The problem of the form of the governmental system is not a problem having priority as much as the problems of human rights, democracy and constitutional state from the perspective of constitutionalism. Moreover, it
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cannot be said that it will be possible to solve the problem of “bureaucratic guardianship” through the governmental system which will be adopted. It is possible to fight against the bureaucratic guardianship in every governmental system. The guardianship problem in Turkey stems from the problem of democracy in the country, not from the governmental system. Therefore, the solution should be sought in the functioning of the democratic structure, not in the governmental system.
Nevertheless, it is known that there are some problems concerning the governmental system of the 1982 Constitution. Looking from the perspective of these problems, the experience of Turkey should also be taken into account while an effective governmental system complying with the democratic constitutional state is adopted. Acting on the difficulties caused by the present governmental system, defending that the present system should be eliminated and a new one should be created is problematic. Each new governmental system which will be adopted will create new problems while it is implemented. It might be more effective to fix the problems caused by the functioning of the system by working on it. It should not be thought that the new governmental system is a trial model and it will be abolished easily if it causes problems. It should not be forgotten that the irregularities which will emerge in the functioning of the system in case of such a failure might cause serious new problems. Therefore, the points mentioned above should be taken into account in the process of evaluation of the governmental system in the new constitution.
The issue of the governmental system of Turkey should be dealt with only in the context of the 1982 Constitution because the governmental system formulation in the 1982 Constitution was shaped under the clear influence of the previous periods and the 1961 Constitution. For this reason, there might be some lessons which can be derived from the previous practices on the issue of governmental system. It should be stated in the light of the previous practices that the governmental system in the new constitution should not be determined as a reaction to the reaction, but it should be considered as a lasting model which will be implemented for a long time.
While the model is determined in this issue, people should be included in the ruling process as much as possible. Since a top-down and centralist approach has dominated our tradition of constitutionalism, giving a place to the representation of people while the formulation of governmental system is
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determined in the new constitution is a must in order to build a participatory model. In addition, the executive should be saved from guardianship as much as possible to ensure efficiency in governing. If a model is created before this is ensured, the system might continue to produce problems. In this case, the failure might be inevitable.
In the new constitution, it should be worked hard to create a model on the governmental system with the agreement of all political parties. If this cannot be ensured, the problems might emerge in practice. Although the choices on the governmental system of Turkey are being discussed in the academic world, the choice on Turkey’s governmental system has to be a political one at the last analysis. Therefore, the one which will shape this issue ultimately will be the decision of the actor which will make the constitution. It is also important that the governmental system which will be chosen should “governable” and “able to take decisions”.
If Turkey’s experience, the basic characteristics of governmental systems, the features of the political party system and political culture and similar factors are taken into account in the light of the practices in the previous periods, it might be concluded that classical parliamentarian regime is a more viable model. The presidential regime is discussed in Turkey not as a regime which will improve democracy, but the one which will make governing easy when impasses are faced. When the presidential regime is considered in terms of its viability, one of the characteristics of this system, which is attractive for Turkey, is that the tenure of the head of the executive is fixed. Given that coalition governments cause instabilities because they change frequently, this characteristic of the presidential system is highly attractive. Choice should not be made only on the basis of this characteristic. Real problems on the presidential system might emerge in Turkey in the issues such as the structure of political parties, their number and the features of the political culture. These issues might bring about new results in relations between the legislative and the executive, which are not predicted. Apart from relations between the legislative and the executive; social, economic and cultural characteristics of the country also become influential in the successful implementation of the governmental system. While the governmental system is chosen, these factors also should be taken into consideration.
Substantial changes should be made in the present governmental system in the new constitution in order to build classical parliamentarian regime.
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The most important problem in Turkey’s governmental system is the incompatibility between the authority and responsibility of the president and, therefore, the solution should be sought in this issue. In the political structure, the Council of Ministers which comes in force as a result the trust of the TGNA should be the only authorized organ in the executive. If this is done, the governments will be able to exercise the power of executive according to their will and they will be held accountable for their actions as a requirement of democratic responsibility.
However, an important problem in the governmental system of the 1982 Constitution is related to the President’s signing the decrees of the Council of Ministers. The authority of not signing the decrees, which has been exercised frequently by the presidents so far, prevents the Council of Ministers from continuing its activities as it is planned. Therefore, the authority of signing decrees should have only symbolic importance; since the responsibility belongs to the government as a requirement of the counter-signature principle, the discretion of the President in signing decrees should be restricted. The President should be able to return only the decrees which he/she considers as unlawful for further consideration and should take care not to intervene in the political choices of the governments. The authorities of the President on governmental actions should be weakened in the constitution and an approach which will strengthen the power of the Council of Ministers in the executive should be adopted.
In fact, the fact that the President cannot be held accountable for exercising his/her authorities in spite of his/her powerful authorities granted by the 1982 Constitution is one of the most important points of criticism directed toward the political system. The unaccountability of an authorized person or institution does not comply with the principles of democracy and constitutional state. Moreover, such an incompatibility might also create serious problems in terms of decision making and use of authorities within the executive. While the Council of Ministers exists as an authorized and accountable body, the existence of the President is a paradoxical situation. Although the main body within the executive is the Council of Ministers, its decisions need to be ratified by the President to come into force. However, according to the Constitution of 1982, the President is entitled not to ratify the decrees of the Council of Ministers and he/she cannot be held accountable for the results of this non-ratification. The accountability of the Council of Ministers for the negative results which will be caused
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by the non-ratification of the decrees by the President contradicts with the understanding of democratic accountability.
