A ‘flawless’ constitutional engineering project in Turkey: regime transformation through constitutional amendments of 2007, 2010, and 2017

ABSTRACT

A functional legislature is very vital for democratisation. During the time of democratic consolidation, parliament changes from its primary roles of oversight, representation and legislation into ‘important public arenas of partisan dispute, of encounters with social topics, of negotiations and of important decision-making’. Populist leaders in parliamentary systems like Turkey recently either led to sui generis presidential systems or transformed them into illiberal democracies by expanding the executive branch's power to amend the constitution, which contradicts the favourable conditions of the third wave of democratisation at the turn of the twenty-first century. By streamlining legislative processes, the Turkish Constitution of 1982 envisaged an empowered executive that would subordinate the parliament. The three constitutional modifications passed after 2007 resulted in de-democratisation, de-parliamentarisation and eventually, a regime change from democratic consolidation to autocracy. The parliamentary debates on these constitutional amendments, which included popular presidential election, judicial reform and the so-called 'Turkish style' presidential governance system, failed to reach a consensus and were marked by an adversarial rather than deliberative approach. Have constitutional reforms made in the name of re-democratisation resulted in de-democratisation, with the legislature entirely crippled, the judiciary reliant and the executive exercising sole authority? This study aims to analyse the impact of three consequential constitutional amendments on democratic backsliding in Turkey, with special reference to the decline of parliament. Parliamentary minutes on the relevant constitutional amendments, procedural changes disabling the parliament from performing its legislative and oversight functions and the actual outcomes of these amendments in terms of executive-legislative relations will be discussed. In conclusion, potentials for strengthening parliament, checks and balances, and re-democratisation will be presented.

KEYWORDS:

• Constitutional amendment
• de-parliamentarisation
• 1982 Turkish Constitution
• regime transformation

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 Michael L. Mezey, ‘Introduction: Vulnarable Legislatures in the Era of Strong Executives’ in Irina Khmelko, Rick Stapenhurst, and Michael L. Mezey (eds.), Legislative Decline in the 21st Century A Comparative Perspective (Routledge 2020) 1–16.

2 Ipsos populism survey: populism, anti-elitism and nativism 28-country IpsosGlobal Advisor survey, February 2024 <https://www.ipsos.com/sites/default/files/ct/news/documents/2024-02/Ipsos-Populism-Survey-2024.pdf> accessed 7 March 2024.

3 David Landau, ‘Abusive Constitutionalism’ (2013) 47 University of California Davis Law Review 189–260.

4 Steven Levitsky and L.A. Way, ‘The Rise of Competitive Authoritarianism’ (2002) 13 Journal of Democracy 51–65.

5 Berk Esen and Şebnem Gümüşcü, ‘The Perils of ‘Turkish Presidentialism’ (2018) 52 Review of Middle East Studies 43–53; From a cultural, financial and governance perspective of regime change see, Erol Babacan, Melahat Kutun, Ezgi Pınar, and Yılmaz Zafer (eds.), Regime Change in Turkey Neoliberal Authoritarianism, Islamism and Hegemony (Routledge 2022).

6 Seraphine F. Maerz, Anna Lührmann, Sebastian Hellmeier, Sandra Grahn & Staffan I. Lindberg, ‘State of the World 2019: Autocratization Surges – Resistance Grows’ (2020) 27 Democratization 909–27; International IDEA, THE GLOBAL STATE OF DEMOCRACY 2021 Building Resilience in a Pandemic Era (International IDEA) <https://www.idea.int/gsod-2021/sites/default/files/2021-11/global-state-of-democracy-2021.pdf> accessed 16 July 2023; V-DEM Institute, DEMOCRACY REPORT 2023 Defiance in the Face of Autocratization <https://www.v-dem.net/documents/30/V-dem_democracyreport2023_highres.pdf> accessed 16 July 2023; V-DEM Institute, DEMOCRACY REPORT 2022 Autocratization Changing Nature? <https://www.v-dem.net/documents/19/dr_2022_ipyOpLP.pdf> accessed 16 July 2023 and V-DEM Institute, Autocratization Turns Viral DEMOCRACY REPORT 2021 <https://www.v-dem.net/documents/12/dr_2021.pdf> accessed 16 July 2023.

