TURKEY'S TOP COURTS IN THE THICK OF POLITICS

1. (C) SUMMARY. As the power struggle continues between
forces of change and the status quo, Turkey's top courts
are playing an increasingly prominent role as de facto
opposition. This prominence is in part a predictable
outgrowth of the cases brought before them -- and underscores
GOT determination to reform the judiciary. Legal authorities
and opposition politicians alike identify the courts as the
foremost pillar against what they fear is Turkey's
Islamization. END SUMMARY.



2. (C) Since the military was chastened in the aftermath of
the April 2007 "e-coup," another strongly Kemalist Turkish
institution has come to the fore as defender of the
Ataturkist state: the judiciary (ref A). In recent
statements and rulings, Turkey's top judges and prosecutors
have been acting more like an opposition than the real
opposition, offering opinions and providing their version of
checks and balances on PM Erdogan's Justice and Development
Party (AKP) government.



3. (SBU) At a Bar Association conference in early March, the
chief prosecutor of Turkey's highest administrative court
(Danistay), Tansel Colasan, praised the 1960 coup -- "It
would be wrong to regard May 27 as a military coup. Indeed
it was a revolution" -- and defended the execution of
then-Prime Minister Menderes. Some circles are clearly happy
with her remarks; others are not. GOT spokesman Cemil Cicek
responded, "It is inappropriate for the judiciary to approve
of an extrajudicial act. Whoever looks for a solution in
this country should search for it within the law." Colasan
has been widely criticized throughout the media for her
political comments; Cengiz Candar questioned to what extent
the Turkish judiciary abided by the laws. AKP Vice Chairman
Dengir Mir Mehmet Firat told us that, as a citizen of Turkey,
he was ashamed of Colasan's words. A criminal complaint has
been filed against her; Suleyman Soylu, head of the Democrat
Party, invited her resignation.



4. (C) Firat, a lawyer, also pointed to a recent Danistay
ruling on compulsory religion classes (ref B) and described
it as an instance of that court exceeding the bounds of its
jurisdiction. Because the mandate for the classes stems from
the 1982 constitution, this was a judgment that should have
been left to the Constitutional Court, or given to parliament
to amend. Not all agree with him - the EU mission's legal
expert argues that the Danistay was on solid ground. The
timing of the Danistay's conclusion, however, plays directly
into the current political struggle and gives the appearance
of a purely administrative court reining in the AKP. (The
constitutional provision was taken under military oversight
after the 1980 coup.)



5. (SBU) The Danistay also this week invalidated a circular
sent by High Education Council (YOK) president Yusuf Ziya
Ozcan, instructing university rectors to permit students
wearing headscarves to attend classes or risk prosecution. A
handful of Turkey's universities had allowed the headscarf on
campus in the past few weeks. This ruling prompted
some to reverse policy. The Danistay concluded that Ozcan's
instruction was not "based in the law," despite recent
constitutional amendments, signed by the president and
intended to pave the way for equal education rights for all
-- including those who wear headscarves. This has paved the
path for a criminal case against Ozcan; a criminal complaint
will be delivered to the Ministry of Education and from there
to the Danistay for investigation.



6. (C) In May 2007, it was the Constitutional Court itself
that delivered the controversial ruling which required a 367
parliamentary quorum, derailing the presidential election and
forcing early general elections (which returned AKP to power
with a greater majority than it had enjoyed earlier).



7. (C) Opposition members of parliament tell us the courts,

ANKARA 00000502 002 OF 002


including the Constitutional Court, the Danistay, the High
Court of Appeals (Yargitay), and High Court of Accounts
(Sayistay), are the foremost defense against AKP's alleged
Islamist agenda (followed by the military and the
universities). They argue the courts are a necessary tool to
bolster a weak and divided opposition that alone is not able
to counter what they view as AKP's exploitation of its
legislative majority to undermine Turkish democracy and law
and bring Turkey closer to an Islamic state. "The high
courts are
more political than they are legal," explained one MP, citing
the fact that some judges at the highest level do not have a
background on the bench, but rather are ex-governors or
prosecutors.



8. (C) COMMENT. Outspoken judicial officials are nothing new
in Turkey, where the judiciary -- much like the military --
openly claims its role is to defend the secularist Republic
(refs B and C). A few opposition politicians, self-conscious
about the courts' politicization, argue the United States has
no experience in the fundamentally transformative forces of
Islam. The next big anticipated court decision is the
Constitutional Court's ruling, expected in the next few days
or weeks, on the so-called headscarf amendments to
constitutional articles 10 and 42. The opposition's
consistent resort to other state institutions -- in this
case, the courts -- to curb GOT actions shows how wedded it
is to the status quo, how much it fears and how little it
understands the evolution Turkey is undergoing, how much it
distrusts the people, and how great the need is here for a
viable political opposition. END COMMENT.

Visit Ankara's Classified Web Site at
http://www.intelink.sgov.gov/wiki/Portal:Turk ey

WILSON