Constitutional Amendments of 2017: Transition to Presidentialism in Turkey
The author of this article is Professor of Constitutional Law at İstanbul Şehir University. Serap Yazıcı received her Ph.D. and LL.M. degrees from the University of Ankara. Her previous research deals with secularism; problems of transition and democratic consolidation; civil and military relations; governmental systems and rule of law. Some of her work has been recognized by prominent institutions and foundations in Turkey. In 1986, she won the third prize in an academic competition on the topic of “Secularism from the Point of View of the Principles of Atatürk”. In 1987, she won the second prize in a competition on the topic of “Secularism and İnönü.” In 1991, she won the first prize in a competition organized by Aybay Foundation on the topic of “Secularism from the point of View of Human Rights.” In 1994, she won the first prize in a competition organized by the Cumhuriyet Newspaper on the topic of “Enlightenment Philosophy and the Turkish Revolution.” In 1998, she won the second prize in a competition organized by the Milliyet Newspaper on the topic of “The Evaluation of Presidential and Semi-Presidential Systems for Turkey.” Her book “Turkey in Democratization Process” received special mention by the Turkish Academy of Sciences (TUBA) in 2010 as one of the distinguished textbooks. In 2013, she won the prize of the most successful woman lawyer of the year by Republic of Turkey Ministry of Family and Social Policies. In 2014, she won the prize of leader women by Supervisors of Democracy Association (Demokrasi Denetçileri Derneği). She has published articles on constitutionalism, the rule of law and democracy, EU integration and democratic reforms. She was a member of the “Academic Committee” that was responsible for the preparation of the constitutional draft in 2007 upon the demand of the JDP government. She was also a member of the committee organized by TUSIAD and TESEV in 2010-2011, which prepared reports on the new constitution of Turkey.
NOTE: This article supplements the previously published and updated article authored by Serap Yazıcı and titled UPDATE: A Guide to Turkish Public Law and Legal Research , which focuses on the basic principles of the 1982 Constitution of the Republic of Turkey and its amendments adopted between 1987 and 2010. This article, however, focuses exclusively on the constitutional amendments of 2017.
Published September/October 2017
Table of Contents
- 1. Introduction
- 2. Amendments Concerning the Legislature
- 3. Limitation of the Area of Law and the Recognition of a Reserved Domain for the Executive
- 4. Amendments Concerning the Executive
- 5. Law-Amending Ordinances (Decree – Laws)
- 6. The President of the Republic
- 7. Other Amendments
- 8. Conclusion
The Constitution of 1982 has so far been amended 19 times, the first being in 1987 and the last in 2017. When these amendments are analyzed, it is seen that they share a common point excluding the last one. This common point can be summarized as the abolition of certain constitutional prohibitions, the enlargement of the field of fundamental rights and freedoms, the strengthening of the rule of law guarantees, and the abolition or weakening of the privileges recognized to the armed forces. In other words, the basic aim of the constitutional amendments between 1987 and 2010, a period nearly a quarter of a century, can be described as liberalization, democratization, and civilization. In fact, this can be clearly seen in the explanatory reports of the said amendments. In these reports, there are statements such as of democratization, harmonization with European law, and the establishment of a legal order compatible with the Copenhagen criteria required by the process of membership is the EU. On the contrary, the fundamental aim of constitutional amendment adopted on the 16 April 2017 referendum with 51.04 percent of votes, is quite different from those of the earlier ones. It is observed in the explanatory report that the concept of government stability has gained precedence in contrast to the earlier ones. Here an important question to ask is whether Turkey has had a serious problem of governmental instability. Turkey, perhaps as the first time in its recent political history, has lived in this period (2002 – 2017) with a maximum degree of governmental stability. In fact, the Justice and Development Party (the AKP in Turkish) has obtained a parliamentary majority enabling it to form a single – party government starting from the 3 November 2002 through the 2007 and 2011 elections. As a result of various factors, 7 June 2015 parliamentary election did not give the AKP a support sufficient to form of single – part of government. Thus, after a long interval, Turkey faced the possibility of a coalition government. In this situation, Mr. Recep Tayyip Erdoğan, the former leader of the AKP who was elected as the President of the Republic in 2014, renewed the parliamentary elections using the power given to the President of the Republic by the Constitution.  The new election of November 1st gave the AKP enough seats to form a single-party government. Excluding the brief period between 7 June 2015 and November 1st 2015, Turkey has been ruled by single-party AKP governments for fifteen years since November 2002. This clearly shows that Turkey has had no problem of government instability. So, the need for stability underlined in the explanatory report is, in fact, a non-existent need.
The amendment of 2017, which consists of eighteen articles but in fact changes a much larger number of articles, has put an end to Turkey’s approximately a-century-and-a-half long tradition of parliamentary government, and opened to road for a Turkish type presidentialism. The most important items of this amendment are analyzed under the headings of the legislature, executive, and the judiciary in accordance with the systematization of the constitution.
The amendment of 2017 brought about important changes in the section of the Constitution concerning the legislature. First, the number of deputies was raised from 550 to 600 (article 75). Next, the lowering of the age of eligibility to parliament from 25 to 18 years of age (article 76). Last, while previously one of the conditions of eligibility was the completion of military service, the 2017 amendments abolished this condition and replaced it with the requirement of having no connection with the military. This is the necessary consequence of the lowering of the age of eligibility to 18, since male Turkish citizens are required to perform their military service at the age of 21. Thus, those who have completed the age of 18 but have no connection with the military will be eligible for parliament.
Article 77 of the Constitution on the term of the legislature was changed together with the title of the article. The new article 77, which combines parliamentary elections with that of the President of the Republic, states that
“Elections for the Turkish Grand National Assembly and for the President of the Republic shall be held every five years on the same day. A deputy whose term has expired, can be re-elected. In case the necessary majority cannot be obtained on the first round of election for the President of the Republic, a second round shall be held in accordance with the procedure in Article 101.”
Thus, unlike the previous article 77, the new one regulates the term of parliament and that of the President of the Republic together. Thus, the term of parliament is extended to five years from four years. At the same time, it is stated that both elections shall be held every five years on the same day.
Article 87 of the Constitution regulates the powers of the Turkish Grand National Assembly (TGNA). With the amendment, the powers to control the Council of Ministers and the ministers and to empower the Council of Ministers to issue law-amending ordinances in specified areas were abolished, while its other powers were maintained. These changes will result in the weakening of parliament vis-à-vis the executive, as will be spelled out below.
The 2017 amendment not only ensured the transition to a presidential system, but also weakened the position of the parliament vis-à-vis the executive by abolishing some of its powers and changing others, thus ending the checks and balances role of the legislature.
