AK Party's problematic hierarchy of norms

The TSK has interpreted this article as the basis for the legitimacy of its intervention into politics, occasionally ending in full-fledged coups d'état. Neither the Constitution nor the laws regulating the rights and duties of the TSK invest it with such powers. Apparently in the eyes of the soldiers the hierarchy of norms is reversed: The statutory law comes above and before constitutional law.

Very recently the statutory law of the ruling Justice and Development Party (AK Party) generated problems for the country and party alike. Article 132 of this law reads, “Mayors and deputies nominated and elected from the AK Party lists can be nominated as candidates for a maximum of three terms.” This is the article that prevents Prime Minister Recep Tayyip Erdoğan from running in the next parliamentary election. A majority of ministers in the current AK Party Cabinet have also served three terms. This means the configuration of both the next parliament and the next cabinet will differ considerably from their present forms. Since the prime minister is constitutionally appointed by the president from among the deputies, this Article 132 defines the limits of the post-Erdoğan possibilities.

But there are more problems with the article than at first meet the eye. The article was apparently meant to prevent mayors and deputies from becoming “elected kings.” To this end it may be useful. But the text lacks legal coherence. It is not clear whether the limit of three applies to consecutive terms or not. The AK Party leadership has already decided to amend the article and clarify that the mayors and deputies elected from AK Party lists for three back-to-back terms will not be eligible as candidates from the AK Party list for a fourth consecutive term. This will give the party the option of “short-term” candidates. Indispensable names would then be able to drop out of parliamentary politics for only a short period, returning to their seats via an early election.

A second issue is the mentioning of mayors and deputies as part of the same package. The current text suggests that mayors and deputies elected for three terms cannot be nominated for either of these posts for a fourth term. Once again, the leaders of the AK Party have decided to amend the text so as to let three-term mayors run for a seat in Parliament and three-term deputies to run for mayor.

A third problem relates to possible transfers from other parties. This article does not prevent three-term -- or longer serving -- deputies from other political parties running on an AK Party ticket for an additional term (or indeed terms). There is no legal problem here, but there is an ethical one. In the long run this may create a deputy swapping arrangement between the AK Party and other right-wing parties. A deputy with strong popular backing may opt to run for three terms in the AK Party, and for a fourth term in another party (or as an independent) before returning to the AK Party fold. Take Prime Minister Erdoğan for example: He would easily win enough votes from any constituency in Turkey as an independent candidate and could then be appointed by the president as prime minister of an AK Party government following the election.

The principal problem here is the resistance of the AK Party to the idea of canceling Article 132 altogether, accompanied by a readiness to amend parts of it whenever and wherever they see fit.

An even deeper problem is the AK Party's wish to “look” more democratic than Turkey itself, hence promulgating statutory laws as norms above the constitutional laws of the country. There is no appeal mechanism for statutory laws. Had the Republican People's Party (CHP) challenged this Article 132 at the Constitutional Court, the article would have been found unconstitutional on the grounds that it is against the principle of equality and imposes limitations not imposed by constitutional law.