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How Many Times can Erdoğan be a Presidential Candidate?

Tolga Şirin, Associate Professor of Constitutional Law, Marmara University, Turkey.

Turkey’s new ‘presidentialism alla Turca’ has almost completed its fourth and a half years. The constitutional amendment supporters in the 2017 referendum claimed that the new system would stabilize and strengthen the country and bring a breakthrough in the economic and legal fields. These claims did not come true though. On the contrary, instability increased further, and the crisis deepened.[1]  The problem of legal unpredictability became more significant than it has ever been. To the extent that it is still not clear today even how many times President Recep Tayyip Erdoğan can be a presidential candidate.

The provision of the Constitution seems straightforward at first glance. According to article 101§2 of the Constitution, ‘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.’

Erdoğan became President in the 2014 election and was re-elected in the 2018 early election, which was held due to the constitutional amendment.

Accordingly, since it is his second term, he cannot be a candidate in any future presidential election as a rule. Nevertheless, Article 116§3 of the Constitution provides an exception to this: ‘In case the Assembly decides to renew the elections during the second term of the President of the Republic, he/she may once again be a candidate.’ Therefore, Erdoğan may become a presidential candidate again only if an early election is held until 2023. 

At this point, another constitutional provision becomes decisive. For the Article 116§1 of the Constitution three-fifths majority of the total number of members of the Assembly must decide to renew the elections in order for an early election to take place. It amounts to 360 out of 600 deputies. The sum of deputy numbers of the AK Party (Erdoğan’s political party) and MHP (ultra-nationalist alliance party in power) is currently 339, and thus it is not enough to decide for an early election before 2023 without the support of one of the other opposition parties in the Assembly. 

For the overall approach among Turkish constitutional lawyers, Erdoğan could no longer be a candidate for the presidency as long as opposition parties desire so.[2]

Counter-View

A minority approach among Turkish constitutional lawyers interprets the rule differently.[3] According to this approach, Turkey experienced a radical constitutional change from semi-presidential to presidential system in 2017, and therefore, it is said that the process restarted the term limits although the relevant provision remained unamended. For them, the 2018 presidential election was the first election under the new system, and therefore Erdoğan may be a candidate for the second time in 2023. Erdoğan will be a candidate even in a presidential election within 2023-2028 if the Assembly decides on an early presidential election in that period. As far as they are concerned, Erdoğan’s presidency could extend to 2033.

Criticism of Counter-View

The arguments of the counter-views are based on somewhat strained interpretations and are problematic at least for the following three reasons:

First, the wording of the relevant constitutional provision is crystal clear: A person cannot be nominated for presidency more than twice. As stated previously, the only exception for this rule is if an early election is decided in the second term. There exists no other exception. 

According to current interpretation theory in Turkey each exception narrows the scope of a general rule. In other words, enacting an exception means changing the general rule. For this reason, it is accepted that the authority to produce an exception belongs only to the one who produced the general rule. In this respect, exceptions cannot be derived through interpretation. If the constituent power wanted to introduce another exception, it would have done so because ‘ubi lex voluit, dixit; ubi noluit, tacuit’ (when the law wills, it speaks; when it does not will, it is silent) Moreover, ‘exceptiones sunt strictissimae interpretationis’ (exceptions should be interpreted the most narrowly) From the perspective of these interpretation maxims, it seems Erdoğan cannot be a candidate for the presidency again. 

Second, besides the above-mentioned textual interpretation, a genetic/historical interpretation of the relevant constitutional provision does not allow to derive exceptions. For legal theory, such an interpretation requires focusing on the intention of the rule maker and the story of the formation and enactment of the norm. In this respect, the reasoning for the provision and the records of the preparatory work in the Turkish National Assembly are important sources to understand the meaning of the provision. However, the result basing on these sources is not different. Neither the reasoning of the amendment nor the parliamentary records involve any explanation or implication regarding that Erdoğan may be re-elected a third or fourth time or that the number of terms to be restarted. No statement was made to the public in this regard neither in the Assembly nor in the meetings during the referendum process of the constitutional amendment. Should not such matters have been mentioned once in the one of the most important constitutional amendments in the history of the Republic? The historical silence on this point tells us something about the norm.

