24 May 2019 18:37

SEC’s reasons for annulment: Much ado about nothing

Lawyer Kamil Tekin Sürek summed up for Evrensel the election annulment process and the Supreme Election Council’s reasoned ruling on the annulment of the Istanbul election.

Photograph: DHA

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Kamil Tekin SÜREK

Before proceeding to the Supreme Election Council (SEC)’s reasons, a few things need to be established.

The main reason for Recep Tayyip Erdoğan’s career success in national view parties prior to the AKP was his talent for electoral intrigue. Administrators of the parties that professed to represent the National View line since the National Salvation Party and were chaired by Necmeddin Erbakan were carefully selected from among university graduates. Professors, engineers, lawyers etc. The reason for this was in the wish that voters for these parties might be influenced by the administrators’ titles and would be convinced that these people were not adventurers out to create a religious state. Those coming from within the organization, coming through mass activity, conversely, could at most be provincial and sub-provincial chairs. Erdoğan, too, had worked for a long time in the provincial organization, but his activity and tenaciousness during elections took him up the rungs of the party. Otherwise, he has absolutely no intellectual qualities. The reason I stress this point is for his role in the repetition of the Istanbul Metropolitan Mayoral elections to be better understood.

Erdoğan and the AKP have done what they did in these elections in all the elections they have contested. However, the AKP has been on the decline since the June 2015 elections. They have always squeaked in thanks to electoral intrigue and their opponent, the CHP, has been exerting itself far more over elections and taking them seriously for the past four years. Had the CHP not gathered the wet-signed polling station records, brought these together one by one in a computer environment and come up with the result, the AKP would have declared victory at around 10 pm abetted by the Anadolu Agency and this time Binali Yıldırım would have declared a fait accompli. The CHP and İmamoğlu upended the intrigue.

ERDOĞAN AND THE AKP HAVE MADE TWO MAJOR CHANGES IN THE PAST YEAR

Capable of predicting what is now happening, Erdoğan and the AKP have made two major changes in the past year. First, the amendment making the polling station chair and one of its members civil servants. In fact, the system implemented in Turkey for sixty years was based on the principle of parties conducting elections. State officials always praised this and always said this was the best procedure for democratic elections. If state representatives (the executive) exert influence over the polling station committee, doubt will arise as to the democratic nature of that election. Especially in rural areas, the executive can guide voters at polling stations where it wields influence. This measure by the AKP attracted great criticism at the time but, like everything, this measure was forgotten a while later. This means that the AKP made this measure for times such as these.

There was also a constitutional rule in the electoral system in Turkey that statutory amendments made in relation to elections are not applied in elections held within one year. The AKP has also violated this constitutional provision. With the intermediation of the judiciary, for sure. I say it existed and is now non-existent. Just as many articles of the Constitution are unrecognized by the ruling party and judiciary, this provision goes unrecognized, too.

Once more at the risk of violating the Constitution, the AKP has made another amendment of late. It extended the period of service of SEC members by one year. This statutory measure was unconstitutional in all respects and was also made with less than one year to run before elections and was implemented in the elections. The AKP trusted the present election council and did not want to leave things to chance.

THE POLICE AND GENDARMERIE HAVE ACTED AS THE AKP’S ELECTION OFFICIALS

In the three-month run-up to the elections, the Minsters of the Interior, Justice and Transport used to stand down until the elections. The reason for this was to prevent the ruling party’s state tools from being used in elections, so that the Justice Minister would not to influence the electoral councils and the Interior Minister would not use police and gendarmerie in the election. This rule was dispensed with in the AKP period. All the resources of the state are used by the AKP in elections, there has been intervention in electoral councils and the police/gendarmerie have acted as the AKP’s election officials.

THE REQUIREMENT FOR EQUAL CAMPAIGNING IN THE MEDIA HAS BEEN ELIMINATED

There has been a further rule change in the AKP period. The requirement for equal campaigning in the media has been eliminated. The AKP, which controls ninety-five per cent of the media, has ushered in a period of unequal campaigning at each election.

In spite of all this, it has lost the last four elections. But it turned three of them in its favour through electoral intrigue abetted by the SEC. It flunked the fourth, the Istanbul Metropolitan Mayoral election.

THE AKP WAS THE AUTHOR OF ALL THE CIRCUMSTANCES IT CITED AS GROUNDS FOR THE EXTRAORDINARY OBJECTION

The AKP was basically the author of all the circumstances it cited as grounds for the extraordinary objection it made to the SEC. They made the electoral rolls. They created the electoral councils. They created the polling station committees. There was an AKP and MHP polling station official at all polling stations and an AKP and MHP observer. Having lost the election, they knew there was nothing they could object to when they held meetings seeking a way forward with Interior Ministry, Justice Ministry and AKP electoral commission officials because objections had in any case been made to the electoral rolls and the rolls had attained finality. The time limit for objecting to the electoral councils and polling station committees had expired. And, most significantly, none of the at least five or six AKP and MHP people stationed at each polling station had made an objection entry on any of the records and there were a negligible number of timely individual polling-station objections.

