Today I would like to discuss what methods Recep Tayyip Erdoğan will employ to save himself. I will refer to matters of constitutional law, so the column may not be a smooth one to read. First, let us review the indicators we have:
1- Erdoğan does not find the presidential powers spelled out in the 1982 Constitution sufficient. Why? Because the 1982 Constitution is a document of a parliamentary system, and he seeks to have a truly presidential system; this is why. This is called power-hunger. He is hungry for power. This sickness has only one remedy and terminal point: a legal dictatorship.
2- Erdoğan will first use the 1982 legal system to advance his goals, and then, in the case that he receives a great level of support in the election, he will decide for an early election to make a new constitution. In this way, he will move to a system (inevitably turning into a semi-dictatorial system in Turkey) that will declare him the one-man ruler: a presidential system. Why a single man, and why semi-dictatorial? He has destroyed every shred of the principle of separation of powers, the core requirement of a democracy. First he holds executive power; his party holds a majority in the legislative body. Secondly, after recent amendments, the judiciary has been put under his tutelage; a judge who makes an undesired decision is removed immediately, and a prosecutor who initiates an investigation they do not like is reappointed. Fourthly, the size of the pro-government media is growing fast; with a few exceptions, the entire media sector is under government control.
3- The reason the presidential post is symbolic is because the president used to be elected by Parliament. Now Erdoğan will want to seek presidential powers just because he is elected by the popular vote. He will tell Parliament that he was elected by popular vote, so he will enjoy greater legitimacy than before.
Rule by executive decrees
To amend the Constitution, a qualified majority of three-fifths is required in Parliament. I am curious to what extent Erdoğan will be able to abuse existing legislation to attain his goals until he secures this majority. I discussed this matter with prominent political scientist and constitutional lawyer Murat Sevinç, who wrote an article on this matter in 2002.
1- Above all, he will rely on the constitutional provision stating that the president can chair the Cabinet in cases where he deems it necessary. Well, he has actually said he will do so. In every case, he will argue that it is necessary for him to chair the Cabinet, and in these meetings, he will dictate his wishes and the Cabinet will respond positively. Of course, the Cabinet, not him, will be politically responsible. This is the solution he has in mind. It is also a grave possibility that he might be influenced by the National Security Council (MGK), of which he serves as chair, and then urge the Cabinet to declare emergency or martial law. Do not think I am exaggerating; this is not hard to do. In June of 2013, he was unprepared; this time, he will label a Gezi-like protest a coup attempt. You should also remember that he described the Dec. 17 and Dec. 25 operations as coups. Why emergency or martial law? Because in both cases, he will be able to set the law aside and rule the country by decree. Though the decrees have to be passed by Parliament, his party holds the majority there. More importantly, we all know that many unconstitutional decrees have been passed in Parliament because there is no defined sanction for doing so. Why executive decrees? Because decrees made in cases of emergency and martial law are not subject to constitutional review. Like I said, Erdoğan is strongly inclined to avoid legality by using the existing laws.
2- Under Article 104 of the Constitution, some of the presidential powers are exercised solely by the president, whereas some others require the approval of the prime minister and/or a minister. And the exercise of some authorities requires the consent of the entire Cabinet. However, Erdoğan may abrogate all the requirements for the consent of others. Because the president is not politically responsible in the parliamentary system, he cannot be held liable in the case of illegal action. The Constitution clearly states that no judicial action, including constitutional review, is possible in cases of the decisions and orders the president undersigns. But how will he do this without amending the Constitution? He could do this by changing the relevant laws through a simple majority in Parliament, because the Constitution does not list the situations in which the consent of others are required. He will thus exploit this loophole. To identify these situations, the entire set of laws should be analyzed. I am sure that the pro-government lawyers have already held this review.
