De Turkse Grondwet nader beschouwd

Türker Ertaş is gastonderzoeker aan de rechtenfaculteit van de Universiteit Maastricht en bij het Montesquieu Instituut Maastricht. Hij is onderzoeker bij de afdeling staatsrecht aan de rechtenfaculteit van de Dokuz Eylül universiteit in het Turkse İzmir.

Met de aanpassingen aan de grondwet in 2007 sloeg de Turkse politiek een andere richting in. Zo werd de president voortaan door het volk gekozen, in plaats van door het parlement. Enkele wetenschappers beschouwen deze verandering als exemplarisch voor de verschuiving van een parlementair naar een presidentieel stelsel.

With the constitutional amendments of 2007, the Turkish political system took a different path. A major amendment is the change of the presidential election method. According to the amendment the president is no longer to be elected by the parliament but instead by a popular vote. Some scholars indicate that this transformed the Turkish governmental system from a parliamentary to a semi-presidential system. Yet, others think that there alterations made were to minor to conclude that the governmental system has been changed since other parliamentary provisions remained unaltered.

Still a parliamentary system?

In fact, the Turkish constitutional order has all the elements of a parliamentary system and only lost one due to the constitutional amendment of 2007. Put differently, the Turkish Constitution of 1982 until today prescribes that the executive branch, consisting of, on the one hand the president to be impartial (art. 101)  and non-accountable (art. 105)  and on the other hand an accountable (art. 99)  council of ministers determining the political agenda. According to Article 116 of the Constitution the President has power to call for a popular re-election in cases where the Council of Ministers fails to receive a vote of confidence or falls by a vote of non-confidence, if a newly formed Council of Ministers cannot be formed within forty-five days or fails to receive approval in an initial vote of confidence by the parliament. These provisions signify a parliamentary system.

Furthermore, article 112 of the Constitution states that

The Prime Minister, as chairperson of the Council of Ministers, shall ensure cooperation among the ministries, and supervise the implementation of the government’s general policy. The Council of Ministers has collective responsibility for the implementation of this policy.

The president not being accountable may come to mean that as a matter of principle he/she is not authorized to act like a policy maker. Additionally, article 105 of the Constitution states that:

“All presidential decrees, except those which the President of the Republic is empowered to enact individually without the signatures of the Prime Minister and the minister concerned in accordance with the provisions of the Constitution and other laws, shall be signed by the Prime Minister and the ministers concerned; the Prime Minister and the minister concerned shall be accountable for these decrees.”

Towards a semi-presidential system?

However, there is no provision in the Constitution, which empowers the President to exercise individually. That causes some confusion in the Turkish public law doctrine also. The Constitution of 1982 also gives some powers to the President in Article 104 such as to appeal to the Constitutional Court for the partial or whole annulment of certain provisions of laws and decrees; to submit laws to referendum concerning the amendment of the Constitution; to preside over the Council of Ministers; to call for the Council of Ministers to meet under his/her chairpersonship whenever he/she deems it necessary; to appoint the members of the Council of Higher Education or to appoint presidents of universities, without the signature of the council of ministers or the minister(s) concerned. Article 105 of the Constitution follows on as:

‘‘No appeal shall be made to any judicial authority, including the Constitutional Court, against the decisions and orders signed by the President of the Republic on his/her own initiative.’’

In light of the statements above it can be said that the current Turkish system of government is a presidential-parliamentary system. It authorizes the prime minister and the council of ministers to determine general policies and shape the political life instead of both the president and the prime minister as it is the case in a semi-presidential system. However the fact that the Turkish political system is based on disciplined party structures and effective political leaders should be taken account of. Furthermore, after the amendment of 2007 it can be easily concluded that democratic legitimacy of the presidency has increased. Therefore, there is more sufficient political environment for a president elected by the public to act as a policy determiner. This means, cohabitations which were seen in French semi – presidency practice between Mitterand - Chirac, Mitterand - Balladur, Chirac - Jospin can occur also in Turkish political life if the president and prime minister have different opinions on general policy.