The SEC has made recourse available

Alican Uludağ
 
Professor Doctor Ece Göztepe: It has no power of discretion
Associate Professor Doctor Ece Göztepe, teaching staff member at Bilkent University’s Faculty of Law, has intimated that the SEC has no power of discretion over the deeming of unstamped votes to be invalid. Constitutional jurist Associate Professor Doctor Göztepe has pointed out that, with the provision of Law number 298 being express, the SEC cited Article 3 of the First Additional Protocol to the European Convention on Human Rights (ECHR) in taking this decision and has noted that the SEC has with this justification made recourse to the Constitutional Court available. Göztepe said, ‘The Constitutional Court now has jurisdiction to examine the SEC decisions.’ Associate Professor Doctor Göztepe, who assessed the SEC’s controversial decision for Cumhuriyet, stating that the SEC has no power of discretion over the deeming of unstamped votes to be invalid, said, ‘This is because the statutory article is worded perfectly clearly and such that it needs absolutely no interpretation. The decision that unstamped votes are not valid is a declaratory decision made prior to the referendum. The SEC cannot pass a resolution that expands or narrows the scope of the right. Let it quote the ECHR all it likes.’ As to the constitutional amendment that was approved by a narrow margin, constitutional jurist Göztepe made the assessment, ‘A distinction must be drawn between legitimacy and legality. You look for legality in a constitutional amendment. But, you approve it with the decision of 50% plus one in a referendum with 10% participation. This is very problematic as far as legality and the function of the referendum are concerned. In these terms, there is a law that has received insufficient backing to give it legitimacy. In legitimacy terms, had the poll been untainted, there would be nothing to do. We would have accepted the result. However, as things stand, there was a majority of 1.3 million and 2.5 million votes are disputed. So, there is a problem of legitimacy because it did not resolve the legality problem.’
Prof. Dr.. Yaman Akdeniz: The only recourse is to the European Court of Human Rights
Prof. Dr. Yaman Akdeniz, teaching staff member at Bilgi University’s Faculty of Law, has commented that the only means of recourse against the SEC’s decision is the European Court of Human Rights (ECtHR). Akdeniz said, ‘Were it necessary to reply using President Erdoğan’s words, “The taker of the horse has passed Üsküdar.” The SEC cannot pass such a resolution at the very time the votes are being counted. It is in violation of the law and the constitution for the SEC not to annul unstamped votes. The resolution that was passed was for domestic votes. It was not applied abroad. This is because they were unsure about the situation within the country. I think they did this because they realised that the ‘yes’ vote was not in a clear lead or seeing that the difference between them was small. Actually, there is no legal explanation for this situation. The SEC has overstepped its authority in a way. The statute was amended in 2014. It says that there are resolutions that were previously passed to this effect. This is all balderdash. These were resolutions passed over a specific ballot box. These were not resolutions affecting Turkey as a whole. The problem is that the SEC’s decision cannot be taken to the administrative judiciary or the Constitutional Court. The only available recourse is to the European Court of Human Rights (ECtHR).
We will give support
But, by the time the ECtHR has taken this up, using the president’s expression, “The taker of the horse will have passed Üsküdar.” The ECtHR will examine an application of this nature in one or one and a half years at the quickest. By the time the court has taken up the matter, I do not know if it will rule to annul the poll. I do not know if it will do this politically. A ruling has not yet emerged on the detained journalists. If a ruling emerges, it is debatable whether Turkey will implement that ruling. But, we will support those who go to the ECtHR over the SEC’s decision. This application must be made over this decision by the SEC. There is no other recourse.