28 February 2023

Elections Held in Response to Demand

Why Turkey's upcoming presidential and parliamentary elections cannot and probably will not be postponed as a result of the earthquake disaster

On 6 February, various Turkish provinces in southern and southeastern Anatolia were struck by two disastrous earthquakes measuring magnitudes of 7.8 and 7.5 on the Richter scale, the strongest on present-day Turkey’s territory since 1668. With more than 43,000 people officially declared dead until now and hundreds of thousands of injured, it quickly became clear that the damage and casualties would far exceed those caused by the Marmara earthquake in 1999. Turkey, already in the midst of a long-lasting economic and political crisis, slithered into an unprecedented and traumatic humanitarian disaster.

Especially in the first seven days of national mourning, when the government as well as opposition politicians and mayors were busy coordinating search-and-rescue operations, the presidential and parliamentary elections scheduled for 18 June (or earlier if snap elections are called) – a crucial milestone for the soon to be hundred-year-old Turkish republic and Tayyip Erdoğan’s ruling Justice and Development Party (AKP) – were treated like the elephant in the room. This changed abruptly when the President’s longtime companion and former Speaker of the Parliament, Bülent Arınç published a three-page-long letter on Twitter proposing to postpone the polls one year until 2024 or at least November 2023. “In these days as we face probably the most painful catastrophe in our history, the country has to get rid of the election stress as soon as possible”, Arınç wrote.

Although being evidently unconstitutional, given the government’s influence, the Supreme Board of Election could enforce a postponement of the elections. However, relatively free elections are what remain of Turkish democracy and what are keeping it alive. If they were not respected anymore, Turkey would witness a new, critical level of authoritarianism.

The Constitution is clear

As long as the Constitution is not amended – which is highly improbable since the Erdoğan-backing AKP and MHP parliamentary groups and the BBP do not hold a necessary three-fifths majority – postponing the elections beyond the last possible date would be unconstitutional. As the Constitution’s Article 77 (English translation) states, parliamentary and presidential elections shall be held every five years and on the same day. But there is indeed one circumstance, the Turkish Constitution sees as sufficient to legitimate postponing elections. Article 78 para. 1 and 2 (congruent provisions can be found in Article 5 of Presidential Election Law Nr. 6271 and Article 6 para. 3 and 4 of Parliamentary Election Law Nr. 2839):

“If holding new elections is deemed impossible because of war, the Grand National Assembly of Turkey may decide to defer elections for a year. If the grounds do not disappear, the deferment may be repeated in compliance with the procedure for deferment.”

Knowing that Turkey’s government is infamous for its creatively broad interpretation of legal and constitutional provisions, colloquially and politically, the Turkish word for “war” (“savaş”) can of course be used in the sense of “struggle” (“mücadele”), thus for situations in which major efforts are needed to tackle urgent problems. Nevertheless, “war” as a legal term clearly refers to the state of war which can solely be declared by the Parliament itself (Article 92 para. 1, see also Article 87) and is amongst many different causes for the declaration of State of Emergency (olağanüstü hal, shortly OHAL): Enumerating these, Article 119 distinguishes “war” from inter alia “situations necessitating war”, “mobilizations”, “uprisings” and, applicable in the case of earthquakes, the “occurrence of natural disasters”. Article 78 only mentioning war as a reason for postponing election dates is neither coincidence nor an editorial error, but rather an expression of the enormous importance of punctual elections for Turkish democracy. This position is underlined by the fact that the constitutional reform of 2017, although being fundamental and even amending Article 78’s title (see Article 16 lit. B of Law Nr. 6771), did not touch the strict requirements for the breach of election cycles.

At this point, a Constitutional Court ruling from 2012 (E. 2012/30, K. 2012/96; abstract constitutionality review of some articles of above-mentioned Presidential Election Law Nr. 6271, inter alia its Article 5) might lead to confusion when it finds that it is not unconstitutional to “regulate [by law] the postponement of elections in cases where it is not possible to hold elections due to a reason of force majeure (mücbir sebep) such as war” (page 5). Also, Judge Osman Alifeyyaz Paksüt presented a dissenting opinion in which he names “a very strong earthquake that hit our major provinces” as one example for reasons of force majeure (page 25). One might see the Constitutional Court taking the view of a broader interpretation of the Parliament’s competencies. However, this finding would not only still blatantly violate the wording of the Constitution. The Court’s decision can moreover hardly be applied on the here discussed issue since it did not deal with the question of deliberate postponements of election dates, but if such provisions of the Presidential Election Law are constitutional when they are congruent to those of the Law regarding Parliamentary Elections whereas not similarly included into the Constitution – a problem not relevant anymore.

Also, Turkey’s military engagement in Northern Syria does not constitute a state of war: Neither are the militias fought by Turkish military seen as subjects of international law nor has there been a declaration of war. An authorization of military action abroad, which is regulated in Article 92 para. 1, too, is not such a declaration. Even if it was, Article 78 would necessitate an actual situation in which holding elections on Turkish territory is “deemed impossible”. That would evidently not be the case.

