Constitutionality Review

Contested Provision

It is set out in the contested provision that elections shall be made in January 2020 and January 2023 respectively to appoint new members to the Supreme Electoral Council (“the YSK”) instead of those whose terms of office would normally terminate in 2019 and 2022.

Grounds for the Request for Annulment

It was maintained in brief; that the contested provision extended the terms of office of the heads and members of the YSK, whose legal terms of office had already terminated, for one year and enabled them to take part in the administration and supervision of the local elections to be held in March 2019; that as the contested provision was related to the elections, it contravened Article 67 of the Constitution which provided that amendments to the electoral laws shall not apply to the elections to be held within one year from the entry into force of the said amendments; that the regulation which did not pursue any public interest and was not based on any objective grounds might impair the impartiality and independence of the YSK; and that it therefore hindered the independent judicial review which was a guarantee for fair conduct of the elections. In this regard, it was claimed that the contested provision was in breach of Articles 67, 79 and 138 of the Constitution.        

The Court’s Assessment

While Article 79 of the Constitution contains detailed regulations concerning the YSK, it contains no provision as regards the terms of office of its members. Accordingly, this issue is left to the discretion of the legislator on condition of not running counter to the constitutional principles.

The justification of the contested provision stated; that the change in more than half of the members following the initiation of the election process may cause problems in terms of the proper administration of the elections; that there was an interest in making use of the knowledge and experience of the YSK members who are specialized in election law; and that similar regulations had been made in the previous periods. Therefore, the contested provision cannot be said not to serve the public interest.

It is clear that the contested provision aims at ensuring certain members of the YSK to continue their office during the general local elections. Article 67 § 7 of the Constitution stipulates that “Amendments to the electoral laws shall not apply to the elections to be held within one year from the entry into force of the amendments.” For a constitutionality review to made from the standpoint of Article 67 § 7 of the Constitution, it must in the first place be established whether the contested provision is an electoral law provision within the meaning of the said constitutional provision.

The justification of Paragraph 7 added to Article 67 of the Constitution with the constitutional amendment of 2001, which states that “It is aimed that cyclical amendments shall not apply to the electoral laws”, guides the interpretation of the concept of electoral laws specified in the said paragraph. Accordingly, the constitution-maker defines the legislative regulations, which allows for amendments during the election process to have consequences in favour of the party or parties that hold majority in parliament or to the detriment of the other parties or candidates one year before the elections, as electoral laws within the scope of Article 67 § 7 of the Constitution.

In view of the above-mentioned constitutional provisions and their justifications, the phrase of electoral laws specified in Article 67 § 7 of the Constitution refers to the regulations that may affect the manifestation of the voters’ will in the election results or may create any advantages or disadvantages for a certain part of those who participate in the elections or may influence the election process and its results.

In this scope, the content of the provision must be taken into consideration while determining whether it is an electoral law provision within the meaning of Article 67 § 7 of the Constitution, namely it must not be perceived solely with reference to the expressions such as election, voter and political party. In other words, the fact that the law including the contested provision regulates certain issues related to elections does not necessarily mean that all provisions of the said law must be regarded as electoral law provisions within the scope of the aforementioned constitutional provision. Likewise, the contents of the laws that are not related to the elections may also contain provisions having the characteristics of an electoral law provision within the context of Article 67 § 7 of the Constitution.

It is clear that the contested provision is not an electoral law provision within the scope of Article 67 § 7 of the Constitution, as it contains no amendment as regards the professional guarantees as well as the duties and powers of the members of the YSK. It provides that the terms of office of the YSK members on duty who were elected in accordance with the Constitution and have been fulfilling their duties in accordance with the principle of independence and impartiality of judges shall be extended for one year. Accordingly, the contested provision does not influence the election process and its results, thus affecting the manifestation of the voters’ will in the election results in conformity with the constitutional principles, nor does it create any advantages or disadvantages for certain participants of the election.

Regard being had to the justification of the contested provision, it is understood that its purpose is to ensure the proper conduct of the elections. The provision does not cause the YSK to be influenced by the executive authority and to fail to take unbiased decisions, nor does it have an aspect running counter to the principles of fairness of elections and independence of the judiciary.     

Consequently, the Court found the contested provision constitutional and accordingly dismissed the request for annulment.