THE ELECTION OF THE PRESIDENT DIRECTLY BY THE PUBLIC AND THE LAW ON PRESIDENTIAL ELECTIONS

Yıl 2012, Cilt: 12 Sayı: 23, 263 - 288, 01.06.2012

Mehmet Kahraman

Öz

There have been important changes in the Constitution in order to directly elect the
president by the public. With these constitutional changes, there is also discussion about
the impact of this change on the functioning of the regime and the position of the
president in the system. While these discussions are taking place, a new Law on
Presidential Elections was published in the official gazette on January 26, 2012 and came
into effect. Although the Law on Presidential Elections answers many questions about the
issue, the debate about the election of the president continues.
In parliamentary systems, the head of state or the president is not responsible and
does not have any powers, therefore the executive power belongs to the Council of
Ministers, which has collective responsibility towards the legistature. Therefore, any
changes in the election of the president in these systems brings about discussions on
presidential objectivity.
In parliamentary republics, there are different methods of electing the president. In
some countries, the president is elected by the parliament and special committees while in
some others the president is appointed directly. However, all parliamentary systems give
executive powers to the prime minister and the Council of Ministers.
There are also different methods of reelecting the president in different counrties. In
some counrties, president is elected for a single term or for two consequtive terms while
in some others there is no limit for reelection.
It is evident that the method of election of president has an impact on the functioning
of the regime. Therefore, there is always some concern that directly electing the president
will increase its political legitimacy and also activate its symbolic powers. In
parliamentary systems, regardless of their official titles, presidents have limited or
symbolic powers and do not have any political responsibility. The most important
problem of electing the president directly is that direct elections would change president’s
objective and irresponsible position in the system.
With the 2007 changes in the constitution, the president will be elected directly by the
public for a five year term and a person can be elected for only two terms. Presidential
candidates can only be named among members of the parliament or among individuals
with characteristics necessary to be elected to the parliament by at least twenty members
of the parliament or those political parties which received at least 10 percent of the
popular vote in the latest general elections. The role of political parties in presidential
candidate selection, the necessity of political party support for presidential candidates, and
also the need to maintain this support for winning a second term in office all have some
affect on the objectivity of the president. This is so because there is no way of maintaining
objectivity with a need of political party support for election and reelection.
The debate about the constitutional changes for directly electing the president in 2007
centers around the possible problems of such a change. In our country, presidents have
always played important roles in the political system. Although this increased power of
the president stem from many reasons, some argue that the main reason for this
importance is the 1982 constitution and its view of the consitutional court and the
president as the guardian of the regime. Therefore, it is obvious that directly electiong a president with such kind of powers will have important consequences. The first of these
problems is changes in the functioning and the structure of the governmental system.
Other problems are about the loss of presidential objectivity and possible conflicts
between the president and the government. At the same time, there are discussions about
the term limit of the current president and the date of the twelfth presidential elections.
In accordance with Article 102 of the Constitution which states that methods and
principles of presidential elections would be regulated by law, a law on presidential
elections has been prepared and came into effect on January 26th, 212. The purpose of
the presidential elections law no. 6271 is to explain the methods and principles of
presidential elections, qualities of presidential candidates, any measures necessary before,
during and after the elections. According to the article 3 of the law which regulates the
begining of the elections and the completion of the elections: ‘Presidential elections take
place every five years. A person can be elected president for two terms at most.
Presidential elections are completed within sixty days prior to the end of the term of the
current president or in extraordinary circumstances such as death or resignation that
requiries early election, presidential elections are completed within sixty days after the
end of the presidency. The presidential election period starts on the sixtieth day before the
end of the current president. In order to complete the elections, the Higher Electoral
Council determines and announces the details of the electoral period’.
This change in presidential election method without making presidential powers
symbolic in accordance with the principles of parliamentary system can create conflicts
between the president and the government and even a deadlock in the regime. These
conflicts can escalate in case of divided government, that is, if the president’s political
party is not the majority in the parliament.
The new presidential elections law also allows presidential candidates to receive
private donations and finanical aid. According to the article 14th of the law, presidential
candidates can accept financial contributions and donations from individuals who are
Turkish citizens. There is a limit to such kind of donations. The amount of such
contributions form an individual cannot exceed the amount of the highest tax excuded
salary tax of a civil servant in bureaucracy. In addition, the law prescribes several
conditions to make sure that such contributions are transparent and under control.
According to these rules, any contribution need to be registered, contributions in cash
need to be deposited to the candidate’s bank account, any other contributions requires a
receipt from the candidate.
Althought the Law on Presidential Elections specify the status of civil servants if they
become a presidential canddiate, it does not have any rules about the president and the
prime minister if they become a presidential canddiate. Therefore, if a seating president is
named a candidate for a second term, he or she does not need to leave the office.
Opposition parties criticized this rule claiming that it is against the principle of equality
in the constitution.
The Law on 6271 article 1 explains that twelth presidential elections will be held in
2014 and previous presidents including the eleventh president cannot be a candidate.
There are several criticisms about the presidential election law both by opposition
parties and by public opinion. Main opposition party took articles 5, 11, 14 and 21 and
provisionary article 1 of the law to the Constitutional Court claiming that these articles are
against the rule of law, article 2 of the Constitution, the principle that all powers stem
from the Constitution, article 6 of the Constitution, the principle of equality in the article 10 of the Constitution, the principle that Constitutional rules are binding towards
executive, legislature and judiciarty article 11 of the constitution, and also against other
principles stated in the articles 67, 102 and 175 of the constitutiton.
This study analyzes the problems with the constitutional changes in presidential
elections and possible solutions to these solutions according to the principles of the
constitutional law.