Lastly, Article 79 para. 2 cl. 1 of the Constitution does not, as stated by Arınç, give the Supreme Board of Election (Yüksek Seçim Kurulu, shortly YSK; part of the judicial branch) the right to determine if conducting an election is practically impossible and to therefore delay it:

“The Supreme Board of Election shall execute all the functions to ensure the fair and orderly conduct of elections from the beginning to the end, […].”

The YSK has full competence and responsibility from the beginning to the end of the electoral process (“seçimlerin başlamasından bitimine kadar”). This is not to say that the Board of Election does determine if and when an electoral process starts. The provisions of Articles 77 and 78 are final and leges speciales and Article 6 para. 2 of the Law Nr. 2839 specifies that the electoral process begins 60 days before election day.

Elections are what remained from Turkish democracy

What makes the discussion on postponing the polls so critical, is the fact that what solely remained from Turkish democracy through years of an illiberal and right-wing populist government are still relatively effective elections and vibrant electoral campaigns. It is obvious that there is more to a full democracy than heading to ballot boxes every few years. From year to year, freedoms such as of expression, press, information, demonstration, association, strike have been continuously undermined: Thousands of Turks are prosecuted for “insulting” the President who at the same time happens to be chairman of the country’s biggest political party and head of government (Article 299 of the Turkish Penal Code, Law Nr. 5237; a clearly unconstitutional provision under the presidential regime à la Turca, Türk tipi Başkanlık sistemi). The President regularly and excessively issues decrees postponing, virtually banning strikes (latest example in Presidential Decree Nr. 6724 regarding a strike at Schneider in the province of Kocaeli). Twitter was temporarily banned, presumably because of users’ loud criticism of the government’s disaster response.

But beneath these countless blows to democratic rights, if there is one thing that makes people still having faith in Turkish democracy’s future, it is the expectation that the government, as well as city mayors and majorities in municipality councils, can peacefully be replaced through somewhat democratic elections. Thus, the voter turnout at the most recent 2019 local elections was as high as 84 percent.

Why the elections will probably not be postponed – and why not

The public as well as the government know that delaying the elections would be a serious breach of taboo with unpredictable political consequences. Although being unconstitutional, it is not impossible. Arınç’s influence on the Supreme Board of Election’s (YSK) judges from the Court of Cassation (Yargıtay) and Council of State (Danıştay) is well known. The judges of the YSK could very well – in breach of the Constitution and Law Nr. 7062 on the Board’s organization and duties – officially state that they do not see a possibility of organizing an electoral process in several earthquake-struck provinces and were therefore forced to act pragmatically (just as they justified their Decision Nr. 560 to consider not officially stamped voting ballots in the 2017 referendum as valid, which was clearly a violation of Article 98 para. 4 cl. 1 of Electoral Law Nr. 298 as it was drafted at the time). Since there is no possibility of appeal against decisions of the YSK (see Article 79 para. 2 cl. 2), its ruling would be final – unless the Constitutional Court surprisingly accepts to intervene by pointing out that the YSK did not issue a decision within and on the electoral process, thereby breached its constitutional competences and is obliged to start the electoral process.

At the end of the day, it will not be the ruling AKP’s respect and awe for the Constitution which will probably stop it from provoking a postponement of the polls. It will rather be a self-serving decision. Tayyip Erdoğan’s political appeal is built on his various electoral successes since 2002. It was always him conjuring the “national will” (“milli irade”) as sole source of legitimacy of the state and his reign (primarily meaning the will of his own supporters). Once he abandoned his half-hearted enthusiasm for the will of the electorate after Ekrem İmamoğlu’s victory in İstanbul, and after the YSK decided to unlawfully annul the 2019 local elections in the country’s biggest city, Erdoğan experienced his biggest political defeat so far. It seems like at the end he will recognize that running away from elections would make everything even more difficult for him. The longer he waits, the more difficult it will become to hide the social and economic consequences of the earthquake disaster and, for example, preserve the value of the already weak Turkish lira. The public anger over his government, which now shows itself in stadiums, too, would increase even more.

Bülent Arınç’s tweet, despite not being proactively promoted by AKP officials, attracted great attention and was viewed nearly 20 million times. However, it received just little over 1,000 likes. More than 12,000 users quoted the Tweet mainly to express their anger at the proposal. There is a widely spread joke on the internet and especially among young people: Turkey’s form of government is not a democracy but “gelen tepkiler üzerine” (“in response to demand” or “in response to public reactions”), meaning that the AKP government cannot be prompted to act in a way by convincing it through rational political discourses but by big waves of outrage particularly on social media platforms. Seemingly, Turkey has now reached a point where even elections are held gelen tepkiler üzerine, in response to demand.

SUGGESTED CITATION  Yalçın, Kubilay: Elections Held in Response to Demand: Why Turkey's upcoming presidential and parliamentary elections cannot and probably will not be postponed as a result of the earthquake disaster, VerfBlog, 2023/2/28, https://verfassungsblog.de/elections-held-in-response-to-demand/, DOI: 10.17176/20230228-185307-0.

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