Presidential Goverment System and Its Problems

The Republic of Turkey began to be governed by the "Presidential Government System" as a result of the constitutional amendment adopted in the referendum held in 2017 and the general elections held in 2018. It is possible to find clues to the system when examining how this change came about. The 1982 Constitution abolished the Senate established by the 1961 Constitution and established a unicameral parliamentary system. The first striking development in the single house system was that the Prime Minister would gain power beyond the legally determined limits if the single party won the parliamentary majority. This situation brought up an application called “Prime Ministerial Government System”, which is not found in the literature but is actually named. The task of the prime minister in the cabinet is to ensure coordination and harmony between ministries. This gives the prime minister the position of "first among equals", but each of the ministers is accountable to the parliament for his ministry. In the de facto situation that developed with the 1982 Constitution, the ministers began to feel responsibilities towards the prime minister as well as their responsibilities towards the parliament. The Prime Minister began to move from the first position among equals to the position of an unnamed chief.

This situation, which started to develop when the Motherland Party came to power alone in the 400-seat parliament by electing 211 deputies with 45% of the votes in 1983, entered a period of stagnation when ANAP gained 115 deputies with 24% of the vote and became the second party in the 1991 general elections. Although Özal was a member of the public bureaucracy until he was elected President in 1989, he had many discourses and actions that created legal debates. However, the state's experience of the parliamentary system and its implementation despite the stretching of the separation of powers enabled Turkey to survive this period with slight damage. Afterwards, the coalitions period, which continued until the 2002 November elections, was entered. With this election, the parties seen as responsible for the crises were buried in the ballot box. While the Justice and Development Party (AKP) received 34% of the votes in the first election it entered, due to the anti-democratic nature of the electoral system, it came to power alone by removing 363 deputies in the 500-seat parliament. This beginning, in which approximately 46% of the popular vote was not represented in the parliament, was also an important milestone on the way to the end of the parliamentary system.

Until the 2017 Referendum, which enabled the transition to the new system, it was witnessed that the political power gradually eroded the rule of law. Here, it is important for our subject to focus on how the power of political power is out of control, rather than detailed political evaluations. The absence of a senate completely eliminated the culture of consensus in single-party governments. All regulations and practices, from the functioning of the commissions established in the Grand National Assembly of Turkey, to the discussions at the general assembly, to the changes made in the Internal Regulation, have created an increasingly centralized decision mechanism. In such an environment, the authoritarian or democratic personalities of people are of secondary importance. Because, after a while, those who hold the decision-making power begin to see the rule of law and democracy as an obstacle to what they want to do. First the laws become lawless, then the oppressive devices begin to develop. During his first term as Prime Minister, he asked him on a television program about the 2002 elections, "What would you do if you took all the deputies?" When asked, Recep Tayyip Erdogan replied, "I would go to re-election immediately, there is no democracy with one party". However, in the following periods, he did not hesitate to openly demand a majority that could change the Constitution on his own. How can this change be explained? While we may not know this, we can develop an assumption. What if there was a Senate? The prime minister would never have the power to do what he wanted in the system because he would have to compromise to pass the law. In this case, the legislature would never be subordinated to the executive. While saying this, it is of course worth emphasizing that the election of a senate with a democratically representative power of over 90% is also important here. In other words, there should be a Senate election without a threshold. So far, I have tried to explain how the new system came to be. Now, let's try to evaluate the system through the text of the Constitution.

The Constitution of the Republic of Turkey and the Presidential Government System

Article 2 of the Constitution of the Republic of Turkey states that "The Republic of Turkey is a democratic, secular and social state of law, in the peace of the society, in the understanding of national solidarity and justice, respectful of human rights, loyal to Atatürk's nationalism, based on the basic principles stated at the beginning." has a provision. The expression "a democratic, secular and social state of law" mentioned here has been used for evaluation in the decisions of the Constitutional Court. The reason for the existence of the Constitutional Court is to supervise the constitutionality of the decisions of the legislature. In this regard, the issue that came to the agenda especially during the AKP governments is the fundamental issue of the Constitutional Court. 

stan is a discussion on whether or not he can control. Because, in the case of substantive control, the control of compliance with the qualifications specified in the second article is almost like a wall in front of the conformity of the legislative decisions with the Constitution in terms of political power. However, Article 148 states that the Constitutional Court can audit "in terms of form and substance". With the constitutional amendment made in 2017, although the characteristics of the Republic did not change, the Constitutional Court, which oversees the conformity of laws to the Constitution, has changed (Art. 146-153).

