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Turkey’s Presidential Elections: Towards the Confrontation between Constitutionalism and Power Politics

–Bertil Emrah Oder, Koç University Law School

The expected has happened: Prime Minister Erdoğan is the President-elect. He won in the first round of elections on August 10, 2014, by receiving an absolute majority of the valid votes cast, namely 51.79%.[i] He is the second President elected by popular vote after Kenan Evren, leader of military coup in 1980. Evren was elected directly as a result of a national referendum on the constitution in which support for the draft constitution also meant support for his presidential candidacy.

Results of the presidential election for other candidates were also in line with recent polls. Ekmeleddin İhsanoğlu, former head of the Organization of Islamic Cooperation (OIC), was the so-called joint candidate of 14 political parties including the main opposition party (CHP) and the Turkish nationalists (MHP). He gained nearly 38.44% of the valid votes. Selahattin Demirtaş, the co-chair of the recently established Peoples’ Democratic Party (HDP) signaling transformation of the pro-Kurdish party into an actor of mass politics, received 9.76%.

The unexpected was the voters’ attitudes towards non-participation in the elections, since in Turkey political interest in elections is traditionally high. Ballot box turnout for these presidential elections was strikingly low, namely 73.13%, which Turkey has never experienced since the late 1970s. There were approximately 2 million votes that were not cast compared to recent local election in March 2014. Even though it is unclear which segments of the society and which political tendencies declined to cast their votes, one can make assumptions based on recent local elections that may show the unwillingness of Turkish nationalists to vote and the inability of certain groups, such as seasonal employees, to vote during summer. Taking into account increased political polarization and the dominance of all-or-nothing politics in Turkey, this attitude must be carefully examined and analyzed.  While Turkish voters living abroad cast their votes for the first time in their resident countries, only 8% out of 2,8 million eligible voters living abroad casted their vote. It was also reported that more than 5,000 women who have been victims of domestic violence, which is a critical area of concern in Turkey, were also deprived of their right to vote because of protective measures and secrecy of identity.[ii]

The electoral results reveal a decrease in votes for the AKP, the ruling political party, and for the MHP, the Turkish nationalists, in general. Nevertheless, MHP voters clearly supported Erdoğan in middle and eastern Anatolian cities compared to the data of recent local elections. Erdoğan’s victory – despite a decrease in AKP votes – is evidence for the consolidation of right wing votes in Turkey under his candidacy. Considering different kinds of right wing politics in Turkey, ranging from the democratic central one to religious conservatism, are the dominant factors in Turkey’s republican political history and elections, it is not surprising that Erdoğan’s strong image and rhetoric referring to a Turkish conservative legacy wins.

The electoral fraud debate in the presidential election

Turkish presidential election rallies were carried out under hot debates as to electoral fraud and very limited public visibility of other candidates compared to Erdoğan’s uninterruptedly broadcasted and very expensive campaign based on films, public speeches, posters and door-to-door canvassing. Erdoğan was criticized for the alleged use of public funds to finance his campaign, since he launched the high-speed railway between Ankara and Istanbul during the election campaign and distributed social welfare benefits such as food and coal.  Those criticisms were not only expressed by rival candidates, but also by the Organization for Security and Co-operation in Europe (OSCE). OSCE pointed out that there was no clear separation between activities of government and electoral campaign in presidential elections.[iii]

These discussions were also an inevitable result of a decision issued by Supreme Board of Election, the highest authority in Turkey for supervision of elections in accordance with constitutional principles of fair and competitive elections.[iv] The Board rejected an individual complaint which argued that Erdoğan’s candidacy, while retaining his existing position as Prime Minister, did not comply with the prospective impartiality of the President as provided in the Constitution and that he should resign the prime minister’s office after his candidature status was approved. The Board’s conclusion is not convincing, but it reflects the very same quietist approach of the Constitutional Court, which stated in a case reviewing the presidential election law that resignation of the prime minister’s post is not necessary for becoming a presidential candidate despite the constitutional principle of presidential impartiality.[v] There could also have been a constitutional argument made under the constitutional principle of electoral fairness, which requires the separation of governmental activity and electoral campaigns. The deferential approach of the Board and Constitutional Court strengthened the powerful political image and impact of Erdoğan. Both institutions ignored the purpose of impartiality clause and electoral fairness principles in a legal framework and political culture where there are only limited effective remedies and checks for the prevention of electoral fraud.

