Election mired in top courts’ snafu

The high courts of the country tangled with each other yesterday over an ambiguity in the upcoming local elections, causing one of the gravest crises ever faced by the judiciary.

Actors in the ongoing dispute are the judges of the Constitutional Court, the Supreme Election Board and the Council of State, who disagreed with each other over whether several hundred tiny municipalities could enter local elections in March. Furthermore, the judges of the Constitutional Court are split into two camps, one headed by Haşim Kılıç, president of the court, and the other by Vice-president Osman Paksüt, over the former’s statement that backed the government’s stance on the issue.

The series of mind boggling election decisions by Turkey’s highest courts started when the government shut down 862 district municipalities that had a population fewer than 2,000 with a law enacted on March 22. The opposition Republican People’s Party, or CHP, demanded the annulment of the law April 9. The Constitutional Court turned down the demand, but ruled by a small margin of six against five, that 122 municipalities that had objected to the population census within 60 days could participate in the elections next March, a ruling that spelled the end of 740 municipalities. Many municipalities claimed the results of the population census were incorrect and there was no basis for their closure. However, the Council of State, the top administrative court, ruled on Dec. 19 that the municipality of Kovanlık, a small district in the Giresun province, had maintained its legal personality, although it was not one of the original 122 that received the Constitutional Court’s approval.

The Council of State’s ruling set a precedent for 740 districts.

Right after the announcement of administrative court’s ruling, the Supreme Election Board, or YSK, joined in and Tuesday declared that 742 municipalities could participate in the local elections if they objected to the census in 60 days, but started the period from Dec. 6, the day the Constitutional Court decision was officially published in the Official Gazette, rather than commencing the objection period from March 22. All municipalities that had been shut down now have a chance to survive until the next elections if they file a petition of objection.

The Council of State’s ruling and the YSK’s approval of the decision angered Prime Minister Recep Tayyip Erdoğan who publicly criticized the administrative court Wednesday. "Honestly, I have learned something new. A second Constitutional Court has emerged in Turkey. I mean there is only one Constitutional Court, there is not a second, and only the Constitutional Court has authority over laws adopted by the legislative branch and the Supreme Election Board has complied with the decision of the court," Erdoğan told reporters.

Kılıç’s reaction
A few hours after Erdoğan’s statement, Haşim Kılıç issued a written statement criticizing the YSK for allowing municipalities to evade closure by objecting to census results, as 60 days had already passed since the law was promulgated on March 22. "The decision of the YSK will, in some way, nix the Constitutional Court’s decision which is a violation of the Constitution," Kılıç said. Kılıç is known for his closeness to the government.

However, Osman Paksüt, vice-president and a staunchly secularist member of the court, refuted Kılıç’s statement with a counterstatement that said, "He was not aware of the president’s statement and it did not reflect the court’s position." "The Constitution says the Supreme Election Board has the final word on which local administrations can have elections, not the Constitutional Court," he said.

Quarrel continues Thursday
The war among judges continued yesterday as Kılıç defended his statement, speaking to reporters early in the morning. Kılıç said he had not made his much-criticized statement on his own and said the court’s decision had been given by six to five in March. "It is of course our duty to defend our rulings. We made our position clear on the issue. Afterward it is up to the YSK to make a decision on the elections," he stated.

Kılıç was again refuted by his colleagues a few hours after making his comments. In a written statement on behalf of eight judges of the court’s 14, the judges said, "The court may only make a decision with a simple majority in a gathering of its 10 members and its president. Declarations that disregard this rule cannot be attributed to the court... The duty, authority and responsibility for executing court rules belong to the relevant institutions."

Muammer Aydın, the head of the YSK, yesterday said they would make a new assessment of the president of the top court’s statement. The YSK was still in a meeting when the Hürriyet Daily News & Economic Review went to print in the late afternoon.

According to the Turkish constitution, the decisions of the YSK cannot be appealed, as is the case for Constitutional Court decisions. Head of the Union of Turkish Judges and Prosecutors, or YARSAV, Ömer Faruk Eminağaoğlu, said the legal process was ongoing in the Council of State and there was still a chance for appeal, the Daily News learned yesterday. "Therefore the president of the Constitutional Court and anyone else should refrain from commenting on Council of States’ decisions," he said, indirectly blaming Kılıç for the ongoing puzzle. The Interior Ministry has the option to object to the Council of States’ rulings.

The dispute among the judiciary has sparked repercussions from opposition parties that were critical of the YSK over the 6 million increase in the voters’ list. Republican People's Party, or CHP, Leader Deniz Baykal said the crisis "proved the inclination of the Turkish juridical system to fall into chaos... The Constitutional Court’s president makes declarations as if he is issuing a new decision."

Opposition Nationalist Movement Party, or MHP’s vice-chair, Faruk Bal, yesterday asked the YSK to stop regulating voters’ lists using data from the census based on address information. "The government’s election law did not take into account the Turkish Statistical Institute’s data," he said, adding that there were about 6 million extra voters on the lists.

The Constitutional Court president’s office incorrectly touched upon the legal duration for applications regarding cancellation, Eminağaoğlu said. "Only the administrative courts and the Council of State, which is the top of them, may rule on the duration of cancellation applications," he said. "Cancellation duration is outside the jurisdiction of the top court."

Constitutional Court

Constitutional Court rules whether laws, government decrees or Parliament regulations are consistent with the Constitution in content or in form. Decisions are taken with a simple majority at the court, made up of 15 members, of which 11 can vote. (One alternate seat remains empty as President Gül is yet to decide on a nominee). The court decisions are final, and its cancellation decisions must be declared with justification.

The Supreme Court of Appeals

The Supreme Court of Appeals is the highest court to review decisions and judgments made by the courts of justice as to their conformity with law. It unifies legal practice and provides the interpretation for code provisions. There are 21 civil and 11 criminal chambers. Civil and criminal divisions of the general boards together are tasked with the unification that is binding on all other courts and chambers.

Supreme Election Board

The Constitution states that the Supreme Election Board, or YSK, is tasked with all proceedings to ensure fair and regular elections (both general and local) from their beginning to their conclusion, as well as ruling on all objections concerning corruption claims and other objections. YSK decisions are final, and cannot be appealed. It is formed of seven members and four alternative members.

Council of State
Council of State is the High Administrative Court, and it judges administrative appeal cases. Council of State has the final word concerning administrative cases. It also acts as a consulting mechanism for law projects, privileged contracts concerning public services, sent to it by the Prime Minster and the Cabinet. Council of State has 13 chambers, and more than 90 judges are responsible for its proceedings.