7 Christian von Soest, ‘Neopatrimonialism: A Critical Assessment’ in Wil Hout and Jane Hutchinson (eds.), Elgar Handbook on Governance and Development (Edward Elgari 2022) 145–59; Ersin Kalaycıoğlu, ‘16 Nisan 2017 Referandumunun getirdikleri: Neo-patrimonyal Sultanizm’ [What the Referendum of April 16, 2017, has Brought: Neo-Patrimonial Sultanism] (2022) 24 Temmuz Politikyol <https://www.politikyol.com/16-nisan-2017-referandumunun-getirdikleri-neo-patrimonyal-sultanizm/> accessed 16 July 2023.

8 Adam Szymański, ‘De-Democratization: The Case of Hungary in A Comparative Perspective’ (2019) 52 Political Science and Politics 1–2. Several concepts are used to name this process such as democratic recession, democratic regression, democratic decay etc. Svend-Erik Skaaning, ‘Waves of Autocratization and Democratization: A Critical Note on Conceptualization and Measurement’ (2020) 27 Democratization 1533–42; Anna Lührmann and Staffan I. Lindberg, ‘A Third Wave of Autocratization is Here: What is New About It? (2019) 26 Democratization 1095–113.

9 Aziz Huq and Tom Ginsburg, ‘How to Lose a Constitutional Democracy’ (2017) February 21 <https://www.vox.com/the-big-idea/2017/2/21/14664568/lose-constitutional-democracy-autocracy-trump-authoritarian> accessed 16 July 2023.

10 David Waldner and Ellen Lust, ‘Unwelcome Change: Coming to Terms with Democratic Backsliding’ (2018) 21 Annual Review of Political Science 93–113.

11 Timea Drinoczi and Agnieszka Bien-Kacala, ‘Illiberal Constitutionalism: The Case of Hungary and Poland’ (2019) 20 The German Law Review 1140–166.

12 Tapio Raunio and W. Wagner, ‘Towards Parliamentarisation of Foreign and Security Policy?’ (2017) 40 West European Politics 1–19.

13 Antonio Benasaglio Berlucchi and Marisa Kellam, ‘Who’s to Blame for Democratic Backsliding: Populists, Presidents or Dominant Executives?’ (2023) 30 Democratization 815–35.

14 Bülent Yücel, Parlamenter Hükûmet Sisteminin Rasyonelleştirilmesi ve Türkiye Örneği, Doktora Tezi, [Rationalisation of the Parliamentary Government System and the Case of Türkiye, PhD dissertation], Anadolu Üniversitesi Sosyal Bilimler Enstitüsü, 2008.

15 Battal Yılmaz, The Presidential System in Turkey Opportunities and Obstacles (Palgrave 2018) 31–42; Cüneyt Yüksel, ‘Türkiye’nin Gelecek Siyasi Sistem Tercihi: Rasyonelleştirilmiş Parlamentarizm, Yarı-Başkanlık ve Başkanlık Sistemleri’ [Turkey’s Future Political System Choice: Rationalised Parliamentarism, Semi-Presidential and Presidential Systems] (2013) 25 Yasama Dergisi 38–70.

16 ‘1982 Anayasası Metin ve Değişiklik Bilgileri’ [Information on the Text and Amendments of the 1982 Constitution] <https://www.tbmm.gov.tr/anayasa/seksen-iki-anayasasi-metin-degisiklik> accessed 16 July 2023. Seven amendments took place between 2007 and 2017. In 2007, the 1982 Constitution underwent two amendments. One concerns the insertion of provisional Art. 17. The other is about the changes to some articles of the 1982 Constitution. The latter was approved through a referendum on October 21, 2007. Ergun Özbudun and Ömer Faruk Gençkaya, Democratisation and Politics of Constitution Making in Turkey (Central European University Press 2009).

17 Devlet Bahçeli, the leader of the Nationalist Action Party, stated that although we have reservations against the presidential system, the president Erdoğan does not suffice with the powers envisaged to him by the constitution. Therefore, it is a priority to immediately correct Turkey's administrative structure, which does not comply with the law and the Constitution, and to make the law fully dominant. Bahçeli’den başkanlık sistemine yeşil ışık [Green light from Bahçeli to the presidential system], Cumhuriyet, 11 October 2016, https://www.cumhuriyet.com.tr/haber/bahceliden-baskanlik-sistemine-yesil-isik-613892. ‘Başkanlık Konusundaki Israrımızın Temel Sebebi, İstikrar ve Güven Ortamına Yapacağı Güçlü Katkıdır’ [The Main Reason behind our Insistence on the Presidency is the Strong Contribution to the Environment of Stability and Confidence] <https://www.tccb.gov.tr/haberler/410/32341/baskanlik-konusundaki-israrimizin-temel-sebebi-istikrar-ve-guven-ortamina-yapacagi-guclu-katkidir> accessed 16 July 2023.

