Part II (of II) Link to part I www.lelundin.org/guest-contributions/turkeys-referendum-yes-or-no-to-democracy-by-amb-ret-michael-sahlinhere
The constitutional amendments: the substance and the implications, the Venice Commission
An account of the proposed constitutional amendments to introduce a ”Turkish style” presidential system, replacing the ”obsolete” parliamentary system (as in the official justification for the change), has at the time of writing become facilitated by the recent publication of a report on the subject by the Council of Europe expert body, The Venice Commission of the Council of Europe, an internationally trusted expert opinion cast in contrast to much of the current campaign polemics. The Commission had earlier reported on the Turkish state of emergency, its constitutionality and proportionality, now at issue was the constitutional amendments as such and their deemed effect in terms of democratic freedoms, accountability and the rule of law.
Controversially in the heated Turkish referendum campaign and in explicit contradiction of most official ”Yes”-campaign arguments, the verdict of the Venice Commission – providing authoritative guidelines for ensuing Council of Europe and EU positions – is that the proposed constitutional change to introduce an executive presidential system will indeed mean bringing about clear-cut authoritarianism and one-man rule. So in the dry Venice Commission prose, the nakedness of the emperor is rather mercilessly exposed, in such a way as to be hard to ignore and hard to contradict.
Underlining initially the right of every state to choose its own political system, ”be it presidential or parliamentary, or a mixed system” (or, one could add, unitary or federal or confederal), the Commission proceeds to state that this right is not unconditional (under international law): ”The principles of the separation of powers and the rule of law must be respected, and this requires that sufficient checks and balances be inbuilt in the designed political system”. And then the Commission adds, interestingly, that particular caution is called for when a presidential system is chosen, for ”presidentialism carries an intrinsic danger of degenerating into an authoritarian rule”, in short because of the problems of strictly upholding the separation of power between the two popularly elected and hence competing branches, the executive and the legislature – unless these are regulated by rules upheld by an independent judiciary.
Stressing that the proposed amendments represent a decisive break in the constitutional history of the Turkish republic, based on parliamentarism (a ”regime change” of sorts), the Commission rules that the proposed constitutional change is ”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.”
On the basis of these points of departure the Commission then concludes that under the proposed amendments the supremacy of the President is for all practical purposes unlimited and unchecked, specifying in 9 points how and why this is so (powers of minister and high officials appointments, accountability only through a very weak mechanism for impeachment, the entitlement to be/remain party leader and hence controller of a weakened parliament, synchronization of elections, length of mandate duration, entitlement to rule by decree and to dissolve parliament, the post(s) of vice-president as presidential appointee(s) but still carrying full presidential powers in the absence of the elected president, etc.)
The Commission then criticizes the way the amendments weaken rather than (as would be essential in a democratic presidential system) strengthen the judiciary, notably through the powers given to the President to appoint key members of the all-influential Council of Judges and Prosecutors – and to control the parliament´s powers of nomination/appointment, thereby indirectly also controlling the other key judicial institution, The Constitutional Court, the Commission concluding on this point that ”The amendments would weaken an already inadequate system of judicial oversight of the executive”.
Furthermore strongly criticizing the unclean conditions prevailing during the parliamentary proceedings before the referendum vote in January and for the campaign and the referendum to be held under the ”very substantive limitations of freedom of expression and freedom of assembly” due to the ongoing state of emergency...”in particular the extremely unfavourable environment for journalism and the increasingly impoverished and one-sided public debate that prevail in Turkey” (questioning the ”very possibility of holding a meaningful, inclusive democratic referendum campaign…), the Venice Commission delivers its concluding verdict:
”In conclusion, the Venice Commission is of the view that the 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. In addition, the timing is most unfortunate and is itself a cause of concern: the current state of emergency does not provide for the due democratic setting for a constitutional referendum”.
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This harsh verdict on the part of the lead European expert panel on matters of constitutionality, democracy and rule of law obviously stands in sharp contrast to what the architects of the current ”Yes”-campaign in Turkey have to say as justification and legitimization - e.g. that in the current times of crisis and multi-front war on terror there is a national need for unity of purpose and strong onehandedness, that there is in any case no turning back to conditions conducive to parliamentarism and unstable and short-lived coalition governments, that the change in fact means a higher lever of democracy since everything is controlled by a popularly elected leader representing the ”people” and the ”nation”, that lingering discrepancies between de facto and de jure undermines badly needed national harmony, and that continued dualheadedness erodes government efficiency, to cite a few salient arguments.