T.R. Article 6 of the Constitution states that “Sovereignty belongs to the Nation unconditionally. The Turkish Nation exercises its sovereignty through its authorized organs in accordance with the principles laid down by the Constitution. The exercise of sovereignty cannot be left to any person, group or class under any circumstances. No person or organ can exercise the power of a State that does not derive its source from the Constitution.” provision is included. The following Articles 7, 8 and 9 specify how the legislative, executive and judicial powers will be exercised. It has been stated that the legislative and judicial powers will be used on behalf of the Turkish Nation. The absence of the phrase "on behalf of the Turkish nation" in Article 8 should not be seen as a problem when read in the context of the President's duties and powers described in Article 104. However, the powers granted to the President with the constitutional amendments adopted by the referendum in 2017 represent a departure, if not a break, from the separation of powers, which is a requirement of democracy.

In the section regulating the executive, with Article 101, the phrase "his dismissal from his party, if any" was removed from the text, paving the way for him to be a party member. This is basically the elimination of the President's impartiality. In Article 8, "The executive power and duty are exercised and carried out by the President in accordance with the Constitution and laws." has a provision. However, in the last paragraph of Article 10, "State organs and administrative authorities are obliged to act in accordance with the principle of equality before the law in all their transactions." It is a very difficult question to answer how a non-impartial President can comply with the characteristics of the Republic specified in Article 2 of the Constitution and the principle of equality stated in Article 10. The wording of impartiality in the text of the President's oath in Article 103 is not sufficient to remove the concerns on this issue. While the word "impartiality" is not found in the text of the oath of the deputy in Article 81, it seems like a really systemic problem how the President of the party will be impartial.

In Article 119, which determines the powers of the President regarding the administration of the state of emergency, the authority to declare a state of emergency is given to the President alone. Although, "The decision to declare the state of emergency is published in the Official Gazette on the day it is given and submitted to the approval of the Turkish Grand National Assembly on the same day." Although there is a provision in the parliament, when the head of a party that has a majority in the parliament becomes the President, the parliament will only ensure the completion of the process.

Article 123 of the Constitution is one of the important articles determining the unitary structure of the state. In this article, "The administration is a whole with its organization and duties and is regulated by law. The establishment and duties of the administration are based on the principles of central administration and local administration. A public legal entity can only be established by law or by presidential decree." provisions are included. According to this article, local governments are a part of the state like the central government. That is, their transactions and actions take place on behalf of the state. Therefore, if the central government adopts a discriminatory and biased attitude towards the legal entity of any local government, it will constitute a violation of this article of the Constitution and, accordingly, the unitary structure of the state. In this respect, the government formed by the President of the Party contains potential problems that may harm the unitary structure.

Before the 2017 Referendum, the last sentence was "Public legal entity can only be established by law or by the authority expressly granted by law". However, with the amendment, the President was given the authority to establish a public legal entity on his own. This authority has the potential to create problems that may negatively affect the unitary structure of the state. One of the foremost of these problems is the problem of representation. In Article 9 of the Provincial Administration Law No. 5442, the Governor is "the representative of the President and the administrative executive instrument in the province." provision is included. While the governor represented both the state and the government in the previous structure, in the new structure, they represent this person depending on the fact that both are gathered in one person. Considering the fact that the President is a party member, it may be possible that the organization of the said party in the province will create an area of ​​influence that can affect the basic organization of the state. In other words, the system has the potential to cause problems not only in the center but also in the countryside.

Here, instead of discussing it over the person, we should manage a system. 

I tried to handle it. Historically, the transfer of sovereignty to the people also necessitates that the responsibilities of those who run the state to the people can be audited by the people. In this case, the structure in which the people can be represented is parliaments. However, the head of a political party that is in power alone in parliaments must have insurance before the power to influence the legislature. The most effective insurance known in the world in this regard is the second assemblies (senate, etc.). Second assemblies both increase the representation of the people in the parliament and force the executive to compromise with the legislature. Where there is no compromise, there is authoritarianism. In other words, there is no big difference between a democratic (!) regime with an over empowered executive and an autocratic regime, only a difference in degree.

Discussions on the "enhanced parliamentary system", which are on the agenda of the opposition parties, should also be read through the Constitution. Although it is an issue that should be discussed by all segments of the society, how much the problems caused by the new system can be resolved with the system that led to the new system, this issue has almost never been brought up in large segments of society. Opposition parties do not share the methodology of this study with the public and act as if they are trying to cover up the wrong with another wrong. The main problem is the lack of consensus, and if the executive is far from the culture of consensus, it will take an increasingly authoritarian attitude. In this context, the new system should give confidence to the public in this regard. What is more important than whether there will be early elections is the sincerity in the public discourse of the government and the opposition.