ON 21 JANUARY 2017
ON 16 APRIL 2017
Adopted by the Venice Commission
at its 110th Plenary Session
(Venice, 10-11 March 2017)
On the basis of comments by
Mr Richard BARRETT (Member, Ireland)
Ms Veronika BÍLKOVÁ (Member, Czech Republic)
Ms Sarah CLEVELAND (Member, United States of America)
Mr Jean-Claude SCHOLSEM (Substitute member, Belgium)
Ms Hanna SUCHOCKA (Honorary President)
Mr Kaarlo TUORI (Member, Finland)
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I. Introduction ……………………………………………………………………………………………………. 3
II. Background ……………………………………………………………………………………………………. 3
A. The failed coup of 15 July 2016 ……………………………………………………………………… 3
B. The constitutional reform process in Turkey …………………………………………………….. 3
III. Preliminary remarks ………………………………………………………………………………………… 5
IV. Analysis ……………………………………………………………………………………………………… 5
A. The procedure of adoption of the constitutional amendments ……………………………… 5
1. The regularity of the parliamentary procedure …………………………………………….. 6
2. The timing of adoption of the amendments: the effects of the state of emergency7
B. The choice of a presidential regime ………………………………………………………………. 11
C. The separation of powers under the amended Constitution ………………………………. 12
1. The President’s elections and mandate ……………………………………………………. 13
2. The new powers of the President ……………………………………………………………. 15
a. The power to appoint and dismiss Vice-presidents and ministers and the power to appoint and dismiss high level State officials ………………………………………………. 16
b. The power to determine the national security policies and take the necessary measures …………………………………………………………………………………………………. 18
c. The power to declare the state of emergency ………………………………………… 18
d. The legislative power …………………………………………………………………………. 19
e. The power to dissolve parliament …………………………………………………………. 21
f. The power to prepare the state budget …………………………………………………….. 22
g. The powers to veto laws and to address the TGNA ………………………………… 22
h. The power to appoint members of the CJP and judges of the Constitutional Court 22
3. The counter-powers of the Turkish Grand National Assembly ……………………… 23
a. The simultaneous elections of parliament and the President …………………….. 23
b. The parliamentary investigations………………………………………………………….. 24
c. The power to check presidential decrees ………………………………………………. 25
D. The independence of the judiciary ………………………………………………………………… 25
1. The Council of Judges and Prosecutors …………………………………………………… 26
2. The Council of State ……………………………………………………………………………… 27
3. The Constitutional Court ………………………………………………………………………… 27
V. Conclusions ………………………………………………………………………………………………….. 28
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I. Introduction
1. By a letter dated 16 December 2016, the Chair of the Monitoring Committee of the Parliamentary Assembly of the Council of Europe informed the Venice Commission of the Committee’s decision on 14 December to request its opinion on the draft law on the amendments to the Constitution of Turkey at its earliest convenience.
2. Mr Richard Barrett, Ms Veronika Bilkova, Ms Sarah Cleveland, Mr Jean-Claude Scholsem, Ms Hanna Suchocka and Mr Kaarlo Tuori acted as rapporteurs.
3. On 3 February 2017, the Turkish authorities provided the Commission with the English translation of the constitutional amendments (CDL-REF(2017)005; see also CDL-REF(2017)003 and CDL-REF(2017)018). The rapporteurs prepared their comments on the basis of the text, which may not accurately reflect the original version on all points. Some of the issues raised may therefore find their cause in the translation rather than in the substance of the provisions concerned.
4. A delegation of the working group composed of Ms Hanna Suchocka and Mr Richard Barrett, accompanied by Mr Thomas Markert and Ms Simona Granata-Menghini, travelled to Ankara on 20-21 February 2017. They held meetings with members of the Presidential working group on the Constitution, the Constitutional Court, the political parties represented in parliament and with the Ministry of Justice. The Venice Commission wishes to thank the Turkish authorities for their availability and assistance. The delegation also met with representatives of civil society.
5. The Venice Commission also took note of the written Memorandum prepared by Turkish authorities for the visit of the rapporteurs to Ankara (CDL-REF(2017)015).
6. The present opinion was discussed at the meeting of the Sub-commission on democratic institutions on 9 March 2017 and was subsequently adopted by the Venice Commission at its 110th Plenary Session (Venice, 10-11 March 2017).
II. Background
A. The failed coup of 15 July 2016
7. Following the coup attempt on 15 July 2016, on 20 July the state of emergency was declared in Turkey. The state of emergency has been extended twice since the original declaration, most recently following the appalling New Year’s Eve terrorist attacks that occurred in Turkey. The latest extension was for 90 days from 19 January 2017.
8. The Venice Commission strongly and resolutely condemns, once again, the ruthlessness of the conspirators, and expresses solidarity with the Turkish society which stood united against them. The official name of the Venice Commission is the “European Commission for Democracy through Law”. A military coup against a democratic government, by definition, denies the values of democracy and the rule of law. Therefore, the Venice Commission will always oppose those who try to overthrow a democratically elected government by force.
B. The constitutional reform process in Turkey
9. The current Constitution of the Republic of Turkey, approved by popular referendum in 1982 at the end of a period of military rule, has been amended almost 20 times; the amendments have concerned more than 110 of the 177 articles of the Constitution. In three instances, the
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amendments were partly (1987) or fully (2007 and 2010) approved through a referendum.1 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”.2 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.
10. The ruling Justice and Development Party, AKP, had made the executive presidency central to its campaign promises at the general elections of June 2015. The current set of 18 articles amending the Constitution was submitted to parliament by AKP and by the Nationalist Movement Party, MHP, on 10 December 2016.
11. A constitutional committee adopted the 18-article draft law amending the Constitution of Turkey on 30 December 2016. The Grand National Assembly of Turkey (hereinafter “TGNA”) started an article-by-article discussion of this text on 9 January 2017.
