In the 2023 elections, the Supreme Election Council (YSK) will make very important decisions. These decisions include whether President Recep Tayyip Erdogan can run for office again, and what could happen if the HDP (People’s Democratic Party) is closed. However, before these decisions can be made, it is important that the principal and reserve from among the 11 members of the YSK are determined in a manner that is consistent with the Constitution.
According to Article 79, paragraph 3 of the Constitution:
“The Supreme Election Council (YSK) consists of seven principal and four reserve members. Six of the members are elected by the General Assemblies of the Court of Cassation and five by the Council of State from among their members by an absolute majority and secret ballot of their members.”
Paragraph 4 of Article 79 states:
“Two reserve members per electing body are separated from the members elected to the Supreme Election Council from the Court of Cassation and the Council of State by drawing lots. The President and Vice President of the Supreme Election Council do not participate in the draw,”
This clearly explains how the principal and reserve members will be determined.
The new members replacing the 5 members of your board whose term of office expired on Tuesday, January 24, have been elected by the Council of State and the Court of Cassation. Then, in accordance with the last sentence of Paragraph 4 of Article 79 of the Constitution, the 11 members of the YSK elected a president and a vice president from among themselves.
As of February 28, 2023, according to the information on the Board’s website and despite the requirement of the Constitution and Law No. 7062, which of the 9 members other than the president and vice president are principal and which are reserves has not been determined.
Principal and Substitute Members Must Be Determined
As confirmed by the Constitutional Court in its decision no. 2016/171 and 2016/164, according to the explicit provision of Article 6 of the Constitution:
“no person or organ can exercise a state authority that does not originate from the Constitution.”
According to Article 11 of the Constitution:
“Constitutional provisions are the basic legal rules binding the legislative, executive, and judicial organs, administrative authorities, and other institutions and individuals.”
Proper constitution of The Supreme Election Council is completed with the determination of the 4 reserve members following the election of the president and vice president. The 11 members who have been elected by the Court of Cassation and the Council of State cannot act as if they have consituted the Supreme Election Council without determining which of them are principal and reserve members, and they cannot make decisions on behalf of the Council. Decisions on behalf of the Council are made by the president and vice-president, and the 5 principal members that are yet to be determined. That is because this authority is given only to those determined as principal members. Reserve members may perform the duties of a principal member only when the principal member cannot attend.
All YSK decisions would be null & void
For as long as the principal or reserve member positions remain undetermined, any of the 9 members other than the president and vice president is neither a principal nor a reserve member of the Council. If they make decisions on behalf of the Supreme Election Council without determining the principal and reserve members, each of them would have usurped the powers of the Council. In this case the decision, presented as a formal one, would be legally void and invalid ab initio. If such void decisions are complied with in adherence only to its visible form, then the Constitution and the constitutional order will have been violated.
According to Article 77 of the Constitution, it is mandatory for the presidential and parliamentary election period begin no later than 60 days before the latest possible date of casting of votes. That is, 18 June 2023. If the voting take place on 18 June 2023, then the election period will start on April 19, 2023.
If President Recep Tayyip Erdoğan, as he has previously stated, decides to renew the elections by using the authority in Article 116(3) of the Constitution and declares Sunday, 14 May 2023 as the date of voting, then the election period will start on 15 March 2023.
The YSK’s Vital Role
The Supreme Election Council will make very important decisions in the 2023 elections.
Some of the main dilemmas they face may be summarized as follows:
- Which presidential term is Recep Tayyip Erdoğan in; is the current term his second or first presidential term?
- Was the institution of the presidency established for the first time with the 2017 constitutional amendment, or did it exist prior to it?
- If the elections are held on the regular date, 18 June 2023, or are decided to be held earlier, and this decision is made by the Grand National Assembly or the President himself, can President Recep Tayyip Erdoğan be a candidate?
- If, after the finalization of the candidacies, the President or parliamentary candidates become banned from participating in politics, for example, if Ekrem İmamoğlu becomes banned or if the Peoples’ Democratic Party (HDP) is closed, what will happen?
YSK should inform the public
In my opinion, the 2023 elections will be a more critical turning point in our country’s democratic history than those in 1950. At this turning point, the YSK will guide the course of our country with its decisions. To strengthen our social unity, our confidence in the rule of law, and justice, it is in the best interest of our country for the YSK to act in a manner beyond reproach in the matters specified in the Constitution and the law.
I request that the Supreme Election Council determine the reserve members from among the 9 members excluding the president and vice president, in accordance with Article 79 of the Constitution and Article 5 of Law No. 7062, two of them being elected members from the Council of State and two from the Court of Cassation and inform me of the results. I also ask that they make an announcement to the public of the same.
Translated and edited by Charles Ediz Gün