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Friday, 24 October 2008

Turkish Constitutional Court Sets Framework For Politics

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By Svante E. Cornell (vol. 1, no. 16 of the Turkey Analyst) 

Turkey’s Constitutional Court has published its detailed reasoning in two landmark cases, in which it rejected the AKP government’s lifting of the headscarf ban in universities, and found the ruling party guilty of having undermined secularism, but stopped short of closing down the party. While the two cases have been dismissed as political, a closer reading suggests a much more complex reality. The court offers a sophisticated legal and philosophical reasoning, seeking to balance competing principles. This could suggest that the Turkish Constitutional Court is seriously beginning to step into a role as the constitutional provider of check and balances.

BACKGROUND: Turkey went through a hectic political week. On October 20, the trial in the Ergenekon conspiracy started; the day after, y, the Constitutional Court issued its reasoning in the case (decided on June 8) that rejected last spring’s constitutional amendment lifting the headscarf ban in universities. Then, on October 24, the Court issued a mammoth 770-page reasoning in an even higher-profile case (decided July 30) regarding the prosecutor general’s demand to close down the ruling Justice and Development Party. 

The Constitutional Court has long been a controversial body. Over the past decade, it has handed down key rulings with important political implications – ranging from closing down political parties with orientations deemed to reflect political Islam or Kurdish separatism, to throwing out last year on a technicality the presidential election process in which the AKP’s candidate, Abdullah Gül, was elected president by parliament. Hence, many observers within and outside Turkey have called the Court’s legitimacy in the two high-profile cases decided this year into question.

The reasoning in the headscarf case comes as no surprise, following the reasoning of a 2005 decision (Leyla Sahin vs. Turkey) by the European Court of Human Rights (ECHR), which upheld Turkey’s ban on the Islamic headscarf in universities. It found that the amendments to articles 10 and 42 of the Constitution violated the principle of secularism enshrined in the Constitution. In its detailed reasoning, the Court argued that the suggested amendment would “indirectly change and make non-functional the basic features of the republic”. The court reiterated that the use of religious symbols in university settings would generate a vehicle of pressure upon individuals that have chosen a non-religious lifestyle, or who have different political views or beliefs. 

As for the second case, the reasoning carried much greater implications, given the mixed message sent by the Court in August. In its decision released July 30, the Court did find the AKP guilty of conspiring against the constitutionally enshrined secularism of the Turkish state, and that it had functioned as a focal point of anti-secular activities. However, all the same, it found that the party’s activities did not warrant its closure, and delivered the relatively mild punishment of cutting the party’s state financing by half. (See August 29 issue of the Turkey Analyst

Four judges in the 11-member court wrote the majority opinion, as they supported the declaration of the AKP as a focal point for anti-secular activities, but did not find that these warranted the party’s closure. Six judges, just short of the qualified majority needed for a decision, actually wanted to go further and close the party; these six judges wrote a dissenting opinion, though they supported the majority opinion. Finally, though vastly outnumbered, the court’s Chairman, Hasim Kiliç, wanted the case to be rejected wholesale, and authored a dissenting view to that effect.

The majority opinion delivers a strong blow to the AKP. It finds it beyond doubt that the AKP has purposefully and over an extended period of time sought to undermine the secular principles of the republic, instead seeking to build the basis of a society ordained along religious principles. The Court decision also makes clear that Prime Minister Recep Tayyip Erdogan has been the leading force in the AKP’s efforts to undermine secularism, while also listing a number of party officials that it finds especially implicated.

In its reasoning, the Court specifically raises the headscarf amendment as an example of anti-secular activities, but also cites the systematic efforts to broaden religious education, including the party’s aggressive efforts to lower the minimum age for children to be registered in Quranic courses, and to facilitate the acceptance of graduates of religious high schools to universities. The Court also noted the AKP government’s staffing policies, especially the fact that it has given precedence to religious views over merit-based criteria in appointments to high-level positions in the state bureaucracy. In addition, the court notes the AKP government’s policy to emphasize the celebration of religious holidays over national ones.

The court’s reasoning for deciding not to close down the AKP, in spite of these findings, merits equal attention. The Court finds that the prosecution failed to prove that the AKP has “encouraged the use of violence” to accomplish its aims; or, alternatively, that the AKP had “turned into a party aiming to eradicate democracy and the rights and freedoms recognized in a democracy”. In addition, the Court noted the AKP government’s positive record in the areas of human rights, specifically the improvement of the rights of women and minorities, as well as the abolition of the death penalty.

IMPLICATIONS: Two implications stand out from the court’s decisions. First, the court’s reasoning must lead to a reassessment of Turkey’s political struggle, which has been largely perceived to be purely about power rather than principle. The court’s sophisticated reasoning, based to a large degree on European and international law, suggests that this interpretation is at best simplistic. Secondly, the court reasoning provides the framework for the AKP’s continued exercise of power. This entails that the main question determining Turkey’s near-term future will be whether the AKP accepts this framework, or whether it will seek to undermine the institutions underwriting it.