One of these changes concerns Article 89 of the Constitution empowers the President of the Republic to publish laws. S/he had the power to return laws to parliament in fifteen days to be debated again. According to the previous text of Article 89, the simple majority of the TGNA was sufficient to re-adopt the laws returned by the President of the Republic. The amendment of 2017 raised the quorum for re-adoption to the absolute majority of the full membership of the Assembly. Thus, the power to return for reconsideration has become a veto power, weakening the Assembly and strengthening the President of the Republic.
Article 98 of the Constitution regulates the means of parliamentary control over the executive. Under the previous text of the Article, the TGNA “exercises its power to control by means of question, parliamentary inquiry, general debate, interpellation, and parliamentary investigation.” It adds “question is simply to ask for information from the Prime Minister or ministers to be answered on behalf of the Council of Ministers orally or in writing.” The 2017 amendment abolished interpellation and oral questions. Since the main aim of the amendment is transition to a presidential system, the abolition of interpellation should be considered natural. In a presidential system based on the strict separation of powers, neither the President has the power to dissolve the legislature, nor the legislature has the power to dismiss the Council of Ministers or a minister by way of interpellation and a vote of no-confidence. In fact, Article 99 which regulates interpellations in detail is also abolished.
On the other hand, there is no rational reason for the abolition of oral questions. Oral questions create a dialogue between an individual deputy and the minister concerned. Even though other deputies cannot take part in this dialogue, they have the opportunity to listen to it. Furthermore, the process reaches to the attention of the public via media and the web page of the TGNA. The abolition of this mechanism, which has performed an important function since the Constitution of 1961, leads to the weakening of the parliament and gives the executive the possibility to act without an effective check. This will also mean the weakening of the civil society, which will be deprived of an important means to obtain information about public affairs. Written questions, where the minister’s answer is transmitted to the deputy concerned in writing, they cannot be as effective as oral questions, since other deputies and the public opinion cannot follow the process.
Another change concerning parliamentary means of control over the executive is the abolition of Article 100 on parliamentary investigations and their regulation in Article 106. Here it states that
“[T]he opening of a parliamentary investigation may be requested by the absolute majority of the full membership of the TGNA, concerning allegation of a crime connected with their office committed by the assistants of the President of the Republic and the ministers. The Assembly may decide to open the investigation by the secret vote of the three-fifth majority of its full memberships… The TGNA may decide to send the person concerned to the High Court by the secret vote of the two-thirds majority of its full membership.”
The differences between the old Article 100 and the new Article 106 can be summarized as follows:
- While previously parliamentary investigations could be conducted against the Prime Ministers and ministers under the new Article 106, they can be conducted against the assistants to the President of the Republic and ministers.
- Under the abolished Article 100, a request for the opening of the procedure for parliamentary investigation could be made by one-tenth of the full membership of the Assembly (namely 55 deputies). Now, such a request can be made by the absolute majority of the full membership of the Assembly (namely 301 deputies), thus making it very difficult to start this mechanism.
- Under the abolished Article 100, the request could be accepted by a simple majority of the Assembly, while now it requires the three-fifth’s majority of its full membership (i.e., 360 deputies). Similarly, while previously the decision to send the minister concerned to the High Court required the absolute majority of the full membership, now it requires a two-thirds majority of its full membership (i.e., 400 deputies).
- Under the abolished Article 100, it was stated that if the Prime Minister was sent to the High Court the Council of Ministers would fall, and if a minister was sent to the High Court his office would be terminated. In paragraph 9 of the new Article 106, it is stated that “the office of an assistant to the President of the Republic or of a minister shall be terminated if s/he is convicted of a crime incompatible with the membership in the Assembly.” Thus, while previously sending a minister to the High Court would automatically terminate his office, now he would continue to serve until he is convicted of a crime incompatible with parliamentary membership.
Thus, the changes made concerning parliamentary investigations have rendered this most effective means of parliamentary control over the executive extremely difficult to operate in practice.
The original text of the Constitution of 1982 was based on the principle of the inclusiveness of the area of legislation. In other words, the legislative power was not subject to any limitation with regard to the subject matter of laws, and the executive branch was not granted a reserved area of regulation. The 2017 amendment, on the other hand, brought about certain limitations to the area of laws, and created reserved domains for the executive. Certain areas, which previously had to be regulated by laws now are to be regulated by presidential decrees. This represents a severe limitation of the legislative area in favor of the executive.
The new text of Article 161 regulating the state budget empowered the President of the Republic to prepare the draft of the budget law, as a natural consequence of the transition to a presidential system. The article (paragraph 4) states, however, that “in case the budget law cannot be put into implementation in due time, a transitional budget is adopted. In case a transitional budget is not adopted, the budget for the previous year, with increases based on the figures of re-evaluation, shall be implemented until the adoption of a new budget law.” Although it is not clear from the text of the article who will perform the re-evaluation, most probably such power will be vested in the President of the Republic, since he is empowered to prepared the draft of the budget law. Whereas in a presidential system, the power to adopt the budget belongs exclusively to the legislative branch. This principle obliges the president to seek an accommodation with the legislature. The 2017 amendment saves the President from seeking such a compromise and gives him the opportunity to completely bypass the legislature.
Another change weakening the legislature concerns the abolished Article 113, according to which “the establishment, abolition, duties, powers, and the organization of the ministries shall be regulated by law.” Now, such matters are to be regulated by presidential decrees under the last paragraph of Article 106.
A similar change concerns the State Supervisory Council regulated by Article 108 which had stated that “the functioning of the State Supervisory Council, the term of office of their members and their other personnel matters shall be regulated by law.” Similarly, under the last paragraph of Article 118, “the organization and duties of the National Security Council shall be regulated by law.” With the amendment, both areas are to be regulated by presidential decrees.
Under the previous text of Article 123 (last paragraph) “public legal persons shall be established only by law or depending on the clear permission given by laws.” In the new text, the phrase “depending on the clear permission given by laws” was deleted, and the words “or presidential decrees” were added to the article. What appears to be a rather simple change at first sight, may in fact lead to serious political consequences. Thus, the President of the Republic will be able to create or abolish such public legal persons as municipalities and universities by means of presidential decrees. This amounts to the power to change the entire administrative structure of the country.
These amendments cannot be considered simple changes. Laws are publicly debated in parliament and the public opinion is duty informed of them. Whereas presidential decrees are prepared in secrecy by the President of the Republic and his assistants without the knowledge of public opinion and its possible contributions to the process.
Since the principal aim of the 2017 amendments was the transition to a presidential system, the dualist structure of the executive branch gave way to a monist structure. Thus, Article 8 of the Constitution that previously gave the executive power to the President of the Republic and the Council of Ministers was changed by deleting the words “the Council of Ministers”, making the President of the Republic the sole possessor of the executive power.
