Heading at Elections

Dear friends, Turkey is about to experience one of the most important elections in the history of the Republic in the next few months. Although it is known that 2023 is an election year, we left behind a period in which there were different discussions about the date of the election. A date has emerged, but this date was not enough to end the debates. In this article, the legal debates regarding the election process will be our main agenda. However, not all discussions are limited to the legal framework. It cannot be said that there is much confidence in a fair electoral process in a government that uses state means without hesitation under all circumstances and tries to create a state-government identity. Electoral security, which is perhaps one of the most important issues that the opposition should think about, is not only about counting and protecting the votes cast at the polling stations. 

There is always the possibility that the institutions responsible for the peaceful conduct of elections may be improperly manipulated and used by the government. What is dangerous, however, is that this possibility is voiced and discussed at the social level. The only way to combat this danger is for everyone to accept the rule of law and to avoid a style of government that undermines the indivisible integrity of the state with its nation. In short, the responsibility and duty falls on all citizens of the Republic of Turkey. Let us now try to address this legal debate from different perspectives.

Where does the legal debate stem from?

In fact, although the issue may seem complicated to many, it is not that complicated when viewed from the mathematics of law. Let us go step by step to understand the issue. Let us try to understand when and how the foundations of today's debate were formed. 

1) Perhaps the first crisis of the AKP government after the November 2002 elections that brought it to power was the presidential election in 2007. It was claimed that the number 367, which was the qualified majority that AKP's presidential candidate Abdullah Gül had to obtain in the first two rounds, was in fact not a quorum but a quorum for a meeting. According to this thesis, it was not possible for the AKP to have its candidate elected if the other parties did not attend the session. As a matter of fact, the first round of voting was annulled by the CHP's appeal to the Constitutional Court. On May 6, the second round of voting also failed to reach 367, and the election went to the third round. With the participation of the MHP in the third round, the "crisis" was resolved in the way the AKP wanted and Abdullah Gül was elected the 11th President with 339 votes. Following the controversy surrounding the presidential election, a referendum was held in October to amend the Constitution. In the referendum held on October 21, 2007, the amendments to the Constitution were adopted with 68.95% of the votes. 

The amendments regulated the meeting and decision quorum, which had been the subject of debate during the "367 Crisis"; stipulated that the President would be elected by the people; and regulated the presidential election procedures. In the first hours of the day of this referendum, in which the AKP campaigned for "Yes", the terrorist organization attacked Dağlıca and the General Staff announced that 12 martyrs and 10 casualties were reported. In the referendum, which was held with the news of this terrorist attack, Article 101 of the Constitution, which is the focus of future debates, was amended as follows. 

"The President of the Republic shall be elected by the people from among members of the Grand National Assembly of Turkey who have attained the age of forty and have completed higher education, or among Turkish citizens who possess these qualifications and are qualified to be elected as a member of parliament.

The term of office of the President shall be five years. A person may be elected President of the Republic at most twice.

A candidate for the Presidency of the Republic may be nominated from among the members of the Grand National Assembly of Turkey or from outside the Assembly upon a written proposal by twenty deputies. In addition, political parties whose total valid votes in the most recent parliamentary elections exceed ten percent when calculated together may nominate a joint candidate.

The person elected President shall be dismissed from his/her party, if any, and shall cease to be a member of the Grand National Assembly of Turkey."

2) Approximately three years later, some articles of the Constitution were amended by referendum on September 12, 2010. However, Article 101 on the presidential election was not among the amended articles. In 2014, at the end of the seven-year term of office of Abdullah Gül, who was elected President in 2007, the President was elected by the people for the first time and R. Tayyip Erdoğan became President. This was also Erdoğan's first five-year term under Article 101 of the Constitution. With this election, an unnamed "semi-presidential" era has begun in Turkey with a strong presidential profile elected by the people. 

The most tangible indication of this was the resignation of Prime Minister Davutoğlu as Prime Minister and President of the AKP and the decision to hold a congress, which led to Binali Yıldırım's taking over the AKP and becoming Prime Minister. Binali Yıldırım's presidency and prime ministership of the AKP has been a period of "strong President, weak Prime Minister" approach. R. Tayyip Erdoğan, whose official ties with his party were severed when he was elected as the President of the Republic as required by the Constitution, has not only severed his de facto ties, but also demonstrated his tendency to see the AKP as a party embodied in his personal personality with all his behavior. 