18 Lijphart clarified the main features of presidentialism, as the president is popularly elected for a constitutionally defined fixed term, the legislature has little or no control over the selection process and removal, and it is non-collegial. Arend Lijphart, Patterns of Democracy: Government Forms and Performance in Thirty-Six Countries (2nd edn., Yale University Press, 2012) 106–108. Other main characteristics of presidentialism can be stated as follows: The president has control and removal of the ministers and appoints them; the president has no right to propose legislation yet has veto power; the legislative branch makes the budget; two separate institutions exercise mutual checks and balances. Scott Mainwaring, ‘Presidentialism, Multipartism and Democracy: The Difficult Combination’ (1990) 26 Comparative Political Studies ) 202–205. However, presidential systems vary in accordance with the constitutional powers of the president, the degree of party discipline, and the fragmentation of the party system. Scott Mainwaring and Matthew Shugart, Juan Linz, ‘Presidentialism, and Democracy: A Critical Appraisal’ (1997) 29 Comparative Politics 449–71. Some constitutionalists argue that the parliamentary regime was abolished, but the regime that was replaced is not the presidential regime. Among others, İbrahim Kaboğlu emphasised that ‘the presidential regime is based on the principle of mutual independence between the legislature and the executive; the formation of both organs is different; the functioning and functional relationships of both organs are separated from each other; and the termination of both organs is independent of each other. Therefore, this is not a presidential regime.’ Türkiye Büyük Millet Meclisi Tutanak Dergisi, The Journal of Minutes of the Grand National Assembly of Turkey’ (2023) 27 Dönem 16 (37) 990–91 <https://www5.tbmm.gov.tr/tutanaklar/TUTANAK/TBMM/d27/c116/tbmm27116037.pdf> accessed 20 July 2023.

19 Kemal Gözler, Elveda Anayasa: 16 Nisan 2017’de Oylayacağımız Anayasa Değişikliği Hakkında Eleştiriler [Adieu Constitution: Criticisms of the Constitutional Amendment that we will Vote on April 16, 2017] (Ekin 2017); Sinem Adar and Günter Seufert, Turkey’s Presidential System after Two and a Half Years, SWP Research Paper 2, April 2021 Berlin <https://www.swp-berlin.org/publications/products/research_papers/2021RP02_Turkey_Presidential_System.pdf> accessed 16 July 2023; Ömer Faruk Gençkaya, Güçler Ayrılığı, Denge ve Denetleme ile Yasama ve Yürütme İlişkileri [Separation of Powers, Checks and Balances, and Legislative and Executive Relations], Liberal Perspektif Rapor, No. 16, Aralık 2020 <https://oad.org.tr/yayinlar/rapor/gucler-ayriligi-denge-ve-denetleme-ile-yasama-ve-yurutme-iliskileri/.> accessed 16 July 2023; Ömer Faruk Gençkaya, Kaliteli Bir Yasamanın ve Etkili Bir Yasanın Aracı Olarak Yasama Sonrası İnceleme [Post-legislative Scrutiny as a Tool for Quality Legislation and Effective Law], Liberal Perspektif Rapor, Sayı: 31, Mart 2023, https://oad.org.tr/wp-content/uploads/2023/04/O%CC%88AD_RAPOR-1.pdf.

20 Metin Heper and Menderes Çınar, ‘Parliamentary Government with a Strong President: The Post-1989 Turkish Experience’ (1996) 111 Political Science Quarterly 483–503.

21 Nancy Bermeo, ‘On Democratic Backsliding’ (2016) 27 Journal of Democracy 5.

22 Adam Szymanski, ‘Changes in Executive-Legislative Relationship: A Comparative Analysis of Turkey and Central European Countries’ in Khmelko, Stapenhurst, and Mezey (eds.), (n 1) 118–28.

23 Jennifer McCoy, Tahmina Rahman and Murat Somer, ‘Polarisation and the Global Crisis of Democracy: Common Patterns, Dynamics, and Pernicious Consequences for Democratic Polities’ (2018) 62 American Behavioral Scientist 16–42.

24 Steven Levitsky and Daniel Ziblatt, How Democracies Die (Penguin Random House 2018) 21–26.

25 Landau (n 3) 189–260.

26 Tom Ginsburg and Aziz Z Huq, How to Save a Constitutional Democracy (University of Chicago Press 2018) 52–53.

27 David Arter, ‘Introduction: Comparing the legislative performance of legislatures’ (2007) 12 The Journal of Legislative Studies 3–4.

