With the decision of absolute nullity, not only a congress, but the entire governance structure formed by that congress has become a subject of legal debate. Now the fundamental question is this: Can an administration that is deemed to have been legally dismissed be a legitimate actor in a new congress?
The absolute nullity decision of the 36th Civil Chamber of the Ankara Regional Court of Appeals has taken the debate in the CHP to a completely new ground. Because the consequence of absolute nullity is not only the annulment of an election.
In absolute nullity, the legal order considers the transaction null and void from the beginning. Therefore, not only the election result, but also all the organs and transactions created on the basis of that result become questionable.
That is precisely why today it is no longer an issue:
- Özgür Özel's political support,
- Its counterpart at the party grassroots,
- or its majority in the parliamentary group.
The real issue is this:
Can subsequent extraordinary congresses and actions taken by an administration that has been rendered null and void by absolute nullity be considered valid in the legal order?
As a matter of fact, in the current debate, it is argued that not only the 38th Ordinary Assembly but also the 21st and 22nd Extraordinary Assemblies, which were its continuation, have lost their legal basis.
In this case, the legal conclusion is clear:
The party administration reverts to the last legitimate administration before the absolute nullity, i.e. the administration under Kemal Kılıçdaroğlu.
It is at this point that a new and very important legal problem arises.
If the party administration is to be led by Kemal Kılıçdaroğlu again and if this administration decides on a new ordinary or extraordinary congress;
Then:
- the current administration, which is deemed to have been dismissed by nullity,
- the current Party Assembly,
- current FMC,
- and the delegation structure they form,
In what legal capacity will he participate in the new congress?
Because there is no longer an ordinary “change of power”.
The legal debate here is this: Whether the organs emerging from a null and void process can constitute a constituent will again.
This is exactly what is striking in Özgür Özel's statements.
On the one hand, Özel calls for a “congress within 40 days” in a way that de facto accepts the decision of absolute nullity; on the other hand, he tries to maintain his current managerial and political position.
If, as a result of the absolute nullity, the party administration reverts to the last legitimate administration, the authority to call for a new ordinary or extraordinary congress will naturally pass to that administration.
In this case, the fact that a structure, which is deemed to have been dismissed by absolute nullity, is trying to determine the timetable for the new congress will bring up a debate on the use of de facto, not de jure, power.
There is a serious contradiction in Özel's statement.
Because if
- if the congress, the legal source of the current administration, is null and void,
- if his extraordinary congresses were crippled for the same reason,
- criminal proceedings are still pending,
Then the issue that should be discussed is no longer “the right to re-nomination”;
is directly a matter of “legal capacity and legitimacy”.
Two different approaches will emerge here.
First opinion:
Political rights are personal; anyone without a final ban can be a candidate in the new congress.
The second view has much more severe consequences:
An administration and its organs, which are deemed to have been formed with absolute nullity, cannot be included in the founding will of the new convention, because this would mean the reproduction of the structure that has been crippled by nullity.
In particular:
- the structure of the delegation is controversial,
- pending criminal proceedings,
- the allegations of fraud at will have not yet been conclusively established,
- and that subsequent extraordinary congresses should be considered a continuation of the same chain,
The new congress could also be subject to further litigation in the future.
Therefore, the issue in the CHP is no longer just “who will be the president?”.
The real issue is this:
How will the party re-establish its legal legitimacy after absolute nullity?
Perhaps the most important question to ask today is this:
Can a government that is deemed to have legally ended be the founding subject of the new era, or does it remain only the de facto ruler of the past?