The Effects of the Latest Modifications on Electoral Laws in Turkey


Turkey is getting ready for the next election. What impact will the new law have?


The "Law on the Amendment of the Law on Elections of the Representatives and of Other Laws" numbered 7393, published in the Official Gazette of April 6, 2021, has made important modifications on three fundamental electoral laws.[1] Consisting of 14 articles, the Law brought new regulations to a wide range of electoral processes – from the formation of election boards to the calculation of votes collected for electoral alliances between political parties as well as measures regarding the election propaganda period and electoral rolls. This article evaluates the electoral amendments through the democratic principles of the right to vote with the aim to better understand their effects and consequences.

A general analysis of the regulation of Law No. 7393 reveals both smaller changes as well as those that might have wide ranging impacts on elections.[2] It is difficult to predict the short, medium and long term effects of these modifications on political parties and politics in the face of Turkey's dynamic politics. However, it is possible to analyse the effects of these changes on both the law and the voters.

Effects on some political parties:

In the current parliament, 14 political party are represented[3], but nine of them are facing the risk of falling below the threshold. So, in Turkey’s current governing system, where the executive is not dependent on the confidence (of the majority) of parliament, not removing but lowering the threshold from 10 to 7 percent allows all the smallest parties to be excluded from the legislature. The electoral competition will be held between well-established, mainstream parties[4] and newly-formed parties that either have already held seats in the parliament or won’t be able to hold seats in the future parliament due to their failure to pass the threshold or who have to make an alliance with major parties to overcome this problem

The modification on the method of seat distributions in case of alliances opens the door for small parties to have a chance to pass the 7 percent threshold and to compete in elections without being dependent on a larger party in an alliance.[5]

When considering the regulations under Law No. 7393 concerning both the election process and the voting day and their incompatible features with constitutional rules regarding pluralist democratic administration, the distribution of seats and the calculation of the threshold make it difficult to predict the political picture that will emerge after elections. This is due to the fact both the calculation of the threshold and the distribution of seats are based on valid votes used in elections. A vote is valid if it is cast before the ballot box committee and complies with general and equal voting rules as well as formal rules determined in the law.  

Restricting the conditions to participate in elections for political parties reduces the risks of electoral competition for well-established (mainstream) political parties.[6] The rules regarding the campaign period will result in the incumbent president reaping a huge advantage compared with other presidential candidates both within his own party and from other parties. In other words, candidates and parties running against the current political majority and incumbent president are permanently denied the opportunity to adequately explain themselves and their programs to the electorate.

A democratic result would not come out of the election where the accuracy of the electoral roll was weakened, where the 60-year-old practice regarding the formation of the electoral boards was radically changed and the judicial guarantee was damaged, where the equal and free electoral race is not guaranteed during the campaign period. All these problems will affect the valid votes that should reflect the will of the voters.

Effects on all political parties:

The new rules related to electoral boards, nominations of members to ballot box committee and registrations for voters that haven’t updated their residence information leave the field for all political parties that would be dissatisfied with an electoral result and that would take their chance to change the result by making judicial electoral objections or complaints. Those unclear provisions could become a/be considered a tool for trying to invalidate elections.[7] This situation may lead to the possibility that the finalization of the election results will take quite a long time, since each political party resorts to all objections and complaints in the election law with a variety of arguments after the end of the voting. The opposite possibility is that the process will be finalized early with the decision of the SEB, like the announcement of the results of the referendums held in 2007 and 2017.

Effects on electorate:

In the Republican era where at least two parties could compete, the election became both the basis of legitimacy and the means of accountability of the government. Modifications on the electoral laws were progressive, except of course for those made during the Democratic Party period where it was not subject to political control in the Parliament nor legal control outside the Parliament, and where the electoral districts were modified with an electoral reward-punishment understanding or during the period of the re-establishment of the state in the 1980-1983 where the political competition rules were strictly restricted. The decisive factor in this is that the political parties accept the elections as legitimate and fair contest and accept defeat, which means accountability, on this basis. A fair race was the sole condition of the empowerment of the winner with the authority to govern and of the loser with the authority to oppose. However, when we look at elections and popular votes in the last 20 years, it is necessary to determine that elections have become a useful tool to ensure the continuity of power (of the parliamentary majority)[8], and that the mandatory referendum of constitutional decisions[9] through public participation has changed in a way that serves to constrict the deficient democratic basis of the election.

