AK Party’s presidential process can rely on the constitution
by
Prof. Dr. ZAFER ÜSKÜL*

The election calendar has already been detailed. Election rounds will take place on April 27, May 2, May 9 and -- if need be -- on May 15. It seems that the election process will most likely be completed by May 9.

Minimum number required to convene plenary for presidential election

To elect the president, first there has to be enough deputies for the first round in the parliament. Under Article 96 of the constitution, “Unless otherwise stipulated in the constitution, the Turkish Grand National Assembly shall convene with at least one-third of the total number of members…” There is no other provision in the constitution that stipulates otherwise. Article 102 which regulates the presidential election does not require an additional quorum. Furthermore, the parliamentary bylaws do not state any separate number for the inauguration of the plenary; and even if they did, it would be contrary to the constitution.

Article 121/1 of the assembly bylaws provides that the president is elected in accordance with Article 102 of the constitution among the candidates whose qualifications comply with Article 101. By doing so, the bylaws refer to the relevant provisions of the constitution and make no further arrangement with regard to the election.

In fact, bylaws cannot make further arrangements as the constitutional provisions on the presidential elections leave no room for additional requirements. In other words, those provisions have an immediate effect without requiring further clarifications. Some of the constitutional provisions are directly implemented while some others require additional arrangements before implementation. These arrangements can be made either through bylaws or laws. For instance, the constitutional provision which states the number of deputies in the parliament is 550 does not need arrangement by laws or bylaws; this is a directly applicable provision. The role of the law in this case is limited to a reiteration of the constitutional provision if necessary. However, the procedure to elect RTÜK members is not outlined in the constitution; the determination of the procedure is left to the laws (Article 133).

In short, to hold a presidential election in the parliament, the presence of 184 deputies in the plenary session will be sufficient.

Required number to elect the president

Paragraph 1 of Article 102 of the constitution states, “The President of the Republic shall be elected by a two-thirds majority of the total number of members of the Turkish Grand National Assembly and by secret ballot.” If the third paragraph of the same article is not considered, it could be concluded that at least a two-thirds majority is required to hold the elections. However, the said paragraph notes that the election should be completed in four rounds and a two-thirds majority will be sought in the first two rounds and simple majority in the remaining two. It also states that only the two candidates with the highest support will be able to run for the presidency in the last round. So, the third paragraph clarifies the ambiguity in the first and details the election process. However, it should be admitted that the wording of the entire article is not very good. Nonetheless, these provisions clearly state that the procedure and the required number to hold the elections outlined in the third paragraph -- and nothing more -- should be sought in the presidential elections.

In short, the constitution provides that a simple majority will be sought in the third round if no candidate is able to garner the support by a two-thirds majority, and only two candidates will compete in the fourth round if no candidate is able to receive the approval of a simple majority in the third round. If one of the two rivals is unable to be president in the fourth round, parliamentary elections will be held immediately. This means that the constitution requires the completion of the presidential election in the parliament.

Some have asserted that the required number to take a parliamentary decision should also be sought to hold the presidential election. In other words, in order to hold the first round of the presidential election, at least 367 deputies should cast their votes in the first round of the plenary session. The same assertion says that if this number is not met, parliamentary elections should be held immediately.

However, there is no constitutional provision supporting this assertion. The required number to inaugurate the convention and the required number to take a decision are totally different. The constitution makes a clear and undisputable distinction between the two.

As already noted, the required number to inaugurate the plenary meeting is 184 and there is no other constitutional provision on this matter.

In most cases, the required number to take parliamentary decisions is a simple majority of the deputies present in the plenary. But the constitution specifies different requirements for particular cases. For instance, a three-fifths majority is required for general or partial amnesty (Article 87), two-thirds for a presidential election in first two rounds (Article 94) and three-fifths for constitutional amendments (Article 175) is sought by the constitution.

So, obviously, the assertion that the required number to take a parliamentary decision is also the required number to inaugurate the plenary meeting has no legal ground.

