INTRODUCTION
As we enter an election year, numerous constitutional and legal debates have begun to occupy the public agenda. In this period leading up to the 2023 elections; New constitutional proposals by political parties and alliances, government system proposals, a proposed constitutional amendment guaranteeing the headscarf, the ongoing closure case against the Peoples' Democratic Party (HDP) and the injunctions issued as part of this case, criminal cases against certain politicians, and immunity files being considered in the Turkish Grand National Assembly (TBMM) have been topics that have shaped the common agendas of politics and law. Each of these is a comprehensive issue worthy of a separate study. Therefore, this perspective will only address issues related to election law.
Numerous questions frequently raised in recent weeks, such as the date of the elections, by whom and how they can be brought forward, the number of days within which the election must be held if brought forward, how the election calendar will operate, and the date of implementation of the Election Law amendment published in the Official Gazette on April 6, 2022, have triggered new debates on election law. As can be seen, it is inevitable that numerous legal issues, as well as political ones, will be on the agenda of both politics and the public during the upcoming election period.
In addition to all this, another important constitutional debate that has been on the agenda from time to time over the past few years is the feasibility of President Recep Tayyip Erdoğan's candidacy in the upcoming elections given the two-term rule. Since I have addressed this issue in a previous article, I will not discuss it again here.1
THE SCHEDULE OF THE 2023 ELECTIONS IF THE DECISION TO RENEW THE ELECTIONS IS NOT MADE
The date and schedule for parliamentary and presidential elections are determined in the Constitution and election laws. Pursuant to the 2017 Constitutional Amendment No. 6771 to the 1982 Constitution, presidential and parliamentary elections are held every five years and on the same day (Article 77). Accordingly, in the new government system, it is essential that presidential and parliamentary elections be held together on the same day, whether on time or early.2
This issue is regulated in more detail in the election laws. According to Article 6, paragraphs 1 and 2, of Law No. 2839 on Parliamentary Elections, titled "Election Period, Beginning of Election, and Election Day," the following stipulates:
Elections for the Grand National Assembly of Turkey are held every five years, on the same day as the presidential election.
Voting takes place on the last Sunday before the expiration of five years from the date of the previous election. The first day of the sixty-day period, calculated backwards from the voting day, is the election's starting date.
According to Article 3, paragraphs 1 and 3, of Law No. 6271 on Presidential Elections, which has the same title, and similar provisions:
Elections for the President and the Grand National Assembly of Turkey shall be held on the same day every five years.
The last Sunday before the expiration of the terms of office of the President and the Grand National Assembly of Turkey shall be the voting day. The term of office shall be determined based on the date of the previous joint election. The first day of the sixty-day period, calculated backward from the voting day, shall be the election start date.
According to the provisions of the Constitution and these two laws, the presidential and parliamentary elections to be held this year after the June 24, 2018 elections shall be June 18, 2023, the last Sunday before the expiration of the five-year term. If neither the President nor the Parliament decides to renew the elections, the elections shall be held on this date.
Furthermore, according to the law, the election calendar shall begin on the first day of the sixty-day period, calculated backward from today. Accordingly, when calculated backwards from June 18, the election start date will be April 20, 2023. The Supreme Election Council (YSK) will announce the election calendar, which will be valid from this date, covering numerous issues such as candidacy procedures, voter lists, ballot papers, ballot box committees, election day procedures, and the announcement of election results.3
However, recent statements indicate that the possibility of holding the election before June 18, 2023, is increasing, with May 14 becoming a more prominent option.
LEGAL DIMENSIONS OF RENEWING OR ADJACENT ELECTIONS
Almost all democratic constitutions allow for elections to be held earlier than the scheduled date through various procedures.4
The decision to renew elections is generally made by the legislative and/or executive bodies. If Parliament itself decides to hold new elections, this is called "early elections" or "self-dissolution." If elections are held by decision of the head of state, government, or prime minister, it is called "dissolution" or, as the Turkish constitutions call it, "renewal of elections." Due to the negative experiences of dissolution during the Constitutional Monarchy, the term "renewal of elections" was preferred in the 1961 and 1982 constitutions. As mentioned in the previous section, unless a different decision is made, the presidential and parliamentary elections will be held together on June 18, 2023. However, the possibility of an earlier election date has long been on the public agenda due to seasonal conditions, university exams, the holiday season, the Hajj season, and the overlap between Eid al-Adha and the election day. Although some politicians use the phrase "updating the election date" because the elections will be held only a few months in advance, rather than much earlier than the planned date, the Constitution and election laws only use the phrase "renewing the elections."
