Hypotheses and criticisms in the presidential candidacy debate
Naturally, as the election draws nearer candidacy debates heat up. As in many debates, theses and counterhypotheses stand against each other in two dimensions, political and legal, and are voiced by the pro-government and opposition blocs. For this reason, it is imperative to consider these two dimensions when evaluating the positions and theses of the government and of the opposition as they debate. That being said, partly due to the lack of space, I would like to deal with the issue in only a legal dimension in this article as I try to evaluate the theses of the circles close to the government regarding Erdogan's possible presidential candidacy. As a note from the beginning, these theses argue that the rule of "a person can be elected as president at most twice" stipulated in the Constitution and by the law does not constitute an obstacle to Erdogan's candidacy or electoral victory in the 2023 elections.
THE FIRST HYPOTHESIS: ARTICLE 101 ENTERED INTO FORCE IN APRIL 2018
According to this thesis, in the constitutional amendment accepted by the referendum held on 16 April 2017, the Article 101, which includes that a person can be elected president twice at most, was completely overhauled, even including the article's title lines, and with the start of the election calendar in April 2018 for the June 24, 2018 elections, it entered into force. Therefore, the election on June 24, 2018 is the first election Erdogan won under the new article. This thesis is invalid because the rule "a person can be elected as president at most twice" has been in effect since 2007 and has never changed.
Article 18 of the law on the 2017 constitutional amendments introduced a regulation on when said amendments would come into effect. According to that law, "changes made" to a group of articles, including Article 101, would enter into force with the start of the 2018 election calendar. Pay attention, not "articles," but "changes to articles" are said to come into effect. Therefore, although some changes have been made in the title and content of Article 101, the rule that a presidential term of office is five years and that a person can be elected as president for a maximum of two times has been preserved as it was in 2007, that is, it has not been changed. Therefore, the changes entered into force in April 2018, while the ones that were not changed continued in implementation as they had been since before 2017.
THE SECOND HYPOTHESIS: THE SYSTEM CHANGED, SO THIS IS ONLY ERDOGAN’S FIRST TERM
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.
THE 2018 DECISIONS OF THE SUPREME ELECTION COUNCIL
Indeed, in continuity with this argument, the Supreme Election Council (SEC) stated that Recep Tayyip Erdogan had been elected as the “12th President of the Republic of Turkey” when announcing the result of the elections held on August 10, 2014, in which the president was determined by direct popular vote for the first time. The certificate of election was prepared accordingly. Later, when announcing the result of the June 24, 2018 elections, the SEC prepared a certificate of election stating that Recep Tayyip Erdogan had been elected as “the 13th President.” The next day, the SEC changed the certificate to remove the qualifier “13th” and prepared a new certificate which included only the name of the president. The reason for this change was that the Speaker of the Parliament objected to the phrase “13th” in the first certificate as it was not possible for them to reach the number 13. Indeed, the number of people who have been president since Ataturk is 12, whereas the number of presidential elections, including the constitutional vote in 1982, is 20, so where did the number 13 ever come from? The SEC agreed with the Speaker of the Assembly and corrected the certificate of election by removing “13th.” However, the Council’s corrected certificate did not include any other number, such as “1st President of the new system.”
Some members of the Justice and Development Party (AKP), who interpreted the situation in the moment, stated that Erdogan was the first president of the new system. This has formed the basis of the current claim that "the system changed, Erdogan’s first election in 2014 cannot be counted.” Yet in my opinion, it was correct for the SEC to remove the number 13, and this does indeed mean that Erdogan was elected for the second time. How so?
When we look at the history of the Republic, we see four people who were elected as president more than once. Ataturk was elected four times, Inonu four times, and Bayar three times. These individuals are referred to as the 1st, 2nd, and 3rd Presidents, respectively, no matter how many times they have been elected. Thus, if a person has been elected to the office of president two or more times in a row, that person is referred to by whichever number president they were when they were elected for the first time. Let me make a note here. According to the Constitution of 1924, there was no restriction on how many times a person could be elected president. In contrast, the 1961 and 1982 constitutions limited the presidential term of office to 7 years. It was forbidden to be elected president twice in a row in 1961, and to be re-elected at all in 1982. As such, until the 2007 amendment, all presidents were elected only once and only for a term of 7 years. From 1923 to 2007, except for the referendum in 1982, the results of the presidential elections, which were all held by the TBMM, were announced by the Speaker of the Parliament.
