The “Turkish-style” presidency: The second death of Atatürk
By Elie Chaaya
On the 16th of April will be held the referendum on the Turkish constitutional reform and the fate of the Turkish republic will be decided. The stakes are high in this referendum as the shift to the presidential republic proposed in the Turkish context is no mere organisational reshuffling. Behind the heated debates witnessed at the constitutional commission concerning this reform, lies a historical struggle that has defined the Turkish political scene since the creation of the Kemalist republic.
In fact, the isolated study of this constitutional reform is not enough to comprehend what the ratification of this amendment entails regarding the identity of the Turkish republic. The potential “evet” vote could cement and codify the creation of a new state, one radically different, even opposed, to the vision conceived by Ataturk in 1923. The approval of the ratification will officialise the end of the Kemalist tutelage and monopoly on the Turkish Republic.
This progressive erosion of the Kemalist institutions is part of a long process dating back to the very birth of the of the Kemalist republic. The implementation of the Kemalist republic in the 1920’s reveals a pedagogical failure that rendered the model it proposed non-inclusive for the whole population. In fact, the Kemalist vision was representative of a demographic minority from the start which created a binary rupture in the Turkish society: the state-discourse integrated Turk on one hand, and the marginalised non-represented Turk. Consequently, the latter group started expressing very early its need to renew with its more Ottoman, conservative and Islamic heritage which was asphyxiated by Kemalism.
However, Ataturk structurally elaborated the institutions in such a way that would allow Kemalism to remain as the sole state ideology after his death, and even after the shift to multi-partism. The army tutelage safeguarded the Kemalist ideology at the head of the state throughout the 20th century.
Therefore, the analysis of the proposed Turkish constitutional reform not only propose a juridical diagnostic of the Turkish state, but it also offers a historical diagnosis of the Turkish society. Indeed, it officialises the end of military tutelage on the Turkish political sphere, however, this process was effectively terminated as witnessed during the failed 2016 coup.
The rather interesting interpretation that we can make of this constitution is that it is an objectively populist constitution in its essence. The establishment of a majoritarian system will structurally appeal to the “masses”. It gives almost irrevocable representability on the political sphere to the demographic majority. This political configuration has a big electoral demand since it concerns the majority of the Turkish society who were structurally marginalized from effective political representability. This majoritarian constitution syncretizes into a presidential regime, advocated and carried by the charismatic figure of M. Erdogan. The “evet” circle claims that the constitution only re-equilibrates the balance between the societal reality and political representability. Presented this way, this constitutional reform would be the legitimate macro-historical re-adaption of the political sphere to the reality of the Turkish population.
However, the juridical analysis of the proposition reveals a desire beyond equilibrium, a desire that could be the instrumentalisation of this electoral demand to capitalise on the momentum AKP has acquired and codify a presidential system –even taken out of his context-that does not take in consideration the principles of effective separation of powers, independence of the judiciary and an efficient mechanism of checks and balances. The current political reality of Turkey points to this agenda, with Erdogan’s controversial record on dealing with opposition. The new Turkish republic could be the mere codification of the pre-existing political reality, which would bury definitely Kemalism as the de facto state vision, and constitutionalise what Kemalists in Turkey identify as “the second death of Ataturk”.
Structure of the research
This research paper comprises two parts. The first part is centred around the gradual erosion of the Kemalist institutions. This part was included to complement the global thesis of this paper, supporting that the constitutional reform is the fruit of this century-long process, and that it carries the essence of the representative desire felt by the ever-marginalised Black Turks. The second part, focused on the pure juridical analysis of the constitutional reform corresponds more to the object and focus of the winter school project (and therefore word limit) to be submitted. Hence, the first part serves more as a macro-historical contextualisation of the juridicalanalysis of the constitutional reform.
The inevitable erosion of Kemalist institutions
The pedagogical failure of Kemalism
In order to comprehend the context of this constitutional reform on a historic scale, the understanding of the gradual rise of political conservatism (in the Turkish sense) in the Kemalist regime is necessary. Therefore, we must go back to the creation of the Kemalist republic and the reasons behind its gradual erosion.