28 Mark Graber, ‘What’s in Crisis? The Postwar Constitutional Paradigm, Transformative Constitutionalism, and the Fate of Constitutional Democracy’ in Mark A. Graber, Sanford Levinson, Mark Tushnet (eds.), Constitutional Democracy in Crisis? (Oxford University Press 2018) 687.

29 Nancy Bermeo, On Democratic Backsliding’ (2016) 27 Journal of Democracy 10.

30 Bermeo (n 29) 8–13; Steven Levitsky and Daniel Ziblatt, How Democracies Die (Penguin Random House 2018); Levitsky and Ziblat (n 4) 78–88; and Stephan Haggard and Robert Kaufman, ‘The Anatomy of Democratic Backsliding’ (2021) 32 Journal of Democracy 27–41.

31 Ömer Faruk Gençkaya, ‘Politics of Constitutional Amendment in Turkey, 1987–2002’ in Gisbert H. Flanz (ed.) Constitutions of the Countries of the World (Oceana Publications, Inc., 2003) 15–17.

32 ibid 15–17.

33 Özbudun and Gençkaya (n 16) 113–15.

34 Frank Schimmelfennig and Hanno Scholtz, ‘Legacies and Leverage: EU Political Conditionality and Democracy Promotion in Historical Perspective Cabinet Composition, Collegiality, and Collectivity: Examining Patterns in Cabinet Committee Structure’ (2010) 62 Europe-Asia Studies 443–60.

35 Özbudun and Gençkaya (n 16).

36 Indeed, the formation of two governments between the general elections on November 1, 2015, and the next election on June 24, 2018, is an obvious indication of this fact.

37 Yunus Sözen, ‘Demokrasi ve Otoriterlik Arasında: Başkanlık Sistemine Geçiş Siyaseti’ [Between Democracy and Authoritarianism: The Politics of Transition to a Presidential System] (2013) 74 Cogito 231–33.

38 Levent Gönenç, ‘Türkiye’de Hükümet Sistemi Tartışmaları: Olanaklar ve Olasılıklar Üzerine Bir Çalışma Notu’ [Debates on the System of Government in Turkey: A Study Note on Opportunities and Probabilities] in Teoman Ergül (ed.), Başkanlık Sistemi (TBB Yayınları 2005) 10.

39 ibid 11.

40 ibid 11, According to the Economist Intelligence Unit Index 2006 report, Turkey is classified among hybrid regimes at rank 88. The states in the hybrid regime classification ahead of Turkey are as follows: Bosnia and Hercegovina, Lebanon, Madagascar, Singapore, Albania. Laza Kekic, ‘The Economist Intelligence Unit’s Index of Democracy’ <https://www.economist.com/media/pdf/democracy_index_2007_v3.pdf> accessed 17 July 2023. The Economist Intelligence Unit Index 2022 report places Turkey at rank 103, behind some of the hybrid regimes such as Sierra Leone, the Gambia, Nepal, Bolivia, Uganda, Guatemala, and Bosnia and Herzegovina. ‘Democracy Index 2022 – Frontline Democracy and the Battle for Ukraine’ <https://www.eiu.com/n/campaigns/democracy-index-2022-registration-confirmation> accessed 17 July 2023. In this context, the Freedom House 2007 report is another important indicator. The said report categorized Turkey as one of the partly free states. ‘Freedom in the World 2007’ <https://freedomhouse.org/sites/default/files/2020-02/Freedom_in_the_World_2007_complete_book.pdf> accessed 17 December 2023. However, the Freedom House 2022 report ranked Turkey among states that are not free. ‘Freedom in the World 2022-Turkey’ <https://freedomhouse.org/country/turkey/freedom-world/2022> accessed 17 July 2023.

