Despite the incisive logic behind the proposal, it seems unlikely that AKP will take the ESI up on the deal and will instead attempt to amend the party closure law of the current constitution. The move is no doubt safer for AKP, which would have a great deal to lose should such a quick move spark a military coup of the 1980 variety. If this were to happen, it is unlikely that the party would be able to re-group. AKP is made up of plenty of politicians who have experience at such re-grouping following the party closures of RP and FP and is seeming ever more keen to regroup under the current system than to change it completely. I concur with the ESI finding that AKP would be benefited by taking a more offensive stance toward its closure and one that would further democratization in the long-run, but am hesitant to endorse a move as bold as pushing the new constitution to referendum so quickly.
The most disheartening phenomenon underlying the AKP's recent moves are its large compromises in the realm of human rights. The proposed reform to Article 301 can hardly be viewed as a fix and the recently passed Foundations Law is hardly a wholesale solution to discrimination against religious minorities. Even the headscarf amendment was in large part a compromise designed to capture the 2/3 majority required to pass a constitutional amendment through Parliament. Although the türban legislation was pushed with much fervor AKP other items on AKP's agenda, the legislation could have categorically granted all citizens to attend university regardless of apparel and not left it up to other law to define which headscarf fashion-of-the-day is permitted and which is not.
In the end, yes, reform has been slow and tortuous, but largely thanks to the significant opposition AKP faces from opposition parties. However, if we take a look ten years back to the years following the "post-modern" coup, we might draw a different conclusion. Turkey seemed further away from the EU than at any other time since Özal submitted its application for membership. If too bold a move is made and a coup prompted, this progress would surely be brought to an end. Turkey has made tremendous gains since AKP came to power in 2002, but consequently, it also has much to lose.
Excerpted below is the final section of ESI's report.
A DEMOCRATIC CHOICE FOR TURKEY?
On 31 March 2008 the 11-member Constitutional Court decided unanimously to hear the full case for the dissolution of the AKP. This is an ominous sign, and it leaves the Turkish government and Turkish supporters of European integration with a limited number of choices. But there still are choices and some are much better than others.
Essentially, there are three options open to the AKP:
Await the judgement and trust in the fairness of the Court;
Negotiate or push through constitutional changes to make closing down the AKP more difficult;
Pass a new liberal constitution that both makes closing down parties more difficult and breaks with the model of authoritarian (and limited) democracy that is at the heart of the post-coup 1982 constitution.
The AKP could, of course, resign itself to its fate and await the judgement of the Constitutional Court. It would then prepare its defence, trusting in the integrity of the Turkish judicial system.
This is, however, a high-risk strategy. It is also likely to fail. There is growing determination within the party to resist, using the instruments at its disposal: a more than 3/5 majority in the parliament and its continued popularity among the Turkish electorate.
A second option already discussed inside the party is to attempt to block its dissolution through amendments of those articles in the Constitution that govern the dissolution of political parties. There is already talk of "fierce bargaining" between the AKP and the nationalist MHP to find "compromises" in Ankara. There are, however, many problems with this strategy.
It is in fact highly unlikely that the AKP will find allies in parliament. If it does not and passes the changes itself, it will need to go to a referendum. If the referendum is seen to be only about a change to protect the AKP, but not about a wider reform of the constitution, it is not clear that the party will be able to mobilise the strong support required to resist the judicial assault. The real problem does not lie in specific paragraphs of the constitution. It lies in the concept of a constitution drawn up following a coup and "protected" against elected representatives by self-appointed and unaccountable elites with a clear ideological agenda.
This leaves a third choice. It is the boldest, the most visionary and the most constructive. It means playing offence, not defence, in a game where the other side continues to want to change the rules and control the referee at the same time: to turn this into a matter of principle and to reconstruct a broad alliance.
It is the option advocated by all those in Turkey who see this confrontation as the perhaps inevitable but probably decisive battle between an authoritarian mind-set and a future democratic and pluralist Turkey. Umit Kardas, a former military judge and today critic of the military's political influence argues that:
"the AK Party has to do something both for democracy and for its own survival. It should promise a method that would open the way for complete democratisation and freedoms. This is a fight. Turkey has now entered into a process of settling of accounts between two camps. One of the two camps will lose. If the other side wins, Turkey will enter a period of being shut off from the outside world."
It is crucial that AKP regain legitimacy among the disillusioned liberals who had supported the Party, believing it had a principled stance and would move forward forcefully on reforms and freedoms that would benefit wide segments of the society. As long as they see AKP working for its own survival at the expense of other legitimate demands for change, they will not jump back on the bandwagon. In Kerim Balci's words:
"Through their unwillingness to cope with the undemocratic forces, disclosed in their lack of determination to investigate the dirty relations of the state organs and mafia, they brought about their own ends. The government's latest willingness to dig into the depths of the Ergenekon junta is first of all late. It is not only late, but its incentives are ill-perceivable. Though the government was late, this doesn't mean that it deserves to be abandoned. It is our duty to support the government in stepping forward in the face of the Ergenekon junta, but it is the duty of the prime minister to make us believe (and keep his word) that he will step further steps on other freedom-related issues as well."
Therefore the most effective choice for the AKP is to reconstruct the broad pro-democracy, pro-European alliance that the party has benefited from and led between 2002 and 2004. And the best way to do this is to pass a new constitution to finally break with the legacy of the 1980 coup, while vigorously pursuing the Ergenekon investigation.
The new liberal draft constitution drawn up by the Ozbudun commission already has provisions that make party closure more difficult then the current practice in Turkey, which cries out for reform. But it also offers more liberties to minorities, reassures liberals and modern secularists about the European direction of AKP-policy.
The AKP has the necessary votes to adopt the Ozbudun draft. It will then have to put it to a popular referendum. Such a course would pose a very clear choice, to the Turkish electorate and to the rest of the world.
Some might think this is too risky. Such a referendum might be interpreted as a referendum on secularism. In fact, it would be a referendum on democracy. It would also be a referendum on Europe. There are some who urge "all parties" to take a step back, for fear that that a real coup might take the place of a soft, judicial one. They feel that the country could not bear the tension of a democratic confrontation.
But there is really no choice. It would also be highly risky to allow, what is effectively the disenfranchisement of the majority of the Turkish electorate, to go ahead. What signal does it send to the electorate when in an area like Diyarbakir – already tense – the parties of all elected MPs are dissolved (AKP and DTP)? Is this the signal from the Ankara establishment to people east of the capital that they need not even bother to vote?
If the government put its mind to it, it could rebuild a sufficiently broad coalition. The AKP has managed to do so before, including in the run-up to the 2007 elections. The EU should also lend its strong support to the pro-reform camp.
The best way of doing so is to make clear that a fully democratic Turkey would be heartily welcomed as a member in the future; that Turkish democracy matters to the EU and the wider Europe; and that the fate of Turkish democrats does not leave the EU cold.
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