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Turkish Parliament convenes to debate on the proposed constitutional changes in Ankara, Turkey, January 12, 2017. REUTERS/Umit Bektas

(Istanbul) – Turkey’s parliament is voting on amendments to the constitution that would increase the power of the Turkish presidency and fundamentally erode checks and balances on the executive, Human Rights Watch said today. These constitutional changes pose a huge threat to human rights, the rule of law, and the country’s democratic future.

The draft bill would concentrate unchecked power in the president’s hands. The government is rushing the bill through parliament during a state of emergency and a crackdown in which the independent media has been silenced and public debate restricted.

“The proposed constitutional changes concentrate power in the hands of President Erdoğan and further erode already weak checks and balances on the exercise of that power,” said Hugh Williamson, Europe and Central Asia director at Human Rights Watch. “Parliament should reject these constitutional changes, which would hollow out the rule of law, and profoundly undermine the country’s democracy.”

On January 9, 2017, Turkey’s parliament began voting on the 18-article package of amendments that usher in the presidential system. Parliament had approved all articles by January 15, in a first round of voting. A second round is to begin on January 18. If the bill is approved, it will be submitted to the public for a referendum, probably in early April.

The creation of an executive presidency, proposed by President Recep Tayyip Erdoğan and the ruling Justice and Development Party (AKP), would be the most significant change to Turkey’s political institutions since the introduction of the multiparty election system in 1950. It would give the president power to appoint ministers, legislate by decree, dissolve and reconstitute parliament, and control judicial appointments. The changes would abolish the post of prime minister and weaken parliamentary oversight of the executive, including by ending no confidence motions and not allowing members of parliament to question the president.

The timing for such far-reaching changes could not be worse, Human Rights Watch said. Turkey is under a state of emergency imposed after a failed coup in July 2016, allowing the government to rule by decree and weakening parliamentary and judicial oversight. The changes would effectively make permanent many of the emergency powers the president has assumed.

Independent media has been all but silenced, with over 160 media outlets and publishing houses closed down since July 2016, and over 140 journalists and media workers currently jailed pending trial. Over 100,000 civil servants have been summarily dismissed or suspended without due process, and over 40,000 people have been jailed pending trial, facing charges of involvement in the coup plot and for association either with the Fethullah Gülen movement, branded a terrorist organization, or Kurdish political activism deemed by the government to be connected to the armed Kurdistan Workers’ Party (PKK). Among those jailed are the two leaders of the opposition Peoples’ Democracy Party (HDP) and nine other members of parliament from the party. In such a context, the possibility for open public debate on the constitutional amendments is severely restricted.

The Venice Commission, the Council of Europe’s advisory group on constitutional matters, has expressed concern about the exercise of the powers under the state of emergency, including mass dismissal of state employees and dissolution of nongovernmental organizations, emphasizing that, “The most important characteristic of any emergency regime is its temporary character.”

The Turkish government has cited the United States presidency as a model for the proposed changes. But the US Constitution limits the power of the president through the legislature and judicial branches of government, which is not the case in the proposed Turkish constitutional changes.

For the whole package to be accepted, 330 members of parliament have to vote in favor of it. The ruling Justice and Development Party (AKP), which has 316 seats, reached an agreement in December 2016 with the far-right opposition Nationalist Action Party (MHP) that at least 14 of its members would support the bill. The bill is strongly opposed by the main opposition Republican People’s Party (CHP) and the Peoples’ Democratic Party (HDP). Although the vote is supposed to be by secret ballot, that has been undermined by televised scenes of ruling party members showing their ballot slips and indicating they approve the bill.

“A decade ago Turkey seemed on a path toward greater respect for human rights, democracy, and rule of law,” Williamson said. “The plans for an executive presidency will take Turkey in the opposite direction and destroy whatever positive legacy of reform the AKP had left.”

Taken together, the elements in the bill greatly strengthen the role of the president both directly and indirectly and blur the lines between the executive, the legislature, and the judiciary, undermining the separation of powers. The most problematic elements of the bill would:

Increase presidential power

  • The president would be able to appoint and also remove those in several newly created vice president posts, plus all ministers and high-level bureaucrats, and to issue decrees relating to the form of their appointment and the system of administration. The role of the prime minister is abolished.
  • The president would be able to legislate by decree, including the power to “issue decrees relating to matters of executive power in the name of the parliament.” The president would also have the power to “determine national security policies and to take necessary measures” and “give parliament messages about the countries’ internal and external policies.” Although presidential decrees could not relate to fundamental rights issues, the wide-ranging and vague nature of the powers granted to the presidency and weakened parliamentary and judicial oversight would seriously weaken this safeguard. 
  • The president would be able to declare a state of emergency for six months, dissolve parliament, and call fresh elections. The president would also have broader veto powers over legislation initiated by parliament.

Weaken parliament

  • Parliament would lose its power to monitor the executive branch – the president, vice presidents, and ministers – though it would grow from 550 to 600 members. It would lose the right to introduce no confidence motions in the government and prime minister and members could pose written parliamentary questions only to the vice presidents and ministers, not to the president.
  • Parliament’s law-making function would continue though the president would have a strengthened veto power.
  • If the parliament does not approve the president’s budget, then the president would nevertheless secure the budget based on proportionately increasing the previous year’s budget.

End formal separation between the president and political parties in parliament

  • The existing stipulation that the president must cut links with a political party would be removed, opening the way for a president to become leader of the ruling party in parliament. Allowing the president to formally exercise control over a parliamentary party would undermine the distinction between the executive and the legislature. 
  • A provision stipulating that elections for parliament and the presidency will be held on the same day would facilitate the strong alignment of a presidential candidate with a party and would further undermine the notion of a separation of powers.

Increase executive control over judicial appointments

  • The president’s role in parliamentary party politics would increase executive control over judicial appointments, further weakening the judiciary’s independence and its role as a check on the executive. The Venice Commission, the Council of Europe’s top advisory group on constitutional matters, has identified judicial oversight over the executive as a key benchmark of the rule of law.   
  • The president’s dual role as president and as a dominant force in parliamentary party politics would allow him to control judicial appointments both from the presidency and from parliament. The president directly appoints half of the members of the body controlling judicial appointments, the Higher Council of Judges and Prosecution (reduced from 22 to 13 members), and the parliament the other half. Given the president’s position in relation to the parliament, this effectively means the president would control the selection of all members of the body that plays a key role in all judicial appointments. Similarly, in relation to the appointment of members of the constitutional court, the president would have direct power to appoint four members and, via control of the top courts, the Higher Education Council and the parliament, indirect power to determine the choice of the remaining 11 members.

In such a context, there is very little prospect that the judiciary could be independent and in any way able or willing to act as an effective check on executive power. For example, a constitutional court controlled by the president would be highly unlikely to find decrees passed by the president unconstitutional or, in general, to hold the executive accountable.

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