41 For a similar view, see Şule Özsoy Boyunsuz, Dünyada Başkanlık Sistemleri [Presidential Systems in the World] (İmge Kitabevi 2017) 262, Kemal Gözler, Türk Anayasa Hukukuna Giriş (Introduction to Turkish Constitutional Law) (Ekin 2020) 213, Bülent Yavuz, ‘2007 Anayasa Değişikliğinin Doğurduğu Tereddütler ve Çözüm Yolları’ [Hesitations arising from the 2007 Constitutional Amendment and Solutions] (2008) 12 Gazi Üniversitesi Hukuk Fakültesi Dergisi 1173-1214, Selin Esen, ‘Parliamentary System and the Re-case of Turkey’ <https://www.stiftung-mercator.de/content/uploads/2022/09/selin-esen-parliamentary-system-and-the-recase-of-turkey.pdf> accessed 17 July 2023. Direct election of the head of state does not usually result in regime change; nonetheless, given electoral legitimacy, the president may seek to use some unconstitutional powers. For instance, in the Czech Republic, given his increased legitimacy from obtaining a direct election, President Zeman occasionally tried to amend the constitution and interpret his authority in a manner that exceeded beyond what was required. Jan Wintr, Marek Antoš and Jan Kysela, ‘Direct Election of the President and its Constitutional and Political Consequences’ (2016) 8 Acta Politologica 145–63.

42 Maurice Duverger stated that three elements are necessary to consider a political regime as a semi-presidential system. These are as follows: ‘(1) the president of the republic is elected by universal suffrage, (2) he possesses quite considerable powers; (3) he has opposite him, however, a prime minister and ministers who possess executive and governmental power and can stay in office only if the parliament does not show its opposition to them.’ Maurice Duverger, ‘A New Political System Model: Semi-Presidential Government’ (1980) 8 European Journal of Political Research 165–87.

43 Eoin O’Malley, ‘The Power of Prime Ministers: Results of an Expert Survey’ (2007) 28 International Political Science Review <https://www.jstor.org/stable/20445075> accessed 17 July 2023.

44 Kenny William Ie, ‘Cabinet Composition, Collegiality, and Collectivity: Examining Patterns in Cabinet Committee Structure’ (2022) 14 European Political Science Review 115.

45 Wolfgang C. Müller, Torbjörn Bergman, and Kaare Strøm (eds.), Delegation and Accountability in Parliamentary Democracies (Oxford 2004) 10.

46 Elliot Bulmer, ‘Non-Executive Presidents in Parliamentary Democracies’ (2017) International IDEA Constitution-Building Primer 6 <https://www.idea.int/sites/default/files/publications/non-executive-presidents-in-parliamentary-democracies-primer.pdf> accessed 17 July 2023.

47 Ahmet Necdet Sezer, the 10th President of the Republic, who sent the 2007 constitutional amendment law back to the parliament for reconsideration, made an important remark on the position accorded to the President by the drafters of the 1982 Constitution. According to him, ‘ … [A]lthough the political system adopted in the Constitution has the characteristics of the classical parliamentary regime, it is observed that the President of the Republic has moved away from this system in terms of his powers, and the President of the Republic has been given a strong and effective position as an element of balance and stability against the ruling power.’ ‘10.5.2007 Tarihli ve 5660 Sayılı Türkiye Cumhuriyeti Anayasasının Bazı Maddelerinde Değişiklik Yapılması Hakkında Kanun ve Anayasanın 89 uncu ve 104 üncü Maddeleri Gereğince Cumhurbaşkanınca Bir Daha Görüşülmek Üzere Geri Gönderme Tezkeresi ile Anayasa Komisyonu Raporu’ [Law No. 5660 dated 10.5.2007 on the Amendment of Certain Articles of the Constitution of the Republic of Turkey, and the Presidential Memorandum of the Referral of the Law to be Reconsidered under Articles 89 and 104 of the Constitution with the Report of the Constitution Commission. and the Return of the Law to be Reconsidered by the President under Articles 89 and 104 of the Constitution] <https://www5.tbmm.gov.tr/sirasayi/donem22/yil01/ss1433m.htm> accessed 17 July 2023.

48 ibid. According to Art. 7 of the 1982 Constitution, ‘legislative power is vested in the Grand National Assembly of Turkey on behalf of the Turkish Nation. This power shall not be delegated.’

49 As stated by Bülent Tanör, the provision in Art. 104 of the 1982 Constitution that the President of the Republic "oversees the implementation of the Constitution and the orderly and harmonious functioning of the organs of the State" makes his omnipresence possible and even necessary. The 1982 Constitution (Art. 104), which categorizes his powers in three different areas, namely legislative, executive, and judicial, almost constitutes a partial unity of powers in the personality of the President. Additionally, the decisions and orders signed ex officio by the President were not subject to judicial review (Art. 105), Bülent Tanör, İki Anayasa 1961–1982 [Two Constitutions 1961-1982] (XII Levha 2012) 109.