It can then nonetheless, factually, be concluded that ”Turkish style” presidentialism, as long promoted by incumbent Erdogan and as now nearing a point of no return, means the person of the president presiding at the top of a pyramid with essentially no mechanisms in the system to check, control, restrain or diminish his (or her, theoretically) power, and with vast resources and instruments at the disposal of the incumbent – a product of the sequence of events constituting the political context (as above) and with the expansion of the executive at the expense of other societal branches - to direct and mastermind the course – and transformation - of the country. The word ”essentially” refers to the way facts on these basic points are contested in ther current campaign, i.e., whether or not there are in the amendments some elements of liberalism and democratic accountability that could, assuming a later strengthening of the political opposition, prove critical in a final assessment.
However, a ”Yes”- outcome of the referendum essentially (but not solely) means translating de facto to de jure, which means taking the step from provisional and temporary to permanent, and from illegal to legal/constitutional. This ”regime change” means, for all practical purposes, depriving the country and polity of any (”legal”) means of regime change, or change of government, other than the election opportunity every five years. But it is obvious that with the president allowed to head the dominant party and thus steer nominations, with simultaneous elections at the various levels, with parliament weakened as an institution and the opposition further marginalized and with the media largely government controlled and with vast state propaganda resources in the hands of president and government, winning elections is hardly an insurmountable task.
In such a context, the very notion of politics, and certainly opposition politics, takes on a different meaning, especially since the ”Yes”-alternative states that the president (after the presidential elections foreseen for 2019) is entitled to run for at least two 5-year mandate periods. So, quoting Louis XIV, president Erdogan can, truthfully, claim that l´etat, cést moi, with people and politics powerlessly at the mercy of the untouchable (immune), uncontested, yet all-powerful Leader.
Obviously, the term ”at the mercy” applies especially to the extent ”street revolution” and military coup d´etat can be analytically excluded, as a result of the process creating today´s political context, as above – and to the extent observations concerning diminishing Western leverage on political developments in today´s Turkey are accepted as valid.
By 2029, president Erdogan, now 62 and assuming he remains with good health, will have ruled (and transformed) Turkey a remarkable 26 years. Whether a future successor as president will inherit these same powers as now tailored for Erdogan – and how this system is supposed to function in the (theoretical) case of another party than that led by the president winning future elections – are only a few out of many uncertainty issues hanging over the April 16 vote.
Issues and uncertainties before – and after – the referendum
The remaining weeks of referendum campaign before April 16 can perhaps be described as a duel between, on the one hand, a massive and apparently increasingly nervous, state sponsored ”Yes”-campaign that hopes to mobilize supporters and overwhelm the still doubtful, and, on the other hand, a scattered collection of critics and sceptics, presumably also including those within the ruling party and within the state apparatus – and within the already divided MHP - that now realize with some alarm, or ponder upon, the way a ”Yes”-outcome could affect and harm them personally. The outcome of this ”duel” obviously cannot be predicted, but opinion polls seem to indicate a close call and many still undecided.
So one issue of uncertainty pertains to the campaign itself, what consequences it may have and what harm – in terms of irreparable polarization and international estrangement – it may still do. The more, and the longer up to referendum day, the outcome uncertainty, the greater the risk of destructive harm.
If the outcome turns out to be (an ”unthinkable”) ”No”, or a very narrow and hence contested and controversial ”Yes”, the big question is what the Plan B of the regime will be, assuming there is one. And here the related issue might be whether team Erdogan would consider cancellation of the vote if - a big IF - it sees real risk of referendum loss and draws the conclusion that further step-up of campaign massiveness risks falling into the trap of counter-productivity: the same Plan B question. The word ”unthinkable” here would refer both to president Erdogan´s proven skills at demagoguery, persuasion and crisis management and to the tremendous loss of prestige that a referendum loss would have the regime face. At the time of writing, with prognoses still indicating a neck-on-neck, a certain ambivalence on the part of the ”Yes”-regime can be observed; how to combine the need for continued ”No” demonization as the tool of mass mobilization with a perceived need to (also) reach out to urbanites, with emphases on remaining liberal elements in the proposed changes.