Another assertion is based on Article 175 of the constitution which outlines the requirements for constitutional amendments. The assertion goes on to say that references made by the said article to the provisions on the negotiation and adoption of the laws indicate that the meeting convened for the purpose of amending the constitution should be held with the participation of at least one-third of the total number of deputies in the parliament. So, if the constitution-maker had found participation by one-third of the total number of deputies in the presidential election, the assertion adds, it would have made a similar reference.

This assertion does not have legal ground, either. In the first case, what is in question is making a law under some conditions and in the second case an election. Furthermore, if we go with the above interpretation, the constitution should have made a reference in the case of general amnesty like the one in Article 175. In the absence of such a reference, should we assume that a three-fifths majority of the total number of deputies in the parliament will be sought to inaugurate the meeting where a general amnesty will be discussed? This question applies to all cases where a qualified majority is sought to take a parliamentary decision.

The presidential election is an election that will be carried out by the assembly, just like the one by which the parliamentary speaker is elected. The General Assembly speaker is elected by a qualified majority (two-thirds in the first two rounds, absolute majority in the third and simple majority in the fourth among the tow candidates with the highest votes in the third round). No other quorum is sought for this election. In this case, the required number to inaugurate the meeting where the speaker will be elected is one-third of the total number of deputies in the parliament.

Is it possible to bring the election results before a judicial review?

Some assert that the results of the presidential elections will be brought to the Constitutional Court, which will eventually annul the outcome if the plenary is not convened with the participation of at least a two-thirds majority of the parliament. This assertion has no legal ground, either.

The Constitutional Court is not authorized to review the legislation on presidential elections. Aware of this basic fact, those who claim the results can be subjected to a judicial review base their assertion on a further argument by which they allege that because the finalization of the presidential election in the third round via simple majority without meeting the requirement of a two-thirds majority participation in the first two rounds will be in breach of the parliamentary bylaws, the Constitutional Court has the power to review the case and will eventually annul this indirect breach.

However, it is not possible to consider the presidential election held in accordance with the procedure and requirements as outlined in Article 102 of the constitution an amendment to bylaws in effect. As noted above, Article 102 is directly enforceable without further regulations and its implementation is mandatory even in the presence of contrary provisions in the bylaws. How will enforcement of a constitutional provision be considered a bylaw amendment contrary to the constitution?

To clarify the matter, I should explain it with an example. Those who committed crimes by imprudence were recognized to have the right to vote through a constitutional amendment in 2001. However, the amendment was not reflected in the relevant laws. For instance, Law No. 298 regarding fundamental provisions of the elections does not recognize the voting rights of criminals that fall in the said category. Despite that this law is in effect, the Supreme Election Council, relying on the constitutional provision, ruled that criminals by imprudence may cast a vote in the elections.

Of course, a lawsuit may be lodged with the Constitutional Court to annul the election results. Individuals and institutions are free to do so within the limits as outlined by the constitution. However, there is no legal ground for the admission of the lawsuit and the discussion of its merits by the Court. Such a lawsuit will be destined to dismissal for the reasons briefly described above.

How will the presidential election be held?

Presidential candidates will deposit their candidacy applications with the presidency of the General Assembly, which will designate a special agenda for the elections. The assembly speaker will check for the presence of at least 184 deputies in the plenary to be convened for the first round of the election. If he contends that the required number for the inauguration is met, he will commence the process. However, in case of doubts or a request signed by at least 20 deputies, attendance will be taken. If the attendance check reveals there that are not enough deputies, the meeting will be postponed.

The next steps include a secret ballot and a vote count. If any of the candidates garners the support of at least 367 deputies, he will be elected president. Otherwise, a second round will take place at least three days later. In every meeting, the required number for inauguration will be checked through the simple procedure mentioned above.

If any of the candidates is unable to become president with the support of 367 deputies in the first two rounds, a third will be held. At this stage, the support of an absolute majority (276 deputies) will be sufficient. If no candidate receives this number of votes, the two candidates with the highest votes in the third round will compete in the fourth round where the support of a simple majority will be sought for the election of president.

If the election results are brought to the Constitutional Court for annulment and if the court -- despite the obvious legal rules -- annuls the results, the AK Party will attract overwhelming support in the general elections three months later, more than it would have in the regular elections.