Dilara Aydin, third-year doctoral candidate at the University of Waikato in New Zealand and a practicing lawyer, questions the constitutionality of President Erdogan's candidacy in a third presidential election...
A critical presidential election is scheduled to take place on May 14 in Turkey. Nonetheless, there have been heated discussions over the constitutionality of President Erdogan’s candidacy. Erdogan was elected president for the first time in August 2014, following his role as prime minister beginning in 2003. In June 2018, Erdogan was elected as president one more time. Now he is running for president a third time. However, the Constitution of the Republic of Turkey Article 101 states, “The President of the Republic’s term of office shall be five years. A person may be elected as the President of the Republic for two terms at most.”
The Constitution of Turkey has undergone several changes since the first constitution (1921), and the latest constitution, dated 1982, has been subject to 21 amendments. In 2017, Erdogan played a significant role in the last amendment of the Constitution through a referendum. This amendment transformed the Turkish system from a parliamentary to a presidential system and weakened the parliament’s powers and its role of checks and balances. For example, Article 89 became a veto power for the president by returning laws to the Turkish Grand National Assembly (“Assembly”) if the president disapproves. The Assembly can only re-adopt the laws if it can reach an absolute majority as opposed to a simple majority, as in the previous regulation. The amendment to the Constitution resulted in the abolition of the interpellation and oral questions in Article 98, along with the removal of the parliamentary investigation mechanism under Article 100. Article 161 authorizes the president to prepare a draft of the state budget. One of the most significant and debated alterations is in Article 104, which regulates the powers and duties of the president. According to Article 104, the president has the executive power of the state, appoints and dismisses presidential assistants and ministers and high-level public functionaries, regulates presidential decrees in relation to executive power, and issues regulations related to implementations of laws. Though the aim was to shift to a presidential system, this particular amendment has negative implications for democracy in Turkey. The 2017 amendment gave power to the president and diminished the power of the assembly, and it is evident that Erdogan is not willing to give up this power for at least another five years.
Despite the significant changes in the Constitution, the amendment did not revise the presidency term under Article 101. Still, the Constitution has allowed a president to serve for a period of more than ten years. According to Article 116, Erdogan may only become a legal candidate if parliament authorizes an early election. Pursuant to the article, the decision to hold an early election can be reached through two different methods. The first option is the decision of the parliament, which requires a 3/5 majority vote. The second method empowers the president to make such a decision. Regardless of the decision-maker, once it is decided, the presidential election and parliamentary elections are held concurrently.
There is one significant distinction between the two alternatives. According to Article 116, if only parliament opts for an early election, then the president can run for the presidency for a third time. It is the only way for a president to be re-elected and serve as a president in the third term. However, the election scheduled for May 14 was called by President Erdogan alone. The parliament did not call for an early election. Erdogan’s coalition holds 336 of the 600 seats in parliament, so it is unlikely for parliament to reach a 3/5 majority calling for an early election.
As a result of the explicit provision in the Constitution, opposition parties raised objections about Erdogan’s candidacy to the Supreme Election Council (“YSK”), which is the only authority that can make a decision on such matters under Article 79:
The Supreme Election Council shall execute all the functions to ensure the fair and orderly conduct of the elections from the beginning to the end of polling, carry out investigations and take final decisions on all irregularities, complaints and objections concerning the elections during and after the polling, and verify the election returns of the members of the Turkish Grand National Assembly.
YSK ruled that Erdogan’s first term as president was before the 2017 constitutional amendment, and he served that term under the parliamentary system. After the amendment to the Constitution in 2017, Erdogan ran for his first term under the presidential system and was elected in 2018. Consequently, his candidacy in the upcoming 2023 election would be his second term under the presidential system for YSK. Unfortunately, the decisions rendered by the YSK are final, according to Article 79, which states, “No appeal shall be made to any authority against the decisions of the Supreme Election Council.”
The unambiguous language of Article 101 does not expressly indicate the name of the governmental system, and this article remained unchanged with the amendment in 2017. Consequently, it is hard to justify that the mere change in the governmental system alone would suffice YSK’s conclusion. Furthermore, this change in the governmental system took place within the same Constitution. Therefore, Erdogan’s candidacy for the third time is unconstitutional.
In accordance with the current system, under Article 101, if Erdogan obtains an absolute majority of the valid votes on May 14 he will be elected president for the third time. Should neither Erdogan nor any other candidates be able to secure such a majority, a second round will take place on the following second Sunday between the two candidates with the highest number of votes in the first round. In the second round, the candidate who gets the majority of valid votes will be elected president of Turkey.
According to polls, Erdogan’s chances of victory have grown considerably slimmer, especially in the wake of a last-minute withdrawal by presidential candidate Muharrem Ince. Ince was widely believed to have split the opposition vote, but now many believe that his exit from the electoral race will help Erdogan’s challenger, Kemal Kilicdaroglu.
It is a critical election for the future of Turkey, taking into account Erdogan’s alliance with HUDA-PAR, a small, radical Islamist party known for opposing minority, women and LGBTQ rights. A possible rise to power for such a far-right party threatens secularism and tolerance in Turkey that was championed by the late Mustafa Kemal Ataturk.
Dilara Aydin is a third-year doctoral candidate at the University of Waikato. She has an LLM degree from the University of Aberdeen and a bachelor’s degree in law from Istanbul University. Her research focuses on the intersection of intellectual property and investment arbitration. In addition to her academic pursuits, she is a practicing attorney registered with Istanbul Bar Association and an accredited mediator in Turkey.
Suggested citation: Dilara Aydin, Toward the Turkish Presidential Election: A Constitutional Question, JURIST – Professional Commentary, May 11, 2023, https://www.jurist.org/commentary/2023/05/dilara-aydin-turkey-presidential-election/.
This article was prepared for publication by Hayley Behal, JURIST Commentary Managing Editor. Please direct any questions or comments to her at firstname.lastname@example.org
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