50 Mümtaz Soysal, 100 Soruda Anayasanın Anlamı-1982 Anayasasına Bilimsel Yaklaşım [100 Questions on the Meaning of the Constitution – A Scientific Approach to the 1982 Constitution] (Gerçek Yayınevi 1986) 285–87.

51 ‘22. Dönem Milletvekili Genel Seçimi’ [22nd Period Parliamentary General Election] <https://ysk.gov.tr/tr/03-kasim-2002-xxii-donem-milletvekili-genel-secimi/3009> accessed 20 July 2023.

52 ‘23. Dönem Milletvekili Genel Seçimi’ [23nd Period Parliamentary General Election] <https://ysk.gov.tr/tr/22-temmuz-2007-xxiii-donem-milletvekili-genel-secimi/5001> accessed 20 July 2023.

53 Mustafa Okşar, ‘1982 Anayasası Çerçevesinde Bakanlar Kurulu’ [Council of Ministers within the Framework of the 1982 Constitution] Doktora Tezi, Ankara Üniversitesi (PhD dissertation, Ankara University) 2012, 575.

54 Carol Migdalovitz, ‘Turkey’s 2007 Elections: Crisis of Identity and Power’ (2007) CRS Report for Congress <https://sgp.fas.org/crs/mideast/RL34039.pdf> accessed 20 July 2023.

55 Türkiye Büyük Millet Meclisi Tutanak Dergisi [The Journal of Minutes of the Grand National Assembly of Turkey], Dönem 22 159 (115) 421 <https://www5.tbmm.gov.tr//develop/owa/td_v2.goruntule?sayfa_no_ilk=420&sayfa_no_son=442&sayfa_no=421&v_meclis=1&v_donem=22&v_yasama_yili=&v_cilt=159&v_birlesim=115> accessed 20 July 2023.

56 ibid 424. The term 'other bodies' here refers to the Prime Minister elected by the Parliament, the Council of Ministers consisting of persons of the Prime Minister's choice that takes office after having the Parliament's vote of confidence, and the President also elected by the Parliament.

57 Türkiye Büyük Millet Meclisi Tutanak Dergisi, [The Journal of Minutes of the Grand National Assembly of Turkey] Dönem 22 159 (115) 423–25 <https://www5.tbmm.gov.tr//develop/owa/td_v2.goruntule?sayfa_no_ilk=420&sayfa_no_son=442&sayfa_no=421&v_meclis=1&v_donem=22&v_yasama_yili=&v_cilt=159&v_birlesim=115> accessed 20 July 2023.

58 Ibid 426–27.

59 Ibid 431.

60 Ibid 433–34.

61 ‘Türkiye Cumhuriyeti Anayasasının Bazı Maddelerinde Değişiklik Yapılması Hakkında Kanun’ [Law Amending Certain Articles of the Constitution of the Republic of Turkey], <https://www.tbmm.gov.tr/files/anayasa/docs/1982/1982-14/14-degisiklik.pdf> accessed 22 July 2023.

62 Anayasa Mahkemesi Kararı [Constitutional Court Decision], Esas sayısı: 2007/72 Karar sayısı: 2007/68 Karar günü: 5.7.2007, T.C. Resmî Gazete, Tarih: 7.8.2007 Sayı: 26606.

63 Bertil Emrah Oder, ‘The Constitutional Court in High-Profile Cases and Populism: The Game Broker’ (Verfassungsblog, 2 May 2017) <https://verfassungsblog.de/populism-and-the-turkish-constitutional-court-the-game-broker-the-populist-and-the-popular/> accessed 22 July 2023.

64 ‘Turkey’s Judicial Reform Strategy and Judicial Independence’ (International Commission of Jurists, November 2019) <https://ihd.org.tr/en/wp-content/uploads/2019/11/Turkey-Justice-Reform-Strat-Advocacy-Analysis-brief-2019-ENG.pdf> accessed 22 July 2023.

65 Ergun Özbudun, ‘Pending Challenges in Turkey’s Judiciary’ (2015) IAI Policy Brief 20 <https://www.iai.it/sites/default/files/gte_pb_20.pdf> accessed 23 July 2023.

66 Pablo Castillo-Ortiz, ‘The Illiberal Abuse of Constitutional Courts in Europe’ (2019) 15 European Constitutional Law Review 51.

67 ibid.

