-Analysis-
ISTANBUL — The last thing anyone wants to do at a time of grief like the earthquake in Turkey and Syria is to discuss the constitution. Yet in this case, we are left with no choice.
We do not yet know how many people lie under the wreckage. Before the quake, President Recep Tayyip Erdogan, who wants to extend his rule into a third decade, was facing a tough re-election battle in elections scheduled on May 14. Opinion polls published before the earthquake suggested he could lose because of the Turkish cost of living crisis.
Unnamed Turkey officials from Erdogan’s party have said there are “serious difficulties” in holding the elections. The constitution of Turkey gives no such option for delaying elections unless we are at war and the Turkish parliament votes to do so. So it can’t happen even in the event of a natural disaster — at least not without altering the constitution at least.
Those are the facts as they are. Then what exactly do those who say that the elections can be delayed mean, and on which constitutional provision, law or verdict are they basing their arguments?
There is much more happening here than sympathy for the victims. So with the help of Turkish constitutional law expert Didem Yılmaz, let’s go through the issues one by one:
Not at war
1. The title of the Article 87 of the Constitution of the Republic of Turkey reads: “Duties and powers of the Grand National Assembly of Turkey.” The article lists the duties and powers of the parliament in “general”. One of these powers is to “declare war.” This is how the article ends: “and to exercise the powers and carry out the duties envisaged in the other articles of the Constitution.”
Therefore, parliamentary powers are defined in full in this article and others in the constitution. Only the constitution assigns duties and powers to the parliament.
2. The Article 78 of the Constitution is entitled: “Deferment of elections and by-elections.” The first clause of the article says: “If holding new elections is deemed impossible because of war, the Grand National Assembly of Turkey may decide to defer elections for a year.” The second clause: “If the grounds do not disappear, the deferment may be repeated in compliance with the procedure for deferment.”
Of course, the constitution may be altered. That is another subject.
As you can see, deferment or delaying the elections in Turkey is only possible “because of war.” This should be a war as it is legally defined and not just any war; the war conditions should make it impossible to hold elections in the country. The authority to judge these conditions is the parliament.
The election cannot be delayed since Turkey is not at war. Of course, the constitution may be altered. That is another subject.
3. Could an election be delayed only at wartime because the constitution says so?
As far as I understand, those who ask this question are looking at, or trying to grasp onto, a 2012 verdict by the Constitutional Court of Turkey. I do not believe it is possible to pull anything useful from this verdict, which was about some articles of the Law for the Presidential Elections being unconstitutional. I will not bore you with details, but the verdict can be read here.
Acts of God?
The parliamentary deputies who brought the matter to the attention of the court claimed the fifth article of the presidential election law, which is on deferring the elections, was unconstitutional, but the high court rejected their appeal.
In the explanation of the rejection, the high court commented that it may not be possible to hold elections “under any condition” and “acts of god” may also be grounds for delay in case they also make free elections impossible.
The Court verdict features comments such as “war,” “acts of god” and “not under any condition”, which lack the clear provisions of the constitution. However, it also underlines that it is necessary that the conditions should make it practically impossible for free elections to be held.
It’s an attempt to muddy the waters.
While there are those who view this verdict as possibly giving grounds for delay, it is obvious that the conditions for not being able to hold free elections are not valid in Turkey today.
God forbid, if a hypothetical disaster would happen a few days shy of the elections, then we could say that it wouldn’t be possible to hold free elections and the “acts of god” argument could be considered. That is not the case now.
So in brief, it is not possible to delay the parliamentary and the presidential elections, which are to be held on the same day. The rumblings masked as a constitutional debate are actually an attempt to muddy the waters, which should cease right away.
