Executive decrees, omnibus bills, and the politics of abusive constitutionalism

ABSTRACT

Consolidation of authoritarian rule by constitutional tools is becoming an increasingly prevalent phenomenon, as powerful incumbents instrumentalize constitutional amendments to rework the state to their advantage and eliminate the horizontal checks. Turkish experience since 2014, we argue, is a suitable case to identify the legal mechanisms that are abused to undermine democratic rule within the context of abusive constitutionalism. We present original data on omnibus bills and analyse the executive decrees which expanded executive discretion over legislation and reduced horizontal accountability. Our analysis shows that the regime single-handedly reorganized the administrative structure through executive decrees, while the omnibus bills were critical in addressing the economic and judicial issues. Both methods of legislation accelerated the law-making to exclude the opposition from legislative processes. Our analysis contributes to the literature as it illustrates how the would-be autocrats eroded democratic institutional order by gradually neutralizing checks on their rule.

KEYWORDS:

• AKP
• executive decrees
• omnibus bills
• abusive constitutionalism
• horizontal accountability
• Turkey

Acknowledgements

We would like to thank Berk Esen, Şeref İba, Tahir Kılavuz, Zeynel Abidin Kılınç, and Ziya Öniş for their help and support throughout this process. We would also like to thank the anonymous reviewers for their constructive comments.

Disclosure statement

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

Notes

1. Even though the AKP lost its parliamentary majority in 2018, it compensated this loss by forming an alliance with the MHP.

2. DGMs were established in 1973 to handle cases that concern the internal and external security of the state. In addition to civilian judges and prosecutors, military judges and prosecutors were also included to serve in these courts. By including military authorities in this way, a continous tutelary power has been granted to the military within the judicial system. Similarly, MGK has legitimized involvement of senior military officials in politics. Despite being a consultative body without executive authority in terms of its constitutional status, the MGK has been mandated that the decisions of the Council must be primarily taken into consideration by the Cabinet. Thus, the MGK has been assigned the function of a security mechanism to regulate the system without the need for direct military intervention.

3. The main opposition party, CHP declared that it will boycott the presidential election and sided with the military and the Constitutional Court, leaving AKP with no choice but to hold early elections to overcome this deadlock. 2007 general elections resulted in AKP’s landslide victory and MHP’s entrance to the parliament which did not boycott the presidential election and provided the AKP with the sufficient quorum it needed to elect Abdullah Gül.

4. Executive decrees became part of the legislative process in 1972, and 34 decrees were issued until 1980 (Angın 2019). During the period between the 1980 military intervention and 1983, 72 more executive decrees were issued (2019, p. 189). Furthermore, under Özal’s leadership (1983–1991), consecutive ANAP governments issued more than 400 executive decrees (2019, pp. 184–185). Finally, more than 150 decrees were issued between 1991 and 2001.

5. For instance, Article 91 of the Rules of Procedure states that basic laws must have certain characteristics such as the principle of systematically changing an entire branch of law (or comprehensive change).

6. We accessed the omnibus bills on the Grand National Assembly’s website (https://www.tbmm.gov.tr/Yasama/Kanunlar & https://www.resmigazete.gov.tr). The term ‘omnibus bill’ belongs the daily colloquial. We employ two criteria to distinguish omnibus bills from regular bills. First, the name of the law should state that the law consists of different laws (i.e., ‘The law that is intended to amend some laws’ (Bazı kanunlarda değişiklik yapılmasına dair kanun), ‘The law that is intended to amend some laws and decree laws’ (Bazı kanun ve kanun hükmünde kararnamelerde değişiklik yapılmasına dair kanun), and ‘The law that is intended to amend some laws and decree laws numbered XYZ’ (Bazı kanunlarda ve XYZ sayılı kanun hükmünde kararnamede değişiklik yapılmasına dair kanun)). Second, we check whether these laws are discussed as ‘basic laws’ (Temel Kanunlar) or not. We coded the date, the commission that was responsible, and the broad thematic content for all the laws that fulfilled these two criteria.

7. For a more detailed analysis, look at the laws with following id numbers: 5763 in 2011, 5904 in 2009, 6527 in 2014, 6728 and 6745 in 2016, 6772, 7033, and 7061 in 2017, 7099 and 7144 in 2018, 7161 in 2019, 7226 in 2020, 7341 and 7349 in 2021.

8. Similarly, look at 5560 in 2006, 5582 in 2007, 5838 in 2009, 6111 and 6262 in 2011, 6385 in 2013, 6704 in 2016, 6770 in 2017, 7319 in 2021, and 7339 in 2021.

9. See 5728 in 2008, 6526 and 6545 in 2014, 7188 in 2019, and 7242 in 2020.

10. 6110 in 2011 and 6524 in 2014, 6723 in (Taş 2015), 7035 in 2017, and 7165 in 2019.

11. 6763 in 2016 and 7329 in 2021.

12. 6217 in 2011, 6352 in 2012, and 6460 and 6494 in 2013.

Additional information

Notes on contributors

Abdullah Sait Özcan

Abdullah Sait Özcan obtained his bachelor’s degree at Boğaziçi University in 2015. He is now a PhD candidate in the department of Political Science and Public Administration at Sakarya University. He is interested in democratization, Turkish politics, and politics of authoritarian regimes.

Fırat Kimya

Fırat Kimya is an incoming Visiting Assistant Professor at Swarthmore College. He completed his PhD in department of Politics at University of Virginia. His research centers around the relationship between party institutionalization and democratic consolidation. He also conducts research on political parties and politics of repression.