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.

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Court Issues Detailed Verdict
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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

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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.

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Initial Reactions to the Opinion
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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.

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GOT-Judiciary Battle Could Distract Reforms
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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

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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.

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WILSON