Transition to a presidential system necessitated the abolition of Article 109, 110, 111, 112, 113, 114, 115, and 116 concerning the Council of Ministers. Indeed, in a presidential system, the president elected by the people in the sole possessor and exerciser of the executive power. In such systems, including its prototype the USA model, even though the president has a cabinet, it is not the equivalent of a Council of Ministers in a parliamentary system. In a parliamentary system, the real executive power rests with the Council of Ministers, which is responsible to parliament for its exercise. Thus, in such a system, the head of the state is the symbolic and ceremonial part of the dualist executive without real powers and responsibilities. In a presidential system, in contrast, the president is the real possessor of all executive powers; his cabinet serves only an advisory function.
Consequently, it is only natural that the 2017 amendments that aimed at the transition to a presidential system from a parliamentary one, abolished those provisions concerning the Council of Ministers and created a cabinet system in conformity with the presidential model. Nevertheless, certain changes made in the legislative – executive relations cannot be explained simply by the transition to a presidential system. Changes made in Article 87 concerning the powers of the TGNA and in Article 98 regulating its means of control over the executive are of this nature as mentioned above. Changes made in Article 91 on law-amending ordinances and in Article 104 on presidential decrees are of a similar nature as will be discussed below. Finally, changes made with regard to the judiciary gives the President of the Republic an absolute control over the judiciary. Such changes will be analyzed below, as to their compatibility with a democratic presidential system.
The 2017 amendment abolished Article 91 of the Constitution, which gave the Council of Ministers the power to issue law-amending ordinances, and gave the President of the Republic the power to issue executive decrees by adding a provision to Article 104. At first sight, this can be seen as a natural outcome of the transition to a presidential system and of the switch from a dualist to a monist structure of the executive. However, a comparison between the two articles shows that this is not so. In fact, the amendment is two-fold, one weakening the legislature and the other strengthening the executive.
The abolished Article 91 gave this power to the Council of Ministers not as an original but as a derivative power (secundum legem) in conformity with the principle of the legality of the administration. In other words, the Council of Ministers would have no such power without an empowering act of the parliament. Under paragraph 2 of the article, “The empowering law shall define the purpose, scope, principles, and operative period of the decree having force of law, and whether more than one decrees will be issued within the same period.” Thus, the Council of Ministers could issue an ordinance only within the limits specified by the empowering law.
Furthermore, such decrees-laws were subject to the ratification of the parliament. Under Article 91,
“decrees not submitted to the Turkish Grand National Assembly on the day of their publication shall cease to have effect on that day and decrees rejected by the Turkish Grand National Assembly shall cease to have effect on the day of publication of the decision in the Official Gazette. The amended provisions of the decrees which are approved as amended shall go into force on the day of their publication in the Official Gazette.”
Thus, the legislature could intervene in the process both at its beginning and its end.
The power granted to the President of the Republic to issue presidential decrees by the 2017 amendment is without the limitations provided by the abolished Article 91. First, such power does not derive from an empowering law but directly from the Constitution. Second, presidential decrees do not need to be submitted to parliament for their approval.
The relevant provision of the new Article 104 is as follows:
“The President of the Republic can issue presidential decrees in matters related to the executive power. Fundamental rights and personal rights and duties regulated in the first and second chapters of the second part of the Constitution, and political rights and duties regulated in the fourth chapter cannot be regulated by presidential decrees. No presidential decrees can be issued in matters which under the Constitution shall be regulated exclusively by laws. No presidential decree can be issue in matters clearly regulated by law. In the event of presidential decrees and laws containing different provisions, the provisions of the law shall be implemented. In case the TGNA adopts a law on the same subject, the presidential decree becomes null and void.”
The similarities and differences between the 2017 system and the previous one can be summarized as follows:
- The only similarity is with regard to the limitations concerning the subject matter. In both cases, fundamental rights, personal rights and duties, and political rights and duties cannot be regulated by such decrees. However, the vague statements in Article 104 raise questions about the effectiveness of this limitation as will be spelled out below.
- While in the old system such power derived from an empowering act of the parliament, the power to issue presidential decrees derives directly from the Constitution and does not need an empowering law.
- Therefore, the presidential decrees are not subject to the limitations specified by the empowering law.
- Article 104 gave the President of the Republic the power to issue presidential decrees “in matters related to the executive power”. But how can one establish whether a presidential decree is “related to the executive power”? If the executive function is defined as “the implementation of laws”, this criterion becomes unusable since presidential decrees cannot be issued in matters regulated by law. Furthermore, it appears from the wording of the article that a presidential decree can be issued in all areas not previously regulated by law. Thus, it will be a matter of constant conflict to establish whether they are really related to the exercise of the executive power.
- Although Article 104 provides that “presidential decrees cannot be issued in matters which under the Constitution shall be regulated exclusively by laws”, this will not be an effective limitation, since the amendment abolished many articles, which contained such a requirement.
- A further difference concerns the place of such decrees in the hierarchy of legal norms. The former law-amending ordinances, as their title correctly indicates, were of the same legal force as laws. Thus, they could amend or abolish existing provisions of laws. Presidential decrees, however, do not have such force as they cannot contain provisions contrary to the existing laws. On the other hand, under the amendments, the judicial review of presidential decrees will be exercised by the Constitutional Court, in the similar way as the abolished law-amending ordinances did. This gives the impression that the Constitution-maker sees them as quasi-legislative, rather than executive, acts. A further proof for the superiority of laws over presidential decrees can be found in another provision of the new Article 104, which stipulates that “in case the TGNA passes a law on the same subject, the presidential decree becomes null and void.” This provision gives the TGNA the theoretical possibility of making a presidential decree null and void. However, if the President of the Republic, now the leader of his party, has the support of a parliamentary majority, this is a very distant possibility indeed. Furthermore, the judicial authorities, which are supposed to decide whether conflicts between the provisions of laws and those of presidential decrees exist, lack necessary independence from the executive as will be spelled out below.
- This raises the question of whether there are any legal sanctions in case the President of the Republic exceeds the constitutional limitations on his decree powers. Theoretically, the Constitutional Court, which has the power to review the constitutionality of presidential decrees, can play a positive role in maintaining the supremacy of the Constitution. However, the Constitutional Court’s tendency towards excessive self-restraint especially after the unsuccessful coup attempt of 15 July 2016, does not give rise to optimism in this regard.