Moreover, even though there are guarantees promoting electoral equality in the relevant legislation for broadcasts, one sided pro-Erdoğan coverage at the public channel TRT was also a matter of concern as sarcastically expressed by presidential candidate Demirtaş.[vi] In the first days of the campaign, Erdoğan appeared on TRT Haber for 559 minutes, while Demirtaş had just 18 minutes of air time. According to the Turkish media regulatory authority, namely RTUK, it was “normal” that the candidate Prime Minister Erdoğan had the highest rate of visibility among the other candidates. Printing a large number of additional ballot papers, namely 18 million extra ballots, was also confusing and accelerated the dispute as to possible forms of electoral fraud. As the legislation on presidential elections allows individual donations, the candidates received financial support for their campaigns through donations. According to data shared by a pro-AKP twitter account Akkulis, Erdoğan received the highest number of donors and donations, namely 90,382 donors and 24,337,697 million liras in donations.[vii] Those are disproportionately higher than the other candidates’ donors and donations.[viii]  The total donation amount of Erdoğan was approximately 12 times higher than that of İhsanoğlu, the joint candidate.

Preliminary remarks on Erdoğan’s presidency

There is no doubt that Erdoğan has an active and compelling presidency in mind. The question is as to whether this will be provided under the current constitutional structure by excessive use of his legally given powers or whether there will be a constitutional amendment empowering the President. In different occasions Erdoğan has stated that he will use “all of the constitutional powers” in case he becomes the President. AKP leadership emphasized regularly that the directly elected presidency would have a new and transformative meaning for Turkish politics than the late Presidents elected by the parliament in the past. Since under the current distribution of seats in the parliament Erdoğan’s political party AKP doesn’t reach the amendment quorum by itself, any constitutional amendment would depend on bargaining with another political party or must wait at least until the parliamentary election results in 2015.

In 2012, the AKP submitted a draft proposal to the Constitutional Reconciliation Committee in which the President would be both the head of state and government. This proposal supported extensive powers of the President including use of military power, presidential decrees and an effective veto power that could be very difficult for parliament to override. Lack of political responsibility and limited criminal accountability were also remarkable features of the proposal. An ineffective judiciary which is regarded as the silent mouth of the legislature in AKP’s constitutional proposal signaled a super executive power immune from any real sense of checks and balances. AKP’s insistence on such a presidential system made it impossible to proceed with the constitutional agenda and created a deadlock.

Signals as to emergence of an omnipotent presidency were already visible in Erdoğan’s electoral rally in which his campaign slogan was National Will, National Power, Target 2023 referring to the 100th anniversary of the Republic. In another political advertisement of Erdoğan’s campaign, ordinary citizens showed their fists by emphasizing the slogan: “Gain more power”.

Some preliminary remarks in the aftermath of presidential elections may be useful to follow Turkey’s constitutional challenges and tensions that Turkey will face during Erdoğan’s presidency. The impartiality clause of the Constitution will be at the core of discussions during the Erdoğan era. Erdoğan is required by the Constitution to be detached from any political affiliation as an impartial authority. However, he seems he will cut his bonds with the AKP only in a formal sense. Erdoğan’s speech after the election victory in the main building of AKP and his invitation for the party leaders to stand with him at the podium are symbolic manifestations of his attachment to AKP.  Previously he also stated that he is the leader of AKP and the party will not search for a new leader.