In the 15 elections (6 parliamentary general elections, 4 local administration elections, 3 referendums and 2 presidential elections) held in the last 20 years, the political majority during the same period did not change, and the three constitutional political decisions taken by this majority were not vetoed by voters. It is certain that one aspect of this situation is related to the political preferences of the voters. However, it is not difficult to see that the changes made in the electoral laws and the decisions of the election boards, , also had a great effect on the outcomes of these elections. For example, the decision of the Supreme Electoral Board (SEB) regarding the renewal of the parliamentary elections held on 3 November 2002 in the Siirt constituency is the first divergence encountered in the case-law of the electoral boards.[10] It was followed by other ineffective decisions regarding the campaign period, but especially by the decision made 15 years later during the 2017 constitutional amendment referendum, where the board ruled contrary to the law that unstamped ballots would also be counted as valid.[11] In the 2019 local elections, the decision that invalidated only the election of the Istanbul Mayor, but not the vote of the city council on weak reasoning is the most striking example of this trend.[12]

The modifications made in election legislation in 2008, 2010 and 2018 should not be forgotten. The modification especially related to electoral rolls, to the participation of the political party members to both administrative and judicial meetings of SEB and to legalize the SEB decision of 2017 on unsealed envelops and ballots, and to the prolongation of the tenure of members of this SEB, all together are to be considered as amendments that weaken the protections accorded by electoral rules and institutions. It is possible to characterize Law No. 7393 as a new link added to this reversal of democratic progress.

There was an ongoing democracy deficit in the GNAT related to the reflection of the political preferences of the voters in the GNAT with valid votes cast, due to conditions sought for political parties to participate in the elections, the electoral system and the threshold rate. The fact that the threshold has been lowered by Law No. 7393 will not fill the gap. On the contrary, new regulations regarding the conditions of participation in the elections will lead to the widening of the gap in democratic representation, while the scope of the right to vote, to be elected and to form a political party will be gradually narrowed. In addition, with the new regulation the elimination of the benefit of forming an alliance, in other words, the formation of pre-election coalitions, will also prevent a relative improvement in political representation.

In terms of the electorate, as stated in the detailed analysis below, the new regulations, which do not have a legitimate aim, are not clear and predictable nor are they accompanied by political parties eager to compete in this legal uncertainty and may lead to a transformation of the political structure, the foundation of the governmental system which has already lost its democratic features and has become a structure not like a republic, unless these changes are the result of such a transformation.

Detailed Analysis of the Modifications on Electoral Laws

Universal, equal and free voting with the use of a secret ballot are the democratic principles of the right to vote. Like Turkey’s 1961 Constitution, the 1982 Constitution also provided these principles with a special judicial guarantee. Thus, in a way that is not unique to classical democracies, in Turkey, the election monitoring process has been differentiated from the general judiciary in all its stages, and has been left to a different judicial organization consisting of district election boards, provincial election boards and the Supreme Election Board (SEB), which is also constitutionally empowered with electoral management. This judicial organization, which is responsible for the fairness and integrity of all election procedures, constitutes the judicial guarantee of the democratic principles of the right to vote.

In the light of this general information, it is possible to evaluate the regulations of Law No. 7393 under two headings: those related to the formation of the judicial organization, which is the guarantee of the democratic principles of the right to vote, and the new regulations affecting the principle of free, equal and universal suffrage.

1- Amendments Regarding the Composition of the Judiciary Organization Responsible for the Management and Supervision of Elections and the Ballot Box Board:

A) What are the effects of determining the judges who will serve on election boards according to their professional category rather than by seniority and their assignment by lot?

Law No. 7393 changes the fundamental principles regarding the determination of the judges who will serve on election boards[13]. These procedures were previously the "direct assignment" of "the most senior judge." The former was changed to determine judges by lot and the latter to "the first category judge who has not lost qualifications."