Ataturk wanted to break with all structural, political and cultural heritage left from the ottoman empire as he saw it as the reason behind the state’s under-developed level. On a foreign policy level, this meant severing ties with the Arab world synonym with archaism, while aspiring instead to emulate western, more developed, culture. This vision materialises on a national level with very hard and radical reforms, dismantling the Turkish societal structures. The new republic of Ataturk was purposefully built as the antipode of the ottoman sultanate, concretely affecting all domains of what could constitute the identity of a country and its people: The Caliphate was abolished and replaced by a republican secular regime, the Sharia was replaced by a Switzerland inspired civil code, the “Adhan” was now in Turkish instead of Arabic, the Arabic alphabet was replaced by the Latin one, Hijri calendar was replaced by the Gregorian one, the Hijab was banned, the traditional costume was abandoned in favour of a more European design, and so was the fez. Beyond the pragmatic and superficial changes this non-exhaustive list of reforms induces lies a deeper, pedagogical and psychological issue.In fact, all the fundamentals elements of used to express a representation –space, time, language, literature, music, clothing- were altered to be molded around the vision of a single man. The Turkish citizens were facing a state-sponsored, conditioning of their perception of reality. His project had the clear ambition of “de-symbolizing” and “re-symbolizing” the Turkish collective existence. He tackled the superficial appearances of the Turk at the time in the hope of provoking a long term reform in the Turkish collective mentality. He attempted a rather prophetic approach in the sense that he was the bearer of a revolutionizing message structured around a new code of conduct and symbols for his disciples.
However, he did not use the preexisting codes to deliver his message, contrary to the method in which Prophet Mohammad proceeded: he used the preexisting Arabic language and the symbols and codes of the Medina to reach out to the targeted population, Ataturk on the other hand utilized another civilization’s codes, codes that were really far from the local reality at the time. His message could therefore not be properly assimilated by the population. Furthermore, Turkish societies in the 20’s had neither the economic resources, the scholars, the scientists, or the universities that could have given the substance to modernity as it was given in the West enlightenment period up until the industrial revolution. On the other hand, western societies were still suffering from positivism at the time but they pursued a free independent constant and rigorous critique of knowledge whereas the Kemalistmethod of rationalizing the Turkish society was completely exogenous an imposed in an irrevocable fashion.
The authoritarian manner in which the Kemalist project was applied created a divided and polarized society. Serif Mardin, a prominent Turkish sociologist, identified the creation of a binary society: a central, Kemalist bureaucratic group, composed of military officers, the urban westernized and educated population being the concretization of the Kemalist identity and state discourse, while on the other hand the was the periphery people, the conservative Anatolian population standing in strong opposition of the state policies and therefore marginalized by the political sphere. Jenny White identified this fracture as the White Turk/ Black Turk divide, creating a dialectical relationship between both social groups. The White Turks represented the “just” state sponsored model to follow, while the Black Turks were discarded from political representation and looked down on with disdain. However, in this dominant/oppressed relation, the Black Turks constituted demographically the large majority of the population, thus creating a huge gap between the political and the social majority that would inevitably backlash on a macro-historical level as it has been witnessed.
The structural failure of the Kemalist “Garde-fou”
Ataturk had possibly anticipated - at least on the short term - that his reforms would not be interiorized by the population. He had the desire to structurally neutralize all possible claims and attempts of a return to an Ottomanist political system. Therefore, he had built a legal and structural defense mechanism composed of multiple variables that would be the warrant of the Kemalist Republic and its 6 arrows.
The non-sustainability of the single party system
During the first 30 years of the republic, the Turkish republic was built around a constitutional single party system, where other parties could not be represented. Therefore, the only vision and ideologythat was “allowed” to effectively structure and shape this new Turkish republic was Kemalism. However, this first political barrier of defense against non-Kemalist ideologies was abandoned in 1946. Indeed,once the multipartysystem was introduced in 1946, it theoretically allowed other ideologies to organize themselves around a party with the chance to be represented and run for elections.
