From 2007 to 2017 the electorate in Turkey had been invited to a referendum for the third time to vote for or against proposed constitutional amendments. While the constitutional amendments of 2007 and 2010 were extensively debated by the public, the amendment in 2017 bore very significant characteristic distinguishing it from these two instances of amendment.

The latest case in 2017 stands for an important turning point in terms of both the procedure followed in amending the text of the constitution, the content and, in concrete terms, the voting procedure. This short essay does not allow for addressing and systematic analysis of all legal issues involved, therefore it will remain limited to treating the most striking aspects of this amendment which has been approved by the electorate on April 16th, 2017.

In his work “Constitutional Theory” the German jurist Carl Schmitt makes five conceptual distinctions in relation to the enforcement, change and annihilation of a constitution:

1. Annihilation of constitution (Verfassungsvernichtung): In this case both the existential founding political will and the text of the constitution are annihilated. This is the case, for example, in transition from monarchy to democracy.
2. Replacement of constitutional text (Verfassungsbeseitigung): The text of the constitution changes while the existential founding political will remain. Schmitt addresses cases that follow coups under this concept.
3. Constitutional change (Verfassungsänderung): It is change in the text of the constitution according to procedures set forth in the constitution. Returning back to the distinction between the constitution and its text, Schmitt maintains that in such changes the “essence” of the constitution that reflects the founding political will that is its political preferences remain intact.
4. Constitutional rupture (Verfassungsdurchbrechung): This conceptual distinction which was frequently referred to during the Weimar Constitution period means the possibility of unconstitutional acts and procedures, as exceptional cases, without changing the text of the constitution. The unconstitutionality occurring without any change in norms takes place through the adoption of some measures. It is the case where the norm retreats for a specific period of time in the face of a given exigency.
5. Suspension of constitution (Verfassungssuspension) is suspending, for a temporary period of time, the full text of the constitution.

The constitutional amendment of 2017 bore all of these Schmittian categories in pieces. The question whether the Law no. 6771 on Constitutional Amendment means the annihilation of the Constitution can be responded on the basis of an essential assessment of the text.

The debate about the governmental system has been in the agenda of the AKP-government since 2007; but the debate particularly came to the fore in August 2014 when, for the first time in Turkey, the President of the Republic was elected directly by popular vote. The debate initially made its way under the heading the “presidential system of Turkish type”. In the course of time, however, it turned into a “state-presidential system” because of its content having no common ground with other systems with rigid separation of powers.

The main point of the proposed system without any semblance of Western democracies is its focus on “fusion of powers” in the executive. This means the abandonment of the parliamentary government system based on soft separation of powers which has been the preference of all founding political powers throughout the Ottoman-Turkish history of constitutionalism with the exception of the Constitution of 1921 which envisaged a national assembly government where powers were fused in the legislature. To put in the conceptualization of Schmitt, the preference of the “existential founding political will” is plainly done away with.

To evaluate the possible outcome of the preference for fusing powers in the executive it will be appropriate to take a brief look at the function of the legislature in the soft version of separation of powers. The origin of the word “parlamento” (parliament) used in Turkish today goes back to the word “parlement” (parler: speak) in the old French. While the early meanings of the word include “consultation, “negotiation”, “discussion” and “gathering”, later institutionalized meetings and venues where these meetings are held began to be described by the same word.

Starting from the 18th century the word “parliament” was understood, independently from the idea of representation, as institutions where public and political issues were addressed and discussed. In all books of the theory of state or constitutional law appearing in the United Kingdom and Continental Europe starting from the early 19th century it is stressed that the essence of the existence of parliament and its function to guide the state is its independence from the monarch and its subordination to the will of a majority in the parliament which is the outcome of representation, again independent from the monarch. Hence the critical point here is not only the existence of a parliament but also its independence from the monarch and position subject to the will of the majority.

The essential functions of the parliament include supervising the government that is formed on the basis of vote of confidence, budget making, and drawing a framework for the acts of the executive through its legislative power. Taking a look at the Law no. 6771, it is observed that the principle of separation of powers is totally abolished, and that almost all functions of the parliament are actually abandoned.