In these statements, the phrase “5th President” was used for the first time in 1966 in reference to Cevdet Sunay, after whom Fahri Koruturk was written down in the records of the TBMM as the 6th President. Since Kenan Evren became president through the 1982 constitutional referendum without a separate election, that is, he was not actually "elected," we do not see the phrase “7th President” in the official documents related to him. On the other hand, Turgut Ozal was declared the 8th president, Suleyman Demirel the 9th, Ahmet Necdet Sezer the 10th, and Abdullah Gul the 11th in the records of the TBMM. Likewise, after the "system changed" and the president began to be elected directly by popular vote, the SEC, which was authorized to prepare the certificates of election, did not break this continuity and announced on August 28, 2014 that Recep Tayyip Erdogan had been elected as the 12th President. Accordingly, since the same pattern continues and the same person was elected for the second time in 2018, it was a mistake to say that Erdogan was the 13th President, it was right to correct it, and this is actually a confirmation that Erdogan was elected for the second time, contrary to the claims of AKP and government spokesmen.
The practices of different countries regarding the numbering of presidents in cases that a person is elected as minister or president consecutively confirm this as well. For example, when we look at the US Presidents, Franklin Roosevelt, who was elected three times in a row, is referred to as the 32nd President, in accordance with the order as when he was first elected. Likewise, in France, for example, Mitterrand and Chirac, who were elected twice in a row, are referred to as the 21st and 22nd presidents, respectively, in the same order as when they were first elected, and each election is not given a separate number. The fact that the SEC corrected its mistake and did not put a new number in Erdogan’s second election is compatible with these comparative practices.
WHAT WILL THE SUPREME ELECTION COUNCIL DO?
Of course, there is no way to know for sure. However, the current constitution and laws inform us that a person can be elected president at a maximum of two times. If it falls to the SEC to be the decision maker in this case, it is their responsibility to judge whether the incumbent president is someone “who has been elected twice.” We do not know what this decision will be. This being the case, to dismiss taking a stand in the direction of doing what the law requires and to remain passive instead with the assumption that "SEC always decides as the government wants,” is as incomprehensible an approach as it would be to surrender the entire election process to unlawfulness from the outset. It is the duty of every citizen to abandon this approach, which may result in heavy and painful ramifications, as soon as possible, and to call for compliance with the law by reminding the competent authorities of their own decisions and the implications of these decisions when necessary. The current government may not take the law seriously, but the language of law can easily be translated into the language of the opposition in oppressive regimes. This is what I expect from the opposition, and if it becomes an agenda item for the SEC, I expect it to present us with a justifiable decision showing that they will preserve the rigor of law in Turkey.
Having concluded the article in this manner, I came across a news report that President Erdogan stated, in contrast to his previous statements, that he would initiate the process through presidential decree “if the required majority in the Parliament is not achieved.” Undoubtedly, if Parliament makes the decision to renew the elections on any date before June 18, the legal problem regarding the third term candidacy of Erdogan, which is the subject of this article, will also be eliminated.
*Levent Koker: Koker is a graduate of Ankara Faculty of Law (1980) and completed his PhD in Political Science at the Faculty of Political Sciences in Ankara (1987). He became Associate Professor of Political Theories (1990) and Professor of General Public Law (1996) at Gazi University. He had roles as part of the faculty at universities such as METU, Bilkent, Atilim, and Near East. In 1997, he became the Founding Dean of the Near East University’s Faculty of Law. He worked as a visiting researcher at Oxford, Princeton, New School for Social Research, and Northwestern (2017-18). He was suspended from his role at the Near East University for making the statement "We will not be a party to this crime" together with the Academics for Peace (2016). He is the author of the books Modernization, Kemalism, and Democracy, Two Different Politics, Democracy, Criticism, and Turkey.