Determination of the Provincial Election Board Members by Lot is Not in Violation of the Constitution, says the Constitutional Court

The government has made changes in various electoral laws, in particular with the Law on Elections of Parliament through Law No. 7393 on Amendment of Certain Laws dated 31/3/2022*. With these changes made before the General Elections for the Parliament and the Presidential Elections to be held in 2023, important changes were made in some laws, especially Law No. 298 on Basic Provisions of Elections and Electoral Registers. One of the most important of these changes is the one regarding the formation of the Provincial Election Boards and the election of the District Election Board presidents. Accordingly, the principle of determining the members of the election board, previously determined on the basis of seniority, by drawing lots has been accepted. On the other hand, changes were made such as lowering the election threshold to 7%, taking the votes of the parties rather than the votes of the alliance as the basis in the distribution of deputies, accepting the application of election bans for the Ministers, and excluding the President from the scope of the bans.

An action for annulment was filed by the deputies of the main opposition party on the grounds that some articles of the said law were unconstitutional.** In the request for annulment, it was stated that the new rules stipulating the fact that members of the Provincial Election Board and the chairmen of the District Election Board should be determined by drawing lots instead of seniority were not enacted for the sake of public interest. It is stated that new rules aim to ensure that new judges appointed after 2016 take part in the boards, thus prioritizing the ruling party’s interests. In addition, it has been argued that due to the fact that the election law is technical and complex, the judges who will take part in the boards should be composed of judges experienced in the field of election law, which is of vital importance for both the independence of the boards and the fair resolution of election disputes. Moreover, it was emphasized that why there was a need to change the rules, which had been implemented without any problems for 70 years and not encountered any problems. In the meantime, it has been argued that it is not clear whether the judges who will participate in the lot are all judges who meet the conditions specified in the law and who work in the province, or whether they include the bidders. For this reason,  the opposition claims that the new rules are contrary to the Preamble and Articles 2, 5, 36, 67, 79 and 138 of the Constitution.

The Constitutional Court examined the regulation in terms of Articles 2, 67, and 79 of the Constitution and decided that the said rules were not unconstitutional. According to the Constitutional Court, the legislature has judicial discretion in this area, as there is no provision in the Constitution on how election boards are to be formed. Therefore, the said rules are not in violation of the Constitution. Moreover, according to the Court, since the election boards do not have any organic ties with the legislative or executive organs, and the fact that they do not receive orders or instructions from them, the constitutional principle that elections to be held under judicial control cannot be violated. Stating that it is not a problem for the judges to be inexperienced, the Court emphasized that there is sufficient trained personnel in the election directorates.

According to the Constitutional Court, the provisional Article 24 added to Law No. 298, which terminated the duties of all members of the board elected in January 2022 to serve for two years on the basis of seniority and stipulates that those new elections to be held within three months by lottery procedure (with the 12th article of Law No. 7393) was unanimously decided that it was not contrary to the Constitution. Stating that the rule in question is not an “election law” within the meaning of Article 67 of the Constitution, the Court further stated that “there is no constitutional obstacle to the formation of electoral boards in a structure that does not include an element of the judiciary” (§ 127). Stating that the rule in question aims to ensure uniformity in the formation of election boards, the Court has determined that there is no purpose other than the purpose of public interest and has concluded that there is no interference with the impartiality and independence of the boards. Thus, the Court has declared that the government's intervention in the election boards is not unconstitutional.

* https://www.resmigazete.gov.tr/eskiler/2022/04/20220406-1.htm
** AYM, E.2022/50, K.2022/107, 28/09/2022 https://normkararlarbilgibankasi.anayasa.gov.tr/ND/2022/107