12. On 9 January 2017 a demonstration that had gathered in front of parliament to protest against the constitutional amendments was dispersed by the police. By a circular of 10 January 2017,3 the Governor of Ankara, on the basis of Article 11 of the Emergency Law, prohibited for a period of 30 days “any public manifestation in public places such as roads, squares, boulevard, street”, “any demonstration such as plays, representations, declarations or press releases” and any “opening of a stand”. Similar bans or partial restrictions were put in place by other Governors.4
13. On 21 January 2017, TGNA adopted the constitutional amendments with 339 votes in favour, 142 votes against, 5 blank and 2 null votes. According to the Turkish Constitution, parliament needed a three-fifths majority (more than 330 votes) for the constitutional amendments to be submitted to a referendum for voters’ approval.
14. In the course of the parliamentary debates, physical fights occurred between lawmakers of the largest opposition party CHP and AKP, sparked by allegations by CHP that the secrecy of the voting procedure had been violated.
15. The text of the constitutional amendments was signed by the President on 10 February 2017. It will be submitted to a national referendum on 16 April 2017.
1 On the latter amendments and referendum, see Ergun Özbudun, Turkey’s Constitutional Reform and the 2010 Constitutional Referendum, online at IEMED (http://www.iemed.org/observatori-en/arees-danalisi/arxius-adjunts/anuari/med.2011/Ozbudun_en.pdf, accessed on 4 February 2017).
2 Ergun Özbudun, cited by Levent Gönenç, Presidential Elements in Government: turkey, European Constitutional Law Review, 2008, p. 499.
3 http://www.ankara.gov.tr/2911-ve-2559-sayili-kanunlar-geregince-yasaklama (Turkish)
4 In Kahramanmaras, Sanliurfa, Afyonkarahisar, Artvin.
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III. Preliminary remarks
16. In recent years, constitutional reform has been very high on the Turkish agenda. The Venice Commission has expressed its support for a thorough constitutional reform that would replace the 1982 Constitution through a process as broad, open and inclusive as possible, including the opposition, civil society and the public opinion.5 The Venice Commission has also expressed its readiness to assist the Turkish authorities in this respect if they so wished; the Turkish authorities, however, have not sought the Commission’s assistance during the preparation of these constitutional amendments. Due to the circumstances pertaining in Turkey, the Commission nevertheless decided to issue its opinion before the referendum.
17. Attempts to launch a full constitutional reform process have, so far, not received the necessary political backing. However, the draft 18 articles under examination bring about a very extensive reform: through the modification of almost 50 constitutional provisions and the repeal of 21 other provisions, they aim at changing the Turkish polity to what the Turkish authorities have described as a “Turkish-style” Presidential system. This is not objectionable as such, but should be judged against the Turkish system as a whole, with a view to establishing in particular whether the fundamental principles of the separation of powers and of the need for checks and balances are respected. All these changes will be made by grafting new “presidential” provisions on an old constitution which was originally conceived as parliamentary. From a legal point of view, such a technique appears to be quite burdensome and will lead to many difficulties and uncertainties.
18. The multi-faceted nature of the proposed amendments makes detailed analysis of each reform beyond the scope of this Opinion. In this opinion, the Venice Commission will focus on three issues that are particularly important in the context of the rule of law, democracy and human rights: firstly, the timing and the regularity of the procedure of constitutional reform; secondly, whether the proposed reforms will enshrine a sufficiently strong separation of powers; thirdly, and as an aspect of the general separation of powers issue, whether the reforms will ensure sufficient independence to the judicial power.
IV. Analysis
A. The procedure of adoption of the constitutional amendments
19. The Venice Commission has previously stressed that “properly conducted amendment procedures, allowing time for public and institutional debate, may contribute significantly to the legitimacy and sense of ownership of the constitution and to the development and consolidation of democratic constitutional traditions over time. In contrast, if the rules and procedures on constitutional change are open to interpretation and controversy, or if they are applied too hastily or without democratic discourse, then this may undermine political stability and, ultimately, the legitimacy of the constitution itself. In this sense, the Commission has repeatedly stressed that a duly, open, informed and timely involvement of all political forces and civil society in the process of reform can strongly contribute to achieving consensus and securing the success of the constitutional revision even if this inevitably takes time and effort. For this to happen, states’ positive obligations to ensure unhindered exercise of freedom of peaceful assembly, freedom of expression, as well as a fair, adequate and extensive broadcasting of the arguments by the media are equally relevant.”6
5 Venice Commission, Interim Opinion on the Draft Law on the High Council for judges and Prosecutors (of 27 September 2010) of Turkey, CDL-AD(2010)042, §§ 11,16; see also Opinion on the constitutional and legal provisions relevant to the prohibition of political parties in Turkey (CDL-AD(2009)006).
6 Venice Commission, Report on constitutional amendment, CDL-AD(2010)001, §§ 204, 205.
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1. The regularity of the parliamentary procedure
20. The parliamentary procedure of adoption of the constitutional amendments has presented some peculiarities and suffered from certain problems which raise concern.
21. First, the debates took place in the absence of a significant number of deputies from the opposition. Indeed, following a constitutional amendment enacted on 20 May 2016, published in the Official Journal on 8 June 2016 and entered into force the same day, the parliamentary immunity of several MPs was lifted. On 4 November 2016, the President of the second-largest opposition party HDP (Selahattin Demirtas) and 8 other HDP MPs were taken into detention on remand. There are currently 13 members of HDP who are still in detention, despite the Venice Commission’s recommendation to restore parliamentary immunity in Turkey.7
22. Second, under Article 175 of the Constitution and Article 94 of the National Assembly’s Rules of Procedure,8 the voting had to take place by secret ballot. Indeed, Article 175 of the Constitution stipulates that “the adoption of a proposal for an /constitutional/ amendment shall require a three-fifths majority of the total number of members of the Assembly by a secret ballot”. The Rules of Procedure of the Grand National Assembly of Turkey specify that for the purpose of a secret vote, “three circular ballot papers, one white, one green and one red, are simultaneously given to each deputy. The circular ballot paper to be used in voting shall be placed into the related box. The other two are left at the indicated space” (Article 148).