Things he will do to the judiciary
3- Erdoğan has to complete the process of tutelage in the judiciary, including in the Constitutional Court. When these laws are made, the Constitutional Court will declare them unconstitutional. Like Kerem Altıparmak of Ankara University's department of political science said, the state cannot restrict the fundamental rights and freedoms spelled out in the Constitution, even by creating new laws. Parliament cannot do this by leaving it to the discretion of the president. So, how will he handle the Constitutional Court? He will wait for some time if he is unable to amend the Constitution. With the exception of two members, the terms of all other members will end during Erdoğan's presidency. Erdoğan will appoint the new members of the Constitutional Court.
How about the other branches of the judiciary?
Well, there is nothing to say given that the deputy chair at the Supreme Board of Judges and Prosecutors (HSYK) has recently admitted that the prosecutors and judges investigating the Dec. 17 and 25 corruption cases were removed and re-appointed and that some HSYK members resigned in protest. So, it seems that the judiciary is fully under control. The administrative judiciary is also almost done. The Constitution states that it is possible to resort to a judicial review in the case of administrative decisions and actions, but this is not a problem at all. There is currently a set of draft laws being discussed in Parliament. Let us take a look at Article 100 of this bill: In the event that public administrators -- including governors, ambassadors, inspectors and even police chiefs and officers -- appeal to the administrative court after being removed from their posts, the government will not honor the decision of the court even if it reinstates the public official to his former position. Besides, this will not be considered a situation warranting compensation, and failure to comply with court decisions will not equate to criminal responsibility. In other words, if the Erdoğan government removes a public official, there will be no legal remedy. What a conspiracy!
Only a general amnesty will save him.
4- Erdoğan will destroy many “nests” with all these efforts to undermine the regime. Let us recall that he will be under a lot of stress because the specter of the scandals caused by the investigations [made public on Dec. 17 and 25] and foreign policy flaws will haunt him. To address this problem, he needs to issue general amnesty. Of course, he would not admit to doing this for his own supporters alone. Like Dengir Mir Mehmet Fırat, one of the founding members of the AKP, said recently, the Ergenekon figures will be saved first. But I doubt Erdoğan would be exonerated in the eyes of the public if this happened.
Inventors of 367! How are you doing?
I suppose you are aware of how this happened. All these future illegalities will become possible thanks to the “smart” people who invented the “367 requirement” to ensure Abdullah Gül would not be elected president. They should be happy now. You should recall that a “brilliant” idea was put forth back then: that at least 367 deputies should be present at the plenary session convened to elect the president. This idea, first introduced by former SPK [Capital Markets Board] Chair Ali İhsan Karacan in the Dünya daily on Dec. 1, 2006, was subsequently referred to by Sabih Kanadoğlu, who had previously served as chief prosecutor at the Supreme Court of Appeals. The CHP [Republican People's Party] members who liked this idea appealed to the Constitutional Court. The General Staff also posted a memorandum on its official website the night before the first round of the presidential election in which they declared that they are biased in this discussion. The members of the Constitutional Court during that time should also be ashamed of what they did because they endorsed this “brilliant” idea. Then Gül withdrew his candidacy. Erdoğan was given a great opportunity. He created a constitutional amendment to ensure that the president would be elected by popular vote. Now we are seeing the initial results of the brilliant idea of the inventors of the 367 requirement. Well, they will get what they deserve from Erdoğan!
This piece is a little bit long. It is long because of the discussion it raises. It might have taken 15 minutes to read it, but I spent two days, so we are even. And, of course, I wrote this to remind you of what lies ahead of us so that we can get ready for the manipulations of the regime. In the end, we are living in a country where the prime minister said, “They called me Georgian. Forgive me, some others said some other terrible things. They even called me Armenian.” The real danger here is that, forgive me, in the future somebody may call you or me “Erdoğan.” This article was originally published on Aug. 8, 2014 at Radikal daily.
Baskin Oran is a Professor of International Relations in the Faculty of Political Science at Ankara University.