The unique party system was abandoned due to a simultaneous national and international pressure. Pressure for change was made by the agricultural lobbies (who were still traditionally in controlof the rural populations) who weren’t satisfied neither with the agricultural reform of 1945, or the overall disdain by the government (materializing into a lack of aids), and the business lobbies on the other hand who wanted to reduce state interventionism in the economy and the creation of a more liberal economic structure. Frustration also grew among intellectuals and academic circles around the restrictions concerning liberty of expression. On the other hand, the severing of diplomatic relations between the USSR and Turkey (following the non-renewal of the non-aggression pact in 1945) forced Turkey to rally on the other super-power in the context of the cold war, the USA. However, military aid entitled came at a democratic cost for Turkey, in line with the Truman vision of 1947: the economic, political and military alliance between both countries would force Turkey into a more democratic multiparty system, and the end of the influence of “totalitarian communism”.
What happened here on after on the Turkish political scene is an indicator of the penetration (or in this case non-penetration) of the Kemalist ideology within the Turkish society. The Turkish political scene witnessed the gradual rise of a series of parties more representative of the Black Turks constituted around conservatism, a more liberal economic approach, and less importance given to secularization (relative to the Kemalist party) to relieve the asphyxiation of the Islamic tradition imposed by Kemalism.
AKP and the erosion of Kemalist praetorianism
The single party system - being the first structural Kemalist defense mechanism safeguarding it as the state ideology against others - was therefore no longer a rampart against other political manifestations (notably the Black Turk agenda). The military remained however, a stronghold for the Kemalist ideology. The army plays a central role in the safeguard of the Kemalist state-vision. Turkey has a rich history of military involvement in politics which has often been materialized as a military memorandum or coup d’état, exclusively against non-Kemalist governments. Even if this guardianship role is not mentioned in the constitution, Ataturk explicitly encouraged this interventionist behavior during his speeches. If the army esteems that the constitution or the 6 principles of Ataturk are being breached in a way by the political sphere, it will intervene in what is called a “protective coup d’état” (or a form of ultimatum). The army however should not govern directly, it would only set the rule of governance and monitor that the rules are well respected. William Hale has identified this dynamic as a form of Praetorianism: There is an omnipresent tutelage of the army over politics, a tutelage that is in this case based on the respect of the Kemalist doctrine.
The army tutelage has succeeded in every intervention it has undertaken in the 20th century to topple any government that attempted to significantly drift away for the Kemalist state doctrine, rendering Turkish democracy a multi-party system only by facet but effectively uni-ideological.However, since the rise to power of AKP in 2002, the army has progressively lost its tutelage on Erdogan’s government until the first failed coup d’état in 2016. The idea of reducing the army’s hold on politics was first presented as an exogenous obligation stemming from the European Union. In 2003, a report from the EU suggesting the army (and most notably the NSC, who had legally binding recommendations towards the executive power). In 2004, AKP abided to the recommendation to stay in line with the Copenhagen convention and further its changes to join the EU. Hence, the NSC recommendations became non-binding, and the President of republic became the head of the NSC instead of the chief of staff. Civil ministers were also included in the NSC. The NSC was stripped of its executive power and reduced to a consultative status influenced by the presence of the President and the ministers. The Sledgehammer case further cemented the government’s hold on the army by detaining 150 officers on charges of conspiracy against the civilian government. The 2010 constitutional amendment reduced the power of military tribunals, and stripped immunity on armygenerals (allowing him to pursue the surviving coup perpetrators). Following the resignation of the general of the army in 2011 to denounce the arrests and the government’s involvement in the army, Erdogan immediately named a pro-AKP general constituting the first non-Kemalist military staff. Logically, the attempted coup of 2016 was bound to fail since the majority of the army was under the influence of the government. The coup was a natural reaction to the overconcentration of powers by Erdogan, motivating both the Gulenist and Kemalist agenda. It was also a response to the rising crony capitalism practiced by Erdogan. The failure of the coup further deteriorated the image of the army and delegitimized its statute within the population.Erdogan usedthe coup to give himself the image of a victim, which would make him more relatable to the oppressed Black Turks and thus strengthen his popularity amongst them. It gave him the legitimacy on the other hand, to conduct an unprecedented purge affecting the domains of the military (arrest of about 3000 soldiers), the judiciary (replacing 36 percent of Turkey’s judges), education (suspension of 15,200 teachers in the publics sector, 21,000 in the private sector, as well as the suspension of all deans of state and private universities) and the media (16 TV stations, 23 radio stations and 54 newspapers were shut down).Such state interventionism and non-exhaustive limitation of expressional, judicial and educational liberties raises questions on the respect of the principles of democracy.
