The Two-Term Rule In The Presidential System

What is the source of the debate surrounding President Erdoğan's re-election? What are the constitutional provisions for presidential elections? How many times has President Erdoğan been elected president?

As the 2023 presidential and parliamentary elections draw near, one of the debates expected to be raised by the opposition was President Erdoğan's re-candidacy. While some politicians and writers had claimed in previous years that the Constitution prohibited this, the issue had recently appeared to have faded from the agenda. However, statements made by Republican People's Party (CHP) Chairman Kemal Kılıçdaroğlu on a television program on February 5th regarding President Erdoğan's candidacy rekindled this debate. When asked, "Will you object to Erdoğan's candidacy for a third term?", Kılıçdaroğlu responded: "No, no. Clearly, if he wants to run, he is welcome to do so. The nation will give everyone their due. We will not engage in any private discussions. These discussions should be left behind. We will not engage in them. If others do, we cannot object; at least we will not. There may be elections in the fall; we will calmly await the ballot box. The statement, "These debates should be left behind," was interpreted as the CHP's intention to avoid tutelary attempts through the bureaucracy and judiciary, as it did during the 367 debate in 2007, and its fear of voter backlash against such attempts. However, three days later, on February 8th, Kılıçdaroğlu, in an interview with a journalist, backtracked on these statements and stated that what they would not oppose was Erdoğan's candidacy in the event of a snap election. Kılıçdaroğlu stated the following in his statement:

Of course, the Constitution is clear. If the election is held on time, Erdoğan cannot run for a third term.
What I mean is that if Parliament decides to hold a snap election, there is no obstacle to Erdoğan's candidacy for a third term.
Otherwise, if the election is held on time, the Constitution prevents him from running. Knowing this, Devlet Bahçeli also said, "If legal regulations are necessary for Erdoğan's candidacy, we will do everything in our power." He also knows that he cannot run for a third term in an election, and that is why he speaks this way. But we want early elections.
And immediately. Let there be early elections, and Erdoğan will appear before me, and I will send him to the ballot box. This is my political call. The people can no longer wait for a timely election. A decision for early elections must be made immediately, and Erdoğan must be sent to the ballot box. This is my demand and intention.
Before moving on to the essence of the matter, it is necessary to address the third-term exception mentioned by Kılıçdaroğlu, which arises if the Grand National Assembly of Turkey (TBMM) decides to hold early elections. According to Article 116, paragraph 3, of the Constitution, titled "Renewal of Elections of the Grand National Assembly of Turkey and the President," "If, during the President's second term, the Parliament decides to hold new elections, the President may run for office once more." This paragraph provides the President, who is in his second term, with the opportunity to run for office once more if the TBMM decides to hold early elections. Following the backlash against his initial statement, Kılıçdaroğlu stated that he had intended this provision, stating that Erdoğan could only run for a third term and that he had exercised his right to be elected twice. After closing the parenthesis on this issue, we can return to the discussion of being elected twice.
ELECTION PROCEDURE OF THE PRESIDENT ACCORDING TO THE CONSTITUTION
Since the adoption of the Republic as a republic on October 29, 1923, all constitutions and the first draft of the 1982 Constitution stipulated that the president be elected by the Turkish Grand National Assembly. However, since the 1961 Constitution, which designed the presidency as a tutelary office, presidential elections have always been characterized by crises and tutelary interventions.
It is no coincidence that all three presidents during the 1961 Constitution were military officers. The artificial 367 crisis, which occurred in 2007, the e-memorandum, and the Constitutional Court's legally controversial annulment decision paved the way for changes in the presidential election procedure. The Constitutional Amendment No. 5678, dated May 31, 2007, adopted in a referendum on October 21, 2007, abandoned the method of electing the president by the Turkish Grand National Assembly and adopted a method of popular election.
This amendment reignited debates about the system of government, and divergent views emerged regarding the nature of the existing system of government. However, the Constitution did not change the status of the president other than his election.
The President remains one of the two branches of the executive branch, an office "impartial, irresponsible, and with limited powers" alongside the Council of Ministers, the primary authority and responsible body. In other words, even after the 2007 Constitutional amendment, the president remains the head of state in the parliamentary system.

