All eyes are on top election board for Erdoğan’s presidency

President and ruling Justice and Development Party (AKP) Chairman Recep Tayyip Erdoğan’s announcement that he would use his presidential authority on March 10 to renew the election on May 14 quickly fuelled the debate that he would not be able to run again. Despite main opposition Republican People’s Party (CHP) Chairman Kemal Kılıçdaroğlu’s statement that they would not object to Erdoğan’s candidacy because an appeal would be of no consequence, all eyes are now on to the Supreme Electoral Council (SEC).

The tenure of 5 out of 11 members of the SEC has expired on Tuesday, January 24. The Council of State has already elected 2 new members, and the Court of Cassation is to elect three new members to replace Muharrem Akkaya, the President; Erhan Çiftçi, the Deputy President; and Cengiz Topaktaş, Kürşat Hamurcu and Yunus Aykın. After that, a new president, deputy president, and seven full and four substitute members will have to be elected.

SEC deadlock at the Court of Cassation

For the last one new member the Court of Cassation election process is continuing in its 15th round while the number of candidates has dropped from 16 candidates to current 10.

The selection of a member from the Court of Cassation to the SEC is quite different from the nomination of a candidate to the Constitutional Court, where the three persons with the highest number of votes are presumed to be nominated. To be elected as a member of the SEC, a candidate must be elected by one more than half of the 360 members, i.e. 180 votes. Until new members are elected in the Court of Cassation, the members of the SEC with expired tenure remain in office.

Erdoğan’s influence on the Court of Cassation

Based on the number of votes in the first ten rounds, it can be estimated that Mr Erdoğan’s influence in the Court of Cassation is limited to approximately 110 members. The first prediction is confirmed by the fact that the Platform for Judicial Unity was founded in 2014 by conservative, nationalist and social democratic members of the judiciary. Therefore, Mr Erdoğan is not influential enough to prevent the Court of Cassation from electing members to the SEC and to ensure that the members with expired tenure remain in office.

The integrity of the elections in 2023, the safe demonstration of the will of the nation, and the public’s trust in the results to be announced depend on the critical decisions of the SEC to be lawful, sound, accurate, and credible on many vital issues summarised under the main headings below.

Is it possible to move the election a month earlier?

Due to the reasons that I explained in my previous article, moving the elections of June 18, 2023 earlier, when the current term is very close to its end, would mean a violation of the Constitution via circumvention.

Neither the president nor the parliament is authorised to decide on early elections, as they were abolished by the Constitutional amendment of 2017. Moreover, statements suggesting a “minor update to the election date” have no constitutional basis. As such, can the elections be moved earlier to May 14, 2023? What will be the attitude and decision of the SEC against such a decision by the president or the parliament?

Can Erdoğan run for re-election?

It is not disputed that the president serving his second term can only run again if the Parliament resolves to renew the elections per Article 116(3) of the Constitution, and not otherwise. However, the AKP and MHP (Nationalist Movement Party) argue that Mr Erdoğan is in his first term and there is no obstacle against his candidacy.

Therefore, the SEC will first decide how many terms Mr Erdoğan served as president and then decide whether he can be a candidate. The SEC’s decision on this issue will lead to severe debates among both his supporters and opponents.

Separating the meaning of terms “commencement date of election” and “voting day”

Law on Parliamentary Elections No. 5819 clarifies that the two terms “commencement date of the election” and “voting day” are not the same. Article 6(2) of the Law reads as follows: “The last Sunday before completion of five years as of the date when the previous election was made is voting day. The first day of the sixty days counted backwards starting from the voting day is the commencement date of the election.”

Mr Erdoğan’s statement, ” Election date is whenever the 60 days end”, if true, confuses the terms “election”, “commencement date of the election” and “voting day”.

When and how will the new electoral law be enforced?

If the voting day is to be May 14, then the commencement date of the election is to be Wednesday, March 15, 2023, and if it is June 18, 2023, then the commencement date is Wednesday, April 19, 2023. Under Article 67(last) of the Constitution, the amendments to the electoral law introduced by Law No. 7393, which entered into force on April 6, 2022, “shall not apply to elections to be held within one year from the date of entry into force [until April 6, 2023].”

Accordingly, these amendments will not apply to the elections commencing on March 15, 2023 but will be applied to the elections commencing on April 19, 2023. Tolga Şirin has authored a comprehensive article on this issue.

Bekir Bozdağ, Minister of Justice, ignores Article 6(2) mentioned above and the fact that the election commences 60 days before the voting day, and based on a decision of the SEC issued by a majority of 3 votes to 4 on June 12, 2011, he says that Law No. 7393, which reduces the electoral threshold applicable for elections after April 6, 2023 to 7 per cent and regulates alliances, will be applied according to the “voting” day.

It is evident that the SEC should decide that the amendments introduced by Law No. 7393 will not be applicable in an election commencing before April 6, 2023. However, such a decision by the SEC would have serious negative consequences for both the Nationalist Movement Party and the People’s Alliance.

What about political bans during election?

