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HomeExpertsOur Summer Before Returning to Winter: The Van Issue

Our Summer Before Returning to Winter: The Van Issue

Isil Kurnaz*

The results of the March 31 election led to significant gains for the opposition. The change in voter behavior, especially in provinces like Adıyaman, which have high inner sections, religious affiliations, community and sect relations, indicates a political astonishment where the “threshold of not going to CHP” was crossed, CHP managed to get ahead of AKP in an election for the first time, and won provinces and districts it never had throughout the history of the Republic. However, this astonishment finds a familiar place when it comes to security policies that have penetrated Turkish politics and structural antidemocratic strategies and games. The post-March 31 Van Municipality serves as a litmus paper on how future local policies and municipal elections will shape.

The groundwork for a process that could lead to the appointment of trustees to Van Municipality is being laid. Ali Duran Topuz addressed the political risks of this in his article:

“Let’s go back to the beginning: It’s the duty of everyone who takes the right to elect and be elected seriously to speak out against this provocative illegal initiative, starting with the main opposition party. Democracy does not come by thanking ‘Kurdish democrats’ on election night; it requires standing in solidarity with Kurdish democrats as ‘non-Kurdish democrats’ and embracing the voters’ right and will. It must not be forgotten that the path of ‘militarized economic policy’ is not just a mechanism against the demands of the Kurds but also developed to keep the spreading and deepening poverty and absence under control. If CHP’s recent years, especially the period between 2015-2023, are to be defined by the ‘terrorism complex’ again, i.e., if the concern of appearing close to separatists prevails, the power will easily achieve what it wants. Thus, the spring atmosphere that started with the March 31 election will turn back to winter early due to the attacks of militarized political and legal reasoning.”

Indeed, even though the political power mentioned self-criticism in its first call after March 31, we know that this self-criticism is not a mechanism or a confrontation. Because for the political power, self-criticism only comes into play when the difference cannot be manipulated clearly or the law cannot be circumvented. However, when a way is found to circumvent the law, this way is activated in the form of partisanship that does not refrain from political strategies, opportunism that has enveloped all politics from the center to the local.

Together with all the district municipalities, Van Metropolitan Municipality passed to the Dem Party with a vote rate of up to 56%. I say passed because the mayor elected in the 2019 local elections stayed in office only for 4 months and was replaced by the Van Governor appointed as a trustee. In these local elections, Abdullah Zeydan was elected as the mayor. However, just before the elections, on the evening of March 29, five minutes before the end of work hours, we learned that an objection made by the Ministry of Justice led to the discussion of Zeydan’s eligibility to be elected, recognized by the Supreme Election Board (YSK), due to the revocation of the reinstatement of banned rights. Moreover, as of this writing, the AKP applied for the certificate of election to be given to their candidate, who came second and received half as many votes as the elected mayor. The YSK accepted this application and awarded the certificate of election to the second-place candidate. This process can be explained by translating legal language into politics:

According to Article 79 of the Constitution, the Supreme Election Board is responsible for the general administration and supervision of elections. In this context, it is equipped with the authority to examine the eligibility of candidates, objections to candidates, supervision of election day, and post-election ordinary and extraordinary objections and to make decisions. Article 16 of Law No. 298 on Basic Provisions of Elections and Voter Registers states that “To receive and announce candidate declarations or lists, to examine objections to them, to make decisions on those that are not valid according to the law, to send and announce temporary and final candidate lists to their places” is among the duties and authorities of the Provincial Election Board. Article 14 of Law No. 2972 on the Election of Local Administrations, Neighborhood Headmen and Elder Councils regulates objections against candidates. According to this, objections can be made to the district election board within two days from the temporary announcement of candidacies. Objections are decided by the district election board within two days at the latest. Interested parties can object to these decisions to the provincial election board within two days. The provincial election board definitively decides on these objections within two days at most. Other objection procedures related to eligibility to be elected are regulated in Law No. 298. These are subject to ordinary and extraordinary objection methods with 3 and 7-day periods, respectively. Accordingly, if the objection is related to a person’s eligibility to be elected, paragraph 1 of Article 130 of Law No. 298’s clause 6 is applied. According to this, “Objections against the eligibility to be elected […] must be made by 17:00 on the third day after the arrangement of the certificate to be given to the elected.”

The issue in the Van case points to a more complex problem, primarily a discussion of eligibility to be elected that is being attempted to be prevented. We are talking about a process where Zeydan could be a candidate for the Mayorship of Van because he had previously been convicted and received a decision for the reinstatement of banned rights. This jurisprudence is based on a decision by the YSK dated April 21, 2011. In this decision, which they removed from their websites, YSK decided that Harun Özcan, Mehmet Hatip Dicle, Leyla Zana, Mehmet Salih Yıldız, Ertuğrul Kürkçü, Gülten Kışanak, and Sebahat Tuncel did not have conditions preventing them from being parliamentary candidates, stating that individuals who lost their parliamentary membership due to conviction, if they have a decision on the reinstatement of banned rights, could be candidates. The reinstatement of banned rights, a possibility introduced by Article 13/A of the Criminal Record Law, was a mechanism introduced to prevent lifelong deprivation of rights. The YSK decision also mentioned this.