Given the cumulative effects of these amendments, the Turkish political system can be expected to operate in the foreseeable future as a “delegative democracy” as defined by Guillermo O’ Donnell or a “competitive authoritarian” regime as defined by Steven Levitsky and Lucan Way.  Delegative democracies (DDs), in O’Donnell’s words, “are not consolidated (i.e., institutionalized) democracies, but they may be enduring. In many cases, there is no sign either of any imminent threat of an authoritarian regression, or of advances toward representative democracy… Elections in DDs are a very emotional and high stakes event: candidates compete for a chance to rule virtually free of all constraints… After the election voters/delegates are expected to become a passive but cheering audience of what the president does… (H)orizontal accountability characteristic of representative democracy is extremely weak or nonexistent in delegative democracies. Furthermore, since the institutions that make horizontal accountability effective are seen by delegative presidents as unnecessary encumbrances to their ‘mission’, they make strenuous efforts to hamper the development of such institutions… The president is taken to be the embodiment of the nation and the main custodian and definer of its interests.”
Turkey clearly fits this description. As a result of the constitutionalization of certain de facto changes that have been going on for some time, Turkey has switched to a kind of authoritarianism even beyond delegative democracies. In a previous study, I had described the Turkish system as a “competitive authoritarian” one even before the 2017 amendments. These amendments will consolidate the drift toward authoritarianism with little likelihood of a democratic reversal in the near future.
The original version of the 1982 Constitution, while maintaining the basic elements of a parliamentary system, gave the President of the Republic broad powers exceeding those given to the head of the state in a classical parliamentary system, enabling him to interfere to some extent with the work of the government responsible to parliament.
The crisis in April 2007 over the election of a new President of the Republic by parliament led to a constitutional amendment that introduced the popular election of the President, shortening his term of office from seven to five years, but permitting him to be re-elected for a second term. The first application of the new system was on 10 August 2014, when Mr. Recep Tayyip Erdoğan, at that time the Prime Minister and the leader of the AKP, was elected in the first round by 51.79 percent of the vote, thus becoming the first popularly elected President of Turkey.
The similarities and differences between the old and the new versions of Article 101 on the qualifications of the President of the Republic are as follows:
- There are no differences with regard to qualifications. The President shall be elected by the people from among Turkish citizens of at least forty years of age and eligible to be elected as a member of parliament.
- In both texts, the term of office is five years with the possibility of being re-elected only for a second term.
- With regard to the nominations of presidential candidates, under the previous text, nominations could be made by at least 20 deputies or by political parties whose total vote in the last general parliamentary elections exceeded 10 percent of the total vote. In the new text, such power is given to political party groups in the TGNA, parties or a number of parties whose vote exceeds five percent of the total votes used in the last general parliamentary elections, and at least 100.000 voters. The main difference between the two is the last one, namely giving a group of voters the possibility to nominate a candidate. Another difference is the lowering of 10 percent requirement for political parties to 5 percent, thus giving smaller parties a greater chance in the nomination process. There is no difference between the wordings of “party groups” and “20 deputies”, since party groups consist of 20 deputies.
- Under the old version of Article 101, “if the elected President of the Republic has an affiliation with a political party, this will be terminated and his membership in TGNA will come to an end.” In the new text, incompatibility with parliamentary membership is preserved, but the phrase about the termination of the party membership is deleted. Parallel to this, the word “impartiality” in the title of the Article is also deleted.
- Article 102 that regulated the election of the President of the Republic is abolished and the relevant provisions are transferred to the last four paragraph of the new Article 101 as follows:
- “In the elections based on universal suffrage, the candidate who wins
the absolute majority of the valid votes gets elected. If such majority
is not obtained in the first round, a second round shall be held on the
following second Sunday. Two candidates who received the most votes in
the first round shall run in the second round and the one who wins the
majority of the valid votes gets elected. In case one of the candidates
entitled to run in the second round cannot participate in it for any
reason, the second round takes place replacing him with the next
highest vote-getter in the first round. If only one candidate runs in
the second round, the voting shall take place as in a referendum. The
candidate who wins the absolute majority of the valid votes gets
elected. If the candidate does not win the majority of valid votes,
only the presidential election will be repeated.”
Thus, the old and the new texts are mostly identical. The word “majority” in the last sentence should be constructed as “absolute majority” since the candidate will be running alone in this case.
- Finally, under the new Article 101, when the candidate running alone cannot obtain the majority (in my view, the absolute majority) of votes, only the presidential election will be repeated. This will be an exception to the general rule that presidential and parliamentary elections shall be held on the same day. Thus, in this case, parliamentary elections will not be repeated.
Before the amendment, the term of parliament was four years. Now it is five years, and it is stipulated that presidential and parliamentary elections shall be held every five years on the same day. If the necessary majority cannot be obtained in the first round of the presidential elections, the second round shall be held in accordance with the procedure in Article 101.
Article 104, which describe the powers and duties of the President of the Republic, is abolished and rewritten. The new Article 104, like the old one, describes in the first two paragraphs the overall position of the President in the state as follows:
“The President of the Republic is the head of the state. The executive power belongs to the President of the Republic. The President of the Republic, in his capacity of the head of the state, represents the Republic of Turkey and the unity of the Turkish Nation; he ensures the implementation of the Constitution and the orderly and harmonious functioning of the organs of the State.”
The only difference with the previous text is the phrase “executive power belongs to the President of the Republic.” This is the natural consequence of the transition to a presidential system with a monist executive. On the other hand, it may be questioned how can the President, whose non-partisanship requirement is abolished, represent the unity of the nation and ensure the harmonious functioning of the state bodies. The president as a member, even the leader, of a political party will necessarily be partial (not impartial) in his competition with the rival parties.
The new Article 104, unlike the old one, does not classify the powers of the President in reference to the relevant branch of the government (i.e., the legislative, executive, and judicial branches). Another difference is that the new Article does not mention any powers related to the judiciary. This does not mean, of course, that the President is deprived of his powers related to the judiciary. On the contrary, he is given extensive new powers in this regard (see below). Such powers are not regulated in Article 104 but are scattered throughout different articles.
The abolished Article 104 included powers related to the President’s relations with the Prime Minister, the Council of Ministers, and ministers, as required by the parliamentary system of government. They are not included in the new Article 104 as a natural consequence of the transition to a presidential system.
The old Article 104 had empowered the President to call the National Security Council to meeting and to preside over its meetings. The new version does not mention it. On the other hand, it empowers him “to determine national security policies and to take necessary measures” , thus making him the sole authority in this regard.
Furthermore, the new Article 104 grants the President the following powers that were not included in the abolished Article 104:
“To give the messages to the Assembly concerning the domestic and foreign policy of the country; to appoint and to dismiss presidential assistants and ministers; to appoint and to dismiss high-level public functionaries and to regulate by presidential decrees the principles and procedures concerning their appointment; to issue presidential decrees in matter related to the executive power; to issue regulations concerning the implementation of laws provided that they are not contrary to laws.”