According to Article 116 of the Constitution, titled "Renewal of the Elections of the Grand National Assembly of Turkey and the President," the authority to renew elections, that is, to bring them forward from the date stipulated in the Constitution, is granted to the President and the Parliament. Both can decide on elections without any reason or condition.5
For the Turkish Grand National Assembly to renew elections, a three-fifths majority, or at least 360 votes, is required.
According to the new system adopted with the 2017 Constitutional amendment, regardless of who decides to renew elections, the president and parliament hold elections together. In other words, the president cannot renew parliamentary elections alone.
The parliament cannot decide on elections solely for the president. Either body can dismiss the other, provided that the election is considered.
Article 3, Paragraph 4 of the Presidential Election Law also specifies the election date for the renewal of elections. Accordingly, the presidential and parliamentary general elections will be held together on the first Sunday following the sixtieth day following the renewal decision. In other words, elections will be held sixtieth day after the election decision is made. Another point of contention here concerns the sixty-day period. The second paragraph of Article 8 of the Parliamentary Election Law states: "If the renewal decision is made by the Turkish Grand National Assembly, the Parliament also determines the date of the election. If the renewal decision is made by the President, voting takes place on the first Sunday following the ninetieth day after this decision.
As can be seen, the Presidential Election Law states that elections will be held within sixty days, regardless of who renews the election, while the Parliamentary Election Law specifies that if the President decides to renew the election, this period is ninety days.
Due to the different provisions in these two laws, some authors argue that if the Turkish Grand National Assembly decides to renew the election, the election will be held after sixty days, and if the President decides to renew the election, the election will be held after ninety days. However, there is a conflict between the two laws, and this conflict should be resolved in accordance with the general theory of law." Accordingly, the Parliamentary Election Law No. 2839, dated June 10, 1983, and the Presidential Election Law No. 6271, dated January 19, 2012, contain two different provisions on the same subject. In other words, there is a conflict between these laws. Since both norms are laws, the conflict will be resolved according to the principle of "the subsequent law shall repeal the previous law" (Lex posterior derogat priori). Because the Presidential Election Law is more recent, the sixty-day period, not the ninety-day period in the Parliamentary Election Law, will apply. Ultimately, whether the president or the Turkish Grand National Assembly decides to renew the elections, the presidential and parliamentary general elections will be held together on the first Sunday following the sixtieth day after this decision. Furthermore, the Presidential Election Law is considered a "special law" compared to other election laws.
This matter is clearly stated in the relevant law (Article 5/2) as follows:
In cases where there are no special provisions in this Law, the provisions of Law No. 298, Law No. 2820 on Political Parties dated April 22, 1983, Law No. 2839 on Parliamentary Elections dated June 10, 1983, Law No. 2972 on the Election of Local Administrations, Neighborhood Headmen and Councils of Elders dated January 18, 1984, Law No. 3376 on the Submission of Constitutional Amendments to a Referendum dated May 23, 1987, and any of their additions and amendments that do not conflict with this Law shall apply. Accordingly, in accordance with the principle that "Special law abrogates general laws" (Lex specialis derogat legi generali), in the event of any discrepancies in the election calendar, the Presidential Election Law should be taken as the basis.
IMPLEMENTATION DATE OF THE 2022 AMENDMENTS TO ELECTION LAWS
Another issue concerning election law, which has been increasingly discussed recently, is the date on which the amendments made to the election laws in 2022 will be applicable. According to the final paragraph added to Article 67 of the Constitution in 2001:
Amendments to the election laws shall not be applied to elections held within one year of their entry into force.
Last year, Law No. 7393, dated March 31, 2022, "Amending the Parliamentary Election Law and Certain Laws," was passed by the Turkish Grand National Assembly and published in the Official Gazette on April 6, 2022.6
According to the Constitution, the changes made by this law cannot be applied to elections held before April 6, 2023. Therefore, for this law to be implemented, elections must be held after April 6.
Some politicians and writers argue that the date on which the changes made by this law will be implemented should be determined by the start of the election calendar, not the voting day.