23. This rule was not fully respected during the parliamentary vote on the constitutional amendments in question. During the vote, several deputies voting for the amendments cast their votes openly, showing the white ballot paper before placing it into the box. The whole procedure was tele-recorded and shown on public media. It was made possible to see the stamp in some deputies’ hand. Moreover, unused ballot papers were recollected after the vote and allegedly used to identify those who, especially among the AKP and MHP members, did not vote for the amendments.9
24. The modalities of the parliamentary debate on the constitutional amendments also raised criticism in Turkey. The daily debates lasted, virtually uninterrupted, from the afternoon till the following morning. Such lengthy sessions led to a very quick completion of the procedure: at both readings in the plenary, the amendments were discussed and adopted within twelve days (the debates within the constitutional committee had lasted nine days). However, after the deliberations were completed, the text was kept within parliament for thirteen days, and the President held it for fourteen more days. It is difficult to reconcile the rushed discussions in parliament with these delays.
25. Pursuant to the applicable legislation, the debates were broadcast live on TRT-3 TV channel and on the internet from 2 pm to 7 pm on Tuesdays, Wednesdays and Thursdays. According to the Turkish authorities, after 7 pm the debates were broadcast live on internet. Although these are the ordinary broadcasting rules for parliamentary debates, the time slot of
7 Opinion on the suspension of the second paragraph of Article 83 of the Constitution of Turkey (parliamentary inviolability), CDL-AD(2016)027, § 78 ff.
8 https://global.tbmm.gov.tr/docs/rules_of_procedure_en.pdf
9 http://www.hurriyetdailynews.com/secret-ballot-debate-grows-as-charter-talks-proceed.aspx?PageID=238&NID=108381&NewsCatID=338. CHP announced that it would challenge the violation of the vote secrecy before the Constitutional Court (http://www.birgun.net/haber-detay/turkey-s-chp-to-take-constitutional-amendments-to-supreme-court-144167.html) but finally decided not to do so (http://www.hurriyetdailynews.com/main-opposition-to-not-appeal-to-turkeys-top-court-over-constitution-change.aspx?pageID=238&nID=109739&NewsCatID=338).
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live TV broadcasting should have been extended due to the importance of the matter and to the continuation of the debates all night.
26. The Venice Commission is of the view that the breach of the secrecy of vote is a serious flaw of the procedure of constitutional amendment, as it casts a doubt on the genuine nature of the support for the reform and on the personal nature of the deputies’ vote. It is also regrettable that the parliamentary procedure did not provide a genuine opportunity of open discussions with all the political forces present in parliament. At the time of the parliamentary vote, 11 members of parliament were in custody.
2. The timing of adoption of the amendments: the effects of the state of emergency
27. The procedure of parliamentary discussion and adoption of the constitutional amendments has taken place during the state of emergency. The referendum is planned for 16 April 2017, when the state of emergency will have been in force for almost nine months consecutively.
28. The Venice Commission has repeatedly stressed that “transparency, openness and inclusiveness, adequate timeframe and conditions allowing pluralism of views and proper debate of controversial issues, are key requirements of a democratic Constitution-making process”.10 The adoption of a new and good Constitution should be based on the widest consensus possible within society and […] “a wide and substantive debate involving the various political forces, non-government organisations and citizens associations, the academia and the media is an important prerequisite for adopting a sustainable text, acceptable for the whole of the society and in line with democratic standards. Too rigid time constraints should be avoided and the calendar of the adoption of the new Constitution should follow the progress made in its debate.”11 Open and free public discussions should take place “in an atmosphere favouring such discussions”.12 “Moreover, if and when a popular referendum is held, it is of great importance that this is done properly, in a way which ensures clarity and transparence, and which presents the electorate with clear and precise alternatives.”13
29. There is no formal rule in international law that prevents constitutional amendments during situations of emergency such as times of war, application of martial law, state of siege or extraordinary measures. Yet, such a prohibition is contained in several constitutions (Albania, Estonia, Georgia, Lithuania, Moldova, Montenegro, Poland, Portugal, Romania, Serbia, Spain, Ukraine).14 For example, Article 228 § 6 of the Polish Constitution states clearly that: “during the period of introduction of extraordinary measures, the following shall not be subject to change: the Constitution, the acts on elections to the Sejm, the Senate and organ of local government (…)”. Similarly, Article 147(2) of the Constitution of Lithuania provides that “During a state of emergency or martial law, amendments to the Constitution may not be made” and Article 157 of the Constitution of Ukraine provides that “The Constitution of Ukraine shall not be amended under the conditions of martial law or a state of emergency”. There is no such provision under the Turkish Constitution.
10 Venice Commission, Opinion on Three Legal Questions Arising in the Process of Drafting the New Constitution of Hungary, CDL-AD(2011)001.
11 Venice Commission, Opinion on the draft New Constitution of Iceland, (CDL-AD(2013)010).
12 Venice Commission, Opinion on the Procedure of Amending the Constitution of Ukraine, CDL-AD(2004)030. See also Opinion on the Draft Law on the Review of the Constitution of Romania, CDL-AD(2014)010; Opinion on the draft modifications to the Constitution of Azerbaijan submitted to the referendum of 26 September 2016, CDL-AD(2016)029.
13 Venice Commission, Report on constitutional amendment, CDL-AD(2010)001, § 192.
14 Venice Commission, Report on constitutional amendment, CDL-AD(2010)001.
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30. This prohibition reflects the importance of protecting the fundamentals of the political system, notably the Constitution and the electoral system. It stems from the consideration that a state of emergency may entail limitations to the normal functioning of parliament (especially for the role of the opposition) as well as, very often, limited functioning of mass media and limitations on the exercise of political freedoms such as freedom of assembly. Under these conditions, the democratic process of constitutional amendment may not be fully guaranteed.
