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Law experts criticize proposed amendment

Hilal Köylü
December 14, 2016

The ruling party AKP believes that the proposal will strengthen Turkey's legislature and executive, and make the judiciary more independent. But experts say weakening the parliament could prove a threat to democracy.

Demonstration für Recep Tayyip Erdogan Türkei
Image: Reuters/O.Orsal
Demonstration für Recep Tayyip Erdogan Türkei
Image: Reuters/O.Orsal

The constitutional amendment proposal that the Justice and Development Party (AKP) brought to the parliament with the support from only the Nationalist Movement Party (MHP) is drawing attention with its "one-chamber parliament" premise.

In the new model, there will be no prime minister, and the president will have all the executive power within a unitary structure. The parliament will no longer have the authority to audit the cabinet and its ministers or have the cabinet issue decrees.

"Subjects dealing with state activity" will be excluded from the scope of general meetings in parliament, meaning, ministers will not be members of parliament. The age of political candidacy will be reduced to 18. The number of seats in the parliament would rise to 600 from 550.

The president's parliament

Erdogan has cracked down on critics and dissenters since he survived a coup attempt in July
Erdogan has cracked down on critics and dissenters since he survived a coup attempt in JulyImage: picture-alliance/dpa/S. Suna

Constitutional Law expert Hikmet Sami Turk spoke to DW about whether the proposal would strengthen the legislative and executive organs, like the AKP and MHP claim. Turk says the proposal "will weaken the parliament" and draws attention to the fact that the parliament will not have any authority to call for a vote of confidence or set up inquiry commissions. The proposed amendment will give the president the power to make legislation as well as the power to veto.

Turk says, "When the president sends a proposed bill back to parliament and a two-thirds majority votes to accept the legislation, the president will, once again, have the power to veto."  Turk claims this will turn the parliament into a non-functional and weak organ. "We can also see that the parliament will only be strengthened in the number of seats - 600 members. And if you keep in mind that the president will appoint these members, there is no way that the parliament will be a strong one," he told DW.

Constitutional Law expert Ergun Ozbudun also said that the claim of "legislative and executive organs being strengthened" had no foundation at all. "What we have here is the weakening of legislation while the president, with full executive powers, forms a parliament under his influence."

'No control mechanisms'

With the proposed amendments, the authority given to the president will be a controversial subject in the days ahead. The president will have the power to issue decrees, which is a power that even the US president doesn't have. While the US president needs the confirmation of the senate for each cabinet member, the Turkish president will be able to appoint anyone he wishes. He will also have the power to appoint all senior civil servants, declare a state of emergency and call for renewal of elections.

Hikmet Sami Turk says, "Supposedly, they are annulling martial law, but the president will be able to declare a state of emergency. All this power is a sign that Turkey will be under one-man rule. If the president has the power to appoint any minister, that means he will have the power to renew the parliament as well. If he has the power to structure the whole government, then there will be no control mechanisms whatsoever. This is what we understand from the proposal."

Turk also believes that the power of the president to issue decrees will erode the system of checks and balances. "If this proposal is approved, a Turkish-style, corrupt presidential system will be put into effect. The president will be able to rule with decrees and there will be no more laws. Democracy in Turkey will come to an end."

According to Turk, under the new proposal, it will be nearly impossible to try the president. In the proposed amendment, 301 deputies in the 600-seat parliament will have to sign for impeachment proceedings to begin. The parliament will be able to set up a commission of inquiry by secret ballot of 360 deputies. If the inquiry commission decides to send the president to the Supreme Court for a trial, the president will only be tried following a secret ballot of 400 deputies.

'Complete judicial control'

While the AKP and MHP claim that the proposed amendments will provide judicial impartiality, Metin Feyzioglu, head of the Turkish Bar Association states that this is not true at all and draws attention to the proposed member selection system for the Supreme Board of Judges and Prosecutors (HSYK). According to the proposal, the president will appoint half of the members, while the parliament will appoint the other half. Feyzioglu says, "This is a system that will finish judicial integrity and sovereignty."

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Feyzioglu also states that the president as the chief of the ruling party could pose problems. The proposal calls for the presidential and parliament elections to be held on the same day. This way, the president can enter the election as head of his party and lead them to victory.

According to Feyzioglu, in that way, parliament members will always stay loyal to the president. "There will be no monitoring the president, parliament members will be allied to the president and he will have complete judicial control. This proposal is completely illogical and unlawful."

Secret ballot in parliament

For the constitutional amendment to pass, 330 votes are needed in a secret ballot. The results - and whether or not all members from the AKP or MHP vote in favor - is a matter of debate.

After the proposal is accepted in the parliament and approved by the president, a public referendum will be held. While the AKP plans for an early summer referendum, it also wants to end all talk of an election until 2019, since the proposal calls for parliamentary and presidential elections to be held on November 3, 2019. At that date local elections are also expected to be held.