'Court will accept AK Party case on ideological grounds'

The Constitutional Court will accept the recent indictment against the ruling AK Party not because of its legal merits but because the case is highly politicized, Mustafa Şentop, an instructor at Marmara University Law Faculty, says.

'Court will accept AK Party case on ideological grounds'

Mustafa Şentop, an instructor at Marmara University Law Faculty, says the Constitutional Court will accept the recent indictment against the ruling Justice and Development Party (AK Party) not because of its legal merits but because the case is highly politicized.

"It is possible to reject an indictment because it has some deficiencies, but the indictment can be resubmitted to the court if those gaps have been filled," Şentop says. On Friday Turkey's Constitutional Court received its rapporteur's opinion on the recent bid to close the AK Party on charges of undermining the country's principle of secularism, amid government preparations to fight closure through constitutional amendments.

Legal specialists have voiced differing opinions on whether the court will hear the case or ask the prosecutor to provide more evidence, as the rapporteur presented both options as possibilities. According to Şentop, the court will definitely accept the indictment because it is ideologically based.

"Secularism, as defined in the indictment, is not a universally accepted secularism. It is secularism as the Constitutional Court has previously defined it through ideology. This ideology has been drawn by the high court judges. This secularism is not a judicially accepted concept. It doesn't exist in the Constitution. Therefore, there is no sense in discussing whether or not there is evidence for the accusations," he explains.

For Monday Talk, Şentop further explains the political nature of the closure case, the AK Party's "sins" and where Turkish politics is headed.

What is the current political environment in Turkey following the closure case against the AK Party?

In Turkey, up until the 1950s there was a single-party system in which the state and the bureaucracy were unified with a political party, but with the transition to a multi-party system, the political elite were disconnected from the bureaucratic elite. It has been proven over time that in a multi-party system the majority of people prefer to vote for parties that are not allied with the bureaucratic elite. Following the 1960 military coup, a system that would allow for the control of governing parties was established, meaning a weakened Parliament with two chambers. A Constitutional Court was established which in practice operates to restrict most basic freedoms, instead of protecting them as in most democracies. But still, without exception, people supported the parties that stood against military coups. The AK Party today seems to match this description. And we again have the bureaucratic elite that cannot digest this fact.

Take the "e-memorandum" and the 367 criterion, for example. The first one was from the army and the second was brought about by the Constitutional Court last year during the process that led to the presidential election.

Following an April 27 e-memorandum that attempted to discourage the AK Party government from nominating a candidate from its ranks, the judicial establishment approved an unprecedented "367 criterion" for the presidential election procedure as a result of an unusual interpretation of the Constitution. Such a decision by the Constitutional Court convinced public opinion that the judiciary is not impartial and that it has become highly politicized.

Do you think the closure case is highly politicized, too?

Yes, indeed. Party closure cases have never been legal issues, not just in Turkey but throughout the world. The 2002 election results have not yet been digested by the bureaucratic elite, which is accustomed to enjoying power without the need for elections. On top of that came the July 2007 election results, seriously shaking the bureaucratic elite's power. The closure case is a way of getting even with the AK Party. It is highly political. It aims at showing who is in charge. And we cannot say that we should not talk about it since a judiciary process is ongoing. On the contrary, we should talk about it because it is a politically charged case. It's an attack on the government. The purpose is to leave the prime minister and his close aides out of the circuit. This is the project, this is a political project. It's a known fact that after party closures in Turkey, new parties are formed. And again they have the majority. Therefore, the government's strategy should be political as well.

How do you think it should proceed?

As far as the judiciary's steps have been concerned, the government's abilities are limited in the sense that its only option is to present its defense. However, I suggest not submitting a defense.

Why not?

Because of the political nature of the closure, the response from the government should be political not judicial. Preparing a defense requires evaluating each charge in the indictment and preparing an argument against it -- in a way, you take the charges seriously by arguing against them. The AK Party may prepare a short legal statement opposing the closure of the party, but it should not respond to each accusation. Another option is to make an amendment to the Constitution to change the rules in regard to the closure of political parties.

Some articles of the Constitution were changed in 2001 to make party closures harder, right?

The Constitution has been amended, but it is still open to interpretation. Articles 68 and 69 of the Constitution stipulate that citizens may form or join political parties without prior permission from the government. However, political parties must act according to the principles of the Constitution and may be dissolved by the Constitutional Court if that body determines that activities conflict with the state's indivisible integrity.

Can the government change the Constitution with the party closure case already in process?

