According to the temporary 21st article of the Constitution, the elections in Turkey should have been held on 3 November 2019
Today is the anniversary of the latest elections of the Republic of Turkey. However, the elections held on 24 June 2018 in Turkey, are constitutionally not valid.
The elections held on 24 June 2018 in Turkey are not valid and binding according to the provisional 21st article of the Turkish Constitution because according to the provisional 21st article of the Constitution, the elections in Turkey were supposed to be held on 3 November 2019.
The Grand National Assembly of Turkey, without removing such obstacles in the temporary article 21 of the Constitution, passed a Parliamentary Decision on holding early elections. However, without changing or removing the provisional Article 21 of the Constitution from the constitution, the Grand National Assembly of Turkey cannot pass a Parliamentary Decision to hold early elections. Because the Grand National Assembly of Turkey cannot issue a Parliamentary Decision against the Turkish Constitution. That is why, there is still a clause, in the temporary 21st article of the Constitution: “Elections must be held on November 3, 2019”. This article is a mandatory provision of the constitution and has not been implemented. Therefore, the early general elections held on 24 June 2018 are not legal, valid, and binding. Because such decision of the Grand National Assembly of Turkey, which was the reason for the early general elections that were held on 24 June 2018, is contrary to the temporary article 21st of the Constitution.
In other words, it was decided at the 89th Session of the General Assembly of the Turkish Grand National Assembly, dated 20.04.2018, that the General Elections of the Grand National Assembly of Turkey be renewed and that the General Elections will be held on Sunday, 24 June 2018. The Decision of the Turkish Grand National Assembly dated 20/04/2018 and numbered 1183 on the Renewal of General Elections was published in the Official Gazette dated 20/04/2018 and numbered 30397. However, the Grand National Assembly of Turkey cannot decide to hold the elections before November 3, 2019, without removing or amending the provisional article 21 of the Constitution, which says November 3, 2019, as the date of elections.
Therefore, the early elections held on 24 June 2018 are all null and void as they are against the provisional article 21 of the constitution. As a result, both the president and parliament elected in the early elections held on June 24, 2018, are not official and authorized, as per the provisional Article 21 of the Constitution.
President of the Republic and representatives are not the constitutional President and constitutional Representatives
The current president of the Republic and the current representatives of the parliament are all unconstitutional President of the Republic and unconstitutional Representatives. Therefore, their presidential and parliamentarian activities are, all null and void as per the provisional article 21 of the constitution.
In other words, any presidential or parliamentary activities, including any decision of the president of the Republic or any law passed by the current parliament, are not valid and binding.
The courts are unauthorized and their decisions are not valid and binding
The most severe consequence of this unconstitutional situation is the lack of jurisdiction and authorization of the courts. The reason why prosecutors and judges in the courts have no competence’ over any case, is that all prosecutors and judges are appointed by the ruling party and the President; however, neither the President nor the representatives of the ruling parties, who both had assigned all judges and prosecutors are not constitutional President of the Republic and constitutional Representatives, as described above. The prosecutors and judges are not elected by the citizens in Turkey. Most of the judges and prosecutors are lawyers who were former members or militants of the ruling parties. Judges and Prosecutors are the officers in the State. Their salaries are paid by the Ministry of Justice. That is why in Turkey, the judiciary is strictly dependent on Political Power. Therefore, judges and prosecutors in Turkey are not impartial judges and prosecutors.