Another issue related to the non-ratification of decrees is that the Council of Ministers does not have the control in implementing its policies as a result of it. Especially if the Council of Ministers and the President have different political tendencies, the actions of the Council of Ministers will be prevented by the President. However, the signature of the President who is supposed to have symbolic authorities in the parliamentarian regime is necessary act only for the completion of the process initiated by the effective wing of the executive according to the principle of co-signature. By going beyond this, if the will of President emerges as contrary to the decision of the Council of Ministers, this might block the functioning of the system.
When it is considered from the perspective of the position of the President, a legal status which is different from the one in the 1982 Constitution should be created in terms of the legal accountability of the president regarding its duties. In order to end the debates which will make it possible suing the president while he/she is in office and to eradicate the negative results which will be caused by the trials against him/her while he/she is in office for the prestige of the presidency, the president should be equipped with the immunity of trial while he/she is in office. If it is stated that the prescription should not be valid for these kinds of allegations of crime, the president can be sued as a requirement of his/her legal accountability after his/her office ends. In this way, it will be possible to prevent harm given to the prestige of the presidency through allegations of crime and through interpretations on whether the president should be sued or not.
Another issue which should be clarified in the new constitution is who will elect the president. At first sight, it can be said that the President should be elected by the TGNA. However, when the “judgment of 367” of the Constitutional Court, which is still fresh in the mind of the public opinion, and the subsequent developments and changes are taken into consideration, it cannot easily be said that the election of the President by the TGNA is acceptable. Given that the political crises were lived through in the elections of the president in 1980 and 2007 and that a constitutional change was realized through the referendum as a response to the crisis in 2007, it will be difficult to explain to people the justification of the inclusion of such a provision in the new constitution. Under the influence of the political crisis
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created by the “judgment of 367” of the Constitutional Court in the process of electing the president and the constitutional change accepted by the two- third of people in the referendum, it will be difficult to give up the election of the president by people.
In this point, whether it will be possible to equip the president elected by people with symbolic authorities should be answered. The president elected by people might high popularity and the president might acquire a respectable position though he/she does not have powerful authorities in the political system. In fact, presidents are elected by people in Iceland, Austria, Finland and Portugal. Moreover, it is clear that a president resolving disagreements and crises between different actors as a political figure having the role of arbitration is needed in the political system. In the presidential system, the president cannot be seen as the person who will fulfill this function. The President who is elected by people and has symbolic authorities can fulfill this function more easily. However, it is important that there should be no doubts on the impartiality of the President who will fulfill such a function.
Since it will provide legitimacy for the single person, the election of the president by people might contribute the functioning of the system in conjunction with the criteria mentioned above. But the election of the same person as president for the second time might create problems in terms of his/her impartiality since he/she will make promises to people in the election process. Allowing the same person to be in office only for one term will eradicate such drawbacks. A president who is elected by people only for one term and who does not have the ability to intervene in the choices of the government will concentrate mostly on the international arena and will seek to exhibit a respectful and visionary personality as a requirement of his/her exalted position.
One important issue in the context of the governmental system is how party discipline should be. In the Council of Ministers, the power of the Prime Minister over the ministers should continue in practice even if it is not regulated in the constitution. The powerful position of the Prime Minister is a requirement of the function of “governing” in the parliamentarian regime. When it is considered that the ministers are also jointly responsible for the implementation of the government’s general policy to the parliament, one person’s powerful position in the Council of Ministers as “coordinator” does not create problems. The real issue which should be taken into
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consideration on the position of the Prime Minister is his ability to direct the legislative majority with the help of party discipline though he/she is the head of the executive. Party discipline is, of course, needed to a certain extent in terms of the functioning of the parliamentarian regime. But the full control of the Council of Ministers through the Prime Minister over the legislative body might harm the autonomy of the parliament vis-à-vis the executive.
As a result of the perception of political party at our age, the government and the Prime Minister are able to acquire a position of decisive actor. Therefore, while the bills are debated in the TGNA committees and in the General Assembly, the deputies are not able to intervene in those bills in a real sense. In such case, the legislative might face a problem of not being able to fulfill its real function. For this reason, enacting regulations which will enable the TGNA and its committees to concentrate on their duty of making laws by saving them from the influence of the Council of Ministers is important.
The control of the Prime Minister over his/her party in the parliament is also observed in the relationship between the chairmen of the opposition parties and the deputies belonging to their parties. The control of the chairmen of the political parties and the other party leaders over the deputies should not be at the degree which will restrict the free will of the deputies. Otherwise, the deputies should not be able to fulfill their functions in reflecting the will of people. On the other hand, exhibiting examples of constructive opposition instead of acting on the narrow political concerns in the General Assembly and committees of the TGNA might create a more qualified environment of debate and discussion in the process of making laws.
In order to make the parliament more functional regarding the function of legislation by weakening the power of the party headquarters in political parties and by breaking the hegemony of leaders, changes should be made in the provisions of the constitution and the laws concerning not only the legislative and the executive, but also the right to vote and to be elected and the freedom of political party. For example, transforming the electoral system into the two-round narrow region majority system might break the power of the party headquarters in determining parliamentary candidates. When it is considered that a deputy who is elected with absolute majority
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from a small election region will be deputy as a result of the will of people rather than the choice of the chairman of the party, it is clear that the deputies elected in such a way will act more independently and this will bring about more democratic results in the functioning of the political system. Similarly, if it is ensured that a certain number of parliamentary candidates of political parties are elected through pre-selection, the power of the party headquarters can be weakened.