Yes, they can and there are no legal limitations preventing that. And we have had examples of these kinds of changes in the past. Courts need to comply with the latest regulation in the Constitution.

What do you think of the idea of using a referendum to change the Constitution? Could it be 'gambling,' as opposition Nationalist Movement Party (MHP) leader Devlet Bahçeli put it?

I think there should be a referendum accompanying the constitutional change because it would show how the public sees closure cases against parties. This is an important political attitude. No matter what political party they represent, politicians should be supportive of this idea as well.

Do you think it might be a good idea for the AK Party to cooperate with the MHP to change the Constitution?

The MHP leader made statement asking for the punishment of individuals rather than parties. Many observers have wondered whether he has plans to cast out the prime minister and his political comrades from politics. But I don't think the MHP's proposal is worrisome. The AK Party can find a common ground with the MHP when it comes to changing the Constitution and making party closures more difficult.

The MHP is strongly against the Democratic Society Party (DTP), which is also facing a closure case…

The MHP wants to close down parties if they are proven to be supporting terrorism and violence, which are not part of the principles of the AK Party. Indeed, these principles are universally accepted as reasons for party closures. But "supporting terrorism" shouldn't be open to interpretation. This should be backed by hard evidence.

Don't you think the government gives the impression that it is prone to making reforms only when it is hurt, but not before?

I think the AK Party has made serious mistakes. It has taken important positive steps and changed many laws in the accession process to the European Union, but the party has been arbitrary and full of contradictions. First of all, if the AK Party had made a systematic effort toward establishing a state in which the rule of law prevails, it wouldn't be faced with a closure case today. The Constitution contradicts some of the laws that have been adopted recently.

What other mistakes can you think of?

They have also had a self-confidence problem, which can be seen in many political parties that came before. In Turkey, governments come to power by the votes of the people, but they still have doubts about the power of the votes and they worry about whether they will be able to govern solely on public support. Therefore, they tend to get close to the unelected power holders, the elite.

There is another closure case against the DTP…

I think the AK Party has been mistaken by not talking to members of the DTP. In my opinion, the reason behind why the AK Party has behaved this way is that they wanted to appeal to the powerful elite. The prime minister should have talked to the DTP members, who should be accepted as innocent unless proven otherwise. But the closure case against the AK Party differs from the closure case against the DTP.

How do you think the closure case against the AK Party differs?

If the AK Party had received 15 percent of the vote in the election, it would be different. Now we have a closure case against a party that received 47 percent of the vote. The closure case is a power struggle about who holds the real power in Turkey.

What happened to the civilian constitution? Can the AK Party take it up and start working on it right away to erase the impression that it is making reforms for its own sake?

The real reason there is a closure case against the AK Party is that the elected government has the power to change the Constitution and the power elite have seen this. Many think removing the ban on the headscarf at universities triggered the closure case, but that is only one thing. When it comes to changing the Constitution, it is a long-term process. It hasn't even been discussed outside of the AK Party yet. Other political parties and the public need to discuss it too. Now the more urgent problem is the closure case against the AK Party. They need to consider two options.

What are these options?

The AK Party has to reach the understanding that Turkey's problem is a lack of democracy and rule of law, not the economy. They have to say they have seen it, especially after the closure case. Therefore, they have to amend the Constitution to make party closures harder. This does not benefit just the AK Party, but others as well. In the middle term, the AK Party should prepare a package for constitutional change that would involve removing restrictions on basic human rights and freedoms.

Don't you think a quick act to remove Article 301 of the Turkish Penal Code (TCK), which restricts freedom of speech and criminalizes insulting state institutions, would help at a time when it has become synonymous with the whole problem of freedom in Turkey?

Article 301 issue is not a separate issue from the issue of basic human rights and freedom that we've just talked about. The AK Party has mixed feelings about it. Since the unelected bureaucratic elite don't support the removal of Article 301, the AK Party doesn't want to rock the boat. Our problem is not only related to Article 301. In Turkey, the judiciary would find other articles to replace 301 if they want to make accusations in that regard. We need a holistic approach to the issue of freedom in Turkey.

Mustafa Şentop

Şentop teaches at the Marmara University Law Faculty. Starting his higher education at the Bosporus University Public Administration Department, he went on to study law at the İstanbul University Law Faculty, graduating in 1991. He completed his graduate studies at the Marmara University Institute of Social Sciences in the public law department and became an associate professor in 2005. He specializes in history of law, philosophy of law and the relationship between politics and law, and writes on these subjects in various newsweeklies and newspapers.

Today's Zaman

Last Mod: 31 Mart 2008, 08:10
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