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Turkish Baraj: The Parliamentary Threshold and the Constitutional Court

Friday, December 19, 2014

Rarely are the mechanisms for democratic representation created perfectly. Tweaks, and even major revisions, to electoral laws are often needed to account for changing demographics (redrawing districts), evolving political sensibilities (expanding suffrage), or even unintended consequences. Regrettably, those in power sometimes also change the rules of the game in order to consolidate their power or exclude opponents.

With single member congressional districts—in which the candidate with the most votes is the sole representative of each electoral region—redrawing district maps to change political constituencies is the easiest and most frequent change to electoral rules in the United States. In parliamentary systems with proportional representation, like Turkey’s, the electoral threshold can play a similar role: raising or lowering the number of votes a party needs to gain seats in parliament can have significant impacts on the makeup of governments.

Indeed, Turkey’s 10 percent electoral threshold—so far as is known, the highest ever applied anywhere in democratic elections—has been in place for eight consecutive parliamentary elections over three decades. Issued by a military government in preparation for a return to civilian rule in 1983, it has been a frequent object of criticism in Turkey and abroad on grounds of being anti-democratic. No serious effort has ever been made to change it, however, as the parties that formed legislative majorities in successive parliaments have apparently felt, occasionally incorrectly, that its continuation served their interests. Now, thanks to prospective judicial intervention, the future of the 10 percent threshold appears to be very much in play.

On November 30, the Constitutional Court announced that it will decide shortly whether to hear an individual application (a complaint by an individual that their rights have been violated, filed directly with the Constitutional Court without review by lower courts) on the constitutionality of Turkey’s 10 percent electoral threshold. President Erdogan has made clear that he does not believe the Court has the power to decide the issue, having called the head of the Court a “donkey loaded with books.”

The question of where the barrier to entry into parliament ought to be set, the particular way in which it is now being considered—by the highest court, not parliament itself—and the government’s explicit criticism of the judicial process raises some of the most fundamental questions and tensions implicit in the design of constitutional democracies: the will of the majority versus the rights of minorities; populism versus checks and balances; and the ballot box versus rule of law. When cast against the background of Turkey’s increasingly polarized political environment, the Court’s decision and the government’s reaction have the potential to either repair fraying trust in the country’s democratic system or open wide holes in the socio-political fabric that has been sustained through 90 parlous years of the Republic of Turkey’s existence.

KEYWORDS: AKP, TAYYIP ERDOGAN, TURKEY, TURKISH ELECTIONS

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Middle East