CAN AK PARTY REMOVE OBSTACLES TO PARTY LEADER

C O N F I D E N T I A L SECTION 01 OF 03 ANKARA 008165

SIPDIS


E.O. 12958: DECL: 11/13/2007
TAGS: PGOV PREL PHUM TU POLITICAL PARTIES
SUBJECT: CAN AK PARTY REMOVE OBSTACLES TO PARTY LEADER
ERDOGAN'S BECOMING P.M.?


REF: ANKARA 6856 ANKARA 6683


(U) Classified by Polcouns John Kunstadter; reasons 1.5 (b,d).



1. (C) Summary: On the surface of it, and given AK Party's
strong parliamentary majority, there should be a
straightforward, if sequential, legal way ahead for
disenfranchised AK Party chairman Erdogan to reclaim his
political rights, gain election to Parliament, and be
appointed Prime Minister. However, resistance by some
elements of the Kemalist State and Establishment political
considerations cloaked in legalisms render the process,
timing, and result uncertain. End summary.



2. (U) Nov. 14 the 550 M.P.s of Turkey's 22nd parliament take
their oath of office. Directly thereafter, AK Party chairman
Erdogan, ruled ineligible to run for Parliament, and thus
ineligible for the prime-ministership under the current
constitution, is expected to meet President Sezer to try to
reach an understanding on whom Sezer will pick from AK to
form the next government. Sezer is expected to give the
mandate Nov. 15 or 16; he will need to balance his right to
choose against Erdogan's desires as leader of a party with an
overwhelming parliamentary majority. Forming the government,
including the built-in procedures for holding a vote of
confidence, could take two to three weeks.



3. (C) Given Erdogan's ambition to recover his political
rights and become Prime Minister, and AK voters' expectation
that this will happen, the questions are (1) can AK blaze a
way for Erdogan through Turkey's thorny constitutional and
judicial thickets? and (2) will the Kemalist State tolerate
such a challenge, even if made slowly?


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THE LEGAL BARRIERS
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4. (U) The obstacles in Erdogan's way are Article 312(2) of
the Turkish Penal Code (TPC),Articles 76, 78 and 109 of the
1982 Constitution, and -- as AK vice chairmen Mercan and Aksu
acknowledged to us Nov. 12 and 13 -- resistance on the part
of what they called "certain power centers".



5. (U) Erdogan was convicted in 1998 under Article 312(2) for
"inciting religious hatred" by reciting a poem in a 1997
speech. Article 312(2) was revised as part of the EU-related
reform package passed in August 2002, and a Diyarbakir State
Security Court ruled in September that Erdogan's record
should be erased because his speech no longer constituted a
crime under the revised language. However, the High Court of
Appeals overruled the lower court decision; subsequently the
Supreme Election Board determined Erdogan ineligible to run
in the November 3 elections (reftels). Article 76 of the
Constitution states that anyone convicted of "ideological" or
"anarchistic" activities, generally interpreted as including
anyone convicted under Article 312(2),is not eligible to be
elected to Parliament, even if pardoned.



6. (U) Article 78 of the Constitution states that
by-elections to the Parliament cannot be held until 30 months
have elapsed since the general elections, unless 5% (28) of
the seats are vacant, in which case they can be held
beginning three months after the general elections.



7. (U) Article 109 of the Constitution states that the
President shall appoint the P.M. from among the members of
Parliament.



8. (U) Erdogan, therefore, cannot currently be named P.M.
because he is not a member of Parliament. He cannot run for
the current Parliament unless his political rights are
restored and by-elections can be conducted.


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KEMALIST RELUCTANCE
--------------



9. (C) The Kemalist State, which in Turkey is in some ways
markedly separate from, and more powerful than, the political
party arena (septel),is at best wary toward moves to enable
Erdogan to become P.M. President Sezer has publicly warned
that attempts to change laws or amend the constitution for
the benefit of specific individuals would politicize the Law.
Sezer is also concerned that amending Article 109 to permit
someone not in Parliament to be nominated as P.M. would
fundamentally alter the parliamentary character of Turkey's
political system. Echoing this latter concern, one leading
Establishment press commentator declared that such an
amendment would leave Turkey with a "half-breed" system,
neither parliamentary nor presidential. Opposition CHP
leader Baykal has voiced opinions parallel to those of Sezer;
Baykal's expression of willingness to consider ways to help
Erdogan is ringed with conditions which AK is likely to find
unpalatable.



10. (C) On one level of rectitude, Sezer's argument
concerning the consequences for Turkey's parliamentary system
is logical. Making this argument also allows him to hint
that AK's choice of this route could provoke the kind of
political confrontation AK does not want between a highly
popular (though indirectly elected) President and a highly
popular (though unelected) party chairman whose constituents
want to see as P.M.