I would like to open a parenthesis here, right before continuing on the topic above. The asayish crimes against public security, which concern public peace, are crimes against persons or property but are crimes other than crimes committed against public order, committed for social events, terrorism, and ideological reasons. Public order crimes are excluded from traffic crimes including fatal or injured traffic accidents, smuggling, and organized crimes. After the internal threats, Reactionism, and Separatism that destroy the foundations of the Constitution and the constitutional order are totally eliminated by law enforcement fierceness and force because of being publicly financed armed terrorist organizations that are the founder and protector of the autocratic totalitarian regime, the local judiciary should be restructured. After that, in my opinion, judges and prosecutors who will make judgments on crimes related to public serenity tranquility, and peace (asayish crimes) should be elected at least for a two or three-year term by citizens over the age of fifteen. Those citizens should have already submitted their tax returns for the previous year to the district tax offices where they will vote, before the elections. Those electors should be living in their legal residences in the provinces and districts where they reside but not in unlawfully built homes, i.e. slums, etc. Prosecutors do not need to be law school graduates. It should be sufficient for prosecutor candidates to have at least a bachelor’s degree preferably from at least one of the social sciences; however, social sciences diploma should not be mandatory, any other bachelor’s degree owner should also be a candidate for being a prosecutor of the district or province. On the other hand, judges must be law school graduates to be determined by the committee of professors to be appointed by the President or those who have successfully passed the legal exams to be held by this committee. Citizens should naturally have the right to choose to be tried by an elected judge or another judge appointed by the state when filing their cases or filing their complaints with the prosecutor’s office. Depending on the rankings and levels of the judges who will be candidates, All judges and prosecutors in Turkey should also directly elect the majority of the judges of the Supreme Court for Appeals and the Supreme Court for Administrative Appeals. The President of the Republic and the Board of Professors as I mentioned should also be able to appoint judges of the Supreme Court for Appeals and the Supreme Court for Administrative Appeals whenever deemed necessary Accordingly, the police should be divided into three sections: The Law enforcement agency for the crimes committed against the public serenity tranquility, and peace of the citizens (Asayish Police), the Law Enforcement Agency for crimes against public order (Inzibat), and the judicial law enforcement (Adli Police). Police chiefs of the law enforcement agencies who will deal with public safety crimes (Asayish Crimes) should be elected by the citizens at the same time and in the same manner as the judges. As I mentioned in my earlier article named the New Republic (**) the law enforcement officers, the Inzibat, who will be responsible for crimes against the public order should be the graduates of police colleges to be opened in Belgrade and Lviv. These colleges must be coordinated by the Turkish Army only.
If we close the parenthesis of the paragraph above, consequently, the judiciary under the pressure of the government in Turkey has to make decisions with the direction and administration of the political power. As a consequence of such constitutional breach explained above, all courts after June 24, 2018, had to perform in violation of the constitution and continued to work as if they had jurisdiction over the cases and authorization to conduct judicial activities. However, that is why all court orders after June 24, 2018, are null and void. This includes the decisions of the Constitutional Court. Because all judges are appointed by the ruling parties including the judges of the Constitutional Court. That is why courts in Turkey are legally and structurally not independent courts. Courts in Turkey have to make decisions based on the direction and administration of the parties to which they are appointed. That is the reason why the unconstitutional elections could not have been brought before any competent court in Turkey. The only reason for this, all judges serve in the courts by appointment, that is, elected by the ruling political party. The only way to remove this unconstitutional and unlawful situation – as I tried to explain briefly above – is to ensure that judges and prosecutors are elected by the citizens.
All judges and prosecutors should also directly elect the majority of the judges of the Supreme Court and the Danishtay. The President of the Republic and the board of professors I mentioned should also be able to appoint judges of the Supreme Court and the Danishtay.
In fact, legally, courts must first decide in the cases before them whether the case should be decided politically or legally. Turkish courts should refrain from hearing political cases. Political cases must be handled by the Political Power in Turkey. Political Crimes must be punished by the Political Power in Turkey. I will discuss this situation and the distinction in another article by referring to the works of Prof. Dr. Ahmet Mumcu related to political punishment in Turkish History.
On the other hand, failure to annul the general elections held on June 24, 2018, by the opposition by appealing to the Constitutional Court, does not make that that parliamentary decision for the early elections held on June 24, 2018, is valid. However, failure to annul the general elections held on June 24, 2018, by the opposition by appealing to the Constitutional Court, may only confirm that the opposition is actually the secret coalition partner of the government. Because it is just a “Legal Issue” for the “Constitutional Court” to determine such unconstitutionality. However, the current situation is a serious matter for a heavy criminal prosecution due to the violation of the Constitution. However, when such a de facto political situation comes before the courts in Turkey as a lawsuit, the courts should refuse to consider such a case as a civil or criminal lawsuit, and reject the case because it is a political case. Courts in Turkey must reject the political cases from the very beginning, without even considering the case, without going through the procedure and the merits. Judges must commission the political Power in Turkey to handle the political cases. Turkish judges should authorize political power in Turkey to handle political cases. This is a legal decision that must be taken by the judges when the constitution is abolished by the politicians. Because politicians who abolish the constitution are deprived of the right to demand a trial in accordance with the old constitution, and its regime that they had abolished. Because where there is a regime of unconstitutionality, then there is no right to demand to be tried in court, as if there is constitutionality. In this situation, the Political Power in the Country must decide as per the customary law of the state on each political case in order to maintain the public order and set up a new constitutional regime.
