“Erdoğan recently proposed to lower the 50+1 percent treshold for presidential election and stirred a debate. He said the treshold results in ‘small party – big power and influence’ problem. However it not exclusive to small parties. It’s a matter of representational injustice in the election system.”
Recep Tayyip Erdoğan’s suggestion to lower the presidential election threshold from 50+1 percent to 40+1 percent and to make it a single round, further clarifies that his easy re-election in 2028 is the main aim of the discourse on a new and civil constitution he started on the 12th of September at the Ulucanlar museum.
It would not be a surprise if Erdoğan, who despite his term ending in 2023 was elected president for the third time by unconstitutionally interpreting the two-term limit in the Constitution in his favour, raised such an exception, favouring his remaining in office just before the 2028 elections.
Firstly, it should be noted that the 50+1 percent requirement to be elected president is the last and only safeguard of our state’s system of governance, all the safeguards and balancing elements have been bypassed. It is correct and appropriate for leaders of political parties, including Devlet Bahçeli, the leader of the AK Party’s coalition partner the Nationalist Movement Party (MHP), to protect and support the 50+1 percent requirement.
Yet, the 50+1 requirement for the election of the president should not be out state system’s only insurance.
50+1 percent is a natural necessity of presidential elections. To win an election with two candidates, one must receive 50+1 percent of the vote. In races with more than two candidates, unless one candidate receives a majority of 50+1 percent, the combined votes of the other candidates will exceed 50+1 percent. Therefore, it’s natural for candidates to form coalitions to reach 50+1 percent of the votes. Legal regulations cannot prevent political parties or candidates from doing this.
The situation would not change even if it were said that ‘the candidate with more than 40 percent of the votes will be elected in the first round’; coalitions will still emerge. Having a single-round election simply forces coalitions to be formed before the election, but it does not prevent their formation. If a minimum vote requirement, such as 40 percent, is not met in the first round, a second round of elections must still be held. Moreover, a two-round election is better than a single-round one because it allows multiple candidates to demonstrate their fitness for election in the first round. Banning coalitions is also not a solution; it would do nothing but force negotiations to be conducted in secret behind closed doors.
The cost to Türkiye of trying to solve the issues of prime minister selection, governments’ removal and receipt of a vote of confidence, which were common in coalitions before 1980, with a presidential system based on a 50+1 percent requirement, has been further disruption in governance and economic stability.
Stability in governance means consistent, uninterrupted, and predictable execution of state governance functions, including those judicial, legislative, executive, and bureaucratic. Stability does not mean that those representing the executive are unchangeable; it means they can be changed when necessary and not otherwise.
Centralizing all state powers in a single executive, the president, who cannot be changed or balanced even when imperative, as seen in the experience of Erdogan appointing his son-in-law to head the economy, has created a new type of instability.
The ‘small party – big power and influence’ issue raised by Erdoğan is not unique to small parties but is a problem of representational injustice with the election system that artificially gives all political parties, big and small, more power than they deserve. This is a root cause of the increasing instability in governance and the economy.”
Many writers consider and criticise this problem, more easily visible where a small party shares in government or plays a key role in politics, only in the relation to the coalition partner MHP, but it also applies to the İYİ Party and HDP, who are also made kingmakers by their similar shares of the vote.
The representational injustice in parliament not only benefits small parties but also gives large parties more power than they deserve, with the highest vote-getter gaining the sole power to govern. The anti-democratic and oligarchic political parties’ law, keeping of high election thresholds, and administrative units as electoral districts, non-optimal and heterogeneous electoral districts, and the disregarding of surplus votes contribute to this injustice. As a result, all political parties are given far more power than they have in reality.
The fact that large political parties have more power than their constituents societal weight justifies and follow policies flinging governance of the state from one extreme to another is not beneficial, but harmful. Only, the enjoining of nationalist or identity-politic following small parties to another party, becoming key to a majority in the legislature, and their consequent acquisition of effect and influence in domestic and foreign policy is more damaging. The excessive influence and activities of these small parties from opposing ends of the spectrum also severely restrict Turkey’s democratic development.”
