selection of the Vice-President comes across as another contrast between the Presidential System of the United States of America which is considered the highest form of presidential systems, and that of Türkiye. The US Vice-Presidents are elected with respect to the public’s wishes, whereas in Türkiye, the Vice-President is appointed and dismissed by the President and there is no limitation on these number of “assistants”. This creates a highly debated issue in Türkiye since in the case of resignation, death, etc.; the President that would take over would not be democratically elected, hence, creating a questionable democratic scene.

As we move on to other modifications, we face a problematic 104th article which grants the President to appoint and dismiss “senior public administrators” and to regulate the process and principles regarding senior public administrators. What is problematic about this article is that there is no specification on the term “senior public administrator”, so it is not certain where the President’s competence ends. There is no indication to show that the parliament will be involved, too. On the contrary, when we look at how the same situation is handled in the United States, we see that the President has to get the Senate’s confirmation. That is not the case in Türkiye, the President is the only authority (Coşkun, 2017)

Presidential decrees that were added to the 104th article in the Turkish Constitution shall be the final remark as to the distinctiveness of its kind from its main inspiration, the US. Turkish presidents are allowed presidential decrees in the constitution with the provision: “The President of the Republic may issue presidential decrees on matters relating to the executive power” (Turkish Constitution, art. 104). However, there is no direct provision in the US constitution granting the President such an authority which shows us there is more unregulated competence granted to the Turkish President. What should be underlined regarding the Presidential Decrees in Türkiye is that there is no need for the delegation of authority by the Parliament and the contents do not have to be based upon the constitution, it is just required that it does not violate the constitution (Açıl, 2018, pp.729).

Considering all the facts discussed in the essay, it can be concluded that the constitutional history of this young republic seems rather unstable. Many coup d’états, different constitutions and fundamental modifications without a clear indication of progression show that the legal and political identification of Türkiye has yet to finalize. The step taken by the government towards being a presidential system has been controversial since many constitutional precautions taken by the US in order to preserve checks and balances have not been taken in Türkiye. This creates concern for the fusion of powers and how much unregulated authority the President has. The weakening of the parliament is also in contrast with the Senate in the United States where the President is somewhat regulated by. As with every legal system, the legal system of Türkiye will evolve and grow over time.

BIBLIOGRAPHY

Açıl, Murat. (2018). 2017 Anayasa Değişiklikleri Çerçevesinde Cumhurbaşkanlığı Kararnameleri. 76. 725-756. 10.26650/mecmua.2018.76.2.0024.

Balat, H. (2013). Birinci Büyük Meclis Oluşumu, Hukuki Nitelemesi ve Yanlış Bildiklerimiz. Genç Hukukçular Hukuk Okumaları, 5. Retrieved December 22, 2023, from https://www.hukukvakfi.org/_files/ugd/6325d1_4d08625818ad4c3d8b7dba529e0290b8.pdf

COŞKUN, V. (2017). 16 Nisan 2017 Tarihinde Kabul Edilen Anayasa Değişikliklerinin Değerlendirilmesi. Dicle Üniversitesi Hukuk Fakültesi Dergisi, 22(36), 3-30.

Turkey 1982 (rev. 2017) Constitution - Constitute. (n.d.-b). https://www.constituteproject.org/constitution/Turkey_2017

Yazıcı, S. (2017). Constitutional Amendments of 2017: Transition to presidentialism in Turkey - GlobaLex. Globalex 2015. Retrieved December 21, 2023, from https://www.nyulawglobal.org/globalex/2017_Turkey_Constitution_Amendments.html