Publication: Eurasia Daily Monitor Volume: 5 Issue: 50

The application by Abdurrahman Yalcinkaya, the public prosecutor at the High Court of Appeals (Yargitay), to the Turkish Constitutional Court for the closure of the ruling Justice and Development Party (AKP) has initiated what appears likely to be a period of sustained uncertainty amid the most serious domestic political crisis in a decade.

At 16.30 local time on March 14, Yalcinkaya presented Hasim Kilic, the head of the Constitutional Court, with a 162-page indictment calling for the AKP to be closed on the grounds that it had become a focus of anti-secular activity. He called for 71 members of the AKP to be banned from political activity, of whom 38 are currently members of the parliament. The list included Prime Minister Recep Tayyip Erdogan.

The indictment arrived too late for it to be processed before the weekend break. However, it will now be copied and distributed to all 11 members of the Constitutional Court, who will assess whether it complies with procedural requirements and falls within the court’s remit. Both are expected to be formalities (CNNTurk, NTV, March 14; Radikal, Milliyet, March 15). Once the indictment has been formally accepted, the AKP will have one month to present its defense. Yalcinkaya will then present his evidence. In the past, such cases have typically taken 10-12 months to reach a conclusion. Under the Turkish Constitution, at least two-thirds of the 11 members of the Constitutional Court have to approve the indictment in order for the AKP to be banned.

Although there had been speculation that Yalcinkaya might eventually call for the AKP’s closure, no one thought that an indictment was imminent. The announcement on March 14 took everybody by surprise, not least the AKP.

In the indictment, Yalcinkaya accused the AKP of attempting to undermine the principle of secularism, which is enshrined in Article 2 of the Turkish Constitution as one of the defining characteristics of the Turkish Republic. Article 69 of the constitution obliges political parties to conduct their activities in accordance with these defining characteristics. If they do not, they face closure by the Constitutional Court following an application by the Yargitay Public Prosecutor. Yalcinkaya’s application is not without precedent. A total of 26 political parties have been closed down by the Constitutional Court in the last 40 years. The AKP’s predecessors, the Welfare Party (RP) and Virtue Party (FP), were banned by the court in 1998 and 2001, respectively.

The Yargitay routinely monitors the activities of all political parties in Turkey. In his indictment, Yalcinkaya cited evidence – mostly speeches by party members – going back to the foundation of the party in 2001. However, the trigger for the indictment appears to have been the AKP’s recent clumsy attempts to lift the headscarf ban in universities (see EDM, February 25). But Yalcinkaya’s main target seems to be Erdogan himself. In the indictment, Yalcinkaya cites 61 different pieces of evidence – more than for any other of the 71 accused – that he claims demonstrate Erdogan’s attempts to undermine secularism. Most occurred after the AKP first took office in November 2002. However, Yalcinkaya also included speeches made by Erdogan in the mid-1990s, when he was a member of the RP.

The indictment has provoked a predictably angry response from Erdogan. Speaking at a meeting of the AKP’s local youth branch in Mardin on March 16, Erdogan rejected the accusations that the AKP was seeking to undermine secularism and warned Yalcinkaya that he, rather than the AKP, would be the one to suffer from the indictment (Yeni Safak, Hurriyet, Milliyet, Radikal, Sabah, March 17).

The indictment has also been condemned by many NGOs inside Turkey and both the U.S. State Department and the European Commission (EC). In a clear reference to the possible impact that the crisis could have on Turkey’s already fading hopes of EU membership¸ EC Commissioner for Enlargement Olli Rehn warned: “In a normal European democracy, political issues are debated in parliament. The executive shouldn’t meddle in the courts’ work and the legal system shouldn’t meddle with domestic politics” (Turkish Daily News, March 17).

However, one of the problems is that Yalcinkaya has based his indictment not just on Turkey’s admittedly often draconian laws but also on rulings by the European Court of Human Rights (ECHR). Not only did the ECHR rule that the Turkish Constitutional Court’s closure of the RP was justified, but it also issued a ruling supporting the headscarf ban in universities. Ironically, it was the EU which, a few years ago, pressured Turkey to amend its constitution to include an explicit statement that international treaties and rulings by international bodies of which Turkey is a member should always take precedence over domestic law.

In Turkey, there has often been a difference between being in office and being in power, as the Turkish establishment – particularly the judiciary and the military – has frequently imposed restriction on elected governments. For many in the AKP, even though the party took office in November 2002, it was only its landslide victory in July 2007 – which was achieved despite the outspoken opposition of the Turkish General Staff – that finally brought it to power. During its first term, the AKP had always been looking over its shoulder and had hastily withdrawn several controversial initiatives after receiving warnings from the Turkish military. But since July 2007, apparently intoxicated by winning nearly half of the popular vote, the AKP has been confident to the point of carelessness, pushing ahead with poorly thought out initiatives such as its attempts to lift the headscarf ban and without guarding itself against the possible consequences.

In many ways, the current crisis is as much a product of incompetence as any ideological agenda. For example, on March 17, the pro-AKP daily Yeni Safak announced that the AKP would now try to amend the constitution to remove the public prosecutor’s ability to file applications for the closure of political parties (Yeni Safak, March 17). But, even if it is passed, such an amendment would take weeks, by which time the Constitutional Court is likely to have started hearing the case against the AKP. It would also reinforce suspicions among the AKP’s opponents that the party is only interested in rights and freedoms for its own opinions and values. After all, even if it expressed its disapproval, the AKP made no such attempt to take away Yalcinkaya’s powers when he filed a case for the closure of the pro-Kurdish Democratic Society Party (DPT) on November 16 (see EDM, November 19).

Although it is currently unclear what the Constitutional Court will decide, it is difficult to envisage a positive scenario. It is possible that the court will find some reason not to hear the case, but it seems unlikely. If it hears the case and eventually decides not to allow the AKP to continue to function, then Turkey still faces 10-12 months of uncertainty. But the closure of the AKP would create even more uncertainty, particularly if Erdogan is also banned from politics. Such is his control over the AKP (see EDM, February 15) that is difficult to envisage the current members of the AKP being able to unite in a new party under anyone else’s leadership; and a plethora of parties would leave Turkey facing the prospect of a return to the fractious coalition governments that have dogged so much of its recent history.