TURKEY: CONSTITUTIONAL COURT ISSUES DETAILED

C O N F I D E N T I A L SECTION 01 OF 03 ANKARA 001881 SIPDIS DEPARTMENT ALSO FOR EUR/SE E.O. 12958: DECL: 10/27/2018 TAGS: PGOV PHUM PREL OSCE TU SUBJECT: TURKEY: CONSTITUTIONAL COURT ISSUES DETAILED VERDICT IN AKP CLOSURE CASE REF: A. ANKARA 1373 ¶B. ANKARA 1853 Classified By: POL Counselor Daniel O'Grady, reasons 1.4 (b,d) ¶1. (C) Summary and Comment: Following closely on the heels of its October 22 verdict in the headscarf case (ref A), Turkey's Constitutional Court October 24 issued its detailed verdict fleshing out its July 30 ruling not to close the ruling Justice and Development Party (AKP) for alleged anti-secular activities. In its massive 772-page opinion, the Court wrote that AKP had "exploited religion and religious feelings" by proposing amendments to lift the headscarf ban at universities, easing requirements for graduates of religious vocational schools to enter university, lowering the required age for Koran courses, and uttering "anti-secular" statements. However, although such examples demonstrated that AKP had "become the focal point for anti-secular activities," the Court found that the party's numerous democratic reforms related to EU-accession mitigated against the harsh penalty of closing the party. AKP MP's called the Court's reasoning contradictory, while the Nationalist Action Party (MHP) argued that party closures should occur only if a party is involved in terrorist activities. PM Erdogan and several of his MPs have reacted strongly to what they perceive as the Judiciary's overreaching in these two critical cases. However, with March 2009 local elections approaching, it is unlikely Erdogan will want to distract his party by engaging the Judiciary in what would surely be a fierce and prolonged battle that has minimal prospect of success. End summary and comment. -------------- Court Issues Detailed Verdict -------------- ¶2. (U) Turkey's Constitutional Court October 24 issued a 772-page written opinion explaining its July 30 decision not to close AKP. In the July 30 decision, six judges voted for closure (the constitution requires at least seven votes for a party to be closed),four voted to withhold state funds, and one supported neither closure nor a fine (ref A). In the October 24 detailed verdict, the Court explained that AKP, through the actions and statements of its members, had indeed "become the focal point for anti-secular activities." By introducing constitutional amendments to lift the headscarf ban (ref B),it said, the party had "exploited religion and religious feelings" and had "created harmful tension in society." AKP had further "hindered democracy" by making it easier for graduates of imam-hatip religious training schools to enter universities and by lowering the required age for attending Koran courses. ¶3. (U) The court singled out PM Erdogan, stating that he had uttered "anti-secular" statements, such as "speaking about the headscarf is the right of the religious ulema," "persons cannot be secular" and "being a Muslim is impossible if secularism becomes a religion." The Court also noted, disapprovingly, that former Parliament Speaker Bulent Arinc had said that Turkey needs a "pious" president and that "the state limits the right to exercise one's religious belief." The Court also fingered Cuneyt Zapsu, one of AKP's founding members, who the Court quoted as saying, "asking a woman to remove her headscarf was equal to asking her to take off her underwear." ¶4. (U) The Court wrote at length about the importance of secularism in a democratic system. "Legal rules are accepted according to the democratic national will, guided by reason and science, not by religious commandments." The Court noted that the European Court of Human Rights verdict upholding the Constitutional Court's closure of the Welfare Party (AKP's political predecessor) stressed that it is not possible to consider anti-secular political orders as democratic. The Court emphasized that, "democracies are based on the premise that affairs must be regulated by secular law, and religious affairs must be conducted according to religious law." "The increasing manifestation of religiosity for the sake of ANKARA 00001881 002 OF 003 political struggles may damage the healthy representative relationship between society and politics. The danger may increase when the mentioned acts are conducted by a political party," warned the Court. ¶5. (U) The Court's opinion noted that AKP's democratization efforts were appropriate mitigating circumstances. The Court explained that AKP's democratization work such as passing a constitutional amendment to allow popular election of the president, introducing the principle of equality between men and women, adopting laws to improve the state of non-Muslim minorities, and making advancements