Scrutiny of the historical developments culminating in the presidential system reveal that the root of the problem is representational injustice.
In 1946 Turkey transitioned from a winner-takes-all majoritarian system to a multi-party an pluralistic system with the 1961 Constitution which introduced the Constitutional Court and judicial independence. Following the pre-1980 era of unsustainable coalitions, a quasi-majoritarian system was adopted that gave an artificial majority in parliament to parties with 30-35 percent of the vote. To counter the drawbacks of detracting from representational justice in the name of executive stability, the system turned to tutelage. However, with the election of the president by the people, the dominant political party in parliament also gained control of the factor that balance this structure. The power of the state which was initially divided between a president and prime minister of the same party, came to be concentrated in one person in the presidential government system, destroying the element of control and balance within the same political party.
Under the presidential government system, the party that secures the executive, establishing a majority in the legislature by itself or coalition eliminates the legislature’s balancing and oversight functions.
Parliament has completely lost its role of balancing and providing oversight because of developments brought about by representational injustice. While even a small company’s general meeting of shareholders oversees and holds accountable its directors, parliament is unable to oversee or hold accountable the president, their appointed ministers, and senior bureaucrats. Instead, parliament has become the government’s printing press, rushing through numerous omnibus bills at the speed of sound without adequate discussion. We are effectively living through a de facto majoritarian system where the winner dominates all state powers and institutions, just as in the pre-1960 era.
Balance and sustainability in state governance can be achieved by preventing small parties from gaining disproportionate power and playing outsized roles through representational justice. Designing a system that provides legislative and executive representation proportional to their votes to all parties, big and small, while maintaining sustainable governance is challenging. The solution lies in approaching the principle of self-governance and adhering to the natural conditions necessary for its realisation.
To establish representation justice in legislation, the habit of granting artificial majority to parties receiving 35 percent of the vote must be abandoned, election thresholds must be lowered to a minimum to represent even marginal parties, and surplus votes must be better evaluated. Additionally, a system that strengthens balances within the legislature, between the legislature and the executive, and within political parties must be established to ensure appropriate and constructive reflection of opposition thought in policies, implementations, and regulations.
If the current 2 large, 3 medium to large, and 4 small political parties were represented in parliament proportional to their shares of the vote, the parliamentary arithmetic would be fragmented and diverse but more balanced, stable and healthy.
The president would not be able to form a permanent coalition with just one party against a fragmented and diverse parliamentary arithmetic ensuring representational justice; they would need to form coalitions comprising at least three parties with different makeups. This would prevent the ossification seen in two-party coalitions, allowing the president to form coalitions even on a project-by-project basis. In this scenario, neither a single small political party could hold the government hostage, nor could electoral alliances distort parliamentary representational justice. The ‘small party – big power’ problem would resolve itself.
Under the presidential system, the judiciary has effectively become an extension of the executive. The judiciary, regulated by the political motives of the main party in power and its junior coalition partner, has lost its fundamental independence and thus impartiality, becoming politicized. The judicial bodies, already incapable of providing fair trials within a reasonable time, cannot freely prosecute the president, ministers, and bureaucrats for their crimes without obtaining prior permission for investigation from the charged person’s superior. The judiciary fails to inspire confidence in neither citizens, bureaucrats, the opposition, nor investors, and it cannot give effect to the rule of law.
Bureaucrats, immune to legal or practical prosecution without a politician’s permission, are forced to become accomplices to corrupt politicians. As a result, the bureaucracy has lost its role as the foundation of the state and the guarantor of stable governance. Indeed, many complain that in the presidential system, the bureaucracy lacks the courage and ability to make a decision or the right decision without a signal from the very top.
It is important to discuss the elimination or restriction the powers of the Constitutional Court, some of the decisions which are already being disregarded, amidst the debates on easing the presidential election with a new constitution.
The Constitutional Court has already become highly politicized. Politics has been attempting in various ways to seize or control the Constitutional Court, the most independent judicial body that is protecting us from falling again into pre-1960 turmoil our country saw, and whose members have the highest judicial guarantees. The members of the Court are determined behind closed doors, without even the possibility of the public’s knowledge, through many political relationships and deals, and are nominated and elected by secret votes bypassing requirements prescribed by legislation.