1. The duty of the Turkish Grand National Assembly (TGNA) to scrutinize the Executive, the Council of Ministers and Ministers entrusted by Article 87 of the Constitution was repealed and instead entrusted to the President who is entitled to exercise the power of supervision alone. Hence the principle of the political responsibility of the executive to the TGNA no more remains in the Constitution.
2. Oral questioning and motion of censure were removed as a competence of the TGNA. The removal of motion of censure as the expression of political responsibility together with the right to oral questioning means the termination of face-to-face- talk, debate and argument based discussion in the Assembly.
3. The interlocutor of written question that is kept in the article is not the President who undertakes the sole authority and responsibility as the head of the executive but his deputies and ministers. Hence, the interlocutor of any written question is not the person who is authorized and responsible in policies but politically irresponsible others who are assigned some “duties” relating to the executive.
4. The impeachment of the President was arranged formerly by Article 105/III of the Constitution and it was the adaptation to the Presidency of parliamentary investigation envisaged for the members of the Council of Ministers (Article 100). According to this Article, “The President of the Republic may be impeached for high treason on the proposal of at least one-third of the total number of members of the Grand National Assembly of Turkey, and by the decision of at least three-fourths of the total number of members.”

In the new Constitution, the proportions set out in Article 105 have been increased. Accordingly the request for parliamentary investigation must have the absolute majority of the members of the TGNA. Besides, there must be a decision to launch an investigation as stated in the existing Article 100.

This requires the majority of three-fifths of the TGNA. Following the discussion of the report prepared by the parliamentary commission, the referral of the case about the president to the Constitutional Court requires two-thirds majority of the total members of the TGNA. It is clear that now no TGNA is left to supervise the President who assumes all executive powers and any investigation concerning the President either for ordinary or status related offences is made conditional upon extremely high majority votes.

Regulated by Article 161 and the following Articles in the former Constitution, the budget making authority that is accorded exclusively to parliaments in representative democracies independently of government system starting from the Magna Charta in 1215 and after long years of struggle for political power has been indirectly delegated to the executive that is the President. Hence the budget making authority as an essential function of the TGNA is largely destroyed. The President is now equipped with all means to have his proposal accepted even when there are objections from the TGNA as the Legislature has no real and effective authority on budget issues.

While Article 7 of the Constitution gives legislative authority to the TGNA as a power that cannot be delegated, the “executive power and duty” rests with the executive body. The executive “power” which is first incorporated by the 1982 Constitution represented an authority that derived directly from the Constitution itself, but even in its original form, that remained lower in hierarchical terms from the legislature.

That is, even if not explicitly stated by the Constitution, while the legislature can enact laws in any area given that they do not run counter to the Constitution, the Executive can only exercise those powers that are explicitly entrusted by the Constitution. In that sense, the most striking aspect of the new constitutional regulation is apparently the weakening of the legislative authority which is recognized as essential and universal by all Turkish Constitutions starting from 1921 with respect to the executive and, in some cases, even limiting the authority of the legislature by abandoning these two principles.

While one can mention a reserved area of legislation on the basis of the principles of essentiality and universality of legislation, one can also speak about an overall legislative activity going beyond this, not restricted by any other authority given that it remains within constitutional boundaries. In other words, another organ limiting the regulative domain of the legislature was not foreseen in earlier constitutions.

Yet, in the Article 104 we see that the authority of the President to issue decrees is established almost as an overall regulating principle. There is no constitutional response to and institutional safeguard for possibilities of contradictory norms. For instance, the Presidency can issue a decree on the executive power of the President. But the President cannot issue decrees in issues related to negative and active status rights and in issues that are left exclusively to legislative arrangement.

The first question to be asked at this point is “Who will decide what issues are to be arranged exclusively through laws?” In this context, there is no consensus between libertarian and positivist approaches in the doctrine regarding social rights even on the provision in Article 13 that fundamental rights and freedoms may be restricted only by law.