While seniority highlights the professional experience and knowledge of judges who will serve in the district and provincial election boards, the "first category" is determined through the amount of progress in the profession. For example, between two judges, one of whom has previously served as a first-category judge for five years and the other as a first-category judge for three years, the first one would have been assigned in the past, but the new regulation abolishes this requirement and introduces the opportunity for the second to serve on the boards.

The management and supervision of elections in Turkey requires the application of a highly technical law and a mastery of more than 60 years of judicial jurisprudence. On this basis, the principle of seniority meant that the judges with the most knowledge of both legislation and case law were assigned to the election boards. Departing from this principle, the determination of the judges who will serve in the boards only according to their category weakens the judicial assurance provided in advance in a matter that requires knowledge and experience. The presence of judges with membership in the boards does not have the same effect as the presence of a judge who has acquired expertise in election law over time.

On the other hand, it was not a choice left to judges to serve on election boards in terms of assignments to the boards. With the amendment, a regulation has been introduced where first category judges that will serve on the boards will be determined by lot. As a result of this, the judges are given the opportunity not to participate in a lot and, therefore, not to serve on the election boards. This rule also opens the door for the judge to be exposed to external influence on whether or not to participate in a lot. Besides a uniform application will not be possible due to insufficient number of first category judge to serve on board.

As a result, the formation of the boards responsible for the managing and supervising the entire election process that ensures the establishment of a pluralistic democratic government has been changed in a way that lacks a legitimate aim. Thus, it is possible to state the guarantees of the democratic principles of the right to vote are arbitrarily infringed.

B) Is the new regulation related to seeking "consent" in the determination of political party representatives who are members of ballot box committees clear and predictable?

Another regulation concerning the structure of the election boards concerns the participation of political party members in ballot box committees. According to a new paragraph added through an amendment to Article 23 of Law No. 298 by Law No. 7393, “A party that has the right to nominate members of the ballot box committee cannot nominate a member of another party as a ballot box committee member without her/his consent.”

Ballot box committees are responsible for the accuracy and integrity of the votes cast on election day. Unlike district and provincial election boards, they are not permanent due to the nature of their duties, they only serve on election day. Ballot box committees consist of political party representatives as well as a president, who has to be a public official. According to the general rule (Law No.298, art. 23) regarding the formation of ballot box committees, the chairman of the district election board notifies the five parties which received the most votes in the last parliamentary election and which are also organized in the said district, to determine within five days the names of one regular and one substitute member for each ballot box. If the number of members determined in this way is less than five, the missing members are filled in the same way from other political parties that meet the same conditions in order of their share of votes. However, if all the regular and substitute members are not determined at the end of the aforementioned process, memberships are determined by lot among the other political parties that participated in the elections and have an organization in that district.

The new regulation added by Law No. 7393 is related to the determination by a political party of a member who will serve as its member of the ballot box committee but who is not the member of the said party but of another one. In order to do that the political party must have the “consent” of that person. Although this new regulation can be evaluated positively in the way that it enables political parties to have all their representatives in the ballot box committees, there are no regulations regarding how the existence of person’s "consent" can be determined or if the consent may be withdrawn, and if so, when it can be withdrawn.

The condition of legality, which is one of the most fundamental principles of the rule of law, requires that legal regulations must be predictable and clear. It is not possible to say the new regulation outlined above is of this nature.

As it will be remembered, the reason for the invalidation of the Istanbul Metropolitan Municipality election in the 2019 local elections was mainly based on the violation by the chairmen of the district election boards of the rule introduced in 2018 regarding the determination of ballot box committee chairpersons from public officials. This new regulation on “consent,” in its unclear nature could be grounds for electoral invalidation for future elections.

2- Modifications Related to the Principles of Equal, Free and General Suffrage

  1. Are the modifications related to the election threshold, the method of vote cast in case of an alliance, the conditions of participating in the elections of political parties and the amendments on propaganda period compatible with the rules of equal and free suffrage?

Is lowering the election threshold enough?

The 10 percent threshold regulation in Article 34 of the Law on Elections of the Representatives No. 2839, which was adopted during the ruling period of the National Security Council that led the coup of 12 September 1980, was the highest among the member states of the Council of Europe. This arrangement was introduced with the aim of preventing a fragmented multi-party parliament by enabling the representation of major national policies in parliament, and also by providing the stability of the executive in a parliamentary system of government. Law no. 7393 reduced this threshold to 7 percent.

