http://weekly.ahram.org.eg/2008/920/re5.htm
30 October - 5 November 2008
Issue No. 920
Published in Cairo by AL-AHRAM established in 1875
Turkish 'democracy'?
The debate in Turkey over the political role of the country's highest court
masks an underlying struggle between two undemocratic forces, reports Gareth
Jenkins
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Click to view caption
Turkish police arrest university students who protested against the
ruling Justice and Development Party's policy on Universities in Istanbul
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The publication last week of the reasoning behind two recent decisions by
Turkey's Constitutional Court has triggered another furious debate about the
state of democracy in the country.
On 9 February, the government of the moderate Islamist Justice and Development
Party (AKP) attempted to amend the Turkish constitution to lift the ban which
currently prevents women wearing headscarves from attending university. On 14
March, Abdul-Rahman Yalcinkaya, the public prosecutor at the High Court of
Appeals, applied to the Constitutional Court for the closure of the AKP on the
grounds that it was trying to erode secularism, and based his case primarily on
the party's attempts to lift the headscarf ban. On 5 June, the Constitutional
Court annulled the AKP's attempt to amend the constitution. On 30 July, it
voted by 10 votes to one that the AKP was guilty of trying to erode secularism
but opted to punish it with a $20 million fine rather than shutting the party
down. But it was only last week that the court published the reasoning being
its decisions.
In making decisions, Turkey's Constitutional Court often appears to follow a
logic of its own. For example, in the reasoning published in the country's
Official Gazette last Friday on the AKP closure case, it accused the government
of abusing religion by attempting to shape the public sphere according to
Islamic principles. But it cited the AKP's strong performance in the last
general election in July 2007, when the party won 46.6 per cent of the popular
vote, as one of the reasons why it had decided to impose a fine rather than
close the AKP down.
This would appear to imply that a party which had performed poorly in an
election -- and was thus less able to do anything -- should receive a harsher
punishment than one which was actually in a position to implement its alleged
agenda. Or at least that the court was intimidated by a party which could in
the future clip its wings.
Under Turkish law, the Constitution Court can only rule on whether or not
constitutional amendments have followed correct procedures, not on their
content. However, in the published reasoning, the court didn't claim any
procedural errors. It voted by nine to two to annul the amendment simply
because those nine officials didn't happen to like headscarves.
The publication of the court's reasoning triggered a justifiable outcry amongst
the AKP's supporters who accused it of exceeding its authority and setting
itself up as the ultimate arbiter of political authority in the country. AKP
Spokesperson Cemil Cicek even announced that the government would begin work on
plans to reform the Constitutional Court in order to remove its political
influence and ensure that it fulfilled only a judicial and regulatory role.
The court's bald admission that it was taking a political rather than strictly
judicial decision came as a complete surprise to AKP supporters, despite its
role in outlawing the country's Kurdish parties and four of AKP's predecessors
on blatantly political grounds. All that has changed since the military's
humiliating failure to prevent Abdullah Gul from becoming president last year
is that the court has assumed even greater importance in what is now a
rearguard campaign by the establishment to preserve its rigid definition of
secularism.
One of the main weaknesses of Turkish democracy is the lack of an effective
system of checks and balances. The country has only one parliamentary chamber
and the presidency has very limited powers.
The debate about headscarves and secularism has distracted attention from
worrying signs that the AKP in general and Prime Minister Tayyip Erdogan in
particular are becoming increasingly authoritarian. As long ago as summer 2004,
Erdogan famously told AKP deputies who complained that they were not being
allowed time to debate legislation in parliament that the laws had already been
finalised by his advisors and that their only function as members of parliament
was to approve them.
Since the AKP's July 2007 election victory and the elevation to the presidency
of Abdullah Gul -- who had previously been one of the few ministers to stand up
to Erdogan in Cabinet -- Erdogan's authoritarian tendencies and intolerance of
criticism have become more pronounced. Corruption and nepotism have now reached
the levels perpetrated by the AKP's predecessors. Yet the only successful
prosecution of someone close to Erdogan occurred in Germany, where some of his
close associates were convicted of embezzling millions of euros from an Islamic
charity called Deniz Feneri.
In contrast, the AKP has had little hesitation in using its growing influence
in the judicial system to pressure the party's opponents. Last Monday, the
trial opened of a gang of secular ultranationalists known as Ergenekon, which
was set up by retired members of the security forces to try to destabilise the
AKP through a campaign of violence. There is no question that the gang posed a
real, if relatively minor, threat to public safety. But the pro-AKP public
prosecutor has used it as an excuse to imprison some of the AKP's most
outspoken opponents on charges of being members of the gang, even though there
is no evidence to suggest that many of them even knew that Ergenekon existed.
The Turkish Capital Markets Board (CMB), which is now dominated by political
appointees, had refused to act on a report detailing irregularities in Deniz
Feneri. On the contrary, Erdogan recently called on AKP supporters to boycott
newspapers owned by the Dogan Group after they began publishing evidence of
corruption involving party members, prompting the CMB to initiate criminal
proceeding against the group on charges of falsifying invoices for business
transactions between its companies.
As a result, although many of the accusations levelled against the
Constitutional Court by AKP supporters are valid, the real battle now taking
place in Turkey is not between democratic and undemocratic forces, but between
two fundamentally undemocratic ones, each prepared to use its juridical clout
to pursue its own political goals
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