31. There is no formal rule in international law which would prevent States from holding elections or referendums during emergency situations either. Yet, under several constitutions an extraordinary situation will postpone, or provide an opportunity to postpone upcoming elections, for example by extending the term of parliament (Croatia,15 Italy,16 Germany,17 Greece,18 Poland,19 Lithuania,20 Slovenia,21 Spain,22 Hungary23 and Canada24). Similarly, a situation of emergency may prohibit the dissolution of parliament (Germany,25 Spain,26 Portugal,27 Poland,28 Hungary,29 Russia30). In Turkey, a declared state of war causes elections to be postponed (Article 78 of the Constitution).
32. This rule reflects the concern that during situations of emergency states may not be able to meet the constitutional and international standards on free and fair elections, including the standards which were codified by the Venice Commission in the Code of Good Practice on Referendums.31 Under these standards, referendums have to be based on the principle of universal, equal, free and secret suffrage. The question(s) put to the referendum has(ve) to be clearly formulated. The referendum has to be organized by an independent body. The authorities must provide objective information and they must not influence the outcome of the vote by one-sided campaigns. The public media have to be neutral, in particular in news coverage. Fundamental human rights – especially freedom of expression, freedom of assembly, right to security – have to be fully respected.32
15 Article 77 of the Constitution.
16 Article 60 of the Constitution.
17 Article 115h of the Constitution.
18 Article 53 of the Constitution.
19 Article 228 of the Constitution.
20 Article 143 of the Constitution.
21 Article 81 of the Constitution.
22 Article 53 of the Constitution.
23 Article 48 of the Constitution.
24 Article 4(2) of the Constitution.
25 Article 115h of the Constitution.
26 Article 116 of the Constitution.
27 Article 172 of the Constitution.
28 Article 228 of the Constitution.
29 Article 48 of the Constitution.
30 Article 109 of the Constitution.
31 Venice Commission, Code of Good Practice on Referendums, CDL-AD(2007)008.
32 See also Venice Commission, Opinion on the Compatibility of the Existing Legislation in Montenegro concerning the organisation of referendums with applicable international standards, CDL-AD(2005)041, and Opinion on “Whether the decision taken by the Supreme Council of the Autonomous Republic of Crimea in Ukraine to organise a referendum on becoming a constituent territory of the Russian Federation or restoring Crimea’s 1992 constitution is compatible with constitutional principles, CDL-AD(2014)002.
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33. The Venice Commission has previously stressed that “The holding of democratic elections and hence the very existence of democracy are impossible without respect for human rights, particularly the freedom of expression and of the press and the freedom of assembly and association for political purposes, including the creation of political parties. Respect for these freedoms is vital particularly during election campaigns. Restrictions on these fundamental rights must comply with the European Convention on Human Rights and, more generally, with the requirement that they have a basis in law, are in the general interest and respect the principle of proportionality”.33
34. In the opinion of the Venice Commission, there is clearly a danger that democratic process will be encumbered when there are restrictions on the ‘normal’ rule of law processes. There is also a risk that fundamental electoral principles will be undermined during a state of emergency, in particular the principle of equality of opportunity. Similarly, it is axiomatic that derogation from individuals’ civil and political rights creates a risk that the results are not democratic.
35. Indeed, the Commission favourably considered a constitutional provision in Georgia which provided that there could be no elections during a state of emergency or period of martial law and no election could be held until 60 days had expired from the lifting of the state of emergency, because “elections require a peaceful political atmosphere and the complete fruition of all the freedoms and human rights and a condition of full guarantee of public order and security”.34
36. This analysis applies with, at least, equal force in respect of proposed constitutional referendums,35 and in particular to referendums on the change of the political system,36 although, admittedly, a complete collapse of the existing constitutional order might require a constitutional referendum during a state of emergency. Whether permanent constitutional change should occur during a state of emergency is dependent on whether the circumstances are such that democratic principles will prevail. The following paragraphs proceed on this basis.
37. With respect to the situation currently pertaining under the state of emergency in Turkey, the Venice Commission has already noted with concern the liquidation of several private media outlets37 and the severe interference with the freedom of expression and the media caused by the emergency decree laws.38 According to the figures provided by the Turkish authorities,39in toto, since July 2016, 190 media outlets (including publishing houses, newspapers and magazines, news agencies, TV stations and radios) were closed, but pursuant to Decree Laws 675 and 679, the closure of 23 of these media outlets was annulled. As was stressed by the Council of Europe Commissioner for Human Rights, “more than 150 media outlets, including newspapers, television stations, radios and publishing houses, were closed and their assets liquidated by governmental decrees, in the absence of any judicial decision. In parallel, the
33 Venice Commission, Code of Good Practice in Electoral Matters: Guidelines (19 October 2002) CDL-AD(2002)023,§ 60
34 Venice Commission, Opinion on a draft constitutional law on amendments to the Constitution of Georgia, CDL-AD(2009)030, § 5.
35 Gross and Ní Aoláin, Times of Crisis: Emergency Powers in Theory and Practice (2011 Cambridge).
36 See also Venice Commission, CDL-STD(1995)012, Emergency Powers, Report by Ergun Özbudun and Mehmet Turhan, Science and technique of democracy No. 12, 1995.
37 Venice Commission, Opinion on Emergency Decree Laws Nos. 667-676 adopted following the failed coup of 15 July 2016,§§178 ff.
38 Venice Commission, Opinion on the measures provided in the recent emergency decree laws with respect to freedom of the media in Turkey, CDL(2017)006.
39 CDL-REF(2017)010.
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number of journalists in jail which had reduced significantly in previous years, increased manifold, reportedly to 151 at the time of writing of this memorandum”.40 The Commissioner for Human Rights considers with the “utmost concern” that “the current situation is characterised by numerous, blatant violations of principles enshrined in the ECHR, the case-law of the European Court of Human Rights, standards of the Council of Europe, as well as other relevant international standards. These violations have created a distinct chilling effect manifesting itself not only in self-censorship in the remaining media which is not controlled by or sympathetic to the government and the ruling political party, but also among ordinary citizens. This has led to an extremely unfavourable environment for journalism and an increasingly impoverished and one-sided public debate.”41
38. Moreover, Emergency Decree Law no. 687 of 9 February 2017 has removed the power of the Supreme Election Council to sanction private radio and television channels which make one-sided, biased broadcasts during election and referendum campaigns. This change, which does not have any genuine link with the state of emergency as such and instead has a clear relationship with the constitutional referendum campaign, has entered into force despite the spirit, if not the letter, of Article 67 of the Turkish Constitution, which provides that “the amendments made in the electoral laws shall not be applied to the elections to be held within the year from when the amendments go into force”. While the exact meaning and impact of this provision go beyond the scope of analysis of this opinion, it is obvious that it has operated a modification of the ordinary rules of media coverage of election or referendum campaigns, with a notable impact on the principle of neutrality of the media.
