Although the issue of whether it is possible to re-candidate President Erdoğan, whose term of office will expire with the elections scheduled to take place in 2023, is not on the agenda, it is one of the issues that must be legally discussed before the elections. In this study, this issue will be interpreted and discussed from a historical and legal perspective.
THE HISTORICAL TRANSFORMATION OF THE ELECTION OF THE PRESIDENT
The presidential election issue, which came to the agenda with the proclamation of the Republic, was added to the text of the 1921 Constitution with the constitutional amendment of 29 October 1923.
This amendment did not envisage any restrictions on the number of times the president is elected. The amended Article 10 of the 1921 Constitution is as follows:
"The President of Turkey is elected by the General Assembly of the Turkish Grand National Assembly and among its members for an election period. The presidency continues until the election of the new president. It is permissible to be reinstated."1
The same provision was included in the 31st article of the 1924 Constitution.
These provisions were implemented until the 1961 Constitution, which was prepared after the May 27 coup.
In this process, Mustafa Kemal Atatürk was elected four times in 1923, 1927, 1931, and 1935; İsmet İnönü was elected four times in 1938, 1939, 1943, and 1946; and Celal Bayar was elected three times in 1950, 1954, and 1957.
With the 1961 Constitution, a change was made in the provision regarding the number of elections of the president. The provision in Article 95 is as follows:
"The President of the Republic is elected by the Grand National Assembly of Turkey from among its members who have completed the age of forty and have completed higher education, with a two-thirds majority of the total number of members, by secret ballot for a period of seven years; if this majority is not achieved in the first two votings, a simple majority is sufficient."
A person cannot be elected President twice in a row.
"The President-elect is dismissed from his party, and his capacity as a member of the Grand National Assembly of Turkey ends."2
According to the meaning to be deduced from the wording of the said provision, it is possible for a person to be elected president more than once. The situation prohibited by the Constitution is the election of a person twice in a row.
The 1961 Constitution determined the president's term of office as seven years. The provision that stipulates that the president cannot be elected consecutively has been added to the text of the Constitution with the presumption that if this is allowed, he will remain in office for 14 years and may compromise his impartiality in order to be re-elected.
While the 1982 Constitution was being prepared, another change in this situation came to the fore.
At the meeting of the Consultative Assembly dated September 2, 1982, restricting the president's election for the second time came to the agenda. While some support this view, some think there should be no restrictions. For example, Fevzi Uyguner argued that the president should be allowed to be re-elected, stating: "After the President is elected, in the first election period; in other words, if he has made himself popular and respected by the nation, public opinion and all his surroundings, internal and external world, with his service, good morals, and all measures within seven years, why should we deprive the nation of the service of such a person for the second time?"3
Ahmet Senvar Doğu stated that the seven-year term of office is sufficient and that if this is repeated, it is not possible to reach the performance shown in the first term and that the re-election of the president should be prevented, commenting: "Assuming that we elected (someone) for seven years, and then another seven years, a period of 14 years in human life is an extensive period. For this reason, I believe it is biologically unlikely for a mortal to show the performance he has shown in his first seven years, even if he is successful, in his second seven years."4
In the same meeting, Abdülbaki Cebeci expressed that the president's impartiality would be damaged if the president could be elected more than once, and therefore he argued that there should be a restriction on the number of elections by saying: "The president is elected for seven years. Seven years is a pretty long and adequate time. In order to maintain the impartiality of the Head of State, it should be essential that he be elected once. In this way, the age problem is also met beforehand."5
As a result of the aforementioned negotiations, the relevant "A person cannot be elected president twice." provision was included in the 1982 Constitution, and the way for a person to be elected president more than once was prohibited.
The 1982 Constitution has been amended 21 times until today. In these amendments, changes regarding the re-election of the president were brought to the agenda and implemented. With the 2007 amendments, the aforementioned provision was arranged as "The term of office of the president is five years. A person can be elected president for a maximum of two times." As a result of the amendment, the president's term of office was reduced from seven to five years, but the way was opened for him to be a candidate and be elected again.
With the 2017 amendments to the relevant article of the Constitution, this provision has been preserved.
RECEP TAYYIP ERDOĞAN'S PRESIDENTIAL NOMINATIONS
Presidential elections on 10 August 2014 marked a first for the history of the Republic of Turkey. In these elections, the President was elected by the people. As a result of the election, Recep Tayyip Erdoğan surpassed his rivals Ekmeleddin İhsanoğlu and Selahattin Demirtaş and received 51.79% of the votes, becoming the 12th president of the Republic of Turkey.
After the 2017 Constitutional amendment, the election planned to be held in 2019 was decided to be held on 24 June 2018 after MHP Chairman Devlet Bahçeli stated that the election should be brought forward. In this election, Erdoğan participated as a candidate for the Cumhur Alliance. As a result of the election, Erdoğan was elected President for the second time, receiving 52.6% of the votes.
