"Decision of the Supreme Election Council is Unlawful" | fnst.org

"Decision of the Supreme Election Council is Unlawful"

An Interview with Haşim Kılıç, Former President of the Constitutional Court
Opinion28.06.2019Aret Demirci
Ekrem İmamoğlu
Ekrem İmamoğlu, Republican People’s party (CHP), the newly elected mayor of Istanbulpicture alliance / AP Photo

Ekrem İmamoğlu of the Republican People's Party (CHP) is the newly elected mayor of Istanbul.

The Istanbul mayoral election was repeated on June 23, the Supreme Election Council (YSK) decreed in May. The controversial decision is being hotly debated. Many critics believe that the Council has yielded to pressure from Erdoğan's cabinet. 

Freiheit.org spoke with Haşim Kılıç, President of the Constitutional Court from 2007 to 2015, a few days before the repeat election. Another topic of the conversation was a reform of the judicial system recently announced with great fanfare. 

Freiheit.org: The Supreme Election Council's decision to annul the Istanbul mayoral election and to order them repeated has drawn harsh criticism both in Turkey and abroad. It remains a mystery why only the election for metropolitan mayor is being repeated and the elections for district mayors, city councilors, and district councilors are not – even though votes for all four were cast in the same physical envelopes. How do you view the decision from a legal standpoint?

Haşim Kılıç: It is difficult to assess the verdict of the YSK on a legal basis alone. The main argument for annulment – the fact that some of the chairpersons of the seven-member election councils attached to each of the 30 000 ballot boxes were not civil servants – did not convince the general public. The decision is questionable in two respects:

a) Each voter has cast his or her four ballots in a single envelope. If the chairperson of some election council was appointed in violation of the law – which is what the government alleges – then not only the vote for metropolitan mayor would have to be annulled.  The so will all other votes. In short, either all the votes are invalid, meaning that all of them have to be annulled, or none of them is. There is no middle ground here. The YSK has argued that none of the other elections had been contested, but this is unconvincing. The YSK would have been required to annul the uncontested votes ex proprio motu. The fact that the YSK has annulled only one of the four votes raises questions regarding its independence.

b) The argument in favor of annulment is highly questionable in the first place. The written verdict does not adequately describe why and how the appointment of chairpersons who are not civil servants is supposed to have jeopardized the election result or the voters' ability to express their preferences. The decision of the YSK has fueled further anti-democratic speculation and conspiracy theories.

The main argument of the YSK in its 250-page verdict is that election councils in 754 of Istanbul's 30 000 polling stations were chaired by persons who were not civil servants. This decision, however, contradicts precedent established by the YSK itself. In previous decisions, the YSK held that the test is whether errors by local election councils actually distorted the will of the voters. This same test was used in the 2017 constitutional referendum to permit voting envelopes to be counted even where the requisite stamps were missing. How do you explain this contradiction? 

I disagree the YSK's decision and believe it to be at odds with its previous rulings. The decision to allow envelopes without stamps in the 2017 referendum on the presidential system was every bit as improper as the decision to annul the Istanbul mayoral election. In both cases, the YSK did not fulfill its legal obligation to protect the will of the voters but did, instead, violate every individual's right to a free election. In both cases, the YSK has abandoned its claim to impartiality.

In spite of all of Turkey's problems regarding the rule of law and freedom of the press, elections used to meet the standard expected of Western democracies. Partly due to the Istanbul decision, the role of the YSK is increasingly being questioned. Critics worry that every future election or referendum could end up being contested by one side or the other. Is the YSK in need of reform?

The main result of the annulment of the mayoral election is, regrettably, the fact that from now on all elections in Turkey will be subject to suspicion. As long as these suspicions persist, forces opposed to democracy will gain influence. Both the structure of the YSK and its quorum need to change. The number of seats needs to increase in order to strengthen pluralism. The voting procedure needs to be reformed. 

A few days ago, President Erdoğan has announced a reform of the judiciary consisting of 256 separate measures. Among other things, the reform is supposed to promote rapid and more efficient trials and ensure that freedom of speech and freedom of the press are better protected. What is your opinion on this package, considering the issues that exist in Turkey with respect to justice and the rule of law? Why does the government believe judicial reform is necessary when President Erdoğan has been repeatedly lauding the high standard of democracy and the rule of law in Turkey?

The proposals presented in the judicial reform package are timely and appropriate. The individual items are projects that have been discussed among the judiciary for years and whose implementation is not a matter of controversy. All segments of the population are in favor of measures tackling issues such as excessively high workloads in the judiciary. But there is also a need for principled steps to guarantee the predictability of judicial decisions, something a constitutional republic cannot exist without. It is therefore vital to build an impartial and independent judiciary, as demanded by our constitution. The requisite statutes have been enacted over the years. The problem is that even so an impartial and independent judicial branch – the cadre charged with the interpretation, implementation, and execution of these statutes – does not in fact exist.

The number of prosecutions regarding alleged disparagement of the president has seen a massive increase in recent years. According to numbers published by the ministry of justice, about 14 000 people have been charged with this crime between 1986 and 2017, 12 000 of them during the three years that Erdoğan has served as the president. The judicial reform package, however, does not contain any changes to tackle this particular problem. How do you feel about this? 

The increase in disparagement cases should be examined from both a judicial and a political angle. First, we need to be clear that there is no legal system that allows people, presidents or not, to be defamed.

 With Turkey's transition to a presidential system, however, the president has ceased to be a non-partisan figurehead. The increase in cases results from this change in the political system. It is the responsibility of the judiciary to draw a clear line between disparagement of the president and free speech. The fact that the justice system has failed to do so has played a large role in the increase in cases. 

Many members of the European Parliament assert that Turkey has still not met the EU's demands for reform strengthening the rule of law, reforms that they believe are a necessary precondition for visa liberalization. This view is often heavily criticized in Turkey. Do you understand the concern? Do you agree with it?

I do not share the opinion of these MEPs and I believe their accusation is unfair. Between 2003 and 2010, Turkey took significant steps to integrate the EU legal standards into its own legislative framework. But even here we are facing the problem that representatives of the Turkish judicial system are not adequately applying legal theory in actual practice, which in turn creates problems in the area of freedom of speech.