Turkey's judicial-political crisis

Kirsty Hughes
17 June 2008

Turkey's political and democratic troubles are deepening. The country's domestic problems are grave enough, but an additional complicating factor is that few of its putative friends and partners abroad are able or wish to exert a positive influence on the direction of events.

The third edition of the openDemocracy Quarterly contains a selection of our articles since 2001 on Europe's politics, identity, and future. For details and how to buy, click heThe European Union, listened to attentively until the mid-2000s, has thrown away much of its leverage after allowing its approach to membership talks with Turkey to falter. Many in the middle east and north Africa have watched Turkey closely in recent years, to see if the success of the ruling Adalet ve Kalkinma Partisi (Justice & Development Party / AKP), under the leadership of prime minister Recep Tayyip Erdogan, offered a model for a new and effective combination of Islamic beliefs with democracy. Their hopes too are on hold.

An immediate source of concern is the way that an apparently politicised judiciary is preparing to consider a case before the constitutional court to close down the ruling party and ban seventy-one politicians from party politics for five years, including both Erdogan himself and Turkey's president (and former foreign minister) Abdullah Gül. The AKP submitted its ninety-eight-page defence against the closure case on 16 June 2008 (see "AK Party submits defense, calls case political", 17 June 2008).

Kirsty Hughes is an analyst of European affairs who was formerly senior research fellow at the Centre for European Policy Studies (CEPS) and coordinator for the European Policy Institutes Network (EPIN)
Among Kirsty Hughes's articles in openDemocracy:

"Europe united?" (28 September 2001)

"A constitution for Europe: where is the real debate?" (23 September 2002)

"Zanzibar: in the eye of the storm" (9 October 2003)

"France's non, Holland's nee, Europe's crisis" (1 June 2005)

Amid the turmoil, Turkey's eastern and southern neighbours have many concerns but little influence. The United States's potential role is large but currently, in the dying days of the George W Bush presidency, unexercised. The European Union is sunk in a crisis of its own following the rejection of its Lisbon treaty by Irish voters in the referendum of 12 June 2008, and is ill-equipped at present to play a cohesive part in helping to resolve matters.

A "judicial coup"

Turkey's high court could make its ruling - on the grounds that the AKP has undermined secularism, and thus deserves to be shut down - at any time in the next six months, though September or October 2008 look most likely. The probability of such a "judicial coup", as some Turkish liberal commentators have named it, increased when Turkey's court of appeal on 5 June ruled against a constitutional amendment, passed by parliament in February, to allow female students to wear headscarves at university if they chose to. The judges deemed this law in conflict with the unassailable secular clauses of Turkey's constitution (written after the military coup of 1980).

This latest ruling has destroyed the hopes of some liberals, that a "least worst" compromise solution of the court only fining or reprimanding the AKP was possible - though even that outcome would limit and impede normal political and democratic processes (see "Beyond the veil", Economist, 12 June 2008). And if, as many think, the main target of the court case is the charismatic Erdogan himself, then under Turkey's rules, the party must be closed for him to be banned (see Katinka Barysch, "Turkey: the constitutional frontline", 14 April 2008).

No one is sure what may happen after such a closure; the constitutional court has ordered twenty-four parties to be closed in Turkey since its formation in 1963 - though this is the first time a governing party has been so targeted (see "Closure case against ruling party creates shockwaves", Today's Zaman, 15 March 2008) Some argue that the AKP will relaunch itself under a new name within days; and that its 300 remaining MPs in parliament will still be the governing party under a new prime minister (suitably, or inappropriately, "tamed" by the court case, depending which side of the argument is the more persuasive). Erdogan himself may be allowed to stand again as an independent and re-enter parliament.

A few observers argue that the derin devlet ("deep state") authoritarian secularists who deplore Erdogan and his party will not countenance such an outcome and will search for ways to block Erdogan and weaken his political support. Some suggest Erdogan may try to instigate mass protests across the country if all his other routes are blocked. The bleakest voices worry about possible violence, civil war or a new military coup.

Among openDemocracy's many articles on Turkey and the European Union:

Fadi Hakura, "Europe and Turkey: sour romance or rugby match?" (13 November 2006)

Katinka Barysch, "Turkey and the European Union: don't despair" (27 November 2006)

Gunes Murat Tezcur, "Turkey divided: politics, faith and democracy"(4 May 2007)

Gunes Murat Tezcur, "Turkey's political opening" (24 July 2007)

George Schöpflin, "Turkey's crisis and the European Union" (23 July 2007)

, "Turkey and a new vision for Europe" (12 December 2007) - a statement by leading European intellectuals

Mustafa Akyol, "Turkey's ‘Islamic reform': roots and reality" (4 March 2008)

, "Turkey's risk, Europe's role" (2 April 2008) - a second statement from a group of European intellectuals

Katinka Barysch, "Turkey: the constitutional frontline" (14 April 2008)

Cem Özdemir, "Turkey's clash of values: memo to Europe" (29 April 2008)An end to reform

At present, there seem no positive routes out of this crisis. Erdogan's reforming government, elected to office in November 2002, was by 2004 receiving plaudits from almost all directions. Then Erdogan introduced democratic and human-rights reforms, including abolishing the death penalty, seriously tackling Turkey's reputation for tolerance of torture, and even moving, albeit slowly, to improve Kurdish rights, increase civilian control of the powerful military and backing a Cyprus peace deal (then rejected by the Greek Cypriot side). At the time, one European Union diplomat labelled the AKP: "Turkey's best government for fifty years."

And the EU reacted positively to this democratic quasi-revolution, agreeing to open membership talks with Turkey at the end of 2004. But then it all went sour. By 2005, the EU and Turkey were at loggerheads over Turkey's refusal to recognise the Greek Cypriot-run Republic of Cyprus. And at the end of 2006, the EU suspended eight chapters of its talks with Turkey as a penalty for this.