While the basic aim of the 2017 amendments was the transition to a presidential system, the resulting system is quite different from a USA-type presidentialism. For one, in the USA, the Vice President is popularly elected on the same ticket as the presidential candidate, and therefore enjoys democratic legitimacy. As such the public knows who will replace the President in case of his death, resignation, or impeachment. On the contrary in Turkey, “the President of the Republic can appoint one or more than one presidential assistants after his election.” He can also dismiss them at will. Thus, the presidential assistants in Turkey enjoy no democratic legitimacy. Furthermore, in the USA in case the office of the President becomes vacant, the vice president takes over as the President and exercises all presidential powers until the next presidential election. In Turkey, this is only a temporary and transitional situation. Under the second paragraph of Article 106, “in case of a vacancy in the office of the President of the Republic, presidential election shall be held in 45 days. The presidential assistant shall act as his proxy and exercise his powers until a new President of the Republic is elected.”
Furthermore, while in the USA the terms of the office of the President and the Congress are fixed, in Turkey there can be exceptions to this rule. Under the new Article 77, the term of office of the President of the Republic and of parliament is five years and both elections are to be held on the same day. However, in case of vacancy in the presidency and there is one year or less time for the regular elections, there will be held new elections both for the presidency and parliament, thus shortening the term of parliament.
Moreover, the amendments give both the President of the Republic and the parliament the power to terminate each other’s legal existence, provided, that they also submit themselves to re-election. Under the first paragraph of the new Article 116, “The TGNA can decide by the three-fifths majority of its full membership to renew elections. In this case, general elections for the TGNA and the presidential election shall be held together. In case the President of the Republic decides to renew elections, general elections for the TGNA and the presidential election shall be held together.” Thus, according to the 2017 amendments, neither the President of the Republic, nor the parliament has a fixed term of office, which is one of the main characteristics of a presidential system.
Another departure from a pure presidential model can take place in the situation envisaged by the third paragraph of article 116, which states that “in case the Assembly decides to renew elections during the second term of the President of the Republic, he can be a candidate once more.” At first sight, this provision makes it difficult for parliament to renew elections, since it will give the President, evidently unpopular with parliament, the chance to run for a third term. However, the mechanism can also operate in the opposite direction. A president with a solid majority in parliament may persuade the parliament to take such a decision in order to obtain the chance for a third term for himself.
As I have pointed out in an earlier study , one of the principal characteristics of presidential system is the rule of “no re-election” or of “no immediate re-election.” The rationale for such rules is that a president who controls large financial resources is likely to gain an undue advantage over his rivals, thus making it difficult the orderly transfer of power. The current Turkish system gives the president the possibility of unduly extending his term of office.
Another departure from the USA system is that while in the USA presidential appointments for secretaries and ambassadors are subject to the approval of the Senate, in Turkey the President of the Republic exercises such power completely at his will. With regard to the appointment of the ambassadors, the wordings in the old and the new Article 104 are identical, i.e., “to send the representatives of the Turkish State to foreign states.” However, prior to the 2017 amendments, such appointments were made not by the President of the Republic acting alone, but with the counter-signatures of the Prime Minister and the minister for Foreign Affairs, as it should be in a parliamentary system. Now the President has the sole authority in this regard.
The new Article 104 also gives the President of the Republic a broad and vague power to appoint and dismiss high-level public functionaries and to issue administrative regulations. Finally, as in the case of its predecessor, the Article stipulates that “the President of the Republic also performs the elective and appointment duties and other duties and exercises the powers given to him by the Constitution and the laws.” This means that the President’s powers are not limited to those enumerated in Article 104.
6.4. The Liability of the President of the Republic
The 2017 amendments abolished Article 105 entitled “the cases of the liability and non-liability” of the President of the Republic. The abolished article had established the principle of counter-signature by the Prime Minister and the minister concerned for all acts of the President except those he is entitled to perform alone. The latter acts were not subject to judicial review. The abolished Article 105 limited the criminal liability of the President of the Republic to the cases of high treason: “The President of the Republic can be impeached for high treason by the proposal of at least one-third of the full membership of the TGNA and by the decision of at least three-fourth of its full membership.”
The new Article 105 states:
“a parliamentary investigation for the President of the Republic concerning the allegation of commitment of a crime can be requested by the absolute majority of the full membership of the TGNA …. The Assembly may decide to start an investigation by a secret vote of the three-fifths of its full membership…. The TGNA may decide to send him before the High Court by the secret vote of the two-thirds of its full membership. A President of the Republic about whom a parliamentary investigation has started cannot decide to hold elections. The President’s term of office shall be terminated if he is convicted by the High Court of a crime incompatible with eligibility to parliament. This article shall apply for the crimes allegedly committed during his term of office, also after the termination of his office.”
The differences between the abolished and the new Article 105 can be summarized as follows:
- Under the abolished Article 105, the criminal liability of the President of the Republic was limited to the cases of high treason. According to the new text, the process can operate for any kind of offence without any limitation as to its kind.
- Required majorities for the different stages of the process were changed, as mentioned above. An important provision in the new Article is that a President about whom a parliamentary investigation has begun cannot decide to hold new elections. In other words, he cannot punish the parliament for its act against him.
- In the abolished Article 105, it was not clear whether a President of the Republic who is sent before the High Court remains in office or not during the proceedings. The matter is clarified in the new text, which states that his office will terminate only if he is convicted by the High Court for an offence incompatible with parliamentary eligibility.
So far, no President of the Republic has been sent to the High Court on the allegation of high treason. One reason is that there has never been such a serious debate either in the Assembly or in public opinion. Another reason is that there is no equivalent of high treason crimes in the Criminal Code. Thus, the last paragraph of the abolished Article 105 was inapplicable in practice. Therefore, the new Article 105 that does not limit the President’s criminal liability to the case of high treason can be considered a step in the right direction with respect to the rule of law. On the other hand, the qualified majorities foreseen in the new Article make it almost impossible for the President of the Republic to be tried at the High Court especially if the party of which he is the leader has a majority in the Assembly.
In this section, the 2017 amendments concerning emergency rule and civil-military relations are analyzed with a focus on their serious consequences for individual liberties and for the political system as a whole.
7.1. Emergency Regimes
The 2017 amendments substantially changed the constitutional provisions on the emergency regimes regulated in Articles 119 – 122.
Under Article 119: “In the event of natural disaster, dangerous epidemic diseases or a serious economic crisis, the Council of Ministers, meeting under the chairmanship of the President of the Republic may declare a state of emergency in one or more regions or throughout the country for a period not exceeding six months.”
Under Article 120, “In the event of emergence of serious indications of widespread acts of violence aimed at the destruction of the free democratic order established by the Constitution or of fundamental rights and freedoms, or serious deterioration of public order because of acts of violence, the Council of Ministers, meeting under the chairmanship of the President of the Republic, after consultation with the National Security Council, may declare a state of emergency in one or more regions or throughout the country for a period not exceeding six months.”
