To postpone the elections: The last nail in democracy’s coffin

The insistent proposal made by Bülent Arınç, a founding member of the AK Party, to postpone the elections set for June 18, 2023, seem like an attempt to hammer the last nail in the coffin of our hybrid democracy, which now may be more aptly called an elective autocracy.

Mr Arınç is surreptitiously suggesting that members of the Supreme Election Council (the Council; YSK), which has no other duty and authority than to administer elections, should “postpone the elections” by taking a decision contrary to the Constitution and the law. In doing so he is suggesting taking the first step in a scenario outlined by HaberTürk columnist Fatih Altaylı, as explained in his article dated February 13, 2023. He proposes a path and method to the YSK that is clearly against the Constitution and the law; he misrepresents Article 79 of the Constitution to this end. In doing so he undermines the rule of law and Turkish democracy at a critical moment in the centenarian republic’s history, and risks plunging the country into chaos, all for the sake of short-term political gain.

Bülent Arınç does not speak the truth

Arınç does not speak the truth when he says, “Article 79 of the Constitution clearly authorises the Supreme Election Council (YSK) to postpone elections”. Because there is not a single sentence about postponing elections or even the word “postponement” in Article 79. Nowhere in Article 79 does it say that the YSK can postpone elections or conclude that it is impossible to hold elections. Tellingly, in a TV interview with Gürkan Zengin, he pulled out a pocket sized Constitution and began to read Article 79, saying “look, here it is…” only to stop halfway through.

The Constitution itself defines when elections are to be held in Article 77. Article 78 states that only Parliament can postpone them for one year in case of war. The content of Article 79, which Arınç disingenuously refers to, assigns the task of administering the elections to the YSK. The Council is obliged to fulfil this duty; it has no authority to refrain from or delay its duty. Whatever the circumstances, the YSK must ensure the safe conduct of the elections and so enable the expression of the country’s manifest will.

Article 79 and the YSK’s True Remit

The duties and authorities of the Supreme Election Council (YSK) are described down to the finest detail in Article 11 of Law No. 3527 on the Basic Provisions of Elections and Voter Registers, and Article 6 of Law No. 7062 on the Organization and Duties of the Supreme Election Council, both of which were enacted pursuant to Article 79 of the Constitution. Neither of the aforementioned articles refer to the postponement of elections in any way. No authority is given to the YSK to postpone elections in any of these two laws.

Nor is there any mention of assessing the possibility of holding elections. In fact, there is nothing written in the law that empowers the YSK to make such an assessment. On the contrary, it is charged solely with the duty to hold elections on time and safely, as set out in the Constitution, and is granted various powers to fulfil this duty effectively.

YSK’s actual mandate

The Constitution and Laws No. 3527 and 7062 does not endow the YSK with a boundless remit to rule on any matter, though some may wish it were so. The applicable law found in the aforementioned sources only provide the YSK with the authority to decide on objections and complaints made during and pertaining to the election process, and that its decisions on these matters alone will be considered final.

Therefore, the YSK cannot decide on their own accord to postpone the elections. Neither can the Council assess that the circumstances prohibit the holding of elections. It cannot act beyond its mandate. Any attempt to act beyond its remit, would automatically be null and void from the very beginning and have no legal effect.

Moreover, it is evident that the current electoral legislation does not present any technical obstacle to holding the elections in a timely manner by allowing earthquake victims to vote wherever they are located.

Arınç’s proposal attempts to unduly influence the YSK

In his TV interview, Bülent Arınç said, “The Supreme Election Council’s decision is final”, implying that the Supreme Election Council would be beyond reproach if it were to resolve to postpone the election. He implies that they would be able to get away with such an act, in violation of the Constitution and the law, usurping a mandate because it is final and there is no appeal against it. Saying that the Council’s decision is final and unappealable also implies that the members of the Council will not be held accountable if they decide contrary to the Constitution and the law. It is clear that Mr. Arınç is trying to use his political influence to try to encourage YSK members to decide on a matter which they have no authority, in blatant contradiction to the letter of the law and the Constitution.