11. (C) However, concerning the politicization of the Law,
senior AK officials as well as a broad section of Turkish
society consider the Turkish constitution and laws already
subject to arbitrary and political interpretation. One
recent example cited in the press and on the street: Erdogan
was ruled ineligible to run for Parliament in a controversial
decision while Motorola deadbeat Cem Uzan was allowed to run
a campaign which violated the election and broadcasting laws
in a wholesale manner. AK vice chairman Aksu also voiced to
us the party's view that Sezer has politicized his office and
in doing so has given the impression that he favors the
Establishment CHP, which is the sole opposition party in the
new Parliament. AK is still wont to argue that since the
President of Turkey can be elected from outside Parliament
(e.g., Sezer),criteria for selecting the P.M. should be no
different.



12. (C) Another contact, a former National Security Council
staffer who served in the military's West Working Group
(WWG),which helped execute the "post-modern" coup to remove
then-P.M. Erbakan from power in 1997, observed to us Nov. 8
that there are "hard-line" senior Turkish military officers
who will not willingly come to terms with Erdogan or other
top AK officials formerly associated with Erbakan. He
claimed that the WWG, under a new name, has been up and
running again in a monitoring mode since May 2002. On the
other hand, TGS Chief Gen. Ozkok has made it clear here and
in his just-concluded U.S. trip that the Turkish military
accepts AK's victory and will work with the new government
(AK vice chairman Aksu told us Ozkok sent a congratulatory
telegram to Erdogan). Other high-ranking TGS generals had
said the same, and told us the view was widespread within the
General Staff, even before the election when it was clear AK
would gain a plurality.



13. (U) Other challenges face Erdogan. He is still a
defendant in several trials brought by the State against him
for alleged corruption as mayor of Istanbul 1994-98. Any
conviction would render him ineligible to restore his
political rights for a further three years beyond the end of
a new sentence. At the same time, the Chief Prosecutor is
seeking to force Erdogan to resign as party chairman; if
Erdogan were to restore his political rights and get into
Parliament as an ordinary member of AK, he might not benefit
from the customary practice that the President gives the
mandate to form a government to the (M.P.) chairman of the
largest party.


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POSSIBLE LEGAL REMEDIES
--------------



14. (U) Opinions are divided among the legal experts we have
consulted, but it may not be necessary for AK to revise
Article 312(2) further in order for Erdogan to become
eligible to run for Parliament. Those convicted under
Article 312 can apply to a civil court to win back their
right to run for office three years after serving their
sentence. Erdogan will be able to apply to have his rights
restored in February 2003.

15. (U) Although AK has not formally indicated its
intentions, the party is considering options including
amending constitutional Articles 76 and 78 and possibly 109,
as well as TCP Article 312 as insurance against legal
challenges by the Chief Prosecutor which AK and many others
expect. Article 76 prohibits those pardoned for certain
crimes from running for office; a court decision restoring
Erdogan's political rights would appear to be different from
a pardon, but AK may try to amend both Article 76 and Article
312 to eliminate any possible doubts.



16. (U) AK is also considering whether to seek amendment of
Article 78 in order to hold by-elections sooner than in three
months and without having to vacate 5% of the seats, a number
which would, vice chairman Aksu acknowledged, give the
by-elections the character of a referendum on the
government's performance. If AK is successful in amending
Article 78, it would plan to vacate one seat and have Erdogan
run. An alternative is to challenge the voting results in
Siirt province, where a significant number of voters was
reportedly denied access to the polling booths, although the
Supreme Election Board's Nov. 9 certification of the results
and other factors make it improbable that such a challenge
would stand. If Erdogan were elected to Parliament in a
by-election, he could arrange to have the government resign
and then expect be appointed P.M., although Sezer would not
be constitutionally bound to select him.



17. (U) Regarding a constitutional amendment, AK has 363
votes, thus 33 more than the minimum needed, although with
330 to 366 votes an amendment is automatically subject to a
national referendum. AK will need four of the nine
independent M.P.'s votes to pass an amendment with a
two-thirds majority (367),which still leaves the amendment
subject to a national referendum if the President insists.


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COMMENT
--------------



18. (C) A solution which both satisfies Erdogan's and his
grassroots' aspirations and keeps the State calm depends on:
(a) Erdogan's ability to control his impatience, to move at a
judicious if steady pace, and to avoid being seen as
confronting basic symbols of the Kemalist State; (b) Sezer's
ability to temper his prerogatives, statist views and
wariness of AK with political realism in the face of a party
which has won an overwhelming parliamentary majority owing to
the popularity of its leader.


PEARSON