Despite the expiry of the objection period, they had recounts forcibly made of invalid votes in certain sub-provinces. They mobilized thousands of police officers in Büyükçekmece and examined voters one by one. To this end, they had prosecutors launch illicit probes.

Unknown people started spreading word of electoral fraud having been conducted. However, it was not an unknown person, but the AKP, that had conducted fraud in every election it contested. Apart from the statutory amendments I have listed above, their conduct at polling stations has been the stuff of legend.

VIOLATION OF THE PERSONAL DATA PROTECTION LAW

They later embarked on an extraordinary objection, with added prompting by certain members inside the SEC. But, to cover all possibilities, they drafted their submission both as an extraordinary objection and as an application for annulment due to total unlawfulness. Meanwhile, to gather evidence for their submission, they mobilized the Interior Ministry, Justice Ministry and Health Ministry. They identified interdicted people and people affected by decrees with the force of law and their relatives in further violation of the Personal Data Protection Law, made comparisons with the electoral rolls and alleged that people who were not civil servants had been appointed polling station committee chairs or members, interdicted people had voted and tally slips had not been drawn up or were deficient at certain polling stations.

The evidence supporting their claims did not basically originate from polling station committees and electoral councils but was illegally procured from party headquarters and brought in. In normal penal proceedings, this would be rejected as evidence under the principle that it was unlawfully procured (the fruit of poisonous tree is also poisonous). But the SEC was open to everything to annul the election. And, based on this evidence, they ruled to annul the election and for it to be rerun.

THE FOUR SUBSTITUTE MEMBERS CANNOT VOTE

At this stage, the casting of votes by substitute members came to attention. Statutory wording notwithstanding, the four substitute members cannot vote. If they vote, there can be no such thing as substitute membership. If one or more regular members are excused attendance at meetings or votes, substitute members are there to take their place. If eleven members were to convene and vote, it would be stated as such in the Constitution and it would say that the council convenes as long as the number of members is not less than seven excluding those excused attendance. There is known to be greater allegiance to the AKP among the substitutes so they have started to convene together as eleven members at the last four elections by way of guarantee. This is another violation of the Constitution.

It was stated in the SEC’s truncated ruling that annulment of the election had been ordered because people who were not civil servants had been appointed on certain polling station committees in positions that must be filled by civil servants. This reason provoked plenty of debate. First, if there had been unlawfulness an application in the form of total unlawfulness had to be made. The application did not take this form. Second, if there had been unlawfulness and annulment was made due to total unlawfulness, the sub-provincial and assembly elections and even the headperson elections should be rerun. Third, the judges on the electoral councils formed the polling station committees from lists submitted by the provincial and sub-provincial governors. Voters had nothing to do with their formation. Indeed, they did not know who the polling station chair and civil servant member were. They thus had no call to object. The AKP had the right to object until 2 March. It took part in the casting of lots and knew who the polling station chair and member were. In the unstamped ballot case law, the SEC cited the reason that in a situation where the voter was without fault their will could not be discounted. Moreover, the same people had also served on polling station committees in past elections.

Two weeks later, the seven members who ruled for annulment drafted reasons running to some two hundred pages but did not make it public because the seven members expanded on the reasons in the truncated ruling and added new reasons. The four dissenting members said that, in this case, they would amend their dissenting opinions and, sixteen days on, both sides have announced their reasons.

The seven members expanded on the truncated ruling and, alongside the polling station committee members who were not civil servants, voting by interdicted persons, voting by people affected by decrees with the force of law and tally slips being deficient or absent at eighteen polling stations were also laid down as reasons for annulment.

As to the four dissenting members, they set out in writing that those supposed to be civil servants not being civil servants on some polling station committees was unlawful but there were also AKP representatives on the polling station committees and there were no objections and complaints that polling station committees had affected the election result and voters played no part in this situation and, so, the voters’ will could not be discounted due to another’s error and, moreover, it was stated in the statute that if a civil servant member was missing a non-civil servant could also serve. They asserted that the number of interdicted people was well below the number in the objection submission and did not affect the election result, there was an error due to non-reporting of some interdicted persons by courts to directorates of civil registry and the allegation of voting by dead and interdicted persons may have its origin in jumping to the wrong row while signing. They came out in opposition to expanding on the truncated ruling. Chair Sadi Güven also said that if those affected by decrees with the force of law could stand for election, they could also vote.

In conclusion, seven members of the SEC have apparently annulled the election for reasons that the AKP brought into public debate but could convince nobody of.

In addition, it seems that the claim, “They stole our votes” that Erdoğan, Yıldırım and certain AKP officials voiced was not brought to the SEC and this claim was not at all discussed at the SEC.

The opposition upended the AKP’s electoral intrigues in Istanbul at the last election. With them upended throughout Turkey, the AKP will face an even stiffer task.

(Translated by Tim Drayton)