The old Article 122 entitled “Martial Law, Mobilization, and the State of War” stipulated that: “The Council of Ministers, meeting under the chairmanship of the President of the Republic, after consultation with the National Security Council, may declare martial law in one or more regions or throughout the country for a period not exceeding six months, in the event of widespread acts of violence which are more dangerous than the cases necessitating a state of emergency and which are aimed at the destruction of the free democratic order or the fundamental rights and freedoms embodied in the Constitution; or in the event of war, the emergence of a situation necessitating war, an uprising, or the spread of violent and strong rebellious actions against the motherland and the Republic, or widespread acts of violence of internal or external origin threatening the indivisibility of the country and the nation. This decision is published immediately in the Official Gazette, and is submitted for approval to the Grand National Assembly of Turkey, on the same day. If the Grand National Assembly of Turkey is in recess, it is summoned immediately. The Grand National Assembly of Turkey may, when it deems necessary, reduce or extend the period of martial law or lift it. During the period of martial law, the Council of Ministers meeting under the chairmanship of the President of the Republic may issue decrees having the force of law on matters necessitated by the state of martial law. These decrees are published in the Official Gazette and are submitted for approval to the Grand National Assembly of Turkey on the same day. The time limit and procedure for their approval by the Assembly are indicated in the Rules of Procedure. Extension of the period of martial law for a maximum of four months each time, requires a decision of the Grand National Assembly of Turkey. In the event of state of war, the limit of four months does not apply. In the event of martial law, mobilization and state of war, the provisions to be applied and conduct of affairs, relations with the administration, the manner in which freedoms are to be restricted or suspended and the obligations to be imposed on citizens in a state of war or in the event of emergence of a situation necessitating war, are regulated by law. The Martial Law Commanders exercise their duties under the authority of the Chief of the General Staff.”
Thus, emergency rule and martial law could be declared only by the Council of Ministers presided by the President of the Republic, and such decision should immediately be submitted to the approval of the TGNA (Article 121, Paragraph 1; Article 122, paragraph 1).
The last paragraph of the Article 121, regulating emergency decrees, stated that “during the state of emergency, the Council of Ministers meeting under the chairmanship of the President of the Republic may issue decrees having the force of law on matters necessitated by the state of emergency. These decrees are published in the Official Gazette, and are submitted to the TGNA on the same day for approval.”  Under Article 122, similar decrees could be issued during the period of martial law by the Council of Ministers presided by the President of the Republic.
The law-amending emergency decrees were different from those (now abolished) issued during normal times in three respects: (a) They are issued by the Council of Ministers presided by the President of the Republic, instead of by the Council of Ministers. (b) They do not need an empowering act of parliament, unlike the others. (c) Most importantly, under the abolished Article 91, law-amending decrees issued in normal times could not regulate the fundamental rights, individual rights and duties, and political rights and duties “except during periods of martial law and states of emergency.” This does not mean, however, that the scope of emergency decrees was unlimited. Under Article 121 and 122, such decrees could be issued only on“matters necessitated by the emergency rule” or “by martial law.” Finally, while law-amending ordinances issued during normal periods were subject to the judicial review by the Constitutional Court, the emergency decrees were not.
With the 2017 amendments, Article 119, 120, 121, and 122 are abolished and replaced by a single article - Article 119 - with the title of “emergency rule.” The first two paragraphs of the article read as follows:
“In the event of war, the emergence of a situation necessitating war, mobilization, an uprising, a violent and strong rebellion against the motherland and the Republic, the spread of violent actions of either internal or external origin threatening the indivisibility of the territory and the nation, the emergence of widespread acts of violence aimed at the destruction of the constitutional order or of fundamental rights and freedoms, serious deterioration of public order because of acts of violence, in the event of natural disasters, dangerous epidemic diseases or a serious economic crisis, the President of the Republic may declare emergency rule in one region or throughout the country for a period not exceeding six months. Such declaration is published in the Official Gazette and submitted to the approval of the TGNA on the same day.”
The changes brought about by the amendments of 2017 can be summarized as follows:
- An important novelty is the abolition of the martial law. The reasons necessitating the declaration of the martial law are included in the new Article 119. This has important political consequences since martial law involves the transfer of police powers and a large part of judicial powers to military authorities. Also, martial law inevitably leads to the politicization of the military. Therefore, the abolition of martial law can be considered a positive step to ensure the superiority of civilian authorities vis-à-vis the military.
- As a natural consequence of the transition to a presidential system, emergency decrees may be issued by the President of the Republic acting alone, instead of the Council of Minister meeting under his chairmanship.
- In both cases, such decrees are submitted to the approval of the TGNA.
- The new Article 119 gives the President of the Republic an unlimited emergency decree power, not subject to the limitation stipulated by Article 104 concerning presidential decrees in general. Under Article 119: “in the period of emergency, the President of the Republic can issue presidential decrees in matters necessitated by the emergency, without being subject to the limitations stipulated by the second sentence of the paragraph 17 of Article 104. These decrees having the force of law shall be published in the Official Gazette and submitted to the approval of the Assembly on the same day. Unless the TGNA is not in session because of war or other compelling reasons, such decrees shall be debated and decided upon by the TGNA within three months. If not, the presidential emergency decree shall automatically become null and void.” This is an important novelty, since it was not clear under the old rules what would happen if the TGNA did not debate and decide upon it within the prescribed period.
On the other hand, there is nothing preventing the President of the Republic to issue a new emergency decree if the earlier one became null and void. Thus, he will be able to by-pass the parliament as long as he wants, by issuing a new emergency decree every three months. This has the potential of leading to ‘decretismo’. Giovanni Sartori, based on the Latin American experience, described descretisimo as “[a] current, extreme case of decretismo is Brazil. President Sarney issued, during his tenure under the 1988 constitution, 142 emergency decrees, equivalent to one every four days; and in 1990 the Collor government issued 150 decrees, which comes close to one every two working days. Decretismo thus becomes – perforce under the Brazilian circumstances – the normal instrument of government …. Fujimori pushed through his radical reforms by presidential decrees; and when the time came for his decrees to be overridden (as they would have been) he illegally dissolved parliament. In these as in other instances decretismo is, then a dysfunctional response of, or to, non-functioning systems.”