68 The GNAT, by secret ballot, elects two members from among the Court of Accounts' own members, nominated from among three candidates for each vacant position, and one member from among three candidates nominated by bar association presidents from among lawyers. ‘Türkiye Cumhuriyeti Anayasası’ [Constitution of the Republicof Turkey] <http://anayasadegisikligi.barobirlik.org.tr/pdf/anayasa.pdf> accessed 23 July 2023 The President of the Republic elects the rest of the members of the Constitutional Court. (art. 146)

69 ‘23. Dönem Milletvekili Genel Seçimi’ [23nd Period Parliamentary General Election] (n 52).

70 Art. 7 of the Law on Constitutional Court, <https://www.anayasa.gov.tr/en/legislation/law-on-constitutional-court/> accessed 23 July 2023.

71 ‘Turkey 1982 (rev. 2011)’ <https://www.constituteproject.org/constitution/Turkey_2011> accessed 23 July 2023.

72 ‘Constitution of the Republic of Turkey’ <https://www.anayasa.gov.tr/media/7258/anayasa_eng.pdf> accessed 23 July 2023. The President of the Republic, leading the party that holds the majority in parliament, appoints four members of the Council. In addition, the Minister of Justice is the President of the Council, and the undersecretary of the Ministry of Justice is still an ex-officio member of the Council. Considering their appointment by the President of the Republic, it becomes clear why we have made such an analysis.

73 Freeman adopted this term used by Jan-Werner Müller ‘to refer to the process by which executives populate nominally independent institutions with loyal agents.’ Will Freeman, ‘Sidestepping the constitution: executive aggrandizement in Latin America and East Central Europe’ (2020) 6 Constitutional Studies 40.

74 Sabri Sayarı, ‘Back to a Predominant Party System: The November 2015 Snap Election in Turkey’ (2016) 21 South European Society and Politics 263–80; Ersin Kalaycıoğlu, ‘Two elections and a political regime in crisis: Turkish politics at the crossroads’ (2018) 18 Southeast European and Black Sea Studies 21–51.

75 Fazıl Sağlam, ‘Devlet Güçlerinin OHAL KHK Rejimi ve 2017 Anayasa Değişikliğinden Sonraki Görünümü’ [The Panorama of State Authorities after the State of Emergency, Decree Having Force of Law Regime, and the 2017 Constitutional Amendment] (2018) 7 Anayasa Hukuku Dergisi 21–102 <https://anayasader.org/wp-content/uploads/2020/04/Sa%C4%9Flam-AYHD-13.pdf> accessed 11 July 2023.

76 ‘Adalet ve Kalkınma Partisi Genel Başkanı İzmir Milletvekili Binali Yıldırım ve arkadaşları tarafından verilen Türkiye Cumhuriyeti Anayasasında Değişiklik Yapılmasına Dair Kanun Teklifi (2/1504) ve Anayasa Komisyonu Raporu’ [Legislative Proposal on Amendments to the Constitution of the Republic of Turkey (2/1504) submitted by the Chairman of the Justice and Development Party and Izmir Deputy Binali Yıldırım, and his colleagues, and Constitutional Commission Report. ] COM (447) 28 <http://anayasadegisikligi.barobirlik.org.tr/pdf/anayasadegisikligikanunteklifi.pdf> accessed 11 July 2023.

77 ibid.

78 ibid.

79 1982 Constitution, Art. 161/3.

80 ‘Adalet ve Kalkınma Partisi Genel Başkanı İzmir Milletvekili Binali Yıldırım ve arkadaşları … ’ [Justice and Development Party Chairman and Izmir Deputy Binali Yıldırım, and his colleagues …] (n 76).

81 Alasdair Roberts, ‘Globalisation and the growth of executive power: an old story’ (2017) Indiana Journal of Global Legal Studies <https://www.jstor.org/stable/10.2979/indjglolegstu.24.2.0497> accessed 13 July 2023.

82 William G. Howell and Terry M. Moe, ‘The Strongman Presidency and the Two Logics of Presidential Power’ (2023) 53 Presidential Studies Quarterly <https://onlinelibrary.wiley.com/doi/epdf/10.1111/psq.12830> accessed 14 July 2023.

83 William G. Howell and Terry M. Moe, ‘The Strongman Presidency and the Two Logics of Presidential Power’ (2023) 53 Presidential Studies Quarterly, <https://onlinelibrary.wiley.com/doi/epdf/10.1111/psq.12830> accessed 14 July 2023.

84 Ömer Faruk Gençkaya, Kaliteli Bir Yasamanın ve Etkili Bir Yasanın Aracı Olarak Yasama Sonrası İnceleme [Post-legislative Scrutiny as a Tool for Quality Legislation and Effective Law], Liberal Perspektif Rapor, No. 31, Mart 2023 <https://oad.org.tr/yayinlar/rapor/yasama-sonrasi-denetim-mekanizmasi/> accessed 16 July 2023 40–43.