Undoubtedly, lowering the threshold by 3 points will make the Grand National Assembly of Turkey a more representative body. However, since the parliamentary system was abandoned as of 2017, the threshold regulation had to be removed as a requirement of the current governmental system where the executive is not politically dependent on the confidence (of the majority) in parliament.

Even though the threshold has been reduced to 7 percent, maintaining an election threshold does not fill the democracy gap that existed before. Because, again, there will be political parties that cannot exceed the threshold, and the essence of both the political parties and their right to elect and be elected will still be violated, and equality in political representation will still not occur.

Does The New Rule On Electoral Alliances Strengthen Political Representation?

Until 2018, it was expressly banned for political parties in Turkey to enter elections by forming alliances. This possibility was introduced in Article 34 of the Law on Elections of the Representatives in 2018 but amended with the Law No. 7393, only after it was implemented in the 2018 elections.

In its original form, the alliance arrangement allowed parties in an alliance to participate in parliament according to the distribution of seats if the total votes of the alliance passed the 10 percent threshold. And also parties in the alliance could gain more seats due to how votes were distributed among the parties and their alliance. According to this rule, the parties in the alliance had an opportunity to obtain seats through their votes and also through the votes casted to their alliances (residual votes). For example, a small-sized party which was part of an alliance may participate in the distribution of votes even though its total votes fell under the 10 percent threshold and, therefore, could obtain a deputy from an electoral district with residual votes (from votes given to the alliance) where it normally could not get a deputy elected. But with the new amendment, this will no longer be possible.

Although it is not possible to talk about a constitutional or democratic obligation in establishing an alliance, the coming together of parties in democracies strengthens political negotiation and reconciliation, and although it has been reduced to 7 percent in Turkey, it may also provide the opportunity for small parties to be represented in the parliament. Since the positive effect of forming an alliance – in the form of receiving more votes and having the chance to gain more seats at the parliament – has been removed with the new regulation, this will only lead the political parties below the 7 percent threshold to seek alliances with the major parties. It is obvious that this will not lead to the establishment of alliances based on negotiations and reconciliation, but to electoral agreements in which large parties are hold leverage over smaller parties. As a result, free political representation would be damaged against local parties or against political parties which barely met the condition to participate the election.

Is it compatible with the norms of pluralist democracies to abolish the possibility for parties to participate in elections only if they have groups in the Parliament and to introduce a new regulation that makes political parties lose their ability to participate in the elections?

The conditions for political parties to participate in elections were regulated in Article 36 of the Law on Political Parties. Accordingly, in order to participate in elections political parties must have established an organization in at least half of Turkey’s provinces and must have held their grand congresses at least six months before the voting day, or having a group in the Grand National Assembly of Turkey was sufficient to participating in the election.

With the Law No. 7393, two amendments were made to this regulation. The first one is the abolition of the possibility of participating in elections for political parties that were not been able to organize and hold their grand congress, but which do have a group in the Grand National Assembly of Turkey. Secondly, the new regulation added, under the same article, the loss of the ability to participate in elections if a party has not held its district, provincial and major congresses twice in a row.[14]

The original regulation on the establishment condition of the political parties for the participating in the election was a regulation that made it difficult to participate in elections to a degree that is not encountered in deep-rooted democracies. However, it can be said that this difficulty has been softened to some extent by providing the opportunity to participate in the elections for those who have a group in the Grand National Assembly of Turkey.

But with the new regulation introduced by the Law No. 7393, this alternative was ended and the conditions for the participation of political parties in elections were made more difficult than the original regulation by introducing a new condition that the congresses are to be held twice in a row at all levels of the organization of the given political party. This would put newly formed parties under time pressure to organise everything necessary prior to elections. It is possible to evaluate these amendments as a disproportionate intervention which even infringes on the essence of the freedom to form political parties guaranteed in the 1982 Constitution.

Are the amendments on propaganda rules in the election period compatible with the principles of equal chance and free suffrage in elections?

