14 June 2023

Taking Separation of Powers Seriously

Is it Constitutional for Turkish Ministers Elected as MPs to Continue Their Ministerial Posts?

In 2017, Turkey introduced a “Turkish-style presidential system” after about 100 years of parliamentary government.1) According to the amendments, presidential and parliamentary elections were to be held simultaneously. After the 2018 elections, it was announced that the next elections would be held in 2023. Fifteen ministers from the Justice and Development Party, chaired by President Erdoğan, were nominated as parliamentary candidates and elected as MPs on 14 May. Since none of the presidential candidates won an overall majority, two leading candidates, Erdoğan and Kılıçdaroğlu competed in a runoff vote on 28 May, in which Erdoğan secured the victory. Thus, the new ministers were neither appointed nor took office until after the runoff vote. Throughout this process, the former ministers, including the 15 elected as MPs, preserved their executive posts and titles.

This sequence of events gave rise to several legal obscurities and questions. The first question is whether the 15 Erdoğan government ministers should have resigned to run for parliamentary candidacy. The second question is whether there is a constitutional incompatibility between ministerial and MP titles and when such incompatibility begins. While the law provides that an MP title and a ministerial title are incompatible with each other, the moment when a minister’s term in office, in other words, her/his ministerial post, ends is not clearly regulated. This lack of clarity, we argue, can have serious consequences for the balance of power in a newly established governmental system. It is essential to handle a newly established and not yet institutionalized governmental system with great care and promptly address any uncertainties in critical issues.

Should the Ministers Have Resigned to Run for Parliamentary Candidacy?

According to the Constitution, certain public servants must withdraw from their duties to become parliamentary candidates. According to Article 76, judges and prosecutors, members of higher judicial bodies, academics in higher education institutions, members of the Council of Higher Education, civil servants of public institutions and organizations, and other public officials who are not considered workers, and members of the Armed Forces must resign from their duties to run for parliamentary office. Article 18 of Law No 2839 expands this list of professional groups. However, ministers are not listed among these professions.

One view holds that since ministers are not among the public officials listed in the legislation, they are not obligated to resign from their duties. This opinion cites decisions of the Turkish Constitutional Court (TCC) and the SEC during the parliamentary system as justification. The TCC decided, and the SEC held, that parliamentary ministers whose resignation was not explicitly regulated were not considered “other public officials” under  Article 76 and did not have to resign.

The opposite view  argues that in the new governmental system,  ministers are not elected and should therefore be considered among other public officials and resign when running for parliamentary office.2) There was an objection to the SEC against the candidacy of the ministers for parliament, but the Council did not publish its decision on this issue. However, since ministers were  included in the final candidate lists announced by the SEC, it appears that the Council concluded that ministers do not need to resign to become parliamentary candidates.

Did the Ministers Obtain an MP Title?

The moment when a person obtains the title of MP is not clearly stated in Turkish law. According to the SEC, receiving the official minuits certifying a person’s elected status is not a founding but an explanatory process and a person is considered an MP when the ballot boxes close on election day. In light of this decision, fifteen ministers who were elected on the election day obtained the title of MP.

Even though MPs obtain their title at the end of voting, they must take an oath in the Grand National Assembly of Turkey (GNAT) to assume their office and exercise the powers granted therein, according to Article 81 of the Constitution. Article 3 of the Rules of Procedure of the GNAT clearly regulates that Parliament will convene without any invitation on the third day following the announcement of the final results of the elections by the SEC. The final results of the parliamentary elections were published in the Official Gazette by the SEC on 30 May. Following this decision, the GNAT convened on June 2nd for the oath-taking ceremony of MPs, during which most MPs (with a few exceptions, including the 15 ministers) took office for the new parliamentary term. Thus the newly elected MPs, including the 15 ministers, did not take their oath and assume office until after the runoff vote.

Is it Constitutional for Turkish Ministers Elected as MPs to Continue Their Ministerial Post?

The separation of the executive and the legislative branches in terms of their origin and survival, and their independence from one another is regarded to be one of the defining characteristics of presidentialism.3) Institutional separation is a crucial factor differentiating presidentialism from other governmental systems.4) A separation between executive and legislative membership is generally considered the norm in presidential governments.5) However, there are presidential constitutional systems in which ministers can hold parliamentary membership, allowing for a “fusion” of the two titles.6) The question is whether the Turkish Constitution allows for such a fusion.

Article 106/4 of the Constitution is crucial in answering this question: “If a member of the Grand National Assembly of Turkey is appointed as a deputy president or minister, he/she shall lose his/her membership.” This Article only regulates the case of an MP being appointed as a minister and clearly demonstrates a constitutional principle of separation or incompatibility. Although the opposite scenario, the case of a minister being elected as MP, is not explicitly stipulated, such incompatibility between legislative and executive membership cannot be one-sided. Such separation is inherently reciprocal.

There is a consensus in the Turkish academic fora on the existence of such incompatibility.7) However, there are debates about when such incompatibility begins. According to the Speaker of the GNAT and other academics, holding both titles simultaneously for a brief period is not problematic. This view holds that the problem only arises when the minister assumes office as an MP, thus carrying out the duties and exercising the powers of both the executive and legislative branches of government concurrently. Since MPs can only assume office and attend parliamentary proceedings once they take an oath, incompatibility does not begin before this point.

