Presidential debate unavoidable while drafting new constitution
Delivering his victory speech on the night of the election on Nov. 1, Prime Minister Ahmet Davutoğlu counted writing a new constitution among the political priorities of the period ahead.
Truly, a new constitution has been the Justice and Development Party’s (AKP) electoral promise for the last three elections. It is not alone in this promise, as from the Republican People’s Party (CHP) to the Nationalist Movement Party (MHP) and the Peoples’ Democratic Party (HDP) all parties want a new constitution. Because of this demand a commission on constitutional consensus was established during the term of the previous parliament and while society was taken by the enthusiasm of a new election, in the absence of a broad consensus in the commission, efforts were short-lived.
Could the parties get together at the present for a new constitution? It is doubtful. At any rate, I do not think the AKP favors the revival of the method based on a commission of equal members that takes decisions by consensus which was implemented after 2011 but failed.
If the political parties are in a consensus of principle on a new constitution, the first thing that needs to be decided is the issue over whether a new constitution will be drafted from A to Z or if a broad amendment will be made to the current one.
I am one of those who do not believe a totally new constitution will be drafted, but let’s assume such a consensus was to emerge and political parties sat around a table to draft such a constitution from scrap…
Then, just as we will be talking again about everything from fundamental rights and freedoms to independence of the judiciary, we will also be talking about the mechanism of separation of powers.
The essential problem of the constitution with the executive organ stems from the fact that it has divided the jurisdiction of the executive among several institutions. Instead of creating a true inspection of the judiciary and the legislative over the executive, the writers of the constitution at that time preferred to divide the power of the executive.
That is why we have discussions on tutelage in our country. One of the owners of tutelage over the prime minister and the government, which are the elected organs of the executive of this country, is the presidency.
If we are to abide by the centuries-old principle that “power is indivisible,” the jurisdiction of the executive should not be shared with any kind of tutelage provided the presence of the control of the legislative and the judiciary.
This is the most important part of the debate on the presidential system in our country. Either a prime minister who comes from an elected parliament uses executive power without sharing it with anybody or a president who has been elected by a separate election uses this power; you cannot have them both at the same time.
Therefore the moment we start talking about the new constitution, either you name it presidential system or the correction of the parliamentary system, we cannot escape talking about this issue.
One of the most important agenda items in drafting a new constitution is the instruction of the presidency and its place in the system.
This is so for the AKP, which has been favoring a presidential system for the past four years, as well as the opposition, which has been criticizing President Recep Tayyip Erdoğan.
Under normal circumstances while the AKP favors the presidential system, the opposition should favor a decrease in the role of the president (even when elected by the people) in the system.
The problem is whether a disagreement on this issue will affect the drafting of the constitution. The issue of the president’s place should not deprive Turkey from a consensus on a constitution.