3) After the 2014 elections, the first period in which the President was elected by the people, the failed "coup attempt" in 2016 gave the office of the President a great deal of legitimacy. Following this period, in which many controversial practices were implemented without being questioned, the submission of a new constitutional amendment package to a referendum in 2017 paved the way for the office of the President to be incorporated into the "presidential system" not only de facto but also de jure. In the April 16, 2017 referendum, the amendments to the Constitution were approved with 51.41% of the vote, as unsealed votes were deemed valid by the YSK in violation of the law. The 1,379,934 vote difference was overshadowed by the opposition's objection that approximately 2.5 million unsealed votes were cast. In addition, Article 101 of the Constitution stipulates that "The term of office of the President is five years. A person can be elected President at most twice." The statement has been preserved in the same way. 

Since the Constitution is not new and some of its articles have been amended, the provisions of this article cannot be interpreted differently. If a new constitution had been drafted, then the government would have to be a constituent power, which would also mean that a coup d'état had been carried out against the existing regime. Since this did not happen, the existing provisions were preserved, except for the amendments made to the existing Constitution. Under these circumstances, R. Tayyip Erdoğan was elected president for the second time in the elections held in 2018. There are two theses defended by those who think differently on this issue. One of them is that the Presidency should be seen as the new office of the new system; the other is that the first term of office of the President ends with a new election one year before the normal election date, so there is no harm in him running again. Here, one of the most fundamental principles of law can be a guide: "If there is a clear provision, there is no room for interpretation."

4) The second paragraph of Article 3 of the Law on the Election of the President of the Republic states that "A person may be elected President of the Republic for a maximum of two times. However, in the event that the Parliament decides to renew the elections in the second term of the President, the President may run for another term". The same provision is also found in Article 116 of the Constitution. Accordingly, under the current circumstances, the only condition for R. Tayyip Erdoğan to run again is that the Parliament decides to renew the elections. This cannot be done with the votes of the People's Alliance. Article 116 of the Constitution states that "In the event that the President decides to renew the elections, the general election of the Grand National Assembly of Turkey and the presidential election shall be held together." Although the statement seems to implicitly authorize the President to renew the elections, the President has stated in a speech that he does not have such authority. Since the opposition has also stated that it will not support a date after April 6, it does not seem legally possible for R. Tayyip Erdoğan to run for the presidential election. However, in accordance with Article 79 of the Constitution, the Supreme Electoral Council has the final say here. 

In the 2017 referendum, despite the clear provision of the law, the Supreme Electoral Council (YSK) ruled against the law and deemed unsealed ballots valid, and every sane person living in this country has an opinion on what the Supreme Electoral Council will say about the candidacy of the current president. Here, the opposition seems to have a low-profile objection with the reflex of "not creating victimization". In other words, it seems as if everyone's hands are tied in the face of lawlessness. Of course, this situation has a close relationship with the trust in the judiciary in the country. However, it is clearly seen that the principle of "rule of law", which is one of the qualities specified in Article 2 of the Constitution, is ignored by everyone (government and opposition). 

Conclusion

In the run-up to the elections, we are going through days when we need the "rule of law" principle to function, perhaps more than ever. It is perhaps the most rational course of action to take the discussions out of the political arena and discuss them on the basis of law. For this purpose, it would be very valuable for the law faculties of universities to discuss the issue and express their opinions, unlike what has happened so far, in order to emphasize the scientific dimension of the issue. However, at this point, it is seen that this is not easy. 

Every decision that will be made politically, or will give the impression that it is politically motivated, carries with it a potential risk for different problems that may arise in the future. This risk is the emergence of a legitimacy debate at both national and international levels. It is, of course, the desire and wish of all Turkish citizens that the Turkish nation, with its thousands of years of state tradition, never experiences this debate. Perhaps, in order to prevent similar debates in the long term, it may be useful to ensure unity of language in the legislation, that is, to organize the legislation in a way that does not leave room for different interpretations. However, what is more important than this is that everyone should know that they have a responsibility to ensure that this election, which is perhaps one of Turkey's most difficult tests, is concluded with the triumph of democracy in good faith and mutual understanding, in order to ensure that their personal ambitions do not take precedence over the interests of the nation. In this sense, Turkey must make good use of the chance to show the world that it is a country that does not give up on democracy despite everything. The solution to problems in the economy, justice, domestic and foreign policy depends on this.