When an election period begins, it is essential for democratic elections that political parties compete in accordance with equal chances. During the election race, the ruling party is always one step ahead, which is always encountered in ordinary legislative or presidential elections. For this reason, important control mechanisms have been established in democratic states.[15] In Turkey, there are important regulations in this regard in Law No. 298, dated 1961 and the authority to eliminate this inequality as much as possible, especially during the propaganda period, was given to the electoral boards.

With Law No. 7393, an amendment was made to remove some words from the regulations that prevented the ruling party from using state power in its own favour during the election campaign period. The absence of a "prime minister" post after 2017 was cited as the reason for this modification. Although it is true, what should have been done was to change all references to "prime minister" to "president" in the election law. However, the amendment was limited to removing the word "prime minister" from the relevant regulations. So, the ban that previously applied to the "prime minister" is not currently applied to the incumbent "president."

As a result of this new regulation, there isn’t any prohibition clause for presidents to hold state power during election. This leads to an exemption from periods of propaganda bans in terms of presidential elections and also for all other elections and voting. This will result in the deterioration of the electoral race, which should be held equally, among the presidential candidates, political parties, and in the event that a possible constitutional amendment is submitted to a referendum. Also, it would not be possible to talk about the free formation of dissenting opinions in terms of other presidential candidates, parties other than the parties supporting the president, or the constitutional referendum.

B) Do the regulations regarding the re-registration of voters whose addresses have been closed and the rejection of the request for transfer of a voter registration comply with general suffrage?

In a democratic state, every citizen has the right to vote, that is, to be an elector in accordance with the rules stipulated by the constitution and electoral legislations. In Turkey the rules on the electoral roll are regulated by Law No. 298. According to Article 36 of the Law, the electoral roll is created by updating it every year based on information in the address registration system. With the amendment made in this law in 2008, the task of creating electoral rolls was taken from the judges, who were the chairmen of the district election boards. Since 2008, the electoral roll has been produced from the national database kept in the General Directorate of Population and Citizenship Affairs, which works under the Interior Ministry. This national database contains the address information that is the basis for the voter list created by special provincial administrations and municipalities.

The new regulation brought by the Law No. 7393 begins by introducing an important principle: “Voters cannot be deprived of their right to vote in any way due to the electoral roll arrangement.” The second sentence stipulates that voters whose addresses were closed will be registered at their last valid address registration information available in the address registration system of the General Directorate of Population and Citizenship Affairs.

The rule has a rather ambiguous scope because it does not specify under which circumstances and by which authority affected voters will be registered.

If one tries to determine the content by looking at several Laws in Turkish law, it is possible to say that a voter's address is closed either in the event of death or if a person leaves her/his place of residence and moves to another place, but has not yet reported her/his place of residence and a new person settles in the residence she/he has left.

Although this regulation can be considered as protecting the voting rights of citizens whose addresses are closed in the registration system at first glance, the main problem is not due to regulations on electoral register, but due to the failure of affected voters in providing the necessary address information to the relevant institutions in a timely manner. In that respect, there isn’t any relation between the purpose and the means of this modification.

It is expected that a voter whose address has been closed due to death would not be registered to the last valid address. But if the requirements of this regulation are connected to an automatic program that will be defined by the authorities (provincial special administration and municipalities) which produce data to the national database, the deceased will also be automatically included in the electoral register within the scope of the last valid address registration information. Another possibility is related to the situation of voters who did not notify her/his new address despite changing their place of residence and did not prefer to vote in elections. The principle of free suffrage in the 1982 Constitution includes not voting as well as voting. In this case, a voter in this situation will be automatically registered according to the last valid address information. Since the new address information is not known, this information will not be conveyed to the relevant voter, and if this voter does not vote during a given election, at that time she/he will be faced with an administrative fine of 10,000 liras due to the Article 63 of the Law on Parliamentary Elections.

On the other hand, a decision by the Supreme Election Board (SEB) on that issue must be taken into consideration. [16] An article of the Board's Circular No. 140/1, which is about updating electoral registrations during the election period is related to the situation of Turkish citizens who are registered to the address registration system within the time limit when the neighbourhood district electoral lists are published for verification, but who have not applied before the chairmanship of the district election board during this period. The SEB held that those voters should not be registered to the neighbourhood district electoral lists.

