A Comprehensive Solution?

Today's Zaman reports that AKP is planning to include amendments regarding party closure in a larger package of constitutional amendments that will address an array of issues in the Turkish political system and hopefully bring the country in greater harmony with EU law. The package is speculated to not just address party closures, but also immunity for government officials, the office of an ombudsman by which complaints against the state may be solved, and even revision to Article 301.

Amendments to Article 68 and 69 of the Constitution had been discussed before the Constitutional Court accepted the AKP closure case on Monday, but seemed to have reached a deadlock. It is hardly likely that AKP will be able to push forward the new constitution it had planned to adopt this year in time to save itself from closure. Although AKP had designated a commission of legal experts and academics to draft the Constitution under the direction of Professor Ergun Özbudun following its July victory (see previous posts), the new mini-amendment package seems the logical consequence of how the democratization encompassed in that draft will be executed until the AK closure case is resolved. Most importantly, a larger package of democratic reforms might also provide more ground under which opposition parties might unite to solve the party closure issue. It seems also that AKP might also be motivated to include the party closure reforms as part of a larger package to save face so that any such amendment package will not seem a specific attempt to save itself, but rather be directed toward the larger aim of strengthening democratic institutions in the long-term.

CONTEMPLATING PARTY CLOSURES

Although the details of the new package will likely change as AKP seeks to negotiate the details with opposition parties (most principally MHP), it is likely that the party closure amendments will include a revision of the circumstances under which political parties may be legally closed. MHP has insisted that provisions be kept in place so as to allow for the closure of DTP. The Kurdish DTP is alleged by MHP to be linked to the PKK and to harbor separatist aims. No matter how incorrect this assessment of DTP, it is unlikely that MHP will come to any sort of agreement with AKP unless strong measures are put in place to allow the Chief Prosecutor to move against DTP (which MHP is hell-bent on closing). Chief Prosecutor Abdurrahman Yalçınkaya's indictment of DTP last November accused the party of being involved in terrorist activities and of having links to the PKK.

Key to changing the criteria for closure is its embrace of the so-called 'Venice criteria' that require parties can only be closed if they “advocate the use of violence or use it as a political means to overthrow the democratic constitutional order, thereby undermining the rights and freedoms protected by the Constitution.”

Other possible reforms include requiring that the Chief Prosecutor attain approval by the Parliament or another institution in the government before filing a closure case with the Constitutional Court. There is much to debate as to what institution the Chief Prosecutor should be required to seek consent and the matter will be left to negotiations.

Further, an idea has also been proposed to change the number of judges required to consent to a party closure. Currently, at least seven judges must agree to close a party and it is possible that the amendment package might raise this number and therefore make it more difficult for the Constitutional Court to close AKP. Earlier proposals to change the law had included provisions that might even require unanimous consent of the Court to ban a political party, but these now seem to be off the table. They had also included talk of a provisional article that would might be tacked onto the Constitution outlawing party closures altogether and/or cancelling cases currently standing before the Court (see March 21 post). It seems the primary thought for casting aside these ideas was that it was thought this was asking too much of MHP and would hinder an agreement between the two parties. However, amending the Constitution to increase the number of judges needed to close a party by one or two might still appease MHP in that the solution might save AKP while damning DTP, extracting a minimum amount of reform all the while saving AKP and allowing MHP to use their assistance as a bargaining chip so as to gain concessions from AKP in relation to other issues.

The earlier constitutional draft prepared by AKP's academic committee and which has long since fallen to the wayside only proposed a slight amendment on party closures. The measure required that the Chief Prosecutor first warn the party before it files its case with the Constitutional Court. As Mithat Sancar, a constitutional law professor from Ankara University, told Today's Zaman, such a change will have little effect. What is needed is a drastic revision to the way in which the Turkish state deals with party closures and such a change should happen quickly. If AKP is to save itself by this means, it is necessary that the party either come to a compromise with MHP (as CHP and DSP express no desire to work with CHP on the issue) or to take the amendments to referendum. This would likely happen in June or July after AKP tries to push through the package on its own sometime in May. However, the significance of including the party closure amendments in a large package suggest that AKP is reluctant to do this and that it will try over the next few weeks to reach a comprehensive solution with other parties in Parliament.

