LAWS AND LOOPHOLES: AKP EXAMINES ITS LEGAL OPTIONS TO STAVE OFF CLOSURE

The application to the Constitutional Court for the closure of the ruling Justice and Development Party (AKP) has had party officials poring over the statute books to see whether they can preempt the court’s decision by pushing through legal amendments that would make it impossible for the AKP and its leaders to be banned from politics.

On March 14, Abdurrahman Yalcinkaya, the public prosecutor at the High Court of Appeals (Yargitay), asked the Turkish Constitutional Court to close down the AKP on the grounds that it had become a center for activities that sought to erode the principle of secularism that is enshrined in the Turkish constitution as one of the republic’s defining characteristics. Yalcinkaya also called for 71 leading members of the AKP to be banned from politics (see EDM, March 17).

The application triggered a furious reaction from the AKP and its supporters and prompted the Turkish press to publish a rash of articles, all of them claiming to be based on reliable anonymous AKP sources, on the various formulae the AKP had come up with in order to stave off closure. They included: increasing the number of members of the Constitutional Court from 11 to 17 and requiring a unanimous vote for closure rather than just two-thirds as at present; amending the constitution to forbid the closure of any party unless they incited violence or racism; introducing a requirement that all applications for party closures should first be approved by parliament; removing the power of the public prosecutor to apply for parties to be closed; and calling for a public referendum on constitutional amendments that would make it impossible to outlaw political parties under any circumstances and allow only individuals to be banned (Yeni Safak, Milliyet, Vatan, Hurriyet, Radikal, NTV, CNNTurk, Sabah, Aksam, Zaman, March 18-19).

In fact, there is no evidence that the AKP has yet made any firm decision about how to react to Yalcinkaya’s indictment. Several commentators have also noted that almost any legal amendments that the AKP tries to push through parliament will be regarded as a self-serving; not least given the AKP’s failure to consider any legal amendments to protect the pro-Kurdish Democratic Society Party (DTP) when Yalcinkaya filed an application for its closure on November 16, 2007 (see EDM, November 19). However, others have pointed out that this has not deterred the AKP in the past. For example, a ban on convicted felons running for parliament meant that Prime Minister Recep Tayyip Erdogan’s 1998 conviction and ten-month prison sentence for allegedly inciting religious hatred prevented him from standing in the November 2002 elections, which the AKP nevertheless won with a comfortable majority. On December 27, 2002, the AKP amended the Turkish constitution to limit the ban on felons entering parliament to those convicted of specific offences, such as terrorism, or those sentenced to more than one year in prison. Erdogan was then able to enter parliament through a by-election in March 2003 and take over the prime ministry from AKP Deputy Chairman Abdullah Gul (Milliyet, Vatan, March 20).

Many in the AKP are more worried about Erdogan being banned from politics than the AKP being outlawed. In the past, whenever a political party has been closed down, its members have simply reformed and established a new party. As a result, party closures have tended to be disruptive and damaging rather than fatal. In some cases, as with the formation in August 2001 of the AKP from the remnants of the outlawed Virtue Party (FP), the process has been invigorating and enabled the new party to broaden its popular appeal by disassociating itself from its predecessors.

However, the attempt to ban Erdogan is potentially more dangerous. Although his bruising, authoritarian manner has alienated many in the party, and his insistence on taking all major decisions further reduced the government’s already slowing momentum (see EDM, February 15), there is no question that Erdogan is the AKP’s greatest electoral asset. He is probably also the only person capable of holding together the disparate elements in the party, under its current or any other name.

But a closer inspection of the often tortuous inconsistencies of Turkish law suggests that Erdogan’s position may not be as precarious as many in the AKP originally feared. The 71 AKP members named in Yalcinkaya’s indictment are accused of responsibility for the party becoming a focus of anti-secular activities, which is illegal under Article 69 of the Turkish Constitution. Article 69 also states that those held responsible by the Constitutional Court for activities that have led to the closure of a political party can be banned from being a founder, member, executive, or auditor of a political party for a period of five years. But it does not ban them from standing for parliament as an independent candidate (Zaman, Milliyet, March 19).

In fact, there is already a precedent. In 2003, the Constitutional Court outlawed the pro-Kurdish People’s Democracy Party (HADEP) on the grounds that it had become a center for Kurdish separatist activities. One of the party members to receive a five year ban was Hamit Geylani, the HADEP’s deputy chairman. However, in the July 2007 general election, Geylani successfully ran as an independent candidate from the Kurdish town of Yuksekova. He is now a member of parliament, although he cannot join a political party – such as the DTP, HADEP’s successor – until his five-year ban expires on July 19, 2008.

Article 109 of the Turkish Constitution states that the prime minister must be appointed by the president from among the members of parliament. It does not insist that the prime minister has to be a member of a political party. As a result, even if he did receive a five-year ban, it would be possible for Erdogan to enter parliament as an independent deputy and be asked by his former AKP colleague, President Abdullah Gul, to become prime minister at the head of a government formed from a successor party to the AKP.

To put it another way, Turkish law provides for someone to be forbidden even from being a politically inactive member of the most marginal of political parties on the grounds they represent a threat to the security and stability of the Turkish Republic. But it also allows the same person to become prime minister and effectively run the country.

“Like many things in Turkey, the law is a little bizarre here,” admitted Geylani in an interview with his local newspaper in Yuksekova. “Can you imagine? You are elected as an MP. You can conduct politics at the highest level. But you can’t even be a member of a political party. It is a big contradiction” (Yuksekova Haber, October 4, 2007).