But the regulation introduced by the Law No. 7393 is generally applicable and not limited to the election period. The effect of the new regulation on the validity of this decision of the SEB also emerges as a problem because, with the aforementioned decision of the SEB, it is used to determine the accuracy of updated neighbourhood district electoral lists during the election period. Thus, with this decision, the SEB aimed to protect the accuracy of the electoral register during the election period by preventing the registration of citizens whose address information was not verified by the chairman (judge) of the district election board. With the amendment, introducing a general rule on how to register citizens whose addresses are closed weakened the control of the accuracy of the electoral roll, in other words, the guarantee of universal suffrage.

Another regulation that needs to be addressed regarding universal suffrage involves voters’ requests to transfer their electoral registration. While there was not any regulation in this regard in the relevant Law before, with the Law No. 7393 a new regulation was added through an amendment as such: “Within the suspension period of the neighbourhood district electoral lists, the transfer requests of voters from one electoral district to another shall be investigated ex officio by the chairman of the district election board or upon objection that the transfer request is a suspicious attempt. If the transfer request is not accepted as a result of the investigation, the voter registration is not suspended and the voter registration continues at the address where he was registered before.”

Like the previous amendment, there is a SEB decision related to this issue as well. Almost the same rule is included in the decision numbered 48, which was published in the Official Gazette on January 7, 2019.[17] In this decision, which includes a series of new precautionary rules in addition to its circular numbered 140/1, the SEB decided that;

1- The chairman of the district election board shall decide on the voter transfer requests made from one electoral district to another within the suspension period of the neighbourhood district electoral lists upon objection or ex officio if it is considered that the transfer request is a suspicious undertaking;

a) Through the research and investigation carried out by security forces (police, gendarmerie), whether he lived at the specified address,

b) Through the research of whether there is an electricity, water, telephone, natural gas subscription agreement or invoice registered to the name of the relevant institutions,

c) Through the research of whether there is a rental agreement or title deed (on behalf of himself, his parents) regarding the place of residence,

As a result of the research and investigation carried out with such documents, the chairman of the district board of election shall decide whether the records of the voters in this situation would be removed from the list. 

As can be seen, in the SEB decision, a situation concerning the subject of the regulation introduced by Law No. 7393 was included. In cases where objections are made or a suspicious undertaking is found, the decision determines which matters will be investigated, and the final decision authority on whether the voter should be removed from the list is left to the chairman of the district election board.

At first glance, it can be claimed that, with the new regulation, the SEB decision was transposed into the Law, providing a legal basis for the accuracy and honesty of neighbourhood district electoral lists in particular, the entire electoral registers in general, and ultimately the elections. However, the expression "a suspicious undertaking" in the regulation has a rather vague meaning. In this framework, while there was a certainty in the SEB decision regarding the nature of the initiative that can be considered suspicious by showing what will be investigated, the legal regulation does not regulate which initiative can be considered suspicious and for what reason. Finally, since the decision of the chairman of the district election board on these matters is final as per the provision of Article 122 of the Law No. 298, there is no other judicial body to which the voter can apply if the transfer request of a voter is rejected arbitrarily by the chairman of the district election board by only stating that the request is found suspicious. In this respect, voters may be deprived of the opportunity to vote with a decision based on arbitrariness. Since the introduced regulation gives to the chairman of the district election board an authority of which the scope and boundaries are not clear, the possibility of arbitrary violation of the universal suffrage arises.

Finally, in which elections can these exhaustive amendments made in the election legislation with Law No. 7393 be implemented?

According to the final provision of article 67 of the 1982 Constitution, amendments made in election laws cannot be applied in the elections held earlier than one year after these changes came into force. Law No. 7393 was published in the Official Journal on April 6, 2022. Thus, those amendments could only be applied for the elections held after one year of this date. This prohibition is the basis of the unconstitutionality of the provisional article added to the Law No. 298 with the Law No. 7393, which regulates the obligation of carrying out within three months the requirements of the amendment regarding the formation of the election boards.