POLITICAL BANS AND THE IMMUNITY ISSUE

The major sticking point in the discussions between AKP and MHP is how to deal with the immunity of parliamentary members. MHP is seeking that amendments include eliminating immunity currently granted to parliamentary members under Article 83. AKP has expressed willingness to compromise on the issue, but argues that immunity should also be lifted for members of the judiciary and bureaucracy.

The parliamentary immunity issue is associated with the long-lived practice of banning politicians from politics. AKP's hope is that amendments might re-work such political bans. This practice is interesting in that even when politicians are banned, they are still often working behind the scenes. This was the case when Erdoğan was banned following 1997's 'post-modern' coup. Although he was not publicly visible, he was very much involved in the creation of the Virtue Party. The same is true of Gül who was banned from politics up until the time AKP came into office in 2002 and he was appointed foreign minister by Erdoğan. AKP had suggested the rather confused practice be revised so as to prevent politicians from running in the next elections rather than being banned from politics and disallowed to participate in the formation of new parties.

MHP has a different approach. The party contends that bans for politicians should remain a part of Turkish political life, but that they should occur apart from the procedures currently in place. According to MHP, parliamentary deputies should be punished for illegal actions and such penalties might include banning the deputy from politics. Under current law, parliamentary immunity can only be lifted if the deputy's party is closed by the Constitutional Court. In this case, the Court can then ban the deputy from politics. MHP argues that parliamentary immunity should be completely removed and that deputies should be held responsible for any illegal acts their party might have committed. This would shift accountability toward individual deputies rather than the party. It would also likely mean that deputies might be banned from politics independent of a closure case.

Intent to change the law so as to save "the list of 71" drawn up by Yalçınkaya, it has not been foreseeable that AKP will give into this command. Saving its members from political bans is in many ways more important to AKP than saving the party itself. AKP is reportedly content work around this concern and compromise on the issue. Any such compromise would need to address what will happen in regard to the political bans the Chief Prosecutor is currently seeking the Constitutional Court to issue against "the list of 71." In recent days, MHP leader Devlet Bahçeli has continued to emphasize the party's opinion that it is important that parliamentary members be held to account for actions taken when participating in government duties. This is no doubt connected to the DTP and Bahçeli's desire to see DTP deputies prosecuted once stripped of parliamentary immunity. Lifting parliamentary immunity is not a new issue in Turkish politics and MHP has before advocated similar moves. Lifting immunity has also been raised as a solution by which to address political corruption and is included in AKP's previous promises of reform.

AN OFFICE OF OMBUDSMAN

Also part of the mini-reform package is the re-introduction of the ombudsman issue. The creation of an office of ombudsman by which individuals might address complaints against state institutions was passed by Parliament in 2006, but vetoed as unconstitutional by President Sezer. AKP has proposed amending the Constitution so as to reference such an office and assure that future law might construct such an office. This is an important step for EU membership and a measure for which EU Enlargement Commissioner Olli Rehen has long called.

ARTICLE 301—FINALLY?

According to the article in Today's Zaman, AKP is also considering the inclusion of amendments to Article 301 (part of the penal code, not the Constitution—see previous posts) as part of the mini-reform package. Such a move will most likely alienate MHP, but the fact that AKP has brought the issue up is laudable. It is more likely that AKP will pursue 301 reform as an effort apart from any such comprehensive reform package. This is probably for the best in that it will be difficult to pass meaningful reform of the bill under so many other pressures. If Article 301 is discussed as part of the package, it would be sad indeed if a watered-down amendment to the law is made in concession to MHP for cooperation on the more immediate party closure issue—that is if MHP will even allow any reform to be made.