AKP Headquarters, Ankara

On the first issue, it is worth recalling that the Court’s decision had been unexpected: Almost all Turkish pundits had expected the AKP to be closed. This expectation had been based on a perception of the judicial process as entirely politicized, and as a mere formality. The logic was that the secularist state establishment had decided to destroy the AKP; rather than doing so through a military intervention, it had supposedly decided to close the party through a “judicial coup”. Erdogan and other leading AKP members would be prohibited from politics, thereby decapitating the Islamic movement and opening the door to power for forces more amenable to the secularist state’s wishes. Hence once the decision to close the party had been arrived at, the judicial process was seen as a formality. When this did not happen, a number of theories emerged, including in this publication, to explain the court’s leniency. The most popular ones featured external pressure on the secularist state institutions by Europe and the U.S.; the weakness of these institutions in the face of the AKP’s growing influence and popular support; and speculations that a form of compromise had been reached between the warring power centers in the country. 

While such analyses cannot be discounted, the Court’s reasoning does merit closer study, as it suggests both a sophisticated analysis and an attempt to weigh competing legal and philosophical principles against one another. In the headscarf case, the court rejected the AKP’s attempt to introduce a libertarian definition of secularism. The AKP has long sought to recast secularism as an issue of individual freedom of religion, as opposed to the state’s traditional definition, which emphasizes freedom from religion, ensuring that both the state and individuals are protected from religious dogma. In its ruling, the court engages in a principal argument on how secularism should be defined. This issue may seem irrelevant in the West, but it is of crucial importance in a Muslim country where the societal and political force of religion is incomparable to what is the case in Europe.

The Court’s reasoning in the AKP closure case is also principally interesting, as it acknowledges the complex and to some extent contradictory nature of the AKP. On the one hand, the reasoning acknowledges that the AKP has implemented serious reforms that have improved human rights in many areas; on the other, it makes it abundantly clear that it has indeed sought to realign Turkey’s state and society along religious lines – something that in the long run cannot fail to undermine the foundations of liberal democracy.

What is more important, both cases highlight the importance accorded by all forces in Turkey to European legal principles and institutions. Indeed, both the AKP and the prosecution have sought to rest their arguments on European legal principles. The AKP cloaks its entire program in the improvement of individual rights, and has seen Europe as the chief cheerleader in its efforts to weaken the “rigid” Turkish state. This, in turn, explains the AKP’s utter disappointment with the ECHR’s 2005 ruling. Likewise, in the closure case, the prosecutorial argument began with a long treatise on the permissibility in European and international law of the closure of political parties. And in both cases, the Court rested a solid portion of its reasoning on European legal principles. In the headscarf case, this was the ECHR’s 2005 ruling; in the closure case, it was the Venice Commission’s principles, specifically as concerns the advocacy of the use of force as a prerequisite to closing a party.

Meanwhile, the court’s reasoning carries  political implications. While allowing the AKP to continue to govern, it has effectively branded the party – and the prime minister personally – as forces seeking to undermine the constitutional order. Assuming that the jurisdiction of the Court is accepted, that  obviously serves to weaken the legitimacy of Erdogan’s personal leadership, as well as the AKP as a whole. In such a perspective, the rulings could  be said to have drawn a framework for the AKP’s continued stay in power. The headscarf ruling may effectively shelve any attempts by the AKP to unilaterally amend the constitution, let alone proposing an entirely new one. The ruling in the closure case, meanwhile, could be interpreted as a warning to the AKP. On the one hand, the court tells the AKP to continue with its democratic reforms and EU harmonization – more or less explicitly saying that those efforts saved it from closure. On the other, the court effectively warns the government that any further efforts to undermine the secular state are likely to lead to its closure. But the AKP will also be tempted to interpret the rulings of the court as an admittance of secularist weakness.

CONCLUSIONS: 
The AKP’s interpretation of, and reaction to, the court’s decisions will frame the nature of Turkey’s protracted political crisis. Simply put, the AKP has a choice. It can either accept the framework presented to it by the court for its continued tenure in power as a manifestation of checks and balances in the system; or challenge the very legitimacy of that framework. Should it choose the former option, it would be likely to return to a focus on general democratizing reforms, and to abandon, at least for the time being, its efforts to undermine the secular order. That would provide Turkey with the type of political stability that it enjoyed in the AKP’s early period in power in 2002-5.

Unfortunately, the AKP’s initial reaction has been the opposite. Prime Minister Erdogan reacted strongly to the court’s reasoning, blaming it for undermining “the will of the people”. Moreover, senior AKP representatives have threatened to undermine the Court’s powers, and to expand its membership – a not-so-veiled reference to inserting loyal AKP supporters to an expanded court and thereby gaining control over it. 

The AKP’s initial reactions make it clear that Erdogan continues to focus on a simplistic, majoritarian understanding of democracy as the will of the people, accepting no check and balances. Effectively, this indicates that the AKP has yet to come to terms with the idea of constitutional or liberal democracy – where the state institutions have the explicit purpose not of protecting the majority but of reining it in. If the government continues to pursue such a reasoning, Turkey’s political crisis is unlikely to be resolved anytime soon.

On the other hand, the recent episode has shown a level of maturity on the part of the Constitutional Court that is seldom ascribed to it. It has shown a capability of stepping into a position as the institution providing checks and balances in the Turkish political system. That is a tendency to be recognized and supported.

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