in protecting human rights made closure an inappropriately stiff penalty. The Court also found it significant that there was no evidence that AKP leaders had called on the party's electoral base to pursue violence following the Court's annulment of the headscarf amendments. -------------- Initial Reactions to the Opinion -------------- ¶6. (U) Mainstream "Hurriyet" reported that despite anti-secular statements made by PM Erdogan and others in the commission of anti-secular acts, the Court decided not to close the party due to its acceleration of human rights and democratization reforms and the abolishment of the death penalty. Leftist-nationalist "Cumhuriyet" trumpeted that the Court determined that AKP had become the focal point of anti-secular activities through 30 different actions. Islamist-leaning "Zaman" emphasized that the Court had ignored the majority of the accusations the chief prosecutor had directed at AKP, noting that the Court "rejected" 370 of the 400 charges. ¶7. (U) AKP whip Sadullah Ergin told reporters October 24 that the Court's reasoning was contradictory because it noted that AKP used its power to increase the level of democracy in Turkey toward European standards but at the same time violated the Constitution by doing so. MHP leader Devlet Bahceli told the media that the only allowable reason for closing a party should be if the party is involved in terrorist activity. "Aksam" reported that AKP would analyze the verdict more closely by forming a committee composed of Deputy PM Cemil Cicek, party Vice Chairman Dengir Mir Mehmet Firat, AKP whips Bekir Bozdag and Sadullah Ergin and MP Bulent Arinc. ¶8. (C) Ali Yildirim, an Alevi who is President of the Husein Gazi Association and plans to run for mayor of the secular stronghold Cankaya municipality in Ankara, told us the Court's detailed verdict had demonstrated conclusively that AKP had been exploiting religion for its own political goals. Yildirim said he does not believe the detailed verdict itself will prevent AKP from pursuing its "self-interested agenda." But together with the economic crisis and increasing evidence of AKP involvement in corruption, he said, the verdict may make AKP "think twice" before forging ahead with what Yildirim believes is a self-interested "Islamist" agenda. -------------- GOT-Judiciary Battle Could Distract Reforms -------------- ¶9. (C) European Commission Political Officer Serap Ocak told us she feared AKP's reaction to the Court's headscarf and closure decisions would paralyze governmental reforms in the near term. Ocak noted that Erdogan October 24 delivered a sharp response to the headscarf verdict, when he told reporters, "The Court is not above the Constitution. We recognize no power above the national will." Ocak said Erdogan had also evinced his frustration with the Judiciary by reacting warmly to an MHP proposal to work within Parliament to restrict the powers of the Constitutional Court. However, Ocak believes such an effort would stoke political tension, minimize the possibility of cooperation, and distract the GOT from making needed progress on EU-related reforms. Ocak told us it is unlikely AKP will ANKARA 00001881 003 OF 003 pursue such a combative path in the lead up to March 2009 local elections. ¶10. (U) Recognizing the detrimental effect an AKP-Judiciary battle would have on Turkey at the present time, "Milliyet's" Taha Akyol called on PM Erdogan and MHP's Bahceli to focus on the pressing problems at hand: the economy and countering terrorism. In Akyol's view, "Taking valuable time to limit the Constitutional Court's authority at a time like this will cause serious problems and eliminate all the peace left in this country." ¶11. (C) COMMENT: The Constitutional Court's detailed ruling is a remarkable document, not only for its excessive length but also because its reasoning serves as a report card for AKP's political activities since it came to power. The Court determined that certain statements and actions by AKP officials clearly were anti-secular, and could have cited that evidence as sufficient to close the party -- just as the Court has closed AKP's predecessors. Instead, the Court applauded AKP's efforts in other areas, including its abolition of the death penalty and EU reforms, and ruled that these "positive" initiatives tipped the scale against closure, albeit barely. The bottom line is that the Court has fully retained for itself the right of making such assessments, which serves as a warning for AKP. It is not surprising that AKP does not welcome having its parameters so clearly marked, and has already floated the idea of curtailing the Court's powers. But despite such bluster, AKP must realize this is an idea with minimal chance of success. Visit Ankara's Classified Web Site at http://www.intelink.sgov.gov/wiki/Portal:Turk ey WILSON