Apart from this, the relevant prohibition provision of the Constitution allows these amendments to be implemented only after April 6, 2023. According to Article 6 of the Law on Election of Representatives, the date of the ordinary presidential and parliamentary elections is June 18, 2023. In this respect, the regulations introduced by Law No. 7393 can only be applied in the election to be held on this date.

It is also to be considered whether or not these modifications could be implemented in the probability of early election. Three scenarios are possible:

Scenario1: there is no early election decision and the election will be held on 18 June 2023. The first day of this election period is 20 April. 7393 is in force and will be implemented.

Scenario 2: Decision of an early election which will be held before 20 April – There are only 2 Sundays for this early election after the 7393 will be entered in force: 9 April and 16 April. In that scenario the beginning of the election period will respectively be 11 March and 18 March (assuming that the SEB shortens the election period by the authority given to them under Law No 2839.) So the time of entering into force of 7393 -6 April- falls after the starting day of the election. 7393 cannot be implemented.

Scenario 3- In any early election before 20 April: 7393 can only be implemented by a constitutional amendment (adding a provisional article in the constitution stipulating that article 67 final paragraph wont be applied in the upcoming election. Such a decision requires min. 360 votes (3/5 majority). TBMM, with an opposition who looks forward to an election will support the early election proposal and so it will not be difficult to reach 400 (2/3 majority) for deciding either an early election and to add this provisional article. 360 vote is also sufficing for constitutional amendment but in that case it is mandatory to hold a constitutional referendum.

Although this kind of provisional amendment has been made in with this inclination in the past, it should be clearly stated that this has been and will be to circumvent the Constitution and escape from the supremacy of the Constitution.


[1] There have been two articles added to the Law of the Election of Representatives (No. 2839, dated 10.6.1983); one article added to the Law on Political Parties (No. 2820, dated 22.4.1983); nine articles including one provisional article added to the Law on Fundamental Rules of Elections and Electoral Registration (No. 298, dated 26.04.1961).

[2] A detailed analysis of the said law can be found at the end of this article.


Among fourteen parties represented at the Grand National Assembly of Turkey, the Turkish parliament (GNAT), six of them have only one, two of them have only two, one of them has four seats. AKP leads with 286 seats. It is followed by CHP who has 134 seats. HDP, the third party has 56, and the fourth party MHP has 48 seats.

Currently there are two alliances. The alliances formed by AKP and MHP (called Cumhur İttifakı/Alliance of People) has 334, The other formed by four party (called Millet İttifakı/Alliance of Nation)-CHP, İYİP, Demokrat P., Saadet P./ Deva P and Gelecek P. have joined this alliance informally after a while of their foundation) has 175 seat. Only Gelecek P. is not represented at GNAT.

[4] In order to clarify this expression, it will be helpful to look at the election results during last two decades. Since 2002 AKP and CHP, the currently first and second largest parties have always seats at the Parliament. MHP, except the general election held in 2002, also represented at the GNAT during this period. The first time that HDP became a national party represented at GNAT without being hit by 10 percent threshold was in 2015.

For the first three party haven’t any obstacle for participation of any election. The last one HDP is faced with a case of dissolution that the Constitutional Court. If the Court decides to dissolution at late 2022 or in the early 2023, HDP would not be able to participate to general election and presidential election. In that scenario, the parties that can participate in the election are AKP, CHP and MHP. The smaller and smallest parties can only participate in elections by making alliances either between them or trying to be a part of already existing alliances.

[5] For example, MHP, second party of the Alliance of People and the fourth party at the Parliament may compete with AKP and other parties in the electoral constituency where it has strong support and may regain the seats that it lost in favour of AKP and CHP in the last general election. Did it not go the other way around? I thought AKP lost massively to MHP and the change now is meant to exclude DEVA/Gelecek, while at the same time lowering the threshold so that MHP may pass? This law was initiated just after the declaration of 28 February2022 (the day of the declaration of the opposition parties on the “strengthen parliamentary system” and on the other constitutional principles). I think that the real political winner of this law is MHP. First of all, the risk of the 10% threshold is eliminated by pleasing AKP who will be able to get rid of Deva and Gelecek, in the condition that they participate in election without Alliance. But Deva and Gelecek are considered in the opposition Alliance so far. If it continues that way, they won’t have to be afraid from the threshold 7% (they won’t be excluded). So why this bill is initiated? Among the reasons that all parties would benefit, the modification on the distribution of seat within the alliance favours MHP against İYİP and CHP and for some constituency like Hatay, against AKP.

