In a state of law, authorities are defined through provisions of law. An open legal authorization is required to mention the authorities of those exercising authorities on behalf of the public or public institutions. It is not possible to talk about the exercise of legitimate public force in a place without legal authorization. This condition appears as the legal legitimacy of authority.
It is undeniable that a special sensitivity is displayed on the subject of whether public operations and activities occur within the limits of law in Turkey's constitutional order. However, this sensitivity does not cover the aspect that questions whether the laws and Constitution enabling legal legitimacy are legitimate. In the political discussions regarding legal limits, the circles blaming the democratic representation institutions for not behaving in accordance with laws do not show the same sensitivity toward the legitimacy of the Constitution, and this attitude does not only stem from a lack of knowledge. All the constitutions Turkey has had have been unilaterally imposed on the public by political actors of the very same circles so far. Moreover, the order's vulnerability of legitimacy reinforced the positions of these privileged circles and preserved them against the political movements that came to exist through democratic methods and elections. The exaggerated emphasis on legal legitimacy can make sense partly in the context of this background.
Legal legitimacy is an indispensable prerequisite for a state of law. However, the precondition of democracy is that the authorities can be exercised by those authorized by the public through democratic methods.
The office of the presidency, which is a significant institution of the undemocratic 1982 Constitution, attained democratic legitimacy with a constitutional amendment in 2007. In other words, a hybrid structure appeared on the scene. The president, which formerly did not have direct democratic legitimacy but enjoyed broad legal authorities, finally attained a strong democratic legitimacy since the office was determined to be democratically elected by direct popular vote.
But this hybrid situation was likely to create some problems.
Here we are mentioning a presidential seat that has strong authorities to bring its power onto the political scene even though it is not equipped with direct and active political means. The authorities, which used to be exercised in the framework of the parliamentary government system's practices with a timidity stemming from not owning direct democratic legitimacy, would not be used with timidity anymore in the new picture. Their balances would change on the map of institutions. In constitutional law, the procedure of founding the government in particular is almost completely based on practice. When the president, who already had strong legal authorities in this and similar spheres, closes the democratic legitimacy gap, the change in practices becomes inevitable, which turns this position into a new center of power.
However, the constitutional order is not designed according to such a balance. The new situation can both cause a natural pain stemming from change and lead the circles defending the current constitutional order to occasionally show an exaggerated response.
The speech President Recep Tayyip Erdoğan delivered in Rize province this weekend stirred some heated debates for this reason. Erdoğan said that since the election of the president by popular vote brings a direct political responsibility, it is compulsory to exercise the presidential authorities defined in the Constitution, adding that the confusion caused by it must be resolved based on a healthy ground with a new constitution. But his remark that "the system has changed in Turkey in this sense" was interpreted as a coup or a constitutional violation.
However, the ground of this debate is not so slippery. There is no change in the legal frame. Turkey has been introduced to neither a presidential system nor a semi-presidential system. Today, the legal authorities of the president are the same as in the first version of the 1982 Constitution. The only change is democratic legitimacy and the movement area it provided in constitutional practices, which is not insignificant.
I am concluding my article with these words. I would like to thank the Daily Sabah family for providing me a chance to express myself.
About the author
Osman Can is a Law Professor and Reporting Judge at the Turkish Constitutional Court. He holds a PhD from the University of Cologne, Germany.