With the controversy engendered by ‘unstamped votes’ in the aftermath of the presidential system referendum continuing to rage, Yeniçağ columnist Orhan Uğuroğlu reproduced a document in his column today showing that Chamber 13 of the Council of State annulled a Supreme Election Council decision in 2005.
Orhan Uğuroğlu, saying, ‘This historic Council of State ruling that I am about to reveal in this article of mine is going to cause great difficulty for the President, Prime-Minister, Minister of Justice, Supreme Election Council and the Council of State. This is because Chamber 13 of the Council of State annulled a Supreme Election Board decision in 2005,’ continued as follows
‘Let us first briefly recap. The Supreme Election Council (SEC) passed a resolution while voting was underway in the referendum that unstamped votes were valid, in breach of the provision of Law number 298. After the ballot boxes had been opened, it emerged that some two and a half million votes were unstamped. The CHP brought a lawsuit before the Council of State alleging ‘complete lawlessness’ for annulment of the Supreme Election Council’s resolution deeming unstamped votes to be valid. Chamber 10 of the Council of State declined the CHP’s application on the grounds that, ‘passing a ruling on SEC decisions is unwarranted.’ So, is this decision correct? That is, can the Council of State deliberate on Supreme Election Council decisions and does it have legal standing to annul them? Is there a decision that has been rendered along these lines? Yes, there is. I am revealing this historic document containing a most important ruling by Chamber 13 of the Council of State which annulled the SEC’s resolution number 2005/993 that will create a stir in Turkey’
The key passage from the ruling in question reads:
‘Under such circumstances, while judicial review should have been conducted restricted to the Supreme Election Council ruling whose annulment the claimant was seeking, it did not comply with the law to depart from the claimant’s claim and test the lawfulness of the Radio and Television Supreme Council’s procedure by way of compliance with the Supreme Election Council’s resolution, even though this had not been raised as an issue in the annulment suit in the statement of claim, and conclude the proceedings, making a discretionary award of attorneys’ fees to this authority.’
STAR TV AND THE GENÇ PARTY
Orhan Uğuroğlu went into the following details about the ruling passed at the time of the Genç Party whereby the SEC’s resolution could be annulled, ‘Very detailed and lengthy coverage was given on radio and TV stations owned by the Uzan Group, above all Turkey’s first private TV station Star TV, to all the speeches and activities of Cem Uzan, General Chair of the Genç Party that contested the 3 November 2002 elections. AKP management, seeing Cem Uzan’s increasing electoral potential, began to heap complaints citing ‘slanted broadcasting’ on the Radio and Television Supreme Council. However, there was no obligation to give political parties equal time in the Radio and Television Supreme Council Law number 3984 at that time. Files into the breach amounting to some twelve binders were sent by way of supreme council decision to the SEC bearing the signature of its chair at that time, Fatih Karaca. The SEC convened under its chair of the day, Tufan Algan, and halted broadcasting by way of penalty for, initially five days, and then thirty days. Star TV lawyer Süheyla Şen brought proceedings for a stay of the SEC resolution with a view to it being annulled before Ankara Administrative Court No 9 on 28 February under case number 2002/1430. The application for a stay order was denied and a number of radio and TV stations were taken off the air, not least Star TV. However, the lawsuit continued and Administrative Court No 9 denied the claim on the grounds that, “The SEC resolutions must be implemented immediately and there is no unlawfulness.” The decision was issued in 2002 in which it rejected the application, just as Chamber 10 of the Council of State did with the CHP’s application.
AND IT WAS APPEALED TO THE COUNCIL OF STATE
Süheyla Şen, Attorney-at-Law, on that date on which I was Star TV’s Ankara Representative and Genç Party Deputy General Chair, appealed the ruling passed by Ankara Administrative Court No 9 to the Council of State and sought the annulment of the SEC’s resolution. Chamber 13 of the Council of State annulled the SEC resolution under its decision number Esas: 2005/579 Karar: 2005/993. I am reproducing this decision verbatim alongside my article. I am making this explanation today along with the document containing Chamber 13 of the Council of State’s historic landmark ruling in a way that leaves no room for any legal debate and doubt whatsoever so that no question mark remains in anybody’s mind. I am hunting through my archive containing thousands of pages and will find other decisions along these lines and convey them to you. I await with curiosity the comments of not least the Minister of Justice, the jurist Bekir Bozdağ, who says, ‘The Council of State cannot examine SEC resolutions,’ President Recep Tayyip Erdoğan, Prime-Minister Binali Yıldırım, CHP General Chair Kemal Kılıçdaroğlu, MHP General Chair Devlet Bahçeli, SEC Chair Sadi Güven and the presiding judge and members of Chamber 10 of the Council of State apart from those who entered dissenting opinions. The CHP’s objection over Chamber 10’s ruling to the Council of State Plenary Session is the final instance in the Turkish legal system. The Council of State Plenary Session can annul the SEC’s resolution deeming unstamped votes valid that entails complete lawlessness and see to it that the rule of law applies in Turkey. Final comment: This means that SEC resolutions can be annulled through Council of State decisions.’