In one of Sefer Selvi's more minimalist cartoons for Evrensel newspaper, appearing after the referendum in Turkey on a constitutional amendment bill, we see two hands reaching up to hang a gilded picture frame on a wall next to another gilded picture frame displaying a document that is blank apart from the word “Diploma”. Anyone in Turkey seeing this cartoon will immediately understand that the hands belong to Erdogan who is hanging his “achievements” on a wall. The Turkish constitution stipulates that the president of the republic must hold a university certificate. The frame that is in the process of being hung contains a much smaller but equally blank document apart from the label “ballot”. As we contemplate the implications, here are some other questions. What's all the fuss about in Turkey? Why were people throughout the country still marching in the streets days after the referendum? Is it simply a replay of the aftermath of the Brexit vote and Trump's election? A “knife-edge” race with a lot of angry protests afterwards? The referendum in Turkey — a NATO member at a strategic intersection between Europe, Middle East and Asia — will have far-reaching repercussions, like Brexit and the US presidential elections. But the referendum process, itself, was of a totally different order. Conditions surrounding the US and UK polls were not remotely like those described in the “Preliminary Findings and Conclusions” released 17 April by the Organisation for Security and Cooperation in Europe's Office for Democratic Institutions and Human Rights (OSCE/ODIHR). It opens: “The 16 April constitutional referendum took place on an unlevel playing field and the two sides of the campaign did not have equal opportunities.” Prime among the many problems it listed were the unfairness in media access and campaigning opportunities, the state of emergency conditions and decrees, and a legal framework that “remained inadequate for the holding of a genuinely democratic referendum”. On polling day itself, the Supreme Board of Elections (SBE) delivered the “coup” de grace. It concerns “Law 298: On Basic provisions on Elections and Voter Registers”. Originally enacted in 1961 and amended a few times since, the most crucial provision, as concerns the controversy over the referendum, is Article 101, which lists 11 conditions that would render a ballot invalid. The first three read: “Those [ballot papers]; 1- Which are not in size and colour arranged for that election and delivered by ballot box committee, 2- Which do not have “Republic of Turkey Supreme Election Council” watermark on them, 3- Which do not have ballot box committee stamp, .... shall be deemed invalid.” On referendum day, the SBE struck out point 3. In the complaint it filed contesting the polls, the main opposition party, the People's Republican Party (CHP), relates that, on polling day, at precisely 5:58 in the morning, the SBE instructed ballot box committees around the country to, “count the number of ballots and their accompanying envelopes and enter their number in the record ledger. Then apply the ballot box stamp to the backside of the ballots and to the accompanying envelopes.” After voting began, it sent out this circular: “If, in the course of stamping ballots with the official ballot box stamp used for the purpose of preventing the use of a forged ballot, the stamp applied by the balloting official was accidentally stamped on the front side of the ballot or the stamp applied to the backside of the ballot is reflected on the front side due to the use of too much ink, that ballot shall not need to be deemed invalid.” The SBE knew the purpose of the stamp. But suddenly, “while the ballot boxes in the eastern provinces were being opened and their ballots being sorted and tallied, the SBE decreed that unstamped ballots and ballot envelopes should be deemed valid.” As the CHP petition put it, “the SBE contravened not only a governing law, but also the circular and instructions it issued that same day. With this decree, the SBE changed the rules after the tallying process began and after appointing itself lawmaker with the power to enact law.” Under the Turkish constitution, changes in electoral law cannot go into effect until a year after they are promulgated. The referendum was extremely close. According to the as yet unofficial count, 25,157,025 people voted “Yes” and 23,777,091 people voted “No.” The difference is 1,379,934 votes. The SBE's decision is believed to affect between 2.5 to three million votes. Kerem Altıparmak of the political science faculty at Ankara University described the SBE's decision as a “legal scandal”. On his Facebook page, on 18 April, he writes that, at first, the SBE tried to justify its decision on the basis of “precedents” in 2004 and before then. “However, not only was Law [298] amended in 2010, the instances cited have no bearing on the current situation. Those had to do with decisions taken in response to objections concerning particular ballot boxes. Whereas the decision that was ostensibly issued on 16 April 2017, did not pertain to a ‘concrete' box but instead to thousands of boxes said to contain millions of votes.” He continued, “when that justification went down the drain, the SBE began to dig for a new one. They resurfaced 48 hours later with one that is patently absurd.” What they came up with was Turkish Constitutional Article 90, paragraph 5: “In the case of a conflict between international agreements in the area of fundamental rights and freedoms duly put into effect and the domestic laws due to differences in provisions on the same matter, the provisions of international agreements shall prevail.” So, the SBE, “upon jointly assessing” Constitutional Article 67 (on the “Right to Vote, to be Elected and to Engage in Political Activity”) and Article 3 of the First Protocol of the European Human Rights Convention, decided to scrap the provision concerning stamped ballot papers. According to Altiparmak, the protocol has no bearing on referendums. He also recounts, “for more than two years, Yaman Akdeniz and I have argued [in court] that Article 299 of the Turkish Penal Code [on the offence of insulting the president] conflicts with Article 10 of the European Human Rights Convention, and we supported this with references to numerous European Court of Human Rights (ECHR) rulings related to cases involving insulting the president... Despite the many ECHR rulings that fill the case files, they have never been heeded. Meanwhile, the SBE decision cites no ECHR ruling to support its claim, for the simple reason that none exists! In sum, the SBE decision has no legal foundation. More plainly, they violated Law 298. Then they tried to find a way to cover it. The cover they found fits nothing.” As the CHP petition noted, the ballot box committee stamp is not only one of the most important instruments for proving electoral tampering, it is also a crucial precaution to prevent it. “With its decision, the SBE eliminated this probative instrument... and [it] rendered this precaution ineffective,” the CHP petition states, adding that there is evidence that, on referendum day, “watermarked ballots had been systematically stolen and later slipped into the ballot box.” Oy ve Otesi (Vote and Beyond) and Hayir ve Otesi (No and Beyond), two Turkish NGOs that monitored the polls, have produced some specific evidence of tampering. Although their work is not yet complete, in their preliminary reports they found, for example, irregularities in around 100,000 votes, 961 ballot boxes in which 100 per cent of the stamped ballots were “Yes” votes, other evidence of block voting and, in the case of 7,048 ballot boxes, the numbers of ballots cast exceeded the number of voters recorded to have cast ballots. A total of 1,672,249 votes were cast in these ballot boxes, of which 60.7 per cent were “Yes”. These and other “irregularities” may now be harder to prove thanks to the SBE's decree. Another of the main problems cited in the OSCE/ODIHR report is the lack of transparency in SBE decisions. Perhaps we should take another look at how Sefer Selvi connects the dots?