The politicization of some members to the extent of not even applying basic legal rules, using contradictory jurisprudence, and other issues erode trust in the court; lack of adherence to their decisions gives rise to judicial anarchy. The non-compliance of the members of the Court of Cassation’s 3rd Criminal Chamber, appointed entirely under the AK Party government against the explicit provision of Article 153 of the Constitution, with the Constitutional Court’s decision regarding Can Atalay reflects this.
Indeed, MHP Chairman Bahçeli criticised the Constitutional Court, for its decision regarding Can Atalay and also its decision to release treasury aid to the HDP and to postpone the decision on the ongoing case to close the political party. Bahçeli criticizes the members of the court for being partisan, acting arbitrarily with political motives, and not implementing fundamental laws.
In the Turkic states of Central Asia, the Seljuk and the Ottoman empires, it is and was a requirement of the Turkic custom for judges to hold rulers accountable. The idea of establishing a court of the nature of a constitutional court was discussed in our country even before the republic was established. The institution of the constitutional court, developed as a result of humanity’s bitter experiences, came to life in Türkiye with the 1961 Constitution. The Constitutional Court has solved the problems that majoritarian politics could not solve before 1960 on the basis of fundamental legal principles. The Constitutional Court has ensured the protection against the politically motivated lifting of parliamentary immunity in the cases of Enis Berberoğlu and Haluk Gergerlioğlu in reliance on the Constitution.
Were there no Constitutional Court or were it unable perform its function, Türkiye will revert to the pre-1960 era, and even the protection of the country’s republican, democratic, and rule of law qualities of the country would be legally impossible.
Turkey’s interests require not the abolishment or narrowing, but rather the strengthening of the Constitutional Court, augmentation of its powers, and making it the sole address for the checking the compatibility of laws and their execution with the Constitution.
Unfortunately, our majority politicians, who have turned politics into a lawless game of power and self-interest, see immunities and the parliament as a shield and refuge from the penalties of their crimes are motivated not to solve the country’s problems but to arrange the state for their own interests. Fundamental solutions emerge with international financial institutions demanding the strengthening of the financial sector, as was the case with the 2001 crisis, or under the pressure of relations with the EU. Hasty and half-baked arrangements made where politicians’ interests are concerned are insufficient to solve the country’s problems and lead to other issues. As for when politicians have no interest, the country’s problems are left unsolved.
Erdoğan’s bringing up of the issue of disproportionate major influence in the context of only small parties, with the motive of being re-elected instead of that of addressing representational injustice, is a clear example of this. However, the real problem faced by the country is that not only the small parties, but all political parties are being given much more power than the weight of their representation confers, that is, representational injustice.
If Erdoğan’s re-election is accepted, then an incomplete and imprecise solution will likely be introduced in relation to small parties failing to address the problem that seriously undermines representational injustice. On the other hand, if Erdoğan’s re-election is refused, then the issue will remain completely unresolved; instability in governance and the economy will continue. Yet the other political party leaders who oppose Erdoğan’s re-election do not even come close to discussing this serious problem. It is a painful truth of Türkiye that this problem remains unsolved even at the level of thought because politics does not discuss it or develop contrary views or proposals.
Therefore, Erdoğan’s 40+1 proposal, unable to overcome the arithmetic 50+1 condition and ignoring the country’s problem of representational injustice, should be treated as an attempt to start negotiations on a new constitution in service of his ulterior motive.
In political, commercial, or personal relationships, neither the first proposal put on the table, nor the first response given is final. The first aim of the party making the initial offer is to draw the other side to the negotiating table. Parties concede from their initial offers, approach each other, and agree.
Therefore, in the 4 years and 1 month period from the local elections in March 2024 to the end of Erdoğan’s term in May 2028, many proposals will be brought up on these issues, developments will occur, and debates will take place.
In this process, opinion leaders must inform the public, direct politicians with realistic and creative suggestions to find permanent solutions to the country’s real problems.
Traslated by Charles Ediz Gün
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