According to this view, the phrase "elections to be held" in the Constitution should refer to the start of the election calendar, not the voting day.7
The term "election" refers to the day the election begins, not the election day. Certain statements in the election laws are cited as support for this view. For example, according to Article 6, Paragraph 2 of the Parliamentary Election Law:
The first day of the sixty-day period counting backwards from the voting day is the election start date.
It is stated that elections consist not only of the voting day but also of a process whose duration is determined by law, and that the beginning of this process should be considered the beginning of the election.
Some legal scholars and writers, however, disagree with this view and state that election day should be understood as the voting day. Indeed, the Constitution and election laws contain statements supporting this view, as well as provisions that allow the term "elections" to be interpreted as "election day." For example, the Constitution (Article 77/1) states the following:
The elections to the Grand National Assembly of Turkey and the President shall be held on the same day every five years.
Similarly, the Presidential Election Law states, "Elections for the President and the Grand National Assembly of Turkey shall be held on the same day every five years" (Article 3/1), and the Parliamentary Election Law states, "Elections for the Grand National Assembly of Turkey shall be held on the same day as the Presidential election every five years" (Article 6). As can be seen, the Constitution and election laws refer to the day of the elections, not a sixty-day period. As Abdurrahman Eren points out, similar to the Constitutional provisions, the Parliamentary Election Law regulates elections in three separate sections: "Pre-Election Affairs" (Articles 12-25), "Election Day Affairs" (Articles 26-30), and "Actions to be Conducted After the Election" (Articles 31-40). In other words, the law defines the voting day as "election day" and qualifies the procedures carried out once the election calendar begins as "pre-election procedures." Therefore, it would be more accurate to interpret the term "elections" in the Constitution as "election day." In this case, Law No. 7393 will apply to early or on-time elections held between April 6 and June 24.8
Indeed, former Minister of Justice Prof. Dr. Hikmet Sami Türk also made similar statements in a statement to Muharrem Sarıkaya of Habertürk newspaper:
The start date of the elections is being confused with the election day.
The new law enters into force on April 6. If elections are held on May 14, the provisions of the new law will apply. Furthermore, provincial and district election boards were established according to Article 12 of the new law. They were also established according to the new law, which will expire one year on April 6. This represents the preparation process for the election. The entry into force of the threshold and the actual provisions related to the election are calculated based on the voting day.9
In the same article, Türk draws attention to Article 34 of Law No. 298 on the Basic Provisions of Elections and Voter Registers, which regulates the voting age, and includes the following statements:
In the implementation of this law, everyone shall be subject to the procedure based on the month and day of their birth as recorded in the population register. However, if elections are held that year, the election day (including that day) is taken into account when preparing voter lists to determine the age of eighteen. If the voter's information is incomplete, the voter will not be included on the ballot box voter list until the information is complete.10
Even if the elections go to a second round, those who were not able to vote in the first round because they were under 18 will be able to vote in the second round if they have reached the required age. Finally, the most important issue that could put an end to these debates is the decision made by the Supreme Election Council (YSK) during the 2011 general elections.11 At that time, it was argued, similar to today, that the changes made to the election laws on April 10, 2010, would not be applicable in the June 12, 2011 elections. In this application, the Supreme Election Council (YSK) explicitly stated that "the voting date of June 12, 2011, would be taken as the basis for calculating the one-year period," with the following statement:
"If the amendments to Laws No. 298 and 2839, made by Law No. 5980, published in the Official Gazette dated April 10, 2010, entered into force on the same day, were taken as the voting date for the 24th Term Parliamentary General Elections as June 12, 2011, the voting date, it was decided to implement the amendments to the aforementioned laws, as more than a year had passed since the effective date of the amendments to Laws No. 298 and 2839.
Consequently, it is safe to say that issues related to election law will be a major agenda item in the coming days. Opposition parties are not intensively raising the legal issues discussed in this article, particularly President Erdoğan's candidacy. This appears to be due to their reluctance to resort to legal justifications to avoid the ballot box or to justify their election defeat. However, these issues have already been brought up for discussion in the media. Despite all this, it's safe to assume that Turkey's experience with multi-party elections, dating back to 1950, will ensure that the upcoming elections are held legally, fairly, and securely.