39. As regards freedom of assembly, a general ban on assemblies was imposed in Ankara by the Governor under emergency legislation during the period surrounding the parliamentary debate of the amendments, and further bans have been imposed in other areas in Turkey.
40. It has been pointed out that Turkish parliamentary elections were held in 2002 when a state of emergency was ongoing and it seems that democratic principles were relatively well maintained. Similarly, presidential elections are currently ongoing in France despite a state of emergency being in place. These analogies are not pertinent. During Turkey’s 2002 elections the state of emergency was limited to a specific geographic area unlike the current nationwide state of emergency, and it did not entail large-scale limitations of human rights applicable to the whole of the population of the country. In the case of the upcoming French presidential and parliamentary elections, the measures implemented under the state of emergency are significantly less obstructive as regards the functioning of the institutions and civil and political rights.
41. Following from all that precedes, and recalling that “constitutional reform is a process which requires free and open public debate, and sufficient time for public opinion to consider the issues and influence the outcome”,42 the Venice Commission considers that it is highly doubtful that the constitutional referendum scheduled for 16 April 2017 could and would meet the democratic principles of the European democratic tradition. In addition, even if these standards were respected, the credibility of the results of a referendum held during a state of emergency that has been declared to consolidate government power would be compromised.
40 Memorandum of the Commissioner for Human Rights on freedom of expression and media freedom in Turkey https://wcd.coe.int/com.instranet.InstraServlet?command=com.instranet.CmdBlobGet&InstranetImage=2961658&SecMode=1&DocId=2397056&Usage=2.
41 Memorandum of the Commissioner for Human Rights on freedom of expression and media freedom in Turkey, § 22. See also Venice Commission, Opinion on the measures provided in the recent emergency decree-laws with respect to freedom of the media in Turkey, CDL-AD(2017)007.
42 Venice Commission, Report on constitutional amendment, CDL-AD(2010)001, § 245.
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42. There are two possibilities which are in line with democratic standards: if a constitutional referendum must absolutely be held during a state of emergency, restrictions on political freedoms have to be lifted, or, if the restrictions may not be repealed, the constitutional referendum should be postponed until after the state of emergency or at least when the restrictions no longer apply.
B. The choice of a presidential regime
43. The constitutional amendments under consideration aim at operating a change in the political regime of Turkey, adopting a “Turkish-style” presidential regime.
44. The Venice Commission has emphasised in the past that the fundamental choice between a presidential, a semi-presidential and a parliamentary regime is a political choice to be made by the country in question and that, in principle, all these regimes can be brought into harmony with democratic standards, provided inter alia that parliament have sufficient controlling powers with regard to the executive branch.43 The Venice Commission has however repeatedly welcomed and supported constitutional reforms that aimed at decreasing the powers of the President and at increasing those of the parliament.44 The fundamental principles of the rule of law, the separation of powers and the independence of the judiciary create the framework which legitimates various political systems and forms of government, as long as they remain democratic. Negligence of these fundamental rules could lead to the transformation (or, better, the degeneration) of the whole system into an authoritarian one. This danger is stronger in the case of introduction of a presidential system instead of a parliamentary one. 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.45 A presidential regime requires very strong checks and balances. In particular, a strong, independent judiciary is essential because the controversies which in a parliamentary regime are normally settled through political debate and negotiations, in a presidential regime often end up before the courts.
45. The United States is often cited as the example of democratic presidentialism, and has been used to support the transition to a presidential regime in Turkey. The Venice Commission has previously argued that “Each constitution is the result of balancing various powers. If a power is given to one state body, other powers need to be able to effectively control the exercise of this power. The more power an institution has, the tighter control mechanisms need to be constructed. Comparative constitutional law cannot be reduced to identifying the existence of a provision the constitution of another country to justify its democratic credentials in the Constitution of one’s own country. Each constitution is a complex array of checks and
43 Venice Commission, Interim Opinion on Constitutional reforms in the Republic of Armenia, CDL-AD(2004)044 § 42; the Commission warned in particular that “In Armenia where the President, directly elected, is the real “engine” of the political system, it would be rather dangerous for the democratic life of the state to further increase his powers while at the same time not providing for the necessary strengthening of the role of the National Assembly.”
44 Amongst other, Opinion on the draft law amending the Constitution of Ukraine submitted by the President of Ukraine on 2 July 2014, CDL-AD(2014)037; Opinion on the Draft Constitution of the Kyrgyz Republic (version published on 21 May 2010), CDL-AD(2010)015; Final Opinion on Constitutional Reform in the Republic of Armenia, CDL-AD(2005)025; Opinion on the Draft Amendments to the Constitution of Georgia (CDL-AD(2004)008-e).
45 Juan J. Linz, The Perils of Presidentialism, Journal of Democracy, Vol. 1, 1990, pp. 52-69; Donald L. Horowitz, Comparing Democratic Systems, Journal of Democracy, Vol. 1, 1990, pp. 73-79; Scott Mainwaring, Presidentialism, Mutilparty Systems, and Democracy: the Difficult Equation, Kellogg Institute Working Paper No 144, 1990; Juan J. Linz, Arturo Valenzuela (eds), The Crisis of Presidential Democracy: The Latin American Evidence, Baltimore: The Johns Hopkins University Press, 1994; Michael J. Mezey, Presidentialism: Power in Comparative Perspective, Rienner, 2013.