Erdoğan’s rapid move after elections to summon AKP’s general assembly and to serve as its leader has already triggered a new constitutional debate on impartiality, since the Constitution explicitly states: “If the President-elect is a member of a political party, his/her relationship with his/her party shall be severed and his/her membership at the Parliament shall cease.” The main opposition party, the CHP, has already lodged an application before the Supreme Court of Appeals to suspend the summoning of AKP’s general assembly under the leadership of Erdoğan.[ix]

The impartiality of the President is the backbone and underlying logic of the current constitutional paradigm. Constitutional powers conferred on the president are widely based on the assumption of impartiality. In this vein, the Constitution states that the President is the head of the state. The President is conceived as just the symbolic head of government according to constitutional practice in which, for example, he/she should sign governmental decrees and ratify international agreements. The ex officio and independent signing power of the President is limited and subject to judicial and political immunity.

Prospects for omnipotent leadership in Turkey

Due to the constitutional principle of impartiality, the President must ensure the implementation of the Constitution and act as the guardian of regular and harmonious functioning of the state organs as explicitly stated in the Constitution. To this end, the Constitution speaks not only of powers, but also duties of the President. Moreover, the constitutional paradigm is not generally based on a full empowerment of presidential authority, but its limited nature. In contrast with the Russian and French systems, the President is not the ultimate political authority in many senses. Instead, he/she is conceived as the authority of reconciliation and constitutional awareness. For example, the President’s veto power may be easily overridden by the Parliament. The President may dissolve the Parliament under very strict, hardly achievable conditions that have never been used in Turkish republican history.

However, the powers stemming from impartiality may be manipulated in case of excessive use and in instances of ambiguity. The presidential power to summon and head the Council of Ministers could be used in an abusive manner, even though it is explicitly stated in the Constitution that the Prime Minister is the head of Council of Ministers. The constitutional provision which seemingly allows presidential powers to be extended by ordinary laws may also be misused to subvert the institutional balance. Since the President appoints the Prime Minister and other ministers, this power could also lead to presidential control of the government. Due to the impartial and symbolic assumptions on which the design of presidential powers was based, the President does not have any political accountability, and only limited criminal liability for high treason, which is subject to the highest quorum at the parliament. Using these constitutional powers without impartiality thus raises concerns not only for the future of the parliamentary system in Turkey, but also for the expansion of power politics. To sum up, the current structure may serve as a temporary “tailored caftan” for de facto empowered presidentialism.

Here, it should be asked whether this search for a powerful presidency and omnipotent leadership is in line with Turkey’s constitutional traits. To answer this question, we should recall that the choice for an Ottoman-Turkish parliamentary system instead of variations of a presidential system is a matter of historical development. Its emergence traces back to the end phase of Ottoman Empire, namely 1908. It is the result of tension between an authoritarian monarchy and a group of middle-class, well-educated intellectuals represented in the parliament, where first motions of confidence and approval of governmental program emerged as parliamentary practices before enactment of explicit constitutional provisions. The parliamentary approach versus presidential authority was the mainstream policy choice in the republican era. In this sense, it is a historically-grounded solution for Turkey, tested on many occasions and in times of political turmoil and ruptures. Not even Atatürk’s transformational leadership and authority changed the natural choice of Turkey’s evolving parliamentary system and its maintenance under different pressures.

This constitutional memory makes sustainability of pro-presidential approaches harder in Turkey. Nevertheless, there is another fact we observe among Turkey’s right-wing political circles that strengthens the survival of super and moderate presidential tendencies. Beginning in the 1980s when political and economic instability becomes visible, the Turkish right-wing elite demonstrated a very strong desire and support for variations of strong presidentialism.[x] In fact, even the current constitutional provisions reflect this approach of right wing circles. They provide a more involved presidential power compared to those of the former constitutional provisions before 1980. However, under current constitutional structure constitutional guarantees for parliamentary independence and the authority of legislative power are maintained as major determinants of deliberative democracy, and judicial review is safeguarded and institutionalized despite some problems.