Legislative, executive, and judiciary constitute sovereignty of the state. According to Moris Duverger, if these three powers that constitute the sovereignty of the state are in the hands of a single party, that state is a dictatorship. This unconstitutional situation – unless the subsequent Political Power or its judicial system considers that it requires a political punishment but not legal punishment – is at least a “de facto anti-democratic, autocratic and totalitarian political regime” which requires heavy criminal prosecution for its leaders. In other words, this anti-democratic regime is a de facto situation that requires heavy criminal prosecution because it has distorted, falsified, and voided the Constitution. But in our State System political cases must always be prosecuted and handled by the politicians in accordance with the state’s customary laws, not by the judges and prosecutors.
[In another article, I will explain the distinction between political punishment by the government and legal punishment by the criminal courts. However, I would like to touch upon this subject, albeit briefly, before I finish my article, here. These two different and sharp punitive distinctions in criminal proceedings were used successfully in our old legal system, namely in the Ottoman Empire. Thus, the system of punishment with these two different criminal proceedings would have led the courts not to be accused of making political trials. In fact, these two different punitive distinctions already exist in our customary state law and are still applied very harshly and lethally against regime opponents by the police, which is constantly tasked with ensuring public safety, and also by the special operations police. However, the police do not have the right and authority to kill. The right and authority of the police to set up another parallel army under the name of special operations are unconstitutional. No one can acquire a new right based on a right that he does not have legally. No law in Turkey states that the police have the right and authority to kill citizens. In Turkey, by the wordings of the laws, the police may only use weapons with a target focused. Such use of guns does not mean that the police have the right to kill the citizens. Only soldiers, the army, may kill a man for the sake of public safety or public order. In Turkey, Police are certainly not allowed with any authority to kill citizens because “A Verbis Legis Non-Est Recedendum” (The letter of the law should not be strayed from), “Verbis legis tenaciter inhaerendum” (The wording of the law must be adhered to), and “Absoluta sententia expositore non indiget” (Perfect and absolute sentence does not require commentator). However, only the soldiers have the authority to kill by order.].
The situation that I explained above is not only valid for the last 20 years of the reign of the Reactionists Islamo-Fascists. The Secular and Democratic regime of the Republic of Turkey writing on its constitution has been in the same autocratic and totalitarian character since March 12, 1971, even before the Reactionary Islamo-Fascist regime came into power in 2002. This situation is against the constitution. Because this situation is an Islamist Fascist regime. Such Islamist Fascist character of the regime is contrary to the democratic, secular, and social legal order principles of the Turkish Constitution. And this existing political process supported by imperialism in order to destroy our State and Nation (otherwise to destabilize, us) which has been going on since March 12, 1971, and paved the way for reactionists Islamic Fascists, must evolve into a new constitutional order.
This new constitutional regime should be a democratic, secular, and social legal order regime, as required by the customary and habitual constitution of the Turkish State.
I mentioned such a new constitutional order in my previous article named the New Republic**. Otherwise, the life of this Mighty State will not be longer than a few years. And the Deep State will eventually collapse at the same time as the current Islamic Fascist regime which is a collaborator of imperialism, de facto anti-democratic, autocratic, and totalitarian, and the state’s territory will be disintegrated gradually or faster than expected.
The terms reactionaries and reactionarism in this article were used as exactly the term defined by the Constitutional Court of the Republic of Turkey. In other words, reactionary means l’irtidja («retour en arrière» utilisé comme équivalent du «réactionarisme»).
(*) GEÇİCİ MADDE 21- (Ek: 16/4/2017-6771/17 md.) http://bit.ly/2RgwOoO
(**) The New Republic https://bit.ly/3vTh9ib
________________________________
AVUKAT ÜNTAÇ GÜNER, ESQ АДВОКАТ עורך דין محامي 