It is important to understand the context in which this constitutional reform would take place since the voting for the proposition may have not even occurred if theKemalist army tutelage wasnot dismantled. This amendment project is the fruit of 17 years of de-kemalisation of the Turkish republic, all from within the political institutions set by the Kemalist vision itself.
After juridical analysis of these very amendments, questions are raised: does this reform respect the principles of a democracy on a juridical and constitutional level such as the effective separation of powers and the independence of the judiciary? Furthermore, has Erdogan moved on from his promise to rebalance the political and social sphere, to a desire of caitalizing on his momentum and rebalancing the constitutional and juridical frame to match the reality of his effective executive power and reach?
Note: The goal of this part was not to go in depth about the core of the Black Turk/ White Turk agenda over time, but rather to analyze the gradual decomposition of the Kemalist republic and the roots and causes of this process from a purely structural and not ideological point of view. The amendment proposition was only possible due to this long de-Kemalisation process. The first part was therefore focused on how and why the main ramparts of the Kemalist fortress – The single party system, the army– slowly eroded over time. A global comprehension of the two opposite ideologies is however necessary to see how the Black Turk ideology used the structures put in place by the Kemalist institutions to infiltrate the system and equilibrate political representability with the demographic reality. The constitutional reform, if validated by the people, will be the killing blow to the Kemalist Republic as it codifies and institutionalizes the acute de-Kemalisation process that Turkey has been witnessing since the rise to power of AKP.
Beyond the death of Kemalism: The codification of a pre-existing presidential regime
The constitutional reform proposes a transition from of a parliamentary regime, pillar of the republicanism arrow of Ataturk, to a presidential regime. Ataturk’s desire was to break completely from the authoritarian regime of the Sultanate which concentrated all powers in the hands of one man without any accountability. There would be no main figure similar to that of the sultan, as the president would be elected by the parliament and would have very limited powers.
The political structure of a presidential constitution is not forcibly authoritarian in itself. The Venice commission of the European Union states in its report on the Turkish constitutional reform that a presidential regime per se is not contrary to the fundamentals of democracy, and therefore not synonym with authoritarian rule. The USA is governed by a presidential regime that insures a systemof checks and balances and an effective separation of powers. Therefore, the American constitution will be used as a comparative tool to analyze the proposed constitutional amendment.
SETA, an independent yet conservative and “government friendly” think tank suggests that the constitutional reform aims to get rid of the 'last traces' of the system of tutelage and strengthen the rule of law and democracy. This statement is representative of the official discourse held by the “Evet” political figures in addition to the will of creating a more efficient government by preventing the formation of coalitions, and allowing a quicker decision-making process.
However, worries have been expressed by constitutional jurists about the true extent of this constitution. The amendments proposed may go further than rebalancing the political with the constitutional reality, into cementing practices and codifying a regime that breaches basic principles of democracy, mainly being the separation of powers and the functioning of an independent judiciary system, leading to a diminishing system of checks and balances weakened furthermore by a majoritarian rule. In legal literature, presidentialism is often considered to be generally less conducive to democracy, especially in countries with deep political cleavages, in which more than two political parties compete for power and which do not have a long tradition of political compromises, which is the case of Turkey in its Black Turk/ White Turk societal division.