But regardless, the biggest issue of uncertainty concerns what real alternatives Turkey now has, in terms of viable political system. A ”No”-victory essentially means saying no to the proposed legalization of the current situation de facto, with vast presidential powers, with HDP politicians and some 159 journalists in jail, with an ongoing state of emergency, expanded purge, war on terror and an anti-insurgency war with the PKK, to mention a few defining characteristics, i..e., an extraordinary, highly polarizing, unstable and ”illegal” (i.e., constitutionally murky) situation that is economically and politically untenable. Then what?
And in addition serious questions can be asked as to whether the objective preconditions for liberal, representative parliamentary democracy have not already been eroded to such an extent as a result of actions and events in recent years that stable, functioning parliamentarism has become almost unthinkable in the near-term - even (theoretically) if there were no team Erdogan insisting to survive politically and to dominate completely. Democratic-parliamentary ”normalization” would seem to require several (”unthinkable”) steps of ”roll-back” or reconstruction. Short of that, and short of the ”legalization” now proposed after a ”No” outcome, the resulting situation, before new attempts at further power consolidation and legalization can be made, would seem strangely shaky.
Also, it cannot in this analytical context be ignored that in recent years there has taken place a process, at least in part Erdogan/AKP-sponsored, of (competitive) Islamist transformation of the Turkish society which has served to undermine adherence to the principle of (Western-style) secularism and to impact parties and parliament, and other structures. So issues of real, achievable alternatives, what ”normal” that can be returned to or arrived at, are not easy. They tend to indicate years of bumpy road.
But assuming a ”Yes”-victory on D-Day, how is team Erdogan planning to administer the interim period between then and the ”legalizing” elections in 2019 when the Turkish people will have the final (or a second) chance to accept or not accept the regime change such as now at issue? Will he/they simply start implementing (de facto) the changes immediately, using the interim period for the necessary technical and administrative adjustments and interpreting the vote result as a popular mandate for an immediate transfer, for instance moving out the prime minister and starting to replace member of the HSYK and the Constitutional Court? And will he/they simply continue with the state of emergency until the ”permanent” state of emergency is established? And what about the role, powers and responsibilities of the parliament during the interim period? Will a ”Yes”-victorious (team) Erdogan feel safe enough, and internationally tarnished enough, to start projecting signals of restored ”normalcy”, e.g., by halting the purge and/or freeing jailed journalists and/or jailed parliamentarians. Or even by launching some new initiative for a ”resolution process” on the Kurdish issue?
Policy implications – and policy dilemmas
With Turkey´s strategic importance remaining at least as great as ever before for both the US (over Syria, Iraq and Russia, among other things) and the EU (over migration, terror, economy, among other things) but with the strains that have built up in both directions as a result of the turmoil in Turkey in recent years, both the US and the EU are faced with an intricate dilemma concerning how to relate to Turkey and its leadership in its time of drama and crisis. Concerning the US, now Trump-led, the balancing act and dilemmas pertain chiefly to the names of Incirlik, Pennsylvania and Raqqa: The need for the use of the Incirlik base in the air campaign against ISIL versus Ankara demands for the US to extradite Fethullah Gulen (accused by Turkey to have masterminded the coup attempt in July last year) versus the US`perceived need for Kurdish (YPG/PYD) boots on the ground in an offensive against ISIL in Raqqa versus Ankara´s demand for the US (and Russia) to halt any military cooperation with the Syrian-Kurdish YPG/PYD because of its relationship and cooperation with the PKK in Turkey. Another ingredient concerns issues of competition or cooperation with Moscow, the Washington-Ankara-Moscow triangle.
For NATO, there is in addition the broader issues both pertaining to the Black Sea dynamics (where Turkey under the antiquated Montreux Declaration of 1936 guards the passage through the Bosporus and Dardanelles Straits) and NATO´s South-Eastern flank and concerning the fundamentals of what commitments and values constitute criteria of membership, in times when NATO enlargement and NATO membership (and NATO responsibilities) stand out as particularly contested and sensitive. The balance of strategic interdependence between Turkey and the Alliance has clearly been affected, if not shaken, in recent years, culminating with the recent un-heard-of quarrel between Ankara and select fellow NATO member states.
