April 7, 2017 | The Cipher Brief

Erdogan’s Referendum Ploy

Turkey is heading toward a critical referendum on April 16 to decide whether to transform the country’s parliamentary system into a centralized presidential one. Since his election in August 2014, President Recep Tayyip Erdogan, in defiance of the constitution, has refused to be a non-partisan figurehead president.

Instead, he has usurped prime ministerial prerogatives to exercise de facto executive power. Erdogan’s 18-article constitutional package is merely an attempt to legalize that fait accompli. There is, however, more to the referendum than meets the eye. The Turkish president is ultimately even more determined to extend his term limits and secure lifetime immunity than to obain legal cover for his one-man rule.

This will not be Erdogan’s first referendum ploy. In his former role as prime minister, he presented the 2010 referendum as an opportunity to settle a score with a 1980 military junta. In 2010, the vast majority of the proposed 26 articles served as fig leaves to conceal Erdogan’s real objective: total control over the judiciary. Since then, many liberals who backed Erdogan’s referendum package – with its calls for expanded rights and freedoms – ended up in jail, owing to the verdicts of courts now under Erdogan’s control.

In the aftermath of the 2010 ballot, Turkey has become one of the world’s worst offenders in terms of repressing media and political freedoms. Erdogan can no longer convincingly present his constitutional package as a step for democratization. Instead, this year’s campaign revolves around the supposed ills of coalitions and power-sharing and the efficiency of presidential regimes. To Erdogan’s credit, seven years after his last referendum gave him control of the judiciary, he is once again able to stage a phony referendum by framing the debate as one between presidential and parliamentary systems. Like last time, however, his real intention is different.

Erdogan’s first term as president will end in August 2019. The current constitution grants him the right to be elected president for a second and final term. If his constitutional amendments fail to pass on April 16, however, Erdogan may find himself in court on a wide range of pending charges. As president, Erdogan can be tried only for treason, and only by the Supreme Court. Erdogan, haunted by a December 2013 graft probe and string of corruption cases from his years as Istanbul mayor in the ‘90s, has a strong interest in providing himself lifetime protection, beyond his term in office as president.

The proposed amendments extend Erdogan’s term by a series of convoluted maneuvers. The endgame could allow Erdogan to have four terms as president, finally ending in 2034, when he is 80 years old. And after leaving office, Erdogan could not be prosecuted for any wrongdoing during his tenure, since the proposed amendments would extend presidential immunity to his acts while in office. In effect he would enjoy immunity for life.

AKP officials respond to criticism of the referendum by pointing out that the party could lose the 2019 parliamentary elections, and the opposition would then be in a position to use its newfound majority to bring Erdogan before the Supreme Court. This is indeed possible on paper. Erdogan, however, has drafted the amendments in such a way as to make sure that this never happens.

According to his proposal, for a president to be tried for an alleged crime, 301 of the 600 deputies in Parliament have to propose an investigation. Within a month after filing the motion, backers of a parliamentary investigation needs to find 360 votes to move forward with a probe. Although the proposed system bars the president from dissolving Parliament during such an investigation, the president has the one-month window after the initial filing to hold new elections and block the investigative process.

Assuming an investigation goes forward, deputies who want to send the president to the Supreme Court need to find 400 votes.  Consequently, even if the AKP loses its majority in general elections, as long as it retains one-third of seats in Parliament, it can block any investigation against Erdogan. Even in the unlikely case he were to appear before the Supreme Court, the vast majority of judges would be those he appointed, directly or indirectly.

Erdogan can grant this immunity to family members and colleagues by appointing them as vice presidents or ministers. There is no limit to the number of vice presidents or ministers Erdogan can appoint; they require neither confirmation hearings nor parliamentary approval. The president can call for elections even if there is an ongoing parliamentary investigation against his vice presidents or ministers, giving him powers to derail the pending hearings before they make it to the Supreme Court.

Winning next weekend’s referendum will make little difference to Erdogan’s ability to exercise one-man rule, either as de facto or de jure executive president. The Turkish electorate’s decision to grant or deny him a term extension and thereby grant him and his inner circle immunity beyond their time in office is, however, crucial. After all, it was Erdogan’s 2010 referendum that brought the leader of the 1980 coup to court in 2012. Erdogan well knows the importance of lifetime immunity — and the consequences of going without.

Aykan Erdemir is a senior fellow at the Foundation for Defense of Democracies. Follow him on Twitter @aykan_erdemir.