What will happen if, during the election, which commences 60 days before the voting day, a presidential or parliamentary candidate becomes politically banned at a date after the finalisation of the nominations? For example, what will happen if Ekrem İmamoğlu becomes politically banned during this period or the Peoples’ Democratic Party (HDP) is closed down? The SEC will make critical decisions on these possibilities, which could derail and delegitimise both the presidential and parliamentary elections.

Why is the trust for SEC is questioned?

This question can be answered under several topics:

1- Their decisions are final, with no supervision:

The decisions of the SEC are final; there is no judicial control to redress the mistakes, even if they make clearly wrong or arbitrary decisions. For example, if Mr Erdoğan lost the election and Mr Kılıçdaroğlu won, but the members of the SEC arbitrarily or by deliberately summing the totals from the provinces incorrectly declare that “Erdoğan won the election”, there would be no judicial remedy or rectification against this. It is pretty standard to distrust an institution that is not accountable to the law, i.e. which has no possibility of rectifying and redressing mistakes; on the contrary, it is only natural to be concerned about arbitrariness. But are there any measures to address this concern?

2- Immunity of members:

Do not think that “the members of the SEC are reputable people who have achieved the highest degree in their professions, are knowledgeable and experienced, and are not expected to make mistakes or abuse their office. Therefore, they would not engage in behaviour that would damage their reputation or lead to their trial and conviction, they would not commit crimes, and if they did, they would be judged by the Supreme Court and go to jail.”

That is because protecting the reputation of the members of the SEC, some of whom are members of the Court of Cassation and some are members of the Council of State, is entrusted to their conscience. Yet, they enjoy a lifelong immunity that is more powerful than parliamentary immunity. This is because members of the SEC can only be investigated or prosecuted for crimes perpetrated during the performance of their duties if the committees of their own institutions, composed of their colleagues, authorise an investigation.

3- Their investigation relies on the permission of their colleagues:

If you think that the relevant committees of the Court of Cassation and the Council of State would not protect the members of the SEC if they commit offences and that they would resolve for their investigation and prosecution, you are mistaken. As stated in a decision of the Constitutional Court in 1977, it is a fallacy to to think that jurists will always decide correctly and under the law.

Decisions of jurists rendered without a fair trial and without being subject to any judicial review are bound to be erroneous because the right decision derives from the fair struggle of opposing sides.

Moreover, only competent jurists can make decisions that violate and distort the law and skilfully conceal it. In fact, jurists are the best that can think of measures that could save them from responsibility even if they make decisions violating the law. Let me give an example from the SEC: a decision taken on behalf of the board with the participation of all its members without identifying who are principal members and who are substitutes is not regarded as a decision taken on behalf of the SEC, because the board is composed of principal members and only principal members can make legally valid decisions on behalf of the board.

It is pretty complicated to hold the members responsible if there is a mistake in the decisions taken supposedly in the name of the SEC and which everyone is obliged to abide by, and to question on what basis they should be held responsible. If they were to be accused in such a case, they could come up with justifiable and sound defences such as our authority was not defined, or the decision was not legally valid.

4- If the decision is wrong and arbitrary:

Do not ask, “What is their interest in making unlawful, deliberately wrong or arbitrary decisions? Why would they do so?” First, it should not be left to the individual’s conscience not to make mistakes or arbitrary decisions; institutional and healthy mechanisms must be established to ensure making the right decisions. On the other hand, every human being may have an unknown, hidden side.

Even if they have no apparent vested interests, they may have political loyalties, misdemeanours that might ruin them if exposed, videos of pleasure and debauchery, shady relationships and so on. Honest people who are in the second phase of their lives, at the last stop of their positions without having saved anything worthwhile up to that day, can be persuaded or even forced to hit a big volley for the last time.

5- Is there a possibility of corruption or bribery?

One might think that members of the SEC might be bribed or want to use their position and status to reap benefits. However, a few incidents that have come to light in the past and have been recorded in official records, and the fact that our country lags in corruption indices, create a favourable environment for such suspicions to arise and speculations to be made.

The incidents where the First Presidents’ Council of the Court of Cassation issued a non-investigation decision on the news article “German Bank bribed the Turkish Judiciary” published in Der Spiegel Magazine, one of the world’s leading institutions in Investigative Journalism in the 2010s; the Constitutional Court, with its ruling with 2011/1 Merits no. and Decision no. 2012/1 pushed some of the principles of law and ruled in favour of acquittal in an obvious bribery case; and controversial decisions that the public does not agree with prevent trust in the members of the SEC; instead, they lead suspicion and speculation.

The historical mission of the SEC

As I explained in my article on YetkinReport  the elections in 2023 will be a more crucial turning point in the democratic history of our country than the elections in 1950. The SEC will shape the developments that will take place during this period with its decisions. The SEC can either strengthen our social unity and our belief in the rule of law by making accurate and well-reasoned decisions on critical issues, or it can intensify our differences and deepen our polarisation with its arbitrary, wrong and unjustified decisions.

I hope that the Court of Cassation will elect the most competent people suitable for SEC memberships and that following the election of the new members, the SEC board chairman, deputy chairman, and full and substitute members will be appointed promptly under Article 79 of the Constitution and the SEC law, and that we will overcome this challenging period with a clean slate.