The virulent anti-Turkey speeches from some EU politicians, including Nicolas Sarkozy (not least during his campaign for the French presidency in 2007), reinforced waning public and political confidence in Turkey in its hopes of EU membership. The EU consensus uniting a remarkably wide range of Turkey's disparate political forces disappeared.

At the same time, Erdogan's reforming impulse - both economic and political - stumbled. By 2007, the stand-off between what some have called Islamic democrats and nationalist secularists intensified when Gül was nominated for president in a parliamentary vote to choose the successor to Ahmet Necdet Sezer. The opposition Republican People's Party (CHP), and the secular establishment were appalled, not least at the idea of a president whose wife wears a headscarf - taken by his opponents as the key symbol of political Islam (see Gunes Murat Tezcur, "Turkey divided: politics, faith and democracy", 4 May 2007).

The military intervened too, with a critical statement on their website - earning the labels "e-ultimatum" and "e-coup". Turkey was propelled into early elections in July 2007, won with 47% of the vote by Erdogan and the AKP (see Gunes Murat Tezcur, "Turkey's political opening", 24 July 2007).

A new government was formed in September, and Abdullah Gül was duly elected president. Democracy, it seemed, had won. In Brussels, more positive voices could be heard suggesting it was time to inject new momentum into Turkey's lagging membership talks.

But the new government faltered again, mystifying and worrying Turkey's small but vocal band of liberal commentators. By February 2008, the fading of the political momentum since July 2007 was highlighted when Erdogan went along with a dubious offer from the rightwing Nationalist Movement Party (MHP) to reform only that part of the constitution banning headscarves in universities. This triggered both a court case to overturn the new headscarf law (launched by the CHP) and the case to close the AKP (launched by the public prosecutor).

Many liberal commentators denounced this political move by the judiciary while also lamenting Erdogan's misjudgments and lack of initiative. The AKP government had talked, for example, of introducing a new democratic constitution to replace the current military-inspired one, and of having a wide public debate on such changes. This has not happened. The government promised to reform the notorious Article 301 of the penal code used to prosecute writers and journalists for "insulting Turkishness" - only to wait several months before redefining the crime in April 2008 as "insulting the Turkish nation". It also banned some demonstrations scheduled for 1 May - always a potent date in Turkey's political calendar - and indulged the police violence that suppressed some of the protests that did take place. It failed to launch any new drive towards European Union integration.

There are many different views as to how best to characterise this increasingly polarised stand-off (see Gareth Jenkins, Political Islam in Turkey: Running West, Heading East? [Palgrave, 2008]). Some argue it is not so much a contest of secularism and political Islam but rather a battle of old and new elites, as the emerging businesses and conservative middle classes of central Anatolia - Erdogan's support base - challenge the long-standing supremacy of the secular, westernised business and political elites (see "Islamic Calvinists: Change and Conservatism in Central Anatolia", European Stability Initiative, September 2005). Others see it as authoritarian secularism confronting democracy, but with genuine democrats (whether inside or outside the AKP) few in number. Many bemoan the lack of a strong political opposition that should be taking up the secular argument with the AKP instead of politicising the courts.

A role for Europe

Turkey's political future is uncertain. Democracy is taking a battering; the economy is jittery; and there are no good outcomes on the table (see Soli Ozel, "An existential struggle that can have no winners", 10 June 2008).

While a few EU voices have spoken up for democracy - earning the wrath of the secular opposition who see them as supporting the AKP - Europe's political response has mostly been notable by its absence (see Cem Özdemir, "Turkey's clash of values: memo to Europe", 29 April 2008). Many in Turkey will insist that the EU's fractious approach to its membership talks with Turkey means no one is listening any more anyway.

But, if and when the governing party is closed down, the EU will suddenly find it has an unenviable role in this internal battle. Its own rules governing its membership negotiations with Turkey clearly state that if there is "a serious and persistent breach" of democratic principles, then discussions may be suspended.

Some European commission officials are already trying to talk down such a nuclear response from the EU. Against this, it is relevant that France - which holds the presidency of the EU in July-December 2008 - will be in the chair as the EU decides. Will Nicolas Sarkozy and Angela Merkel seize the moment to end the talks with Turkey, which they both so clearly oppose? (see Mehmet Ali Birand, "Turkey has a big problem called ‘Sarkozy'", Turkish Daily News, 17 June 2007). If they do, will a majority of EU member-states support them? The EU's own internal crisis over the Irish "no" vote on the Lisbon treaty is not going to help the dynamics in the second half of 2008.

The EU has no easy options. To freeze talks will be a boon to nationalists on both sides; but a weak response to a "judicial coup" will suggest the EU's concern for democracy is limited. The supporters of Turkey in the EU may find themselves arguing for an informal not formal freeze of talks - so avoiding French or German vetoes on restarting negotiations later.

Another negative by-product of an informal or formal suspension of talks would almost certainly be the torpedoing of the proposed new peace talks in Cyprus (see Costa Carras, "Cyprus in the world: beyond conflict", 5 February 2008). In principle, however, there is an open if highly optimistic possibility here: that Cyprus could (for once) be a contributor to good EU-Turkey relations by encouraging only a limited EU penalty on Turkey's membership talks, in return for Turkey not vetoing a peace agreement on the island.

The European Union has often boasted of how its successive enlargements to bring in new member-states have underpinned democracy in a series of countries, from Greece to Portugal to Poland. But its internal disputes over Turkey's candidacy have added to Turkey's political woes in recent years. If the EU is to play a positive role in Turkey's political crisis in the coming months, it will need to mobilise all its political wits and democratic convictions.

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