In the mid-term, Turkey will be a laboratory for constitutional law, especially as to the transformation of executive power and a rethinking of the role of formal institutions of checks and balances in a democracy where majoritarian discourse occupies the central role. Turkey’s fragile, but not underdeveloped democracy may present an important case study for better understanding patterns of the realization and limits on the concentration of power, and the role of constitutionalism in power politics.

Suggested citation: Bertil Emrah Oder, Turkey’s Presidential Elections: Towards the Confrontation between Constitutionalism and Power Politics, Int’l J. Const. L. Blog, Aug. 16, 2014, available at: http://www.iconnectblog.com/2014/08/turkeys-presidential-election-towards-the-confrontation-between-constitutionalism-and-power-politics/

 

[i] Temporary election results as announced by the Supreme Board of Elections at http://www.ysk.gov.tr/ysk/content/conn/YSKUCM/path/Contribution%20Folders/HaberDosya/2014CB-Gecici-416_d_Genel.pdf  (13 August 2014).

[ii]Fevzi Kızılkoyun, “More than 5,000 domestic violence victims not voting”, 10 August 2014, Hürriyet Daily News. For same issue at 2014 local elections see “Şiddet mağduru kadınlar oy kullanamayacak” [“Female victims of violence will not be able to vote”], Habertürk, 27 March 2014.

[iii]“Int’l bodies focus on biased media, use of public sources in Turkey’s election”, 11 August 2014, Hürriyet Daily News; Baha Demirel, “AGIT: Erdoğan’ın devlet kaynaklarını kullanması kampanya sürecini zedeledi” [OSCE: Erdoğan’s use of public funds infringed the electoral campaign process”], 11 August 2014, Radikal; for critism of interim report of OSCE by Supreme Board of Elections see “YSK’dan AGIT’in Türkiye’de seçim raporuna tepki” [Reactions of Supreme Board of Elections for OSCE’s report on elections in Turkey”], 7 August 2014, Cumhuriyet.

[iv] Supreme Board of Election, Decision Nr: 3237, 12 July 2014.

[v] Constitutional Court, E. 2012/30, K. 2012/96, 15 June 2012.

[vi]“Demirtaş TRT’yi TRT’den iğneledi” [“Demirtaş teased TRT at TRT”], 3 August 2014, Cumhuriyet. For sarcastic expressions as to electoral fraud in Turkey appointment of the mascot cat Sero for safeguarding ballot boxes could be also cited. Sero recalls the controversial power blackouts during the local elections in March 2014. The opposition alleged that the blackouts were planned so that the government could manipulate the vote-counting process. Energy Minister Taner Yıldız stated that a cat damaged a power distribution unit and caused blackouts in many electoral districts. See “CHP’den seçim için kedi genelgesi: Sero görevlidir” [Cat resolution from CHP for election; Sero is authorized”], 9 August 2014, Radikal.

[vii] “Başbakan Erdoğan’a rekor bağış” [“Prime Minister Erdoğan hits the record of donations”], 2 August 2014, Sabah.

[viii] “İşte Erdoğan’a yapılan bağış miktarı” [“Here is the amount of donations for Erdoğan”], 1 August 2014, Gerçek Gündem, at http://www.gercekgundem.com/siyaset/60733/iste-erdogana-yapilan-bagis-miktari (13 August 2014).

[ix] “CHP, Erdoğan için Yargıtay’a başvurdu” [“CHP brought an application against Erdoğan before Supreme Court of Appeals”], 12 August 2014, Cumhuriyet.

[x]Details for presidential demands of right wing circles in Turkey after 1991 on a basis of archive study see Bertil Emrah Oder, “Türkiye’de başkanlık ve yarı-başkanlık rejimi tartışmaları:  1991-2005 yılları arasında basına yansıyan öneri ve tepkilerden kesitler” [Debate on presidential and semi-presidential system in Turkey: episodes from proposals and reactions as reflected in media in 1991-2005], in Başkanlık Sistemi [Presidential System], Ed: Teoman Ergul, TBB Yayinlari, 2005, pp. 31-70.

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Published on August 16, 2014
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