Third, a purposive/teleological interpretation of the relevant constitutional provision also does not derive exceptions. The rule that a person should not be elected President more than twice was first accepted in 1961. During that amendment, the purposes of this rule were listed as follows: (1) To prevent the abuse of the presidency and power. (2) To ensure the impartiality of the President. (3) To bring dynamism to the Presidency office. (4) To restrain monarchist tendencies.[4]

Hence, arguing that Erdoğan can be President until 2033 (that is almost for 21 years) is obviously incompatible with the purpose of the enacting of the rule. An interpretation that denies the purpose of the rule and the ‘limited power’ telos of constitutionalism is unacceptable.

In addition to these, the relevant report of the European Commission for Democracy through Law (Venice Commission) within the Council of Europe should also be taken into account. The Venice Commission is of the view that ‘there is no specific and distinct human right to re-election. The possibility to stand for office for another period foreseen by the Constitution is a modality of or a restriction to the right to political participation and, specifically, to stand for office.’[5] The determinations in this report do not contradict the term limits and they are outstanding supportive sources to consider. 

Conclusion

Consequently, Erdoğan’s presidential term will end at 00:00 on July 9, 2023, under ordinary conditions and unless an early election decision is taken. However, this is a valid and pure legal result for ordinary constitutional order, whereas Turkey has not been governing by an ordinary constitutional government for a while. The arbitrariness spread to various fields, the process of deconstitutionalization took place gradually, and the Constitution remained almost exclusively on paper.[6] Therefore, these legal debates and result became secondary, and it seems the final decision will be determined by the balance of political forces.[7]

Suggested Citation: Tolga Şirin, How Many Times can Erdoğan be a Presidential Candidate?, Int’l J. Const. L. Blog, Aug. 3, 2021, at http://www.iconnectblog.com/2021/08/how-many-times-can-erdogan-be-a-presidential-candidate/


[1] No considerable progress occurred in the area of rights and freedoms. For instance, Turkey is still among the countries considered ‘not free’ in the Freedom House Index. With regards to the economy, the situation has worsened.  The change in currency can be good proof in this regard. For instance, one USD equals 8.66 Turkish Lira today, while it amounted to 3.70 Turkish Lira on the day of the referendum. Decree numbers may be proof of how legal unpredictability the new system brings. For instance, the number of Presidential decrees issued only between July 10th 2018 and July 10th 2021 is seventy-nine. And forty-nine of these decrees were issued to replace previously issued decrees. Unpredictability and arbitrariness are not limited to the decrees that Giovanni Sartori calls ‘a dysfunctional response of non-functioning systems.’

[2] The constitutional law professors in this view are as follows: (Kemal GözlerŞule ÖzsoyMurat Sevinç and Ergun Özbudun, İbrahim Kaboğlu, Süheyl Batum, Sevtap Yokuş)

[3] The lawyers defending the counter-view are as follows: Adnan Küçük and Abdurrahman Eren.

[4] For more information see Türkiye Büyük Millet Meclisi Tutanak Dergisi – Temsilciler Meclisi, (1961).  https://www.tbmm.gov.tr/develop/owa/tutanak_dergisi_pdfler.meclis_donemleri?v_meclisdonem=0

[5] European Commission for Democracy through Law (Venice Commission), Report on Term-Limits Adopted by the Venice Commission at its 114th Plenary Session (Venice, 16-17 March 2018) CDL-AD(2018)010. https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2018)010-e

[6] It is noteworthy that the term-limit debates are generally experienced in countries where ‘abusive constitutionalism’ (with David Landau’s words) prevails. See David Landau, “Abusive Constitutionalism,” in University of California Davis Law Review, vol. 47 (2013), 189–260. The process of ‘deconstitutionalization’ in Turkey also goes hand in hand with ‘abusive constitutionalism.’

[7] In his article published on I-CON, Wojciech Sadurski mentioned that electoral authoritarianism manipulatively used selective examples from the liberal Western countries. See Wojciech Sadurski “Constitutional Democracy in the time of Elected Authoritarians” in International Journal of Constitutional Law, vol. 18 (2020), 324–333. A very similar situation was experienced in Turkey in the context of this debate. Some supporters of Erdoğan have been referring to Franklin Roosevelt, who was elected for three terms (between 1933-1945) in the USA before the constitutional term limit was enacted in 1951.

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Published on August 3, 2021
Author:          Filed under: Analysis
 

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