Anahtar Kelimeler

Parliamentary System, President, Elections, Parliament, Executive

CUMHURBAŞKANININ HALK TARAFINDAN SEÇİLMESİ VE CUMHURBAŞKANI SEÇİM KANUNU

Öz

2007 yılında, Cumhurbaşkanının doğrudan halk tarafından seçilmesini sağlamak amacıyla, Anayasada bazı önemli değişiklikler yapılmıştır. Anayasa değişikliğinin gündeme gelmesi ile birlikte, bu değişikliğin gerek rejimin işleyişi üzerinde yol açacağı muhtemel sorunlar ve gerekse Cumhurbaşkanının konumu üzerindeki etkileri tartışılmaya başlanmıştır. Bu tartışmalar devam ederken, 6271 sayılı Cumhurbaşkanı Seçim Kanunu yürürlüğe girmiştir. Kanunun yürürlüğe girmesiyle birlikte, tartışılan bazı sorunlara açıklık getirildiği, ancak konu hakkındaki tartışmaların sürdüğü görülmüştür. Cumhurbaşkanının halk tarafından seçilmesini öngören Anayasa değişikliği ile ilgili tartışmaların odağında, bu değişikliğin getireceği muhtemel sorunların yer aldığı görülmektedir. Ülkemizde Cumhurbaşkanları her zaman siyasal sistem üzerinde etkili olmuşlar ve belli dönemlerdeki müdahaleleriyle siyasal iktidarları yönlendirmişlerdir. İşte böylesine farklı konumda bulunan bir Cumhurbaşkanının doğrudan halk tarafından seçilmesinin bazı sorunlara yol açacağı açıktır. Bu sorunlardan ilki, hükümet sisteminin yapısının ve işleyişinin değişeceğine ilişkindir. Diğer sorunlar ise, Cumhurbaşkanının tarafsızlığını yitirecek olması ve Cumhurbaşkanı ile hükümet arasında yaşanması muhtemel çatışmalardır. Aynı şekilde, mevcut Cumhurbaşkanının görevinin ne zaman sona ereceği ve 12. Cumhurbaşkanı seçimlerinin hangi tarihte yapılacağı da kamuoyunun gündemini meşgul eden konulardan biri olmuştur. Bu çalışmada, 2007 yılı Anayasa değişikliğinin beraberinde getirdiği sorunlar ve bu sorunların giderilmesi bağlamında Cumhurbaşkanı Seçim Kanunu hükümleri anayasa hukuku bakımından incelenmektedir.

Anahtar Kelimeler

Parlamenter Sistem, Cumhurbaşkanı, Seçim, Parlamento, Yürütme