Today I would like to discuss what methods Recep Tayyip Erdoğan will employ to save himself. I will refer to matters of constitutional law, so the column may not be a smooth one to read. First, let us review the indicators we have:
1- Erdoğan does not find the presidential powers spelled out in the 1982 Constitution sufficient. Why? Because the 1982 Constitution is a document of a parliamentary system, and he seeks to have a truly presidential system; this is why. This is called power-hunger. He is hungry for power. This sickness has only one remedy and terminal point: a legal dictatorship.
2- Erdoğan will first use the 1982 legal system to advance his goals, and then, in the case that he receives a great level of support in the election, he will decide for an early election to make a new constitution. In this way, he will move to a system (inevitably turning into a semi-dictatorial system in Turkey) that will declare him the one-man ruler: a presidential system. Why a single man, and why semi-dictatorial? He has destroyed every shred of the principle of separation of powers, the core requirement of a democracy. First he holds executive power; his party holds a majority in the legislative body. Secondly, after recent amendments, the judiciary has been put under his tutelage; a judge who makes an undesired decision is removed immediately, and a prosecutor who initiates an investigation they do not like is reappointed. Fourthly, the size of the pro-government media is growing fast; with a few exceptions, the entire media sector is under government control.
3- The reason the presidential post is symbolic is because the president used to be elected by Parliament. Now Erdoğan will want to seek presidential powers just because he is elected by the popular vote. He will tell Parliament that he was elected by popular vote, so he will enjoy greater legitimacy than before.
Rule by executive decrees
To amend the Constitution, a qualified majority of three-fifths is required in Parliament. I am curious to what extent Erdoğan will be able to abuse existing legislation to attain his goals until he secures this majority. I discussed this matter with prominent political scientist and constitutional lawyer Murat Sevinç, who wrote an article on this matter in 2002.
1- Above all, he will rely on the constitutional provision stating that the president can chair the Cabinet in cases where he deems it necessary. Well, he has actually said he will do so. In every case, he will argue that it is necessary for him to chair the Cabinet, and in these meetings, he will dictate his wishes and the Cabinet will respond positively. Of course, the Cabinet, not him, will be politically responsible. This is the solution he has in mind. It is also a grave possibility that he might be influenced by the National Security Council (MGK), of which he serves as chair, and then urge the Cabinet to declare emergency or martial law. Do not think I am exaggerating; this is not hard to do. In June of 2013, he was unprepared; this time, he will label a Gezi-like protest a coup attempt. You should also remember that he described the Dec. 17 and Dec. 25 operations as coups. Why emergency or martial law? Because in both cases, he will be able to set the law aside and rule the country by decree. Though the decrees have to be passed by Parliament, his party holds the majority there. More importantly, we all know that many unconstitutional decrees have been passed in Parliament because there is no defined sanction for doing so. Why executive decrees? Because decrees made in cases of emergency and martial law are not subject to constitutional review. Like I said, Erdoğan is strongly inclined to avoid legality by using the existing laws.
2- Under Article 104 of the Constitution, some of the presidential powers are exercised solely by the president, whereas some others require the approval of the prime minister and/or a minister. And the exercise of some authorities requires the consent of the entire Cabinet. However, Erdoğan may abrogate all the requirements for the consent of others. Because the president is not politically responsible in the parliamentary system, he cannot be held liable in the case of illegal action. The Constitution clearly states that no judicial action, including constitutional review, is possible in cases of the decisions and orders the president undersigns. But how will he do this without amending the Constitution? He could do this by changing the relevant laws through a simple majority in Parliament, because the Constitution does not list the situations in which the consent of others are required. He will thus exploit this loophole. To identify these situations, the entire set of laws should be analyzed. I am sure that the pro-government lawyers have already held this review.