We disagree. According to Article 106/4 of the Constitution, legislative membership ends upon ministerial appointment. Due to their sole accountability to the President and as per clear regulation in Article 104/8 of the Constitution, ministers are appointed and dismissed by the President without the approval of the GNAT. Although Article 106/4 stipulates that ministers have to take an oath in the GNAT, this is only the point at which office is officially assumed and powers granted to such office can be used.8) The moment of the appointment is when the ministerial title is obtained. In 2018, four MPs were appointed as ministers and their membership was announced to have ended automatically, without any further proceedings, on the appointment date.9) If the moment of incompatibility for an MP becoming a minister is when they obtain the ministerial title, then incompatibility for the opposite scenario should also begin once the MP title is obtained on 14 May, not after taking an oath.

What are the Consequences?

What are the consequences of such incompatibility? There are differing views on the matter. The majority of academics see the acquisition of the MP title as the moment of incompatibility and state that the ministers’ term in office ended the moment they were elected.10) Opposing voices, including the Speaker of the GNAT, believe that it is possible for ministers to continue holding ministerial office as long as they do not take an oath.

One view approaches the debate differently and holds that holding a ministerial office after being elected as an MP, is a “service incompatible with membership”. Article 82, which regulates such services, states that MPs “shall not be entrusted with any official or private duties involving proposal, recommendation, appointment, or approval by the executive organ”. According to the Constitution and Law No. 3069, MPs who insist on holding such a position or carrying out such a service in a period of six months shall lose membership. However, the sanction for appointing a person as a minister while they are an MP is clearly regulated in Article 106. Therefore, the duties mentioned in Article 82 refer to executive duties other than ministers. In our opinion, it is not possible to apply this procedure to the case of a person elected as an MP while they were a minister.

In our understanding, it becomes clear through Article 106/4 that the Constitution foresees an incompatibility between ministerial office and legislative membership as soon as either title is obtained. As previously described, the 15 ministers continued to hold their ministerial office after they obtained the MP title on 14 May. This resulted in minister-MPs who appeared to be a jack of two trades while the constitution only allows one to be the jack and master of only one trade at a time. However, the lack of precise regulation in the Constitution concerning the consequences of a minister being elected as an MP resulted in ambiguity on such a significant matter and made it difficult to propose a constitutional and feasible solution at that time.

During this period, the scenario in which the dual title holders, i.e. minister-MPs assumed office and had access to powers of both branches of government was not experienced. As previously stated, the SEC announced the final results after the runoff election on 30 May. Therefore, the GNAT did not convene until 2 May for the oaths of the MPs. Meanwhile, president Erdoğan started his new term in office on 3 June and appointed his new cabinet on 4 June. None of the 15 minister-MPs are a part of the new cabinet. Although most MPs took their oath on 2 and 3 June, the 15 ministers elected as MPs were not among them. They were among the few exceptions. It is apparent that the oath taking schedule was arranged so that the minister-MPs did not assume office in GNAT until after the new cabinet was determined. Erdoğan’s new ministers and the 15 minister-MPs took their oath in GNAT on 7 June, on the same day. Therefore, the new ministers assumed office and the 15 newly elected MPs’ ministerial office ended on 7 June. Due to this schedule, concrete problems resulting from such incompatibility were limited. However, this did not and does not obliterate the significance of the ambiguity of the aftermath.

The separation of personnel helps ensure separation between powers and institutions, i.e. Parliament and the executive.11) A newly established and yet-to-be-institutionalised governmental system should be treated with exceptional care. Ambiguities in such crucial matters should be immediately resolved. The mere fact that it is not legally incorrect for us to use the term “minister-MP” in our blog post carries a risk of undermining the foundations and delicate balance that should guide the new governmental system. Therefore, it should not have been possible for “minister-MPs” to hold more than one title of government simultaneously. This could have been prevented before any discussion on the matter was raised, effectively preventing any possibility of one person assuming office in two branches of government. Feasible and consistent application of the Constitution and its principles could have been possible if the above-mentioned incompatibility would have been regulated clearly in the candidacy phase. In other words, ministers could have been included in Article 76 of the Constitution among those required to resign for candidacy, leaving no room for any unconstitutional fusion or crossover between governmental branches.

References

References
1 Also see Ergun Özbudun, Türk Anayasa Hukuku, 18th Edition, Ankara: Yetkin, p. 321. European Commission for Democracy Through Law (Venice Commission) Opinion, Opinion No. 875/2017, CDL-AD (2017) 005, “On the Amendments to The Constitution Adopted by The Grand National Assembly On 21 January 2017 And To Be Submitted to a National Referendum On 16 April 2017”, 13 March 2017.
2 Serap Yazıcı Özbudun, (2023, April 2), “Hukuka uygun davranmak bu kadar mı zor?”, https://www.politikyol.com/hukuka-uygun-davranmak-bu-kadar-mi-zor/. Şule Özsoy Boyunsuz, (2023, March 30), “Bakanlar milletvekili adaylığı için görevinden ayrılmalı mıdır?”, https://www.politikyol.com/bakanlar-milletvekili-adayligi-icin-gorevlerinden-ayrilmali-midir. Tolga Şirin, (2023, May 19), “Milletvekili olanların bakanlıkları düştü”, https://t24.com.tr/yazarlar/tolga-sirin/milletvekili-olanlarin-bakanliklari-dustu,40067.