The SEC decision is a global scandal

KEMAL GÖKTAŞ

Former Court of Cassation Head, Prof. Dr. Sami Selçuk, stated in his opinion on the 16 April referendum that has been submitted to the European Court of Human Rights that the Supreme Election Council (SEC)’s decision to deem unstamped envelopes or votes cast using the ‘Yes’ stamp was imbued with ‘non-existence’. Selçuk, noting that the SEC decision was not binding on any person or entity from the president to the simplest citizen and from parliament to the most commonplace entity, stated that, if possible, the invalid votes should be identified through counting or, otherwise, the SEC had to announce a new voting schedule. Selçuk made some striking findings in his opinion, which has been made into a booklet entitled ‘A Scholarly Opinion on the 16 April 2017 Referendum’ by the CHP Science, Administration and Culture Platform.

Trump ruling example
Selçuk stated in his scholarly opinion that in the Anglo-Saxon and Continental European legal systems the ‘hierarchy of norms’ was ordered from top to bottom by way of the constitution, international treaties, statute, decrees with the force of statute, regulations, rules and circulars. Selçuk, pointing out that the practice in cases where a lower norm conflicted with a higher norm varied substantially owing to differences between the systems and led to different results, but practice in the Continental European legal system would certainly start with the lower norm, being the most concrete norm. On the other hand, he indicated that in Anglo-Saxon legal systems where the institution of the ‘Supreme Court’ had been adopted, judges, if they reach the opinion that a statutory norm conflicts with a constitutional norm, can withdraw its applicability. Selçuk cited by way of example of this situation the decision of a federal court judge in the USA that halted President Trump’s decree on migrants. Stating that in such countries as Turkey, Germany and France that have adopted the Continental European legal system the scopes of jurisdiction of the Constitutional Court, Court of Cassation and Council of State which in judicial terms have the final word and, in scholarly terms, make authoritative determinations are most certainly mutually exclusive, he commented that if the breach of a constitutional norm over which the Constitutional Court has jurisdiction is asserted and this matter is adjudicated by the Court of Cassation or the Council of State or even a quasi-judicial body like the SEC, having awarded themselves jurisdiction, the ruling passed will attract the sanction of ‘non-existence’ due to ‘usurpation of jurisdiction;’ and it will not have come into being in the legal world and attained legal existence. This situation resembles, for instance, the granting of a divorce or drafting of an indictment by a sub-provincial governor. No director of civil registry or court would or could have regard to such a ruling or indictment. The ruling passed in this matter by the SEC is of just such a nature and has acquired no legal existence and has not come into being in the legal world. There is consequently no need for this procedure that has been given the material form of an apparent and so-called ruling to be annulled by a competent organ; essentially, such an annulment ruling would open the way to a fresh violation of the law in that it would declare a procedure imbued with non-existence to have existence in the legal world.

Usurpation of jurisdiction
Had there been, as the SEC asserted, a conflict of norms, it would have fallen to the jurisdiction of the Constitutional Court to resolve the matter. Even if no conflict is involved in our particular case but was presumed to exist, the procedures to be followed are clear. A judge serving in a judicial or administrative court or judges on the Court of Cassation or Council of State or even judges performing quasi-judicial duties such as the SEC judges cannot declare a breach of a constitutional norm and withdraw its applicability; they must implement it or, apart from those on the SEC, take it to the Constitutional Court and treat it as a ‘preliminary issue’. If the judges rule to withdraw the applicability of or ignore that norm on the grounds that the SEC judges cobbled together they will have placed themselves in the position of Constitutional Court judges and the ruling they pass will not have come into being in the legal world due to usurpation of jurisdiction. For, it will attract the severest sanction in the law of ‘non-existence’. Unfortunately, this is the state of affairs involved in our particular case. Selçuk also drew attention to the making of a regulation that, ‘Address records of Turkish citizens whose address of domicile is abroad shall be kept in accordance with address data in use in the country where they reside or information of that country or the diplomatic mission having jurisdiction for it’ under the state of emergency decree with the force of law number 680 issued on 2 January 2017 under the Civil Registry Services Law. Selçuk, recalling that according to Article 67 of the Constitution amendments made to election laws cannot be applied for a period of one year, pronounced, ‘If the amendment was made within the Civil Registry Services Law and this is an amendment that is made to the written statute concerning elections, this manifestly affects the poll and voting and constitutes a violation of Article 67 of the Constitution. It is impossible to explain the SEC’s turning a blind eye to this.’ Selçuk, indicating that for the SEC to rule in a manner that opens the way to fraud was ‘A national and global scandal of a dimension to which a blind eye could not be turned,’ stated, ‘Thanks to the judges who acted out of concern to protect a small-sized group’s right to vote and freedoms, the right to vote and freedoms of millions was imperilled.’ Selçuk averred, ‘Even the most oppressive of regimes, cognisant that no body or person can acquire legitimacy in the legal world through imposing faits accomplis, constantly endeavour to portray themselves as being legitimate. In all periods of history, regimes and rulers whose legitimacy is in doubt have caused and been responsible for social disruption.’

Two paths
Selçuk, underscoring the necessity of conceding the invalidity of votes cast using unstamped envelopes or ‘Yes’ stamps, noted that two kinds of solution were possible: ‘If it is possible to identify through counting the invalid votes that were cast, this count must certainly be made; if the total number of invalid votes is not of a size that will alter and affect the result that was promulgated and announced by the SEC, given the absence of dispute, the result announced by the SEC must be accepted by all sections of society with no need for any procedure. If there is no possibility of identifying the invalid votes through counting, the poll and the SEC ruling that concluded and finalised the poll will have attracted the severest sanction in the law of ‘non-existence’ in view of the unlawful procedures; this means that the poll will have been stripped of legitimacy. As the poll and the SEC’s final ruling on the poll will not be binding on any person from the president to the simplest citizen or on any institution or body from parliament to the most commonplace entity, the SEC must, to avoid giving rise to further illegality, take account of the nature of the sanction, that is the sanction of non-existence, and refrain from overturning its previous rulings or referring at all even by implication to their existence in legal terms, and simply confine itself to determining the outcome, making it known to the public and just announcing a new voting schedule.

Those who misapply the law are responsible for the chaos
A body like the SEC which is a quasi-judicial organ has no authority to bring matters such as breach of the constitution, statute, regulation or rule before the competent judicial organs. The upshot of this is that the SEC is obliged to apply with priority and finality especially Articles 77 concerning the stamping of ballot slips and envelopes, 97 concerning unused ballot envelopes and ballot slips that remain unused, 98 concerning the opening of ballot boxes and counts, and, most importantly, 101/1 containing the provision, “Ballot slips not having the polling committee stamp on their rear are invalid” of the Elections and Referendums Law. All rulings passed and procedures performed that are based on grounds that run counter to these attract the sanction of non-existence in their entirety. And this degree of affliction undoubtedly overturns the legal order and causes chaos. This is also the reason for the chaos currently being experienced in our country right now. Those who misinterpret and misapply the law, which is an arrangement of principles and a language of concepts, are undoubtedly responsible for this chaos.’