Things he will do to the judiciary
3- Erdoğan has to complete the process of tutelage in the judiciary, including in the Constitutional Court. When these laws are made, the Constitutional Court will declare them unconstitutional. Like Kerem Altıparmak of Ankara University's department of political science said, the state cannot restrict the fundamental rights and freedoms spelled out in the Constitution, even by creating new laws. Parliament cannot do this by leaving it to the discretion of the president. So, how will he handle the Constitutional Court? He will wait for some time if he is unable to amend the Constitution. With the exception of two members, the terms of all other members will end during Erdoğan's presidency. Erdoğan will appoint the new members of the Constitutional Court.
How about the other branches of the judiciary?
Well, there is nothing to say given that the deputy chair at the Supreme Board of Judges and Prosecutors (HSYK) has recently admitted that the prosecutors and judges investigating the Dec. 17 and 25 corruption cases were removed and re-appointed and that some HSYK members resigned in protest. So, it seems that the judiciary is fully under control. The administrative judiciary is also almost done. The Constitution states that it is possible to resort to a judicial review in the case of administrative decisions and actions, but this is not a problem at all. There is currently a set of draft laws being discussed in Parliament. Let us take a look at Article 100 of this bill: In the event that public administrators -- including governors, ambassadors, inspectors and even police chiefs and officers -- appeal to the administrative court after being removed from their posts, the government will not honor the decision of the court even if it reinstates the public official to his former position. Besides, this will not be considered a situation warranting compensation, and failure to comply with court decisions will not equate to criminal responsibility. In other words, if the Erdoğan government removes a public official, there will be no legal remedy. What a conspiracy!
Only a general amnesty will save him.
4- Erdoğan will destroy many “nests” with all these efforts to undermine the regime. Let us recall that he will be under a lot of stress because the specter of the scandals caused by the investigations [made public on Dec. 17 and 25] and foreign policy flaws will haunt him. To address this problem, he needs to issue general amnesty. Of course, he would not admit to doing this for his own supporters alone. Like Dengir Mir Mehmet Fırat, one of the founding members of the AKP, said recently, the Ergenekon figures will be saved first. But I doubt Erdoğan would be exonerated in the eyes of the public if this happened.
Inventors of 367! How are you doing?
I suppose you are aware of how this happened. All these future illegalities will become possible thanks to the “smart” people who invented the “367 requirement” to ensure Abdullah Gül would not be elected president. They should be happy now. You should recall that a “brilliant” idea was put forth back then: that at least 367 deputies should be present at the plenary session convened to elect the president. This idea, first introduced by former SPK [Capital Markets Board] Chair Ali İhsan Karacan in the Dünya daily on Dec. 1, 2006, was subsequently referred to by Sabih Kanadoğlu, who had previously served as chief prosecutor at the Supreme Court of Appeals. The CHP [Republican People's Party] members who liked this idea appealed to the Constitutional Court. The General Staff also posted a memorandum on its official website the night before the first round of the presidential election in which they declared that they are biased in this discussion. The members of the Constitutional Court during that time should also be ashamed of what they did because they endorsed this “brilliant” idea. Then Gül withdrew his candidacy. Erdoğan was given a great opportunity. He created a constitutional amendment to ensure that the president would be elected by popular vote. Now we are seeing the initial results of the brilliant idea of the inventors of the 367 requirement. Well, they will get what they deserve from Erdoğan!
This piece is a little bit long. It is long because of the discussion it raises. It might have taken 15 minutes to read it, but I spent two days, so we are even. And, of course, I wrote this to remind you of what lies ahead of us so that we can get ready for the manipulations of the regime. In the end, we are living in a country where the prime minister said, “They called me Georgian. Forgive me, some others said some other terrible things. They even called me Armenian.” The real danger here is that, forgive me, in the future somebody may call you or me “Erdoğan.” This article was originally published on Aug. 8, 2014 at Radikal daily.
Baskin Oran is a Professor of International Relations in the Faculty of Political Science at Ankara University.
http://www.todayszaman.com/op-ed_a-useful-guide-how-to-become-a-second-kenan-evren_355216.html
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