For the EU the main thing now concerns how to balance the need to preserve the migration deal of last year with the pressing question of how to relate to Turkey, nominally a candidate country for full membership and a country of great strategic importance, as Turkey is manifestly sliding into becoming a full-fledged authoritarian and rhetorically anti-European and anti-Western country, a grave concern also for the millions of Turks living in European countries. The war of words between Erdogan and his ministers and European leaders in recent days and weeks has been unprecedented, not least between NATO-allies, at the time of writing making (or provoking) the president to defiantly speak of re-introducing the death penalty and to reconsider his/Turkey´s whole relationship with the EU, even repeating earlier hints to bring the EU membership question to yet another referendum.
Current problems in the EU-Turkey relations date back to the time, late in the 10s, when momentum in the earlier membership talks started to slip and to grind to a more frosty halt, with Turkey expressing doubts at the EU´s sincerity and voicing complaints over the EU´s unwillingness or inability to help find a just solution to the Cyprus question, and with the EU and individual EU governments perceiving of a diminishing Turkish regime inclination to credibly pursue the reform path, seeing an increasingly illiberal Turkish regime losing interest in liberal reforms, while gradually consolidating power.
And since then, from the point of view of EU founding core values, developments in Turkey had seemed to accelerate in the wrong direction, as if the ongoing power struggle and the process of Erdogan/AKP power consolidation occurred systematically at the cost of gradual estrangement. The Gezi Park events of 2013, the corruption events and stormy elections in 2014, the two turbulent elections in combination with the ISIL and PKK wars in 2015, and then the chain of events of 2016 – the fratricidal enmity between the two rival Sunni movements, the mysterious coup d´etat attempt, the terror attacks, the unprecedented purge under state of emergency, and throughout this process the rise of Erdogan to absolute power de facto - all this making EU-Turkey relations increasingly problematic.
And now the grande finale, the referendum, with a campaign taking place under continued state of emergency (as pointed out by the Venice Commission and as will unavoidably by pointed out by the ODIHR monitors) , a referendum which with a ”Yes”-outcome will make permanent (or almost) a state of affairs in Turkey which will be completely EU-incompatible, a Turkey run and controlled long-term by a person who has committed to teaching the EU a lesson rather than to express readiness to listen with respect to EU advice, regardless of all still valid points of economic and political interdependence.
So the EU, and EU governments, are indeed facing a serious dilemma. Any attempt to speak up in explicit criticism concerning the door that is about to be closed risks not only to be defiantly ignored but also abused in the heat of the campaign, stamped by the regime (”Yes”) side as unacceptable interference on behalf of the ”naysaying” opposition and helping enhance the climate of siege – and thus increasing the probability of a ”Yes”-outcome – a classical case of counter-productivity risk. And preservation of the migration deal does remain a core EU interest, regardless. This would, in sum, advice a guarded, non-confrontational wait-and-see EU position, regardless of EU core values which would normally have the EU proclaim that a key constitutional referendum cannot legitimately be held under conditions of state of emergency and extremely uneven terms of contest.
But the other horn of the dilemma is precisely the issue of core values and credibility, combined perhaps with a realization of there nowadays being very limited EU influence or leverage over events in Turkey and also. currently, very limited risks that Ankara would at the end of the day be ready, able and interested to make good (or bad) on its threats to cancel the migration deal. Not speaking up while there is, theoretically, still time on what is at stake would in retrospect present the EU as the party that acquiesced, that sacrificed being on the ”right” side of history on the altar of fearful pragmatism.
And liberals and secularists and others in Turkey, the ”naysayers”, are struggling with their own ambivalence and dilemmas, learning the hard way that essential support from the democratic/Western world presumably seriously threaten to reinforce the ”Yes”-campaign, a kiss of death of sorts. It would be sad and ominous for the future of the country if (again a big ”if”) democratic opposition would, for want of hope and for a perceived lack of options, react to the climate of polarization and to a ”Yes” outcome by seeking to leave for abroad, in apathy and en masse.
So April 16 will indeed be a critical day, but the future is uncertain, regardless.