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balances and each provision needs to be examined in view of its merits for the balance of powers as a whole.”46 There is very little resemblance between the constitutional amendments pending in Turkey and the political regime of the United States. As will be explained in more detail below, the draft Turkish constitutional amendments would confer substantially more power on the President, and include substantially fewer checks and balances between the executive, legislature, and judiciary, than the US constitutional system. Under the amended Turkish constitution, unlike under the American one, there would be no bicameralism, no federalism, no election of the Vice-president, no influence of parliament on appointments within the executive power, while the President would have the power to dissolve parliament at his or her will (though putting his or her own mandate at stake). Presidential elections would be held jointly with parliamentary elections every five years, while in the US the voters have the possibility to vote in mid-term elections every two years. There would not even be a strong, independent judiciary. It should be stressed in this respect that the lack of well rooted principles of the rule of law and the separation of powers has led to authoritarian rule in some US-inspired presidential regimes in South America, Asia or Africa.
C. The separation of powers under the amended Constitution
46. The Turkish authorities explain the essence of the constitutional reform as follows: “the most important feature of the constitutional amendment is that it lifts the dual authority in the executive power. Due to the election of the President by popular vote, he/she is politically responsible in the eyes of the nation. This amendment removes the potential of State crisis between the President on one side and the Prime Minister and the Council of Ministers on the other side which might arise from the broad executive authority of the President.(…) The essence of democracy is to take accountability as a basis. According to the current Constitution, the President has no responsibility even though he has many duties and authorities. Actually, title of article 105 of the Constitution is as ‘accountability and non-accountability’ and it is underlined that he/she is not accountable except for the ‘treason’. By the amendment proposal, this article has been changed together with its title. Hereinafter, title of article 105 will be as ‘Criminal Liability of the President’. If the Constitutional amendment is approved by the Nation, the President will be accountable not only for his executions, actions and operations, but also for his/her inaction.(…) According to the constitutional amendment, the executive power will only belong to the publicly-elected President.(…) The legislative power will only belong to the Assembly. The President will not be authorized to put forward a law proposal. A more suitable government system is envisaged with respect to the principle of “checks and balances” since the legislative power is completely separated from the executive power.(…) The President has political responsibility to the people who elect him/her.” 47
47. The analysis of the amendments, however, brings the Venice Commission to conclude that they lead to an excessive concentration of executive power in the hands of the President and the weakening of parliamentary control of that power. As regards in particular the accountability of the President, the Venice Commission does not find that it is ensured under the amendments. The democratic accountability of the President is virtually absent during the mandate; it only comes into play if the President runs for a second mandate. The fact that in normal conditions elections are only held every five years significantly reduces democratic accountability, compared for example to mid-term elections to U.S. Congress every two years. The TGNA may not hold a vote of confidence in the President. There is no possibility of interpellations. Only written questions are allowed and must be addressed to Vice-presidents and ministers (amended Article 98(5)). In addition, the President will benefit from a general immunity for any criminal act besides those committed in the exercise of the presidential
46 Venice Commission, Opinion on the Fourth amendment to the Fundamental Law of Hungary, CDL-AD(2013)012, § 139.
47 CDL-REF(2017)015, p. 6
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functions, for which he or she may be subject to a very complex procedure of impeachment with the final judgment being made by by the Constitutional Court, whose members are appointed directly or indirectly by the President.
1. The President’s elections and mandate
48. Since 2007, the President of Turkey is elected through a direct vote (Article 101). The term of office is five years and the person may be re-elected once. This model is maintained under the amended Constitution. Any citizen of Turkey who is eligible to be a deputy, is over 40 years and has completed higher education may stand as a candidate.
49. Candidates may be nominated by political parties or groups of parties which have received more than five percent of the valid votes in sum alone or jointly in the latest parliamentary elections or by a hundred thousand electorates. The right to nominate candidates is extended to parties with 5-10% of the valid votes (previously, the bar was 10%) as well as to the general public. The Venice Commission welcomes that the general public should now also be entitled to nominate candidates. Yet, the bar is set relatively high48 and it therefore remains to be seen to what extent this option will be used.
50. The draft amendments foresee that the number of candidates may be rather low or, in fact, that at the second round there could be only one candidate. In this case, as amended Article 101 stipulates, the elections would be turned into a referendum, in which the simple majority of votes would suffice for the single candidate to be elected. Though not illegitimate or unlawful per se, this regulation, which already exists under the current constitution, is highly unusual. After all, elections are based on the idea of competition and choice and cannot really serve their purpose in the absence thereof.
51. The current Constitution states that “if the President-elect is a member of a party, his/her relationship with his party shall be severed and his/her membership of the Grand National Assembly of Turkey shall cease” (Article 101). Whereas the latter requirement is maintained under the draft amendments, the former is not. This entails important consequences: the rule that, with one exception (see infra), presidential and parliamentary elections must take place simultaneously, and the removal of the prohibition on the President being a member of a political party, makes it probable that one party will dominate the executive and also have a majority or at least a very significant representation in the legislature. The President is likely to be and stay the leader of that party. Moreover, the danger of an overly close relationship between the executive and legislature is increased because the President is vested with the power to call the elections in the first place.
52. The Turkish President will not be a member of the legislature and there will be a formal separation of legislative and executive powers. However this separation is illusory. The President will have the power to appoint and dismiss ministers, choosing some of them from among members of the legislature (Article 106 § 4). This will give him or her an effective source of patronage over the legislature. This creates a danger of the President taking control of the legislative agenda. It might also be remembered that the legislature will have no power to approve or veto appointments, again in sharp contrast to the U.S. system. This significantly undermines the legislature’s control over the executive.
53. At the same time, the President is expected to “represent the Republic of Turkey and the unity of the Turkish nation” and “ensure implementation of the Constitution and the regular and harmonious functioning of the organs of the State” (Article 104). The Venice Commission has
48 In France, for instance, candidates only need 500 signatures of elected officials to be nominated. Yet, it is not unusual to set the bar relatively high. For instance in Slovakia, 15.000 signatures are necessary, in the Czech Republic, the required number is 50.000.