Therefore, when the reinstatement of banned rights is in question, the YSK jurisprudence recognizes individuals’ eligibility to be elected. On the other hand, no objection was made to Zeydan’s candidacy during the objection period after the temporary announcement of candidacies. The conviction is not “related to a conviction that would result in the loss of eligibility to be elected after the candidacy is finalized” as envisioned in Law No. 298. Neither the conviction nor the decisions on the reinstatement of banned rights were revealed later. In this case, removing the elected candidate’s right to choose by revoking the reinstatement of banned rights, and furthermore, holding a re-election and possibly allowing the party that received the most votes to enter the election again to protect citizens’ right to choose rather than appointing a candidate who received half as many votes as Mayor, shows what besides interpreting the law by circumventing it?

Let’s recall an incident from the 2019 elections:

In Rüstemgedik, Muş, the certificate of election of the CHP candidate Fikret Hamarat was not given due to “criminal record”, and the YSK decided to give the certificate of election to the second-placed HDP candidate. However, the HDP stated that they did not accept this decision on principle and argued that the elections should be renewed:

“The YSK cannot invalidate the people’s choice in this way. The election here should be renewed. The YSK’s failure to evaluate the restriction condition for the candidate during the application is a complete illegality. The YSK has added another pro-government action to its actions.”

This discussion is a litmus paper that shows that a principled discussion cannot be closed with the hand of law today. Because if today’s strategy of political power is accepted as an election strategy, what will happen is that the judiciary is allowed to act independently before the elections, enabling candidacies to be determined, and then the same judiciary takes away the candidates’ eligibility to be elected through different decisions, paving the way for political power to progress through back streets.

Yes, the YSK has a doctrine called absolute illegality. This doctrine applies when the obstacle to being elected was present before the election but was discovered after the objection periods had passed and somehow went unnoticed. According to this, the YSK says that it can always examine the mandatory provisions related to candidacy conditions without operating objection periods. However, the issue in the Van Municipality case is not a “later oversight” case. This is more like a strategy of waiting to use later. Neither political nor legal explanations exist for this. The explanation is more related to domination relations that cover principles. It’s beyond changing the rules while the game is being played; it’s about not operating the rules because the outcome of the game is disliked.

The political strategy that occurred in the case of Van Municipality today but will affect broader grounds confiscates the local people’s right to choose without even allowing for the elections to be renewed, laying the groundwork for the political denial of the most basic citizenship right. This structure could stall all discussions related to election law today. Because politics should still be a process woven with principles, regardless of everything. Principles, even when they are invisible.

The references provided at the end of the translation are as follows:

[1] Kemal Gözler, “Türk Anayasa Hukuku” (Turkish Constitutional Law), Ekin Yayınları, 2016, page 466.

This reference discusses the reinstatement of banned rights as a mechanism that contradicts the Constitution. According to Gözler, since the deprivation of rights originates not from the law but from Article 76 of the Constitution, it is considered an absolute incapacity intended to be lifelong, not temporary.

[2] According to Gözler, enabling parliamentary membership through the reinstatement of banned rights is against the Constitution. He argues that since the deprivation of rights stems from the Constitution’s Article 76 rather than any law, it is viewed as an absolute incapacity envisioned to last a lifetime.

[3] Erdal Onar, “1982 Anayasasında Milletvekilliğinin Düşmesi” (The Loss of Parliamentary Membership in the 1982 Constitution), published by the Constitutional Court in “Anayasa Yargısı” (Constitutional Judiciary), Volume: 14, Ankara 1997.

This reference addresses the doctrine of “absolute illegality” as defined by the YSK. The doctrine stipulates that the YSK can always examine the imperative regulations regarding candidacy requirements, without the need for objection periods, if the obstacle to being elected existed before the election but was discovered after the objection periods had passed.

*Isil Kurnaz graduated with honors from Bilkent University Faculty of Law. She obtained a master’s degree in International Human Rights Law from Lund University with the Sweden Institute Human Rights Scholarship in memory of Anna Lindh, awarded by the Swedish government. She won the Halit Çelenk Law Award in 2018 for her thesis on “Collective Social Rights in Constitutions.” She is currently working as a doctoral researcher with a scholarship at the Human Rights Institute of Sant’Anna Scuola Universitaria Superiore Pisa in Italy. She also contributes regularly to the Birikim magazine.

This article initially was published in Birikim Magazine and translated into English by Politurco.

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