Publication: Eurasia Daily Monitor Volume: 5 Issue: 104

On May 30 Public Prosecutor Abdurrahman Yalcinkaya presented his response to the initial defense of Turkey’s ruling Justice and Development Party (AKP) against the application for the party’s closure which he originally he filed with the Constitutional Court on March 14 (see EDM, March 17).

In a 45-page document submitted to the Constitutional Court, Yalcinkaya repeated his call for the AKP to be outlawed and for 71 of its current and former members, including Prime Minister Recep Tayyip Erdogan, to be banned from party politics for a period of five years. Yalcinkaya did not submit any additional evidence or ask for any more members of the AKP to be banned, however, merely noting that all of the necessary evidence was contained in his original 162-page indictment of March 14.

Instead, Yalcinkaya took the opportunity to attack the AKP for harboring what he alleged was a secret hard-line Islamist agenda aimed at the eventual establishment of a state based on Islamic Shari’a law. Yalcinkaya also lambasted foreign critics of the closure case, particularly the EU and the US, which he characterized as “imperialists” seeking to erode Turkey’s national sovereignty by using “collaborators” such as the “fundamentalist” AKP and Turkish liberals who “claimed to be intellectuals” (Milliyet, Radikal, Vatan, Hurriyet, May 31).

The AKP submitted its preliminary defense in the closure case on April 30. It now has one month to submit its final defense to the Constitutional Court. It is entitled to ask for more time, although Erdogan has already indicated that he is eager for the case to be concluded as quickly as possible. Once the AKP has submitted its final defense, the Constitutional Court may ask members of the party to appear before it to respond to the charges, answer supplementary questions and clarify any parts of the written defense that are unclear. This process is currently expected to be concluded in July, after which the rapporteur of the Constitutional Court will draw up a report based on the evidence submitted. The report will then be distributed to the 11 members of the court for their consideration.

Under Turkish law, a political party can only be outlawed if seven of the members of the Constitutional Court vote for its closure. Eight of the current members of the court were appointed by Ahmet Necdet Sezer, a staunch secularist who served as president of Turkey from 2000 to 2007. As a result, the general expectation in Turkey is that the court will eventually vote to close down the AKP, probably in late 2008.

Later this week, probably on June 5, the Constitutional Court is expected to rule on an application by the main opposition Republican People’s Party (CHP) for the annulment of the constitutional amendments introduced by the AKP on February 9 to try to lift the ban that currently prevents women from wearing the Islamic headscarf from attending the university (see EDM, February 11). The amendments are widely assumed to have been the trigger for Yalcinkaya’s application of March 14, in which he described the AKP as having become a center for “anti-secular activities” (see EDM, March 17). If the Constitutional Court accepts the CHP’s application and annuls the constitutional amendments on the grounds that they violate the principle of secularism which is enshrined in the country’s constitution as one of the unalterable characteristics of the Turkish state, the closure of the AKP will become almost inevitable. It would also be possible, however, for the court to decide that the application falls outside its jurisdiction, arguing that it is empowered only to rule on what does, or does not, violate the constitution, not amendments to the constitution.

The AKP still does not appear to have formulated a strategy in preparation for its possible closure. As the result of a loophole in Turkish law, even if the Constitutional Court decides to ban Erdogan from membership in a political party for five years, he would still be able to stand for parliament as an independent. The assumption in the AKP had been that, if the party is eventually outlawed later this year, those not included in Yalcinkaya’s list would be able to retain their seats in parliament and become members of whatever new political party is established to replace the AKP. Although any of the deputies on Yalcinkaya’s list who were banned from membership in a political party would automatically lose their seats, it had been assumed that they would be able to return to parliament by standing as independent candidates in the resultant by-election. Consequently, after only a brief interlude, Erdogan would be able to return to parliament and continue to serve as prime minister at the head of essentially the same government.

However, in an article in the acerbically anti-AKP daily Cumhuriyet on May 30, Sabih Kanadoglu, the honorary chief prosecutor of Turkey’s Supreme Court of Appeals, argued that if any of the deputies on Yalcinkaya’s list are banned, they will be unable to stand as candidates in a by-election in the same parliamentary term. In other words, if Erdogan is banned, the only way he could re-enter parliament as an independent would be if there were a new general election (Cumhuriyet, May 30).

At first sight, Kanadoglu’s assertion does not appear to be based on an explicit statement in Turkish law. In the past, however, he has proved better than most at predicting the often bewildering logic of the Turkish judicial system; most notably in spring 2007 when he foresaw the ruling by the Constitutional Court, on extremely dubious legal grounds and contrary to precedent, that parliament had to have a quorum of two thirds of its members in order to elect a president.

If nothing else, Kanadoglu’s article in Cumhuriyet has added yet another element of uncertainty to Turkey’s ongoing political crisis, which now looks as if it could extend well beyond the ruling by the Constitutional Court in the AKP closure case.