Is the Turkish Constitutional Referendum a Reflection of Democracy?

Saeed Bagheri 26th April 2017

The constitutional referendum was held on 16 April in Turkey. In this referendum, the majority of Turkish people said “yes” to the constitutional amendments through which the Turkish governmental system should be changed to a presidential system. Traditionally, it has been accepted that the legitimacy of a referendum is based on direct participation of people in the referendum. Regardless of the great participation in the referendum, this post will argue that, in light of human rights considerations, the outcome is not truly democratic.

Democracy is not just about having the opportunity to participate in elections held at regular intervals. It is also about voters, politicians, and civil society holding the authorities to account. This means that in order to protect human rights and the rule of law, a constitutional system must contain checks and balances on the conduct of the authorities. In the case of Turkey, the democratic legitimacy of the referendum outcome can be assessed from two perspectives.

Firstly, the prevailing situation before holding the referendum restricted open political debates on the constitutional amendments by opposing parties in parliament, according to the report of the Organization for Security and Co-operation in Europe (OSCE). Notwithstanding this, President Recep Tayyip Erdoğan said, in response to the OSCE, “Know your limits. We don’t hear, don’t see, and don’t recognize those political reports.” The referendum was held under conditions in which hundreds of the critics and opposing political party leaders who would have probably campaigned against constitutional amendments were already in prison or suspended from their positions. Furthermore, the government dominates the mainstream media in Turkey, so the opposition and critics were denied equal representation in the media. After the coup attempt in July 2016, the independence of the media has been severely restricted, and more than 120 journalists and press officers were taken into custody, jailed or fired without due process of law. The Turkish judiciary was actively involved in this. In short, limitations on fundamental freedoms created an unlevel playing field in the referendum.

Secondly, we should bear in mind that if the referendum result is implemented, parliament will lose control over the president and the executive, after the elections which will be held in November 2019, at the end of the current parliament’s term. Since the executive power is intensely concentrated in the presidency under the new Article 104 of the Constitution, the parliament would lose its power to scrutinise the executive by means of questions, parliamentary inquiries, general debate, censure and parliamentary investigations. According to the new Article 98 of the Constitution, a parliamentary investigation is only applicable to the vice-presidents and the ministers, but there will be no control mechanisms on the president. The number of seats in the parliament will be raised from 550 to 600. In order to overcome a presidential veto, the parliament will need to adopt the same bill with an absolute majority (301). Under the new Article 123 of the Constitution, public corporate bodies can be established only by law or Presidential Decree, which means that the president will have the power to create new federal states. More importantly, the president can decide to dissolve parliament and hold new elections. This means that the president will be able to dissolve the parliament at a time most convenient to their re-election. The Turkish voters will not have the opportunity to hold the president to account.

While this referendum gave the impression of a democratic exercise, it was neither compatible with democratic criteria nor did it result in a contribution to democracy.It was a plebiscite, an unfair and unfree vote in an undemocratic political system, not a referendum with a free, fair and competitive vote.

Author profile

Dr. Saeed Bagheri is Assistant Professor of Public International Law at the Faculty of Law of Akdeniz University in Turkey. He has an LL.M in Human Rights Law from Allameh Tabatabei University/Tehran and Ph.D. in Public International Law from Ankara University. His main research interests focus on international humanitarian law, armed conflicts, nuclear law, international peace and security, and human rights law. (sbocanli@gmail.com).

Citations

Saeed Bagheri, “Is the Turkish Constitutional Referendum a Reflection of Democracy?’” (OxHRH Blog,  26 April 2017) <http://ohrh.law.ox.ac.uk/is-the-turkish-constitutional-referendum-a-reflection-of-democracy-implementation-in-the-country/> [Date of Access]

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