The proposed amendments concern 18 articles of the constitution, concerning the powers and the re-organization of the executive, the Grand national assembly, thedesignation of the members of the constitutional court, the electoral law, and the power of the military institution and its global role in the political sphere.
If we were to describe the constitutional in one word without any moral or subjective judgement, a majoritarian system would probably be the most accurate objective term. Indeed, beyond the subjective authoritarian/democratic divide, the main objective of this constitution is to put the interests of the social majority at the forefront of the governmental agenda. It is populist in the sense that it assumes that the will of the majority, of the masses, is the will of the nation, therefore power is theoretically given to the people through the figure of one man, the president of the republic. The majority rules, and the president incarnates the nation (that it in this case effectively only the majority of the electors) as well as the state. Multiple mechanisms are put in place to insure this majoritarian system.
The first mechanism put in place concerns the electoral law. Amended article 77 stipulates that the elections of deputies of the TGNA and of the President are to be held on the same day. This will mean in practice that the President willusually also control the parliamentary majority. This is motivated by the need to avoid conflicts between President and parliament. However, this goes against the principles of separation of power. The goal of democracy is not to insure a uniform approach of the various powers, but to ensure that a representative dialogue is established between them. It breaches the system of separation of powers in the sense that it renders it structurally impossible. In practice, the legislative will always be in line with the executive. It rather follows a concept of unity of power which is characteristic for not so democratic systems.
This majoritarian system is further cemented by the fact that the president would no longer have to leave his party once elected. Therefore, the elected party would rule uniformly the strengthened executive rule via the President and the weakened legislative power through majority, all while be benefitting from constitutional legitimacy to do so.Furthermore, this majoritarian system will structurally restrain the political representability of minority parties and create a sort of authoritarianism of the majority.
The system that could result may be a local version of what the Argentinian political scientist Guillermo O’Donnell called ‘delegative democracy’: in which a strong president uses his or her direct mandate to rule in the name of the nation at the expense of horizontal accountability and of the rule of law. Erdoğan insists that this system simply makes the de facto the de jure reality.
A majoritarian system plaguing the separation of powers
Through the 2007 amendments, the role of the President has become increasingly important and scholars have described the system as a sort of “attenuated parliamentarism”.This form of parliamentarism may be considered as one of the many forms of so-called semi-presidential regimes. The direct election of the President, introduced in 2007, is the main element of this trend towards semi-presidentialism. These amendments have paved the way to the 2017 reform and had the objective of ensuring a smooth transition between a parliamentary and presidential system.
The proposed 2017 reform however a true shift towards a presidential regime. The main amendment of the constitution concretizing the shift to a presidential regime is made to the article 104: the president’s duties and powers. It states that the executive power shall be exercised by the President of republic. It induces the disappearance of a cabinet accountable to the parliament, thus creating a system similar to other democratic presidential systems where ministers are replaced by vice-presidents directly nominated by the president. However, as stipulated in the amendment of the article 87, the vice-presidents are no longer under the scrutinizing of the TGNA nor do they need their authorization once nominated.The President therefore has the sole authority to dismiss them. He would also have the authority to issue decrees concerning all domains of the law, they don’t however hold the same legal value of a value on the pyramid of Kelsen.
On his legislative power, the President may “issue presidential decrees on matters relating to executive powers” by virtue of draft Article 104(17). The president is entitled to decrees as in other democratic presidential systems. Furthermore, the principle that legislation prevails over presidential decrees represents a check on the president’s legislative powers. However, “matters relating to executive powers” remains a rather problematic formulation since the executive could technically regulates all domains of society. The only reserve stated on that matter is that presidential decreesmay not regulate matters having to do with certain human rights enshrined in the Constitution. He does however have a strong influence on the legislative procedure. Draft Article 89 grants the President an important veto power. If the President sends a law back to the Assembly for reconsideration, the law can only be adopted with the absolute majority of the total number of members of the Assembly.