[6] During the general election of 2018, İYİP founded in October 2017 that hadn’t have enough deputy at the GNAT to form a political group (at least twenty deputes is required according to the Constitution) has participated to the election by the political “help” of CHP. (The fifteen deputies of CHP resigned and joined İYİP) This kind of political “help” is no longer possible for the parties already represented but who are facing the risk not to meet the difficult conditions newly implemented.

[7] In 2019, AKP appealed to SEB to invalidate the Istanbul Metropolitan Municipality Election on the ground of the unlawful implementation of the new regulation implemented in 2018 by the chairmen of the district election boards. The sixty years of the electoral case-law is full is full of decisions rejecting such appeals. Now by changing the mode of designation of electoral board judges, this jurisprudence would be fade that will weaken the constitutional protection of the elections.

[8] This feature emerges especially in the implementation, for the first time, of Article 116 of the 1982 Constitution in the general elections held on 7 June 2015. As it will be remembered, the AKP fell below the absolute majority in the Grand National Assembly for the first time in these elections. Although this was not a required majority to form a government according to the 1982 Constitution, after the task of forming a government was given to the general president of AKP for 45 days and as a coalition could not be formed, the president decided to renew the elections. That year, the elections were held for the second time on 1 November 2015.

[9] There are several factors that are decisive here. The first of these is the rule regarding voting for the entire text submitted to the vote. This procedure eliminates the possibility for voters to make a political choice between constitutional provisions that differ in terms of subject. Especially the 2010 constitutional amendment is the most striking example. The other aspect concerns the process of voting, as in the examples of the 2007 and 2017 referendums. Even though the voting process of the Constitutional amendment adopted in May 2007 for the foreign voters has been started and there has been only 4 days left to general voting, this constitutional amendment was amended and then was submitted to the nationwide voting - in short, foreign voters and domestic voters voted for two different texts. This was not considered as a violation of any procedure or law, and it did not cause any political discomfort. While the voting continued in the 2017 referendum, an unlawful decision was made by the SEB upon the application of the AKP's representative, and the unsealed envelopes and ballots were accepted as valid. The fact that there were approximately 1 million 3 hundred thousand differences between yes and no votes overshadowed the accuracy and reliability of the results.

[10] Erdoğan hadn’t had been able to be the general president of AKP and so coul not participate in the elections in 2002 due his prior criminal conviction. AKP, presided by Abdullah Gül won the elections. A month after the elections, the SEB decided, on 2.12.2002, to renew the elections in Siirt on the ground that there had been several illegalities at 3 ballot box committees. On the next day an initiative for a constitutional amendment regarding the conditions of eligibility was presented by the deputies of AKP and this amendment was backed by the opposition party, CHP. The amendment entered into force on 31.12.2002 and the conviction of Erdoğan was no longer an obstacle for eligibility. The SEB also decided to rerun the elections in the district and add him to the list of candidates. In the elections held on 9 February 2003, Erdoğan was elected as primary candidate of the AKP in Siirt and became both the general president of the AKP and the Prime Minister.

[11] YSK, 2017/560, kt. 16.4.2017.

[12] YSK, 2019/4219, 6.5.2019; exp. YSK, 2019/1863, 4.4.2019.

[13] Three judges serve in the provincial election board. One judge serves as a chairman in the district board of elections.

[14] Article 36: (31/3/2022-7393/3 md.) If the party that has qualified to participate in the elections has not held its district, provincial and grand congresses twice in a row, based on the organizational quorum determined in the first and second paragraphs, within the periods stipulated in this Law and specified in the party bylaws, it loses its ability to participate in the elections.

[15] Didem Yılmaz, Seçimlerin Yönetimi ve Denetimi: Adil ve Dürüst Bir Seçim İçin Tespit ve Öneriler,, 1 Aralık 2021.