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doubts whether a person closely affiliated with a particular political party may assume, and be seen as assuming, this role. A symbolic, politically neutral presidency can hardly be reconciled with a politically engaged presidency (holding the whole of the executive power). The amended constitution has failed to make a choice between these two opposed visions.
54. According to the Turkish authorities, “it is the natural consequence of the system that the President, who represents the executive organ, has a link with the political party. Since it is an obligatory consequence of the new system that the President who is beyond a symbolic figure, who has political responsibility and needs popular votes in the elections to be elected will act together with a political party. For example, in the United States and in France, links between the presidents representing the executive organ and their political parties remain. This situation should not be a problem in terms of democracy. As a matter of fact, the link with the party does not necessarily have to remain and, moreover, it’s not a necessity to continue that link as a leader of the political party. As a requirement of democracy, this should be left to the political parties’ own preference”.49
55. It is true that the first Presidents of the Republic of Turkey, Mustafa Kemal Atatürk and İsmet İnönü were also closely affiliated to a political party (Republican People´s Party in this case.) However this model was embraced in the period in which Turkey largely operated as a one-party country. Once a multi-party model was embraced, the requirement for the presidents-elect to sever the ties with their political party was introduced. The mere fact that this requirement is now abolished is a signal that political partisanship is desired. In addition, it should be noted that this provision is to enter into force immediately, while the changes to the distribution of powers will only enter into force after the elections of 2019. This shows that the immediate consequence of this amendment is to enable the current President to take up official functions in his party, although he was elected on a different basis. The Turkish authorities argue that the immediate lifting of the prohibition for the President to be a member of a political party responds to the fact that the current regime in Turkey is de facto closer to a semi-presidential system than to a parliamentary one, and in semi-presidential systems the President is a member of his or her party. However, for the Venice Commission it is difficult to see why this proposed change should not be postponed until after the next election as is being done for the other changes to the constitutional balance.
56. As a rule, the President may serve only two five-year terms (Article 101), which already allows for a quite long ten-year total mandate.50 However, in case new elections have been decided by the Grand National Assembly during the second term of the President, he/she can run for the presidency once more (Article 116, see below). This would de facto give the President a third term, thus extending the total length of his or her mandate much longer than the original ten years. It cannot be excluded from the letter of Articles 101 and 116 that a further renewal of elections would not have the same effect, as the Turkish authorities argue. In such a case, the President could stay in office for a potentially unlimited period of time, which is clearly unacceptable. As Linz notes, in a presidential system, “the power of the President is at once so concentrated and so extensive that it seems unsafe not to check it by limiting the number of times any one President can be elected”.51
57. The Turkish authorities argue that “There is no such thing as the extension of the second term of the President. However, in the event that the Assembly decides to renew the elections
49 Ministry of Justice of Turkey, Directorate General for EU affairs, Information note on the issues to be handled in the visit of the Venice Commission regarding the constitutional amendments (20-21 February 2017), CDL-PI(2017)001, p. 36.
50 The U.S. President is prohibited by the Constitution from being elected to more than 2 four-year terms as President. Congress has no power to extend the President’s term (U.S. Constitution, Amendment XXII).
51 Juan J. Linz, The Perils of Presidentialism, Journal of Democracy, Vol. 1, 1990, p. 66.
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before the termination of President’s second term in office, the President can once again be a candidate. It is not true to express it as an extension of the term of office. In other words, in the second term of the President, if the Grand National Assembly decides to renew the elections with a 3/5 majority (360 deputies) before the termination of second term of office, the President can only once again be a candidate. Here, in the case the Grand National Assembly decides to renew the elections in the second term of the President, it is aimed to give the current President the opportunity to be re-elected and therefore, that the public to check whether or not the Grand National Assembly exercise its power in an accurate manner and the public to confirm the democratic legitimacy.” 52 However, it should be underlined that pursuant to the amendments, the mandate of the President would not have to be of five years because there would be an express constitutional possibility to have early presidential elections. On the other hand, the decision of the TGNA to shorten the President’s mandate is submitted to the public, because there are simultaneous parliamentary elections at which the TGNA may be sanctioned. In the Venice Commission’s opinion, therefore, there is no justification for the possibility for the President to obtain a third mandate. The Venice Commission has previously stressed the importance of constitutional limitations on successive presidential terms as a means to limit the risk of negative consequences for democracy arising from the fact that a same person has the possibility of occupying the presidency for an excessive period of time.53
2. The new powers of the President
58. Amended Article 104 declares not only that the President is “the head of the State” but also that “executive power belongs to the President”. This provision is the most explicit one in the amendments to express the intended transition to a presidential form of government. The President thus has the double position of both head of state and head of government with no neat differentiation of these roles. “In the former capacity, he symbolizes the unity of the nation and, along with other national symbols, evokes a sense of patriotism among citizens. As head of government, he is the political leader of the nation, charged with a leading role in the policy decision that the country takes.”54
59. Article 104 lists the “duties and powers” of the President. This enumeration, however, is not exhaustive, as the President shall “also exercise powers of election and appointment, and perform the other duties conferred on him/her by the Constitution and laws” (Article 104(19)). Accordingly, certain competences which are not or no more listed in Article 104 appear elsewhere in the Constitution (for example, the power to renew parliamentary elections (Article 116); the declaration of the state of emergency (Article 119); the preparation of the budget and its submission to the TGNA (Article 161)). The competences of the President may even be extended by ordinary laws.55 In times when the President would be the leader of the political party with the majority in the TGNA, his/her competences could thus become almost unlimited. In addition, some of the new competences of the President are drafted in vague terms, leaving large space for interpretation and discretion.
60. Under the amendments, the President is given several new powers. The Government (Council of Ministers) and the office of Prime Minister would be abolished and their powers
52 CDL-REF(2017)015, p. 35.
53 Venice Commission, Opinion on the Draft Amendments to the Constitution of the Republic of Azerbaijan, CDL-AD(2009)010, § 14.