The amendments of 2017 brought about certain changes in the provisions concerning civil – military relations. One concerns Article 108 on the State Supervisory Council. The article stated that
“The State Supervisory Council which is attached to the Office of the Presidency of the Republic with the purpose of performing and furthering the regular and efficient functioning of the administration and its observance of law, is authorized to conduct upon the request of the President of the Republic all inquiries, investigations and inspections of all public institutions and organizations, all enterprises in which those public institutions and organizations share more than half of the capital, public professional organizations, employers’ associations and labour unions at all levels, and public welfare associations and foundations. The Armed Forces and all judicial organs are outside the jurisdiction of the State Supervisory Council. The Members and the Chairman to be designated from among the members of the State Supervisory Council are appointed by the President of the Republic from among those with the qualifications set forth in the law. The functioning of the State Supervisory Council, the term office of its members, and other matters relating to their status are regulated by law.”
With the amendments, the armed forces are included among the institutions to be supervised by the Council.
Article 118 on the National Security Council underwent two relatively unimportant changes. One concerns the protocol rankings of the Council members. While in the old text the Chief of the General Staff came right after the Prime Minister, now all military members are ranked after the presidential assistants and the member ministers. Another change is the exclusion of the General Commander of the Gendarmerie from the Council, as a result of the attachment of his office to the Ministry of Interior by the emergency decree of 27 July 2016, no. 668.
The most important change concerning civil – military relations was made in the field of the judiciary. A paragraph added to Article 142 stated that “military courts cannot be established save the disciplinary courts. However, in case of war military courts can be established to try cases committed by military persons in connection with their duties.”
A related change is the abolition of Article 145 entitled military justice that empowered military courts “to try cases of military offences committed by military persons, or their offences committed against military persons or in connection with their military service and duties.” Thus, the civilization of the judiciary has been ensured.
Finally, the amendments of 2017 abolished the two high military courts, i.e., the Military Court of Cassation, and the High Military Administrative Court. As a result, the composition of the Constitutional Court has also changed. With the elimination of one member each coming from these two courts, the total number of the Constitutional Court judges was reduced from 17 to 15. However, these two judges will continue to serve until the end of their terms.
With the amendment made in Article 9, stating that “the judicial power shall be exercised on behalf of the Turkish Nation by independent courts,” the word “impartial” was added to the word “independent.” This is simply a change in the wording with no important consequences, since these two concepts are inherent each other.
The impartiality and independence of the judiciary depends, among other things, on the security of tenure for the judges and the existence of autonomous councils competent to decide on their personnel matters. Under Article 139 of the Constitution, regulating the security of tenure of judges and public prosecutors, “judges and public prosecutors cannot be dismissed, they cannot be retired before the age prescribed by the Constitution unless they so desire, they cannot be deprived of their salaries, compensations and other personnel rights even on account of the abolition of a court or a post.” This guarantee, however, is not effective in itself, as evidenced by the dismissal of thousands of judges and public prosecutors especially after the failed coup attempt of 15 July 2016.
A much more effective guarantee for the independence of the judiciary is the existence of autonomous bodies competent to decide on the personnel matters of judges and public prosecutors, such as appointments, promotions, transfers, and disciplinary proceedings. The autonomy of these bodies, generally referred to as “judicial councils,” depends on the composition of their membership, the method by which members are chosen, and whether their decisions are subject to judicial review. The report of the Venice Commission and the Consultative Council of European Judges  are highly informative in this regard. Both reports pointed out to the danger of professional corporatism in a council composed solely of judges, and therefore recommended a mixed composition. While a majority of members should be judges elected by their peers at all levels of the judiciary, the rest should be elected by parliament with qualified majorities from other sectors such as law professors. Election by parliament would ensure the democratic legitimacy and the accountability of the council, while qualified majorities would prevent it from being dominated by the majority party.
Article 159 of the Constitution, as amended in 2010, gave the power to decide on the personnel matters of judges and public prosecutors to the “High Council of Judges and Public Prosecutors” (HSYK in Turkish abbreviation). It stipulated that “the High Council of Judges and Public Prosecutors shall be composed of 22 principal and 12 substitute members and works in three chambers. The Minister of Justice is the President of the Council. The under – secretary of the Ministry of Justice is the ex-office member of the Council. Four principal members of the Council shall be elected by the President of the Republic from among law professors and practicing lawyers, three principal and three substitute members by the plenary of the Court of Cassation from among its members, two principal and two substitute members by the plenary of the Council of State from among its members, one principal and one substitute member by the plenary of the Academy of Justice of Turkey among its members, seven principal and four substitute members by civil judiciary judges and public prosecutors from among themselves, three principal and two substitute members by administrative judges and public prosecutors from among themselves.”
While this provision basically conformed with the standards underlined by the international reports alluded to above, in practice it gave rise to an extremely majoritarian composition leading to demands for a reform. However, the amendments of 2017, instead of alleviating such problems, made the Council completely dependent on the President of the Republic and the parliamentary majority.
The new Article 159, dropping the word “high” from the title of the Council, reads as follows: “The Council of Judges and Public Prosecutors consists of 13 members and works in two chambers. The Minister of Justice is the President of the Council. The under-secretary of the Ministry of Justice is the ex-officio member of the Council. The President of the Republic appoints three members of the Council from among the judges and public prosecutors of civil judiciary, and one member from among administrative judges and public prosecutors; the Turkish Grand National Assembly elects three members from among the judges of the Court of Cassation, one member from among the judges of the Council of State, and three members from among law prosecutors and practicing lawyers.”
The most important novelty of the amendment is the role it gave to the parliament in the election of the Council members, i.e., seven out of thirteen. Parliament exercises this power first in the Joint Committee composed of Constitution and Justice Committees, and then in the plenary session: “Committee nominates three candidates for each membership by the two-thirds majority of its full membership. If the nomination is not completed in the first vote, the three-fifths majority of its full membership is required in the second vote. If the nomination is not completed in the second vote, nomination shall be made for each membership by drawing lots between the two highest vote-getters. The TGNA conducts the election for each membership by secret vote from among the candidates nominated by the Committee. Two-thirds majority of its full membership is required in the first vote and, in case this is not obtained, the three-fifths majority of its full membership in the second vote. If a member is not elected in the second vote, election shall be completed by drawing lots between the two candidates with highest votes.”
As will be explained below, not all of the amendments entered into force on the same day. Under Article 18 of the Amendment Law, Article 159 on the HSK entered into force on 16 April 2017 with the publication of the final result of the referendum in the Official Gazette. Thus, the TGNA elected seven members on 16 May, and the President of the Republic appointed four members on 19 May. Elections by the TGNA took place in a non- transparent way, and it was never made clear what criteria were taken into account in the election of the HSK members. According to press reports, five of the seven were close to the AKP, and two to the ultra-nationalist MHP, which closely collaborated with the AKP in the amendment process.  Since four members were appointed by the President of the Republic who became a member and the leader of the AKP following the referendum, the new HSK cannot be expected to act as an impartial and independent body. Thus, debates on the independence of the judiciary are likely to continue for a long time to come, leading to further polarization in Turkish politics. 