As a response to the political crisis that arose before this constitutional amendment was approved by referendum and entered into force, the Turkish Grand National Assembly (TBMM) decided to hold early elections. The Assembly, formed as a result of the elections on July 22, 2007, elected Abdullah Gül as the eleventh president on September 28, 2007. The 2007 constitutional amendment, which mandated popular election of the president, was first implemented in 2014, and Recep Tayyip Erdoğan was elected as the twelfth president in the presidential election held on August 10, 2014. The Constitutional Amendment Law No. 6771, dated January 21, 2017, adopted by referendum on April 16, 2017, introduced a comprehensive overhaul of the government system, particularly the executive branch. The popular election of the president was preserved with some modifications. The fundamental features of the government system adopted in the 1982 Constitution following the amendment can be summarized as follows: Executive power was vested in the president, who was directly elected by the people and had no political responsibility to the legislature. The Prime Ministry and the Council of Ministers were abolished, establishing a unified executive body. Individual and collective political responsibility to the legislature was not envisaged for the president, his deputies, and ministers. Considering these fundamental features, it can be said that the parliamentary system has been completely abandoned and a system with the fundamental characteristics of the presidential system has been adopted. Article 18 of Law No. 6771 stipulates that the constitutional amendments will enter into force on three different dates.3
These dates are as follows:
• April 16, 2017, the date Law No. 6771 was approved in a referendum
• The date the calendar for the first joint presidential and TBMM elections began
• The date the president took office as a result of the joint presidential and TBMM elections
Accordingly, the provisions regulating the presidential election entered into force on April 30, 2018, the date the presidential and TBMM election calendar began on June 24, 2018. From this perspective, the provisions containing the two-term rule are new regulations, even if the wording in the text remains unchanged, and they entered into force after the April 16, 2017 referendum. Therefore, the two-term election rule will begin after the date the amendment enters into force and will not apply to previous presidents.4
Before the constitutional amendment, the heading for Article 101 was "A. Qualifications and Impartiality," and the heading for Article 102 was "B. Election." With the 2017 amendment, Article 102 was repealed, and Article 101 was rewritten with the heading "A. Candidacy and Election." Indeed, Article 7 of Law No. 6771 amending the Constitution clearly emphasizes this change by stating, "Article 101 of Law No. 2709, along with its heading, is amended as follows." Therefore, it is not possible to say that Article 101 remains the same and unchanged.
As a result, following the amendment approved in the referendum, the presidential election procedure was regulated as follows: The President is directly elected by the people from among Turkish citizens who are over forty years of age, have completed higher education, and are eligible to be elected as a Member of Parliament.
The President's term of office is five years. A person may be elected President for a maximum of two terms.
Political party groups that have received at least five percent of the total valid votes, either individually or collectively, in the most recent general election, as well as at least one hundred thousand voters, may nominate candidates for the Presidency.
The membership of a member of parliament elected President in the Grand National Assembly of Turkey terminates.
In an election to be held by universal suffrage, the candidate who receives a simple majority of the valid votes shall be elected President. If this majority is not achieved in the first ballot, a second ballot shall be held on the second Sunday following the first ballot. The two candidates who received the most votes in the first round participate in this vote, and the candidate who receives the majority of valid votes is elected President.
As can be seen, two articles in the old text have been rewritten with some changes, combining them into a single article. The paragraph that sparked the ongoing debate is the same as the one added with the 2007 Constitutional amendment:
The President's term of office is five years. A person may be elected President a maximum of two times. (Article 101, paragraph 2).
Based on this provision, it is claimed that President Erdoğan was elected president twice, in 2014 and 2018, but was banned from running three times, and therefore cannot run in the 2023 elections. Such a conclusion could be reached if the constitutional amendment is not evaluated as a whole and this paragraph is interpreted narrowly. However, as mentioned, this article entered into force on April 30, 2018, and therefore cannot have retroactive effects. Considering the comprehensive amendments made to the Constitution by Law No. 6771, and particularly the new status of the president, a different picture emerges.

