SEC announces its justified decision – dissenting member gives a ‘lesson in the law’: This stain will go down in history

Alican Uludağ

The Supreme Election Council (SEC) has announced its justifications for ruling in denial of the application for annulment of the 16 April constitutional amendment referendum. However, pride of place in the justification goes to the dissenting opinion by the sole SEC member to oppose the decision, Cengiz Topaktaş. Topaktaş, stating that it had become impossible for the unstamped votes to be counted thanks to the SEC’s top-down decision, said, ‘Our country has become divided into two groups of those who believe that the result was correct and those who do not. This controversy will never end and a process has been embarked on that will leave its mark on future generations, too.’ Topaktaş, who did not agree with the ten members’ opinion in favour of denial, has set out his reasons in a twelve-page dissenting opinion as to why the poll must be annulled with the following sharp observations.

Acting as if it were the legislator: The most glaring of the erroneous aspects of resolution number 560 was that we acted as if we were the legislator. These rules have been put in place to prevent voting slips and envelopes from being brought in from outside, and so to prevent fraud from being committed. It is impossible for us to say that the legislator, who has enshrined the right to vote in the Constitution, has deprived citizens of the right to vote by framing Articles 98 and 101 of Law number 298. We cannot say that the legislator did not or was unable to conceive of this. It is also impossible for our council to review appropriateness. As such, Articles 98 and 101 of Law number 298 must be applied from the standpoint that they are not in violation of the Constitution and we have not asserted this.

Fraud cannot be monitored at the ballot box: Since polling station officials do not have special training in fraud, they cannot be expected to monitor for this. Bearing in mind that votes need to be counted speedily, it is also apparent that it is not really possible for such monitoring to be conducted. The endeavour to have polling officials determine that unstamped envelopes and voting slips were beyond doubt sent by the SEC would not only give rise to needless arguments at polling stations, but it would also be incorrect to impose a burden on people that would be insurmountable for them to allege the existence of fraud or impropriety that can only be proven with an investigation

Controversy courted: This is the first time that our Council has appended its signature to such a resolution in the course of a poll. With this resolution being in violation of Articles 98 and 101 of Law number 298 and our circular number135/I of 14/02/2017, this resolution aimed at protecting voters’ rights to vote has courted public controversy.

Society divided in two: Counting procedures at polling stations were conducted in accordance with this resolution and, so, it has become impossible to determine the number of unstamped envelopes and voting slips. It is unknown by either political parties or our Council what the true number of unstamped envelopes and voting slips was. The impression circulating among the public is that this was two and a half million votes. When it is considered that a recount will not suffice to alleviate this suspicion that has gained public currency, the discussion over whether or not there were two and a half million unstamped envelopes and unstamped voting slips has now become moot. Our country has become divided into two groups of those who believe that the result was correct and those who do not.

The SEC paved the way for slanted coverage: When reference is made to the regulation in Article 149/A of Law number 298, it will be seen that it imposes penal sanctions if broadcasting is conducted in breach of article 55/A of this Law and the principles laid down by the Council. Instead of applying this sanction, the decision that it was inapplicable led to the consequence that a referendum was embarked on under unequal conditions from a campaigning point of view. Thanks to this decision of our Council, the way was paved for coverage on radio and television stations that included no opinions apart from their own opinions.

Different opinions were not represented equally: Taking into consideration the failure for different opinions to be represented equally when the amendment was explained to the people in that civil society organisations were unable to exercise their right in the required manner to campaign and radio and television stations only gave coverage to their own opinions as a consequence of ignoring the rule that amendments made to electoral laws cannot be applied to polls held within one year, and the result created by our resolution number 560, I think that Articles 67 and 79 of our Constitution were violated and hence a decision is warranted to grant the application for annulment of the poll.