It is unclear whether Erdoğan will be a legal candidate again in the 2023 elections, as he has been elected president twice. The second paragraph of the relevant article of the Constitution states, "The term of office of the President is five years. A person can be elected President for a maximum of two times". Before considering the provision in terms of legal interpretation methods, it is necessary to give brief information about the interpretation methods.
Literal Interpretation (Grammatical Interpretation)
In this type of interpretation, the law is interpreted within the framework of Turkish rules, taking into account the meaning that emerges from the words. In this type of interpretation, the purpose of the law is not taken into account or the issues that the legislator of that period prepared the law; only the meaning revealed by the whole of words is considered.
In the interpretations based on this type, the purpose and subjective will of the legislator at the time of enacting the law are taken into account, and the law is interpreted accordingly. For this purpose, the minutes of the General Assembly of the Grand National Assembly of Turkey, which includes the deliberations of the bill, the minutes of the meetings of the relevant commission, and the justification for the law, can be examined.
According to this type of interpretation, the purpose of enacting the law is to be determined. The difference between this and the historical interpretation method is to determine the purpose of the law and the legislator by taking into account the conditions of the period. Its difference from historical interpretation can be summarized as follows:
In the historical interpretation method, only the subjective will of the legislator is determined regardless of the conditions of the period. However, since the teleological interpretation goes beyond that, the conditions of the period are also within the scope of interpretation.
INTERPRETATION OF THE RELEVANT PROVISION WITHIN THE FRAMEWORK OF LEGAL INTERPRETATION METHODS
When we consider Article 101/2 of the Constitution with the method of literal interpretation, it will be seen that the relevant provision is quite evident in terms of the number of elections. As stated before, the text of the article was prepared in the form of "The term of office of the President is five years. A person can be elected President for a maximum of two times" and no provision that would make an exception to this provision was included in the text of the Constitution or the laws. Even if an exception is regulated in the law, it will not be possible to bring an exception to the Constitution, which is at the top of the hierarchy of norms. According to the inference reached by this method of interpretation, it does not seem possible for Erdogan to be a candidate again.
In case it is interpreted with the teleological interpretation method, it is necessary to examine for what purposes the prohibition on elections was added to the Constitution. As mentioned before, these aims are to make the Presidency dynamic, maintain the President's impartiality, even though the President can be a member of a political party with the last amendment, and prevent the abuse of power (after what happened in the Democratic Party's power and Celal Bayar's Presidency). If the aforementioned provision is interpreted in an expansionary way without considering these goals, after an election that Erdogan won as a candidate in 2023 - as will be mentioned below - with an early election decision to be taken on the way to the 2028 elections, it will be extended until 2033 and Erdogan will have continued his presidency for 19 years.
Erdogan's re-candidacy should not be possible, as such an extension of the provision would be contrary to its purpose.
An interpretation with the historical interpretation method will take us to the parliamentary sessions on the days of the constitutional amendment negotiations. During the negotiations, the issue of whether Erdoğan's Presidency, which he won in the 2014 elections, would constitute an exception to being elected more than twice was not discussed6, and there is no such expression in the reasoning of the article in the report of the relevant commission7. After the text was accepted and a referendum was finalized, no discourse on the subject was made during the propaganda process either. The situation that will create a Presidency term approaching 20 years should have been discussed, but there has been no such discourse on this issue.
Erdoğan stated that this was not a regime change but a system change in the days of the transition and noted that the Republic's first years should be taken as an example.8
In the light of these explanations, ignoring Erdogan's presidency before the "system change" would not be a legally correct approach.
"EARLY ELECTION" IS A GETAWAY TO KEEP THE RE-CANDIDACY WITHIN THE LIMITS OF THE LAW
Article 116/3 of the Constitution was amended as "In case the Assembly decides to renew the elections in the second term of the President, the President can be a candidate once again." There is only one legal way for President Erdogan to be a candidate again in the elections that await us, which goes through this anecdote. According to this paragraph, if the Assembly decides to renew the elections, the President, who is in his second term, may be a candidate for re-election for once.
In order for the Assembly to renew the elections, it will have to take an election decision with a three-fifths majority of the total number of members. In the case of 600 deputies, this number corresponds to 360 deputies. For a possible early election decision to be taken, the number of deputies of the People's Alliance is not enough, and an agreement must be reached with the opposition, and elections must be held.
CONSTITUTIONAL LAWYERS' OPINIONS ON THE SUBJECT
Kemal Gözler9, Şule Özsoy Boyunsuz10, Murat Sevinç11, Tolga Şirin12 and Ergun Özbudun, Süheyl Batum, Sevtap Yokuş, İbrahim Kaboğlu, Mustafa Kamalak13, who have publicly expressed their views on the issue, have stated that Erdogan cannot be a candidate again, except for the possibility of early elections, in line with the view presented in this article.
Abdurrahman Eren14 and Adnan Küçük15 can be examples of authors advocating the opposite view. In addition, the Speaker of the Grand National Assembly of Turkey, Mustafa Şentop, when asked about Erdogan's re-election on October 1, 2021, responded, "No doubt. There is no doubt about him."16
Consequently, it is necessary to clearly state that there is no legal basis for Erdogan's re-election in 2023.