An article published in Rudaw claims Turkish President Recep Tayyip Erdogan will issue decrees with force of law in presidential system which newly takes effect
On 27 June 2018, an article on Turkey’s latest elections was published in Rudaw. The article claimed that, now that he is reelected president, Turkish President Recep Tayyip Erdogan will issue decrees having the force of law (DHFL).
“A new executive president will, among other things, have the power to appoint senior judges, unelected vice-presidents and the cabinet, will suffer almost no oversight from parliament, and enjoy the power to issue decrees with the force of law,” the article read.
First, it should be noted that the president will issue decrees in the new system, not DHFL – which are fundamentally different concepts – during non-emergency rule. Accordingly, presidential decrees will be severely restricted by parliamentary supervision in the new system. Also, the president will continue to issue DHFL in the state of emergency as in the parliamentary system. But the nature of this latter power changed as well – crucial points which went unmentioned in the article.
While the president can issue decrees and DHFL in a state of emergency, the parliament passes acts/codes/laws. But in terms of the hierarchy of norms, acts/codes/laws are superior to both DHFL and presidential decrees – a point which also confutes the claim that there will be “almost no oversight from parliament” in the new governance system of Turkey. The related part of Article 119 of the amendments reads as follows:
“The President can issue decrees on subjects concerning the executive. The fundamental rights, personal rights and duties in the first and second divisions, and the political rights and duties in the fourth division of the second section of the Constitution cannot be regulated by Presidential decrees. The President cannot issue decrees on issues that the Constitution says will be specifically regulated in code. Issues which are conspicuously regulated by law are exempt from Presidential decrees. When a law and a Presidential decree have different prescriptions, the law applies. A Presidential decree is annulled when the parliament passes a law on the same subject as the decree.”
In the parliamentary system, the DHFL were issued by the Council of Ministers and were submitted to the parliament for discussion. If the parliament ignored the discussion, there was no legal consequence of this omission: the DHFL remained active. In the new system, however, a DHFL issued by the president will also be presented to the parliament but if it is not discussed and given the final decision within three months, that DHFL will be annulled. The related part in the same article reads:
“Except for when the Grand National Assembly of Turkey cannot convene due to war and casus fortuitus, Presidential decrees issued in a state of exception will be discussed in and be decided by the Grand National Assembly of Turkey within three months. Or else, Presidential decrees issued in a state of exception will be canceled on their own.”
In addition, parliament in the parliamentary system was dysfunctional to the extent that members of the parliament nearly played no role in processes of legislation other than voting for what was on the ballot. The underlying reason for this inaction was that 99 percent of laws passed by the parliament were drafted in the Council of Ministers and presented to the parliament as draft laws. As a result, most members of the parliament did not know of the content of the draft they voted into law.
The presidential system, however, abolishes the executive's power to draft laws. The only legislative proposal the executive would present to the parliament will be on the budget. This regulation will buttress the separation of the executive and the legislature, thereby emancipating the latter from the former's dominance. Accordingly, members of the parliament will also have to study the issues they want to present to the parliament as legislative proposals.
Moreover, the last sentence of Article 104 of the Turkish constitution authorizes the parliament to furnish the president with further powers by making new laws. The sentence states that “The President of the Republic shall also exercise powers of election and appointment, and perform the other duties conferred on him/her by the Constitution and laws.” The uncertainty of “the other duties” of the president implies that the president could be granted any power in the parliamentary system.
In strict contrast to the other false claim of the article that there will be “almost no oversight from parliament” in the new governance system of Turkey, presidential powers are mostly curbed in the new system of Turkey. The aforementioned restriction of presidential decrees by parliamentary supervision and the abolishment of the president’s power to dissolve the parliament are two examples. For a detailed fact-check of frequently voiced (false) claims about Turkey’s new governance system, click here.