54 Michael J. Mezey, Presidentialism: Power in Comparative Perspective, Rienner, 2013, p. 8.
55 The Venice Commission has previously supported the removal of a similar provision in Georgia (Final Opinion on the draft constitutional law on amendments and changes to the constitution of Georgia, CDL-AD(2010)028, § 57).
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would be transferred to the President. Furthermore, the President would be granted powers which the Council of Ministers did not possess, for example with regard to the armed forces.
a. The power to appoint and dismiss Vice-presidents and ministers and the power to appoint and dismiss high level State officials
61. Amended Article 104 stipulates that the President “appoints and dismisses Vice-presidents and ministers”. The President has the exclusive power to decide (Article 106) whether and how many Vice presidents and ministers will be established (although there must be at least one Vice-president, given that the Constitution attributes some powers to him/her). The distinction between Vice-presidents and ministers is unclear. Parliament cannot express its approval for the appointment, which is the case in democratic presidential systems. The only criterion fixed in the Constitution is that Vice-presidents and ministers shall be appointed from among those eligible to be elected as deputies (Article 106(4)). According to the explanations provided by the Turkish authorities, “as a rule, it is not compulsory for Vice-presidents and ministers to be appointed from among deputies. Since a strict separation of powers is envisaged in the government system brought, it is accepted that, in that case deputies are appointed as Vice-presidents or ministers, their membership of the Assembly will terminate.”56
62. This solution is problematic from two points of views. First, as stated above, the fact that the President may select his Vice-Presidents and ministers from among members of parliament gives the President an effective form of patronage over the legislature, thus putting the separation of powers between the legislative and the executive into jeopardy.
63. Second, despite not being members of parliament, Vice-presidents and ministers during the term of office enjoy parliamentary immunity as stipulated in Article 83 of the Constitution (Article 106(11)). The extension of parliamentary immunity to ministers who are not MPs already exists under the current Constitution. The very complex procedure of impeachment which will be examined below will be applicable to Vice-presidents and ministers only for “task-related offences” (Article 106(6)). The Venice Commission recalls that “The concept of parliamentary immunity is an integral part of the European constitutional tradition, as demonstrated by the fact that all European countries have some form of rules on this, which often date back a long time in history. The main feature is that members of parliament (emphasis added) are given some degree of protection against civil or criminal legal rules that otherwise apply to all citizens. The basic idea is that the elected representatives of the people need certain guarantees in order to effectively fulfil their democratic mandate, without fear of harassment or undue charges from the executive, the courts or political opponents.”57 Granting parliamentary immunity to non-elected officials exercising executive functions, thus weakening their ordinary criminal liability (in order to prosecute them, it will be necessary either to lift the parliamentary immunity during their office or to wait until its expiry) entails a breach of the principle of equality which is not justified within the framework of a democratic presidential system.
64. The amended constitution does not fix any rules, nor establish a hierarchy between Vice-Presidents. The duties and responsibilities of Vice-presidents shall be determined by the President alone, who will therefore, at least at some stage, choose which one is to exercise the special competences reserved for the time of presidential vacancy or temporary absence of the President by under Article 106(2)-(3).
56 Ministry of Justice of Turkey, Directorate General for EU affairs, Information note on the issues to be handled in the visit of the Venice Commission regarding the constitutional amendments (20-21 February 2017), CDL-REF(2017)015.
57 Venice Commission, Report on Report on the scope and lifting of parliamentary immunities, CDL-AD(2014)011, § 7.
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65. The Venice Commission has previously expressed very strong criticism of the creation of a position of non-elected Vice-presidents exercising executive power in substitution for the President. “Nothing in the presidential system guarantees that the country´s voters or political leaders would have selected the Vice-President to wield the powers they were willing to give to the /…/ president.”58 The Commission has said that “If Vice-Presidents are going to govern, they should have an electoral mandate and not take office by appointment of the President. In addition, since Vice-Presidents may temporarily exercise the powers of the President pending new presidential elections, they will be in a privileged position to win these elections. The possibility for the President to designate a Vice-President therefore gives to the incumbent President a lot of influence on the choice of his or her successor. New Article 103-1 is therefore incompatible with democratic standards.”59
66. Although the Vice-President is supposed to serve as the acting President on a temporary basis, there is no time-limit – except for the length of the mandate itself – imposed in case of temporary absence of the President (as opposed to the 45-day limit in case of vacancy). Moreover, having the most powerful, and largely uncontrolled and uncontrollable, position in the country occupied by a non-elected person is problematic even when this occupation is only temporary. That is why in the United States, the Vice-President is elected together with the President and it is known in advance, and determined by the people, who the holder of this office will be.60 According to the Turkish authorities the amendments establish an “appropriate […] connection of the legitimacy of Vice-presidents with that of the President directly elected by the nation”. In addition, they argue that the simultaneous election of the President and the Vice-president risks causing “the emergence of a double legitimacy crisis”. The Venice Commission cannot agree with these arguments. The President’s democratic legitimacy to exercise the executive power may not be considered as transferable, especially when there is no mechanism of democratic accountability of the “chosen” Vice-president. As regards the risk of a crisis of legitimacy between the President and the Vice-president, the Commission considers that the U.S. experience shows that the hierarchy established in the joint elections does not pose such a risk.
67. Vice-presidents and ministers are politically accountable only to the President; the TGNA can only address written questions to them (see below).
68. Under Article 104(8), the President “appoints and dismisses high level State officials and regulates the procedures and principles relating to the appointment of these, by presidential decrees”. Whereas the current text contains an enumerative list of those appointed and dismissed by the president, the draft amendments speak generally about “high level state officials”. It would be up to the President to determine which positions fall under the notion. If s/he opts for an extensive interpretation of the term, s/he would get an enormous power to decide upon who the holders of important posts in the country will be (and to dismiss these holders at her/his leisure). The President not only appoints these officials but s/he also, by his/her decrees, regulates the procedures and principles relating to their appointment. S/He is, in this case, both a “legislator” and executor at the same time.
69. It should be stressed that contrary to draft Article 104, the President of the United States does&