Arınç’s suggestions should be regarded as an attempt to unduly influence members of the Supreme Election Council, six of whom were elected from among the members of the Court of Cassation (Yargıtay) and five from among the members of the Council of State (Danıştay).

After all, Arınç is no ordinary jurist. He wields a great deal of political influence in AK Party circles, the state bureaucracy and the Council of Judges and Prosecutors (HSK). He has held important positions in the ruling party and various state institutions. He served as the Speaker of the Parliament of Turkey. He has also influenced appointments to the Court of Cassation (Yargıtay) and Council of State (Danıştay), made by the Council of Judges and Prosecutors, as well as in their election as members of the Supreme Election Council.

The Der Spiegel example

It can be assumed that Arınç, through his influence in the Court of Cassation and the Council of State, has the political power and influence to prevent the investigation of the members of the Supreme Election Council for misconduct in office, thereby granting a form of lifelong immunity or, if they have liabilities unknown to the public, to ensure that they are tried in the Supreme Court. Wielding both carrot and stick, the threat of this weighty influence alone can impact the conscientious judgments, attitudes and decisions of the Supreme Election Council members.

Those interested in this aspect of the issue can look into the “no investigation needed” decision on the scandal of a German bank bribing the Court of Cassation, which was revealed by Der Spiegel magazine in Germany and widely reported in the Turkish media as well as the Constitutional Court’s decision of acquittal in the bribery case numbered 2011/1, which was decided in the capacity of the Supreme Court, on the grounds of unlawful evidence collection.

The veiled threat of chaos

Arınç makes a veiled threat when he says that failure to postpone the election will lead to chaos, and in doing so tries to create an atmosphere of fear that will harm opposition parties. But this insidious conjuration is just that – a conjuration. True chaos will arise if the members of the Supreme Election Council decide to postpone the elections or declare the elections impossible. By overstepping their remit and derogating the law and Constitution they would be usurping the democratic mandate of the people and Parliament.

If the Supreme Election Council, which still lacks its proper legal constitution which has not yet determined its sitting and reserve members, issues an inherently legally null and void decision to postpone the elections, then true chaos will come reign. That is, because there is no authority or procedure to declare the decision null and void, everyone will interpret their decision in their own way, that is, politically: Some will say that legally there is no decision, while others will say that the decision is valid as one made by a state organ, which will cause chaos throughout the country, perhaps lasting for centuries, and sowing a seed of discord that will further polarise the society..

Nothing to preclude elections

Mr Arınç desires the 2023 elections to be postponed, citing the earthquake disaster as an excuse; but he does not specify why the disaster should necessitate such postponement. He does not discuss the following questions that must be asked and satisfied as a matter of law: Which of the tasks listed in Article 11 of Law 3527 have become impossible? Is it impossible to organise voter registers or to form electoral boards? Which election tasks have been rendered impossible by the earthquake disaster and the declaration of a regional state of emergency? If there is such a situation, is the state unable to remedy it? As everyone knows, the answers to all these and similar questions are “no”. No situation or reason makes it impossible to hold elections.

The last nail in democracy’s coffin

Since the Constitutional Referendum in 2017, Turkey has fallen from being a middle democracy to an elective autocracy where the country still has elections. Perhaps the possibility of peaceful transfer of power through free elections is the only reason remaining for the classification of Turkey as a “hybrid” democracy.

Mr. Arınç, should know better than most the danger our democracy is in and that free elections are the guarantees of its survival. He should also know that if the electoral process is meddled with any further, our country will fall into the quagmire of autocracy, the negative consequences of which are exceedingly well documented.

Yet somehow Arınç insists, with his extensive influence, that members of the Supreme Election council take unlawful and unconstitutional action and interfere with elections and therefore the people’s right to vote in free and fair elections. Instead of succumbing to outrightly dangerous political short-termism Arınç should develop proposals for the timely and safe conduct of the elections despite the earthquake disaster and then inform the public about the obstacles and the solutions instituted.

The point of no return

If the scenario that Mr Arınç foments with his suggestions comes true, we should forget about ever holding elections again. Because the government, which wields enormous state power, will find a way to postpone elections indefinitely or to abolish them in their entirety.

Translated by C. Ediz Gün