Ali Duran Topuz
For sale in Turkey: brand new stopwatch for law!
President Recep Tayyip Erdogan self-assuredly says, “The stopwatch has been reset.” Really, it was reset in 2018, not today. And not reset simply, but "in reason, in law, and in practice.”
Let's leave the matter of "practice" for later and let’s take a look at the issue of “reason” and “law” first.
What is it that we are debating? Whether Erdogan's candidacy for the third time is a constitutional problem. Thus, the law should have precedence before reason and practice. This priority of law is due to the nature of the business; reason must already be utilized for legal judgement and legal reasoning. Practices, on the other hand, are either based on law beforehand or are weighed later by the law; that is, an act is always evaluated together with the law. There is only one possible practice that escapes the law, and that will be mentioned at the end of the article.
So, in 2018, the stopwatch was reset, what could this mean?
The constitution was changed in 2017. The changes came into effect in 2018, the election was held, and Recep Tayyip Erdogan was elected president. Erdogan expressed his victory with the formula of “the system’s first elected president, and also the leader of the new system.” Now, can the stopwatch be reset "in reason," that is, in terms of reason, in accordance with reason? It may be possible to believe in such things from the point of view of an untethered mind that has formed no connections with anything, but a legal mind must be at work here, not a “free” mind. It is inconceivable that an issue inherently bound to the rules written in the Constitution should be handled with a mind other than legal reasoning. In any case, no one has yet seen a mind that works on its own in every field.
The method of legal reasoning is simple: The Constitution states, "No person can be elected president more than twice.” This was the wording before the constitutional amendment, and it remains as such after the amendment. So, the judgment is the same. If the person set to become the president in the election held after the constitution was changed had revised the relevant article to say that a presidency before the amendment did not count, neither reason nor law would have been unnecessarily called to duty. Who would bother themselves with such a pointless endeavor, anyway? In other words, even if he is "the first president and the first leader of the new system" in reason and in law, he would remain as the person elected for the second time to the office of "President of the State of the Republic of Turkey" by that very same "reason and law.” This is the case from a legal standpoint, which is why an extra-legal mind has even been called to duty. The necessary conditions for being elected for a third time are also outlined in the Constitution: If the parliament decides to renew the election, it works. So why not pursue this pathway? Because the total votes of Erdogan and his political partners are insufficient.
“REASONING IN PRACTICE” AT PLAY
If this is the case for legal reasoning, to which reasoning and to which practice does Erdogan refer? Is it possible to have a reason and a practice that resets the stopwatch apart from the legal mind? Unfortunately, it is: A mind that has been purged of law and has zeroed legal reasoning is at work, and Erdogan declares this himself. He says, “I am the law,” as the king once said; therefore, “the legislation and reasoning are mine too.” A mind that entirely disregards any clear, certain, indisputable law is a mind that does not consider itself bound by law. That is, it is a mind determined to remove democracy and law from the playing field.
This is the mind of Carl Schmitt's "sovereign," but when put this way, it is often perceived as if this kind of sovereignty has a legitimate basis. Whereas Carl Schmitt was a master theorist who wasted ink on postulating the legitimacy of democracy-hating models of dictatorship. The purpose of the ink-wasting of a mind embedded in this fascist ideology was to pave a double path of legitimacy, both for the Nazis it supported and for the various forms of dictatorship that would come to power in the future. So, he was a determined builder, and a decisive one. He may have been the most skilled of all Erdogan's consultant lawyers, but in the end, his skills did not go beyond issuing the prescriptions used by those consultants. Look beyond the surface of Mehmet Ucum's words, and out comes the Schmittian bilge. Erdogan speaks from the middle of any old Schmitt book: “I am the sovereign. All legal rules, including those that I have made or declared, are secondary to my will, and I immediately rule on their exceptions.”
And this is where the word “in practice” in Erdogan's statement finds its place: It is only possible for him to be a candidate for the third time legally under one condition, and that condition does not seem possible at the moment. If the legal mind says so, a “practicing” mind should be put to work to incapacitate it. That is why he says "practice.” To say, “this is actually the case in practice,” in short, means, “why do I care what the legal situation is, I am speaking as someone above the law.”
The stopwatch being reset is not the one for the presidency, it is the one measuring law; and both legal reasoning and democracy have been zeroed along with it. What remains is the situation in practice and the dictatorial mind that produces and executes that situation. This election is the last election from which that mind wants votes, it is a private plebiscite. If he wins this election, he will not need the votes of the electorate in the next elections, he will bring them from home anyway.
1) The work that touched upon the issue of Erdogan's candidacy in the most detailed way recently was Levent Koker's article in Gercek News. The following section is particularly illuminating:
According to this thesis, a new government system was introduced in Turkey with the changes of the 2017 constitutional amendments. Therefore, though it seems that the same person has been elected as president twice, the 2018 election was the first under the new system. As such, there is no obstacle to the re-election of the incumbent president. This thesis is also invalid. There are two very simple reasons for its invalidity. First, constitutions do not name their states' systems of government. For example, the term "presidential system" is not written in the American Constitution, just as "semi-presidential system" is not in the French Constitution, and "parliamentary system" is not in the Swedish Constitution. Those who name existing systems are knowledgeable persons who conduct comparative studies on how the relations between the legislative-executive-judicial powers are arranged.
From this vantage point, one of the biggest changes in terms of the system has been the election of the president by direct popular vote instead of by the Turkish Grand National Assembly (TBMM or Parliament), as was the case in 2007 and was implemented for the first time in 2014. With this change, there were experts who claimed that Turkey had abandoned the parliamentary system and switched to a semi-presidential system. The second main reason that invalidates the thesis is that the Republic continues even if the system changes. In other words, the fact that there has been changes from the absolute parliamentary sovereignty of the government system (1924) to the separation of powers and the bicameral parliament (1961), then to the parliamentary government model with the president with increased powers, from there to the semi-presidential system (2007/2014) and finally to the “presidential system” with 2017 does not mean that the president serving in all these systems was somehow the president of separate states. To assume that a system change constitutes a first term for the presidency requires the assumption that the Republic of Turkey was overthrown, and a new republic was established in its place. Presumably, the proponents of this thesis do not make such a claim.
2) One of the people who voiced concerns on this issue when the constitutional amendment was first put into force was Professor Murat Sevinc.
Murat Sevinc never gave up on dealing with the issue properly.