In case of political deadlock between the parliament and the president, the “bilateral renewal of the elections” makes an interesting study object from the prism of constitutional law. Both the parliament and the president have the power to dissolve the TGNA in case of a political deadlock, however the implications differ depending on the actor who triggered the procedure. Both can trigger the elections based on any grounds whatsoever, the TGNA needs however a 3/5 majority to trigger its own election renewal.On the other hand, if the president calls for the dissolution of the TGNA, he cannot present himself for the election renewal if it is during his second mandate. The fact that the president has to resign encourages him to trigger the dissolution only in extreme measures. However, in the case where the TGNA triggers the dissolution, the president can represent himself for the new elections. In theory, this distinction ensures a check on the fact that the president cannot use his power to dissolve the assembly in order to run for a third mandate and thus remain in power for more than 10 years (equivalent of two mandates).
In practice however, the majoritarian system created by the simultaneous dual election of the president and the TGNA quasi-guarantees that the president will be representative of the parliamentary majority. Thus, in accordance with the president, the parliament could trigger early elections in which the president could run even in his second mandate, effectively opening the way for the president to run for a third mandate. Initially a checks and balance tool, this amendment could be instrumentalised in a way allowing Erdogan (or any other future president) to remain in power for around 12 years. Technically, Erdogan could end his governance having accumulated a total of at least 27 years at the head of the Turkish state (from 2002 up until 2029 with the potential amendment).
The eradication of the constitutional remains of military tutelage
An important part of this reform is consecrated to the reversal of the military tutelage on the political sphere as stipulated in articles 104 and 118. To further undermine and reverse the tutelage of the army, the President would “determine the national security policies and take the necessary measures” (draft Article 104(13)). For these purposes, he appoints the Chief of the General Staff and he also appoints virtually all members of the National Security Council (draft Article 118), whose organization and duties should be regulated by presidential decrees. Military Courts cannot be established except for in disciplinary courts, thus completely abolishing the potential of a coup attempt. Furthermore, all military members are removed from the Constitutional Court thus ceasing and preventing military interventionism in the legal foundations of the Turkish state.
These amendments are welcome by the Venice commission since they cement the end of the Kemalist praetorianism and therefore end military tutelage on the Turkish political sphere. Intrinsically, the disappearance of the Kemalist “garde-fou” allows for another state-vision to be put in place, the one that the people of Turkey will vote formajoritarily during any given presidential election. This clause is important to nuance the democratic critics made towards this constitutional reform. Definitely, this new constitution creates a very pure majoritarian rule due partly to the simultaneous election of the president and the national assembly. It is a very majoritarian populist constitution in the sense that the interests of the social and demographic majority only would be very strongly represented on a political scale. Erdogan’s claims on giving back “the power to the people” is not entirely wrong in the sense that the effective majority of the population will rule the country. On the long term, this system will ensure that the political reality is more synchronized with the social reality than the previous one, regardless of the context. In opposition with the Kemalist republic, it does not impose an eternal “garde-fou” such as the army to safeguard a unique political ideology or vision, and thus allows the true will of the majority to be expressed.
An ineffective independence of the judiciary
The effective independence and impartiality of the judiciary is a primary criterion for an effective democracy, and it becomes even more so important in a presidential system. Under the proposed amendment, the president will be able to name almost half (6 out of 13 of the Council of Judges and Prosecutors. He would also appoint the minister of justice who would head the council as well as his undersecretary. It is important to have in mind that the president is no longer bound by “pouvoirneutre”, and that a partisan behavior concerning the nomination of the judges would be legitimized by the amended constitution. On the other hand, the 7 remaining members are to be elected by the TGNA. However, we must re-precise that due to the simultaneous presidential/legislative elections, the TGNA should logically hold the same political agenda stemming from the same party as the president. Conjugated with the presidential nominees, the elected members would form a partisan majority within the council.
This system presents a major breach on the independence of the judiciary from the executive and legislative power, as the CJP is the main self-governing body overseeing appointment, promotion, transfer, disciplining and dismissal of judges and public prosecutors. Getting control over this body thus means getting control over judges and public prosecutors, especially in a country where the dismissal of judges has become frequent and where transfers of judges are a common practice.