The Article 104 reads “No Presidential decree can be issued on matters that are explicitly regulated by law. In case of conflict between Presidential decrees and laws in terms of their respective provisions, the provisions of the law prevail. When the Turkish Grand National Assembly enacts a law on the same matter, the related Presidential decree becomes null and void.”

The primary question here for administrative and judiciary organs is what should be understood by the term “explicitly regulated.” In cases where the general rules of norm clash are not applicable, the most reasonable solution is to have a judicial organ deciding which norm is to be applied.

However, since no modification is made in Article 146 specifying the jurisdictional domain of the Constitutional Court, which could be the organ of that type, it can be expected in advance that conflict of authority will bring along many problems. Similarly it will also pose a problem in case any presidential decree becomes “null and void” since it is disputable who is authorized to delete this decree from the legislation information system and which impartial body is to resolve the emerging conflict.

In paragraph (ç) of Article 108, it is read between the lines that the State Supervisory Council is authorized to conduct “administrative investigation”; the Armed Forces are included in the domain of the State Supervisory Council; and other arrangements related to the Council such as its working mechanism, duration of duty of its members and other personnel related issues are removed from the scope of the law and left to Presidential decrees.

Leaving a domain that the Constitution states to be fixed by law to Presidential decree means the creation of a kind of “reserved” decree domain. Though it is not said that no law can be enacted in the context of this article, the modification of the text of the Constitution in this direction has a character supporting the idea of the “reserved domain of the executive.”

According to article 104, the President “appoints and dismisses high level State officials, and regulates the procedures and principles relating to the appointment of these officials by presidential decrees.” Since principles and procedures related to the appointment of state officials used to be arranged by a series of special laws including the Law on State Officials, leaving this to Presidential decrees can be considered as another reserved domain for the executive. I think the political preference for keeping the legislative away from this domain is inherent in this article. Indeed, the President alone will decide who will be appointed as top level state officials and what qualifications they should have. Here, there is no reference at all to the Law on State Officials or to any other legislation specifying the qualifications and duties in a specific profession.

As closing remarks, the open questions raising from the new constitutional regulations should be mentioned:

1. According to Article 101/II of the Constitution a person may be elected as President for “two terms at most”. Logically, being elected for two successive terms entails running as candidate for at most two times. However, according to amended Article 116/III “Where the renewal of the elections is decided by the Grand National Assembly during the second term of the President, he may run for the presidency once more.” Thus, a President may run not only for two but three terms in fact. So how these two different dispositions constituting a clash of norms in the Constitution will be construed and acted upon?
2. According to Article 104 “The President decides on the use of Turkish Armed Forces.” However, Article 92 of the Constitution says the authority to “declare a state of war in cases deemed legitimate by international law (…) to send Turkish Armed Forces to foreign countries and to allow foreign armed forces to be stationed in Turkey is vested in the TGNA.” Since this authority is not withdrawn or limited, can one speak about a parallel authority rivalling that of the President? Besides, what should be understood when the authority of the President to declare war is not subject to any condition or limitation whereas that of the TGNA is?

While the last constitutional amendment in April 16th, 2017 has been the most comprehensive of all amendments adopted following the 1982 Constitution, it is also most difficult one to comprehend since the rules of constitutional amendment were not observed and the overall approach was that of “omnibus constitution”.

Given that even professional jurists were puzzled by the text, voters in the referendum could not have examined it closely, understand and make a rational choice. The referendum on this constitutional amendment which was discussed under an awesome time pressure and adopted by the TGNA after practices running counter to the Constitution and Internal Regulation of the Parliament too numerous to be addressed in this short essay have not reflected any rational choice of voters regarding the text of the amendment.

As the last word, it should be admitted that the basic political choices of the essential founding principles of the Republic have been fundamentally altered and the Turkish people are in a phase in which they are experiencing a huge shift to a political system without effective checks and balances as well as political responsibilities.