Constitutional Showdown

PHOTO FROM Der Spiegel

The Constitutional Court ruled 9-3 yesterday to annul amendments passed in February to lift a ban on the türban at universities. The appeal to annul these amendments was brought by CHP and DSP and is at the center of the current showdown between AKP and the Constitutional Court. Following a 6-hour emergency meeting, AKP declared that the ruling was in violation of the Constitution and some sympathetic legal experts have declared that the legislature can regard the ruling as non-existent and keep the amendments in place (see Mustafa Şentop's comments in Today's Zaman).

The ruling argued that the amendments violated the principles of secularism laid out in Article 2 of the constitution and found a basis to rule on the substance of the amendment in Article 4 of the constitution that assert the unalterability of the state's core values. The ruling is in contradiction with the non-binding recommendation's of the court's rapporteur, Osman Can (see May 18 post). In a report released prior to the court's verdict, Can argued that the court could only rule on the amendments as to their form, but not their substance. However, the court arrived at a different interpretation of Article 148's application to the appeal.

The court's annulment of the amendments on substantive grounds is a particularly bold statement in light of the fact that the court could have rejected the case without comment by asserting that it could not rule on the amendment's substance, but uphold the türban ban based on its obligation to adhere to prior rulings. The court rejected a similar attempt to lift the türban in universities in 1989, but the legislation was by statute and not amendment to the Constitution (see Jan. 20 post). In rejecting the amendments, the court went further than it did in 1989.

Protests occurred throughout the country today as many citizens declared that the Court had usurped the role of Parliament. The court's sweeping decision also has implications for the closure case pending against AKP in that the 9-3 ruling reveals strong secular sentiment felt by the court's judges. Eight of the twelve judges were appointed by President Sezer, a staunch secularist.

Joost Lagendijk, co-chairman of the EU-Turkey Joint Parliamentary Committee, and the European Parliament's Turkey rapporteur, Ria Oomen-Ruijten, used the opportunity to push AKP to introduce the new constitution. The EU has long argued that Turkey's political problems are systemic and that a constitutional overhaul is in serious need.

It seemed until of late that AKP took these recommendations very seriously, but at the moment they seem to be falling on deaf ears. Although last April AKP found itself considering calling early elections and attempting to push through amendments that might save itself from closure, the party has since taken another route and is preparing itself for closure. This strategy is in many ways more cautious than the former, but opens the party up to criticism that it cares only about its own self-preservation. Since today's bold decision reveals a willingness to take strong action against the AKP and its alleged Islamization of politics, it is ever more likely that the party will face closure and most have already begun to accept this fate as a foregone conclusion.

An article in today's Der Spiegel suggests that despite calls for peace and calm in the face of a shutdown, come the Court's decision there will likely be large-scale protests throughout the country. I am not so sure of this, especially as AKP has avoided such confrontational means before and insofar as Erdoğan, by every indication, likes to keep politics at the elite level. AKP has also repeatedly told its constituents to remain calm in the face of closure and has publicly sworn not to provocate mass demonstrations that might further destablize the country. Mass demonstrations risk intervention by the military and basically provide the TSK with a justification to enact a full-scale coup. Past reports of a previous coup attempt planned by some forces within the TSK suggest there is at least some support within the General Staff for strong action. AKP will thus likely play it safe, pray that it will not be closed, and in the likely event that the party is forced to re-group, do so as best it can with as little damage as possible done to the larger moderate Islamist forces long-term political existence. Perhaps most troubling to AKP is that yesterday's strong ruling indicates that the court is prepared to enact bold sentences on the list of 71 politicians the Chief Prosecutor has asked be banned from politics.

Click here for an English translation of Turkey's 1982 constitution.