85 T.C. Anayasa Mahkemesi, Kararlar Bilgi Bankası [Turkish Constitutional Court, Decisions Information Bank] <https://normkararlarbilgibankasi.anayasa.gov.tr/> accessed 25 January 2023. Since then 40 more Presidential decrees were issued and the number of annulled decrees reached about 30 as of November 2023. This further increased the confrontation between the Constitutional Court and the President or the parliamentary majority.

86 Abdurrahman Eren, ‘Anayasa Mahkemesinin Kanun Hükmünde Kararnamelere İlişkin İçtihadı Doğrultusunda Cumhurbaşkanlığı Kararnamelerinin Değerlendirilmesi’ [Assessment on Presidential Decrees in line with the Constitutional Court’s jurisprudence on Decrees Having the Force of Law] (2019) 36 (1) Anayasa Yargısı, <https://dergipark.org.tr/tr/download/article-file/800403> accessed 23 July 2023

87 Gençkaya (n 84) 42–43. See also, Fahri Bakırcı, Kuruluşundan Günümüze TBMM’nin Denetim Yetkisinin Sönümlenmesi [The Fading of the Supervision Authority of the Parliament from its Establishment to the Present] (Ankara: Lykeion 2021).

88 ‘Turkey’s withdrawal from Istanbul Convention a setback for women and girls’ human rights’ <https://www.icj.org/turkeys-withdrawal-from-istanbul-convention-a-setback-for-women-and-girls-human-rights/> accessed 23 July 2023; ‘Türkiye Cumhuriyeti Anayasası’ [The Constitution of the Republic of Turkey] <https://www.mevzuat.gov.tr/mevzuatmetin/1.5.2709.pdf> accessed 14 July 2023. The current version of Art.104 of the 1982 Constitution limits the President’s authority regarding international treaties to ratification and promulgation. According to the first paragraph of Art. 90 of the Constitution, ‘The ratification of treaties to be concluded on behalf of the Republic of Turkey with foreign states and international organisations is subject to the approval of the ratification by the Grand National Assembly of Turkey through a law.’

89 John Ishiyama, ‘Conclusion: A theory of Global Legislative Decline?’ in Khmelko, Staphenhurst and Mezey (eds.) (n 1).

90 Giovanni Sartori, ‘Constitutionalism: A Preliminary Discussion’ (1962) 56 (4) The American Political Science Review 853–64, cited by Kemal Gözler, Elveda Kuvvetler Ayrılığı, Elveda Anayasa-10 Aralık 2016 Tarihli Anayasa Değişikliği Teklifi Hakkında Bir Eleştiri [Farewell Separation of Powers, Farewell Constitution-A Criticism on the Constitutional Amendment Proposal of December 10, 2016] <https://www.anayasa.gen.tr/elveda-anayasa-v1.pdf > accessed 14 July 2023.

91 Danko Tarabar and Andrew T. Young, ‘What constitutes a constitutional amendment culture?’ (2021) European Journal of Political Economy <https://doi.org/10.1016/j.ejpoleco.2020.101953> accessed 14 July 2023.

92 ‘Opinion on the New Constitution of Hungary’ (2011) Venice Commission 621/2011, 3–4 <https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDLAD(2011)016-e> accessed 14 July 2023.

93 Barbara Jankowski, ‘Le revirement de la politique de sécurité de la Pologne depuis l’arrivée au pouvoir du parti Droit et justice (PİS): un examen des sources polonaises’ (2017) 29 Les Champs de Mars 225.

94 Tom Ginsburg and Aziz Huq, How to Save a Constitutional Democracy (University of Chicago Press 2018) 90; Renata Uitz, ‘Can You Tell When an Illiberal Democracy is in the Making? An Appeal to Comparative Constitutional Scholarship from Hungary’ (2015) 13 International Journal of Constitutional Law 279–300; Sanford Levinson, ‘Assessing Abusive Constitutionalism’ (2021) 14 Canadian Journal of Comparative and Contemporary Law 14–22; Rosalind Dixon and David Landau, Abusive Constitutional Borrowing (Oxford: Oxford University Press 2021); Jorge Gozales-Jacome, ‘From Abusive Constitutionalism to a Multi-Layered Understanding of Constitutionalism: Lessons From Latin America’ (2017) 15 International Journal of Constitutional Law 447–68.