HOW MANY TIMES WAS PRESIDENT ERDOĞAN ELECTED "PRESIDENT"?
President Erdoğan ran for president twice, in 2014 and 2018. However, the status achieved after these two elections and the subsequent presidential elections are different. The presidential status Erdoğan achieved in the 2014 election and the subsequent presidential status he assumed was the presidency under the parliamentary system envisioned by the 1982 Constitution prior to the 2017 constitutional amendments. Accordingly, the president exercised executive authority in conjunction with the Council of Ministers, the primary authority. Furthermore, he had no political or criminal liability, his powers were limited and symbolic, and, ultimately, he was impartial and non-partisan. Setting aside discussions about his broader powers compared to those of the parliamentary system, it can be said that in the original version of the 1982 Constitution, the president was the unauthorized, irresponsible, and impartial head of state of the parliamentary system.

In contrast, the 2018 elections following the 2017 amendments were held in accordance with the new regulation, and the presidency gained a completely different status. Now, instead of being one of the two branches of the executive branch, the president possesses sole executive authority. According to Articles 7 and 104 of the Constitution, the president exercises executive authority alone. Furthermore, the president is criminally responsible not only for treason but also for all crimes related to his duties (Article 105). Finally, the final paragraph of Article 101, which stipulated that the elected president's party affiliation would be forfeited, was abolished. This means that it is possible for the president to be a party member. In fact, it could even be argued that this is necessary, given the overall design of the system. The single-headedness of the executive branch, its direct election by the people, and its lack of need for the trust of the legislature are cited in the literature as essential characteristics of the presidential system.5
Accordingly, in the 2018 elections, the president of the presidential system, who exercises executive authority, was elected, not the irresponsible and unauthorized head of state of the parliamentary system.

Although the term "president" is still used in the Constitution, President Erdoğan was elected "president" for the first time in 2018.6
In summary; Considering the term of office of a President elected under the old system as part of the term of the new system is incompatible with even the most basic legal approach. 7
If the term "president" had been used instead of "president" in the Constitution, and the provision had been "A person may be elected president for a maximum of two terms," none of these debates would have occurred. This is because Erdoğan would have been elected "president" for the first time in 2018, and his right to run for election for a second time would not have been in question. This fact alone, with its literal and narrow interpretation, renders the claim that Erdoğan was elected twice meaningless. In the 2017 Constitutional amendment, the existing term "president" in the Constitution was not changed, and the system was referred to as the "presidential system." However, the fact that the name has not been changed precludes the interpretation that the status remains the same despite these extensive changes.
Finally, it should be noted that the historical interpretation of the Constitution also supports this view. The Constitutional Commission's report clearly states that the two-term rule does not apply to previous presidents: Furthermore, while the term "President" is used verbatim in the current Constitutional provisions and those included in the Draft, the President's duties, powers, and position within the executive branch have been significantly altered under the existing provisions, and the President is clearly regulated within a completely different system of government. Therefore, it is undeniable that the terms of office of Presidents who served before this amendment came into effect will not be taken into account in the two-term election opportunity introduced by the Draft.
Grand National Assembly Speaker Mustafa Şentop, who chaired the Constitutional Committee during the constitutional amendment process and closely witnessed the process, emphasized that the opposition party MPs who wrote a dissenting opinion against the committee report did not address this issue, nor did they object to the views expressed in the committee and the General Assembly that President Erdoğan would have the opportunity to run for three terms.

CEM DURAN UZUN

He completed his undergraduate studies at Ankara University Faculty of Law and his graduate and doctorate studies at Ankara University Social Sciences Institute Public Law Department. His doctoral thesis was published by Adalet Publishing House under the title of "Financing of Political Parties in terms of Constitutional Law". He was a visiting researcher for one year at the University of North Carolina at Charlotte (UNCC) in 2006-2007. He worked as a research assistant and lecturer at Çankaya University Faculty of Law for many years. He still teaches Constitutional Law, Law of Political Parties and Constitutional Judgment as a faculty member at Ankara Medipol University Faculty of Law. Within SETA Ankara, it carries out studies in the fields of new constitution, government systems, judiciary and human rights. She has also written many Turkish and English books, articles, reports and analyzes on these subjects.