Concerning the Council of State, its authority to examine draft legislation proposed by the Council of ministers has, logically, been removed. Other than the fact that the president would now be able to name a quarter of the council, its capacity to examine draft legislation hasn’t even been replaced by the competence to give its opinion on presidential decrees, allegedly in order to avoid a possible conflict with a later finding by the Constitutional Court that the decree is unconstitutional. This measure however may not be sufficient to verify the constitutionality of the president’s legislative action. Indeed,the Venice commission states that while the amendments define limits to the Presidential legislative activity with a formal prevalence of laws over decrees, the Constitutional Court has not been given the express power to decide over the conflicts which will inevitably arise in this respect. Furthermore, the modifications concerning the manner of appointment of the members of the CPJ will have consequences on the constitutional court. The CPJ already being responsible for the election of the members of The Court of Cassation as well as the council of state, both courts are entitled to choose two members of the Constitutional Court by sending three nominees for each position to the President, who makes the appointments. This mechanism consolidates further the grasp of the majoritarian party and the president on the judiciary, and ties the knot of the concentration of the three powers in the hand of the President.
After analysis of the amendments concerning the higher courts of Turkey and the organization of the judiciary power, we notice that the separation of powers is not effectively respected concerning the independence and impartiality of the judiciary system, as promised in the constitutional amendment. The amendment reinforces a de facto partisan influence and a grasp on the nomination of the members of the higher courts, mainly on the CPJ which influences the selection of the members of other courts notably the Constitutional Court.
Note on the elaboration of the constitutional reform
The Constitutional Commission in charge with scrutinizing the proposals consisted of 25 Members of which 15 are from the AKP, 5 are from the CHP, 3 are from the HDP and 2 are from the MHP, as per the composition of parliament. Since it was very dominated by AKP representatives, very little changes were made to the initial draft (3 of the 21 initial amendments were abandoned). A consensual approach to the reform was not successful, which resulted in the elaboration of an “AKP constitutional reform”. This is problematic as the potential legal foundations and political system of the new Turkish Republic will not be representative of the general consensual will of the society but rather determined by one segment –admittedly majoritarian- of its population.
The constitutional proposal remains consistent with legal theorist Carl Schmitt’s argument that effective government requires a strong dictatorial approach that embraces permanent crisis to free the executive from normal legal restrictions. It is in the context of political and security turmoil that M. Erdogan gained momentum to capitalise on his de-Kemalisation process and potentially constitutionalise the end of the Kemalist republic and the birth of Erdoganist turkey. The “Turkish-style” presidency incarnates a system of governance clearly more reminiscent of Sultanism. Behind the populist discourse lies the populist constitution, which would pave the way to a pure majoritarian rule. The Black Turks see this constitution as the recognition of their demographic and societal majority, and the opportunity for them to be truly represented and included not only by the government, but by also by the legal foundations of the Turkish Republic for the first time. Beyond the ever-present desire of representability that was born the day Kemalism was introduced as Arkoun theorised it, this constitution is also seen by the Black Turks as the ratification of the extinction of the oppressive military tutelage.
After analysis of the juridical system proposed, we note that the agenda of the “evet executives” and notably M. Erdogan seems to be more than just the ratification of de-Kemalisation and more effective representability. M. Erdogan seems to have utilized the gained momentum from the demographic and social majority’s aspiration to power to legitimize and codify the rather authoritarian governance philosophy he is currently leading. This materializes into a Presidential system where the executive power is concentrated in the hands of the head of state, and a system where he can legally exercise influence on the legislative and judiciary system, thus constitutionally breaching the democratic principle of separation of power and checks and balances. Furthermore, the fact that institutions and mechanisms between the leader and the nation are reduced to a minimum cements our proposed notion of majoritarian populism.
Finally, if removed the current political conjuncture and reality that puts Erdogan at the center of the picture, this majoritarian system remains constitutionally problematic on the long term as it will insure that minority ideologies will hardly ever have access to effective political power. It seems as if this constitutional reform is the 100-year-old answer to a “minoritarian” Kemalist system.
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