The total number of the Constitutional Court judges is reduced from 17 to 15 as a result of the abolition of the two high military courts as mentioned above. A change in Article 148 empowered the Constitutional Court to review the constitutionality of presidential decrees. However, emergency decrees cannot be reviewed by the Constitutional Court as was also the case before the amendment.
The Constitutional Court, in addition to its function of the review of constitutionality, also acts as the High Court to try high functionaries of the state for offences connected with their official duties. Such functionaries are enumerated in paragraphs 6 and 7. With the amendment, the words “members of the Council of Ministers” were deleted, and presidential assistants and ministers were added. The General Commanders of the Gendarmerie was also omitted from the article. As a result of reducing the number of the Court members, the opening quorum of the plenary session of the Court is reduced from twelve to ten.
Article 150 empowered the President of the Republic, the parliamentary groups of the majority and the main opposition parties and at least one – fifth of the total number of deputies to bring about a suit for annulment before the Constitutional Court. With the amendment, the words “majority and the main opposition parties” were replaced by the phrase “the two parties having the highest number of seats in the Assembly.” Clearly, this is only a change in the wording. The new text, as in the case of the previous one, does not give the smaller parties in the Assembly to seize the Court. As a result of the abolition of law – amending decrees, references to them in Articles 150-153 were deleted.
The most positive change with regard to the judiciary is the change in Article 125 which had stipulated that the acts of the President of the Republic that did not require counter-signature were not subject to judicial review. This phrase is deleted with the amendment.
This analysis shows that the 2017 amendments, even though partial, have radically changed the constitutional order of Turkey. The principal aim of the 2017 amendments was the transition to a presidential system. However, this system is different from the American model in several ways. While the American presidentialism is based on the strict separation of powers between the legislative and the executive branches, the new Turkish system is not. On the contrary, the 2017 amendments made the popularly elected president the most powerful actor in the field of legislative, executive and judicial branches as wide powers were allocated to the executive branch. This means a system based on the unity of powers, instead of the strict separation of powers. Thus, it is no exaggeration to name it a “Turkish-style presidentialism.”
The USA model, on the other hand, is based on a system of checks and balances, thus limiting the executive power by the powers of the legislature and the judiciary. In the new Turkish system, the legislature and the judiciary are deprived of such powers. Indeed, certain powers that previously belonged to the legislature are given to the president, and the judiciary is put under the president’s control, thus enabling him to determine the fate of the country all by himself. As stated in the Venice Commission’s report:
“The proposed constitutional amendments... are not based on the logic of separation of powers, which is characteristic for democratic presidential systems. Presidential and parliamentary elections would be systematically held together to avoid possible conflicts between the executive and the legislative powers. Their formal separation therefore risks being meaningless in practice and the role of the weaker power, parliament, risks becoming marginal. The political accountability of the President would be limited to elections, which would take place only every five years... (T)he Venice Commission finds that the proposed constitutional amendments would introduce in Turkey a presidential regime which lacks the necessary checks and balances required to safeguard against becoming an authoritarian one... (T)he substance of the proposed constitutional amendments represents a dangerous step backwards in the constitutional democratic tradition of Turkey. The Venice Commission wishes to stress the dangers of degeneration of the proposed system towards an authoritarian and personal regime.” 
Another point of interest is that not all provisions of the amendment law enter into effect on the same day. Under Article 18 of the amendment law, only three amendments entered into effect together with the announcement of the referendum results. These are the amendments enabling the President of the Republic to become a member, even the leader, of a political party; abolishing the Military Court of Cassation and the Supreme Military Administrative Court; and changing the structure of the HSK. Thus, Mr. Erdoğan became a member of the AKP on 2 May, and got elected as its leader at its extraordinary congress on 21 May 2017. Thus, he is now not only the head of state, but also the leader of the majority party, which gives him the power to determine party policies and to influence the legislative process via deputies belonging to his party. Also, the new members of the HSK were chosen, respectively, by the TGNA and the President of the Republic. The rest of the amendments will enter into force at the first simultaneous elections of the TGNA and the President of the Republic.
 Article 116 of the Constitution of 1982 gives the President of the Republic the power to call for parliamentary elections under certain conditions. Such power was used for the first time by Erdoğan. Thus, the AKP which had lost its parliamentary majority in the election 7 June 2015, rejoined it in the election 1 November 2015.
 See for the details on powers concerning law amending ordinances given by the original text of article 91: Ergun Özbudun, The Constitutional System of Turkey: 1876 to the President , Palgrave Macmillan, New York, 2011, p. 70-72.
 Guillermo O’Donnell, “Delegative Democracy”, Journal of Democracy, Vol. 5, No.1 (January 1994):55-69; Steven Levitsky and Lucan Way, Competitive Authoritarianism: Hybrid Regimes after the Cold War , Cambridge: Cambridge University Press, 2010.
 Serap Yazıcı, ‘Turkey in the Last Two Decades: From Democratization to Authoritarianism’, European Public Law 21, no. 4, 2015, p. 635–656.
 Serap Yazıcı, Başkanlık ve Yarı Başkanlık Sistemleri: Türkiye İçin Bir Değerlendirme , İstanbul Bilgi Üniversitesi Yayınları, İstanbul, 2002.
 Following the failed coup attempt of 15 July 2016, the Council of Ministers presided by the President of the Republic declared emergency rule on 20 July 2016, and this was approved by the TGNA on 21 July 2016. Since then the emergency rule has been extended several times following the same procedure, and a great number of emergency decrees have been issued, thus practically by-passing the parliament.
 Giovanni Sartori, Comparative Constitutional Engineering: An Inquiry into Structures, Incentives and Outcomes, New York University Press, New York, 1994, p. 164.
 “Judicial Appointments”, European Commission For Democracy Through Law (Venice Commission), Opinion No. 403 / 2006 CDL-AD (2007)028 Or. Engl., Venice, 22 June 2007.
 Consultative Council of European Judges (CCJE), Opinion no.10 (2007), Strasbourg, 21-23 November 2007.
 Taha Akyol, “Adaletin Böylesi…” 19.05.2017, Hürriyet Gazetesi. http://www.hurriyet.com.tr/yazarlar/taha-akyol/adaletin-boylesi-40462641
 On the deterioration of the rule of law in Turkey, Ergun Özbudun, “Turkey’s Judiciary and the Drift Toward Competitive Authoritarianism,” The International Spectator: Italian Journal of International Affairs , Vol. 50, No.2 (2015), pp. 42-55.
 Venice Commission, “Turkey: Opinion on the Amendments to the Constitution”, 10-11 March 2017, Opinion No. 875/2017, CDL_AD (2017) 005, paras. 126, 130, 133.