Threshold distinction damages the constitution’s principle of equality

Let us assume that in a medium-sized Turkish province of one million voters with a representation of 10 lawmakers in the parliament, the ballot boxes have been opened and the following result announced: 

Party A: 500,000
Party B: 300,000
Party C: 120,000
Party D: 80,000

Let us assume that Parties A and D have established an alliance; the electoral threshold of ten percent has been applied; and Parties C and D failed to pass this threshold. In this scenario, Party C, which fell beneath the threshold, not only received more votes than Party D in that province, but also nationwide.

In this situation, although achieving a better result than Party D, Party C is unable to secure parliamentary representation, because of the 10 percent threshold. Party D, on the other hand, despite having a weaker performance than Party C, will benefit from having formed an alliance and will therefore send a lawmaker from this province to parliament.

In this scenario, the Party A will have six deputies, Party B three and Party D one. If Party C had not been hampered by the threshold, it would have won one deputy. Instead this deputy went to Party D.

To summarize, Party C’s right has passed onto Party D. The fact that Party C was more successful in the poll and worked more in the election campaign does not affect the result.

A recent law quickly approved in parliament has overhauled various electoral regulations, giving an advantage to parties that form alliances.

In the example I have given, the votes cast for Party C were wasted, whereas the voters of Party D, which received less votes, were rewarded.

In other scenarios, the parliamentary seats of the party that were caught by the threshold, would be distributed to the alliance with the most number of votes. The party with the second highest number of votes only has a slender chance of winning some of the redistributed seats.

It is possible to increase the number of scenarios and possibilities in theory. But when we look at the principle of the system, we come across a discriminating layout that does not apply an equal treatment to parties due to the threshold rule.

In this way, we are talking about a situation that is contrary to one of the most basic provisions of the constitution: The “principle of equality,” which is included in the constitution’s “beginning” section, and which gives it its soul.

The constitution’s “beginning” section reads: “Every Turkish citizen has basic rights and liberties in this constitution, in accordance with equality and social justice.”

The constitution’s 10th article also says: “The state organs and administration authorities have to act in line with the principle of equality in front the law, in all their doings.”

The European Court of Human Rights’ (ECHR) 2008-dated decision in the case of “Yumak and Sadak versus Turkey” sheds light on this discussion. The ECHR, despite not finding a violation regarding the file, indicated in its ruling that it found the 10 percent threshold “excessive” in the face of an application filed by Mehmet Yamak and Resul Sadak, who complained that their Democratic People’s Party (DEHAP) had not achieved 10 percent of the votes.

An important emphasis of this decision was this: “In Turkey, the 10 percent threshold is a general rule which applies without any distinction to all political party candidates whatever electoral constituency they are standing in.”

But this general rule that played a role in the ECHR’s decision disappears with the new law. Ultimately, we need to say the new system does not comply with the principle of fairness. It is important to know what the constitution court will decide, in terms of the principle of equality, if the issue comes before it in the coming days.