TURKEY: AKP'S PRELIMINARY DEFENSE TARGETS Chief PROSECUTOR

C O N F I D E N T I A L SECTION 01 OF 02 ANKARA 000885

SIPDIS

E.O. 12958: DECL: 05/05/2018
TAGS: PGOV PREL TU
SUBJECT: TURKEY: AKP'S PRELIMINARY DEFENSE TARGETS Chief PROSECUTOR
AND POLITICIZED INDICTMENT


Classified By: Acting Political Counselor Kelly Degnan, for Reasons
1.4 (b,d)


1. (C) SUMMARY. The ruling Justice and Development Party (AKP)
submitted its preliminary defense against the party closure case
charging AKP with being a center of anti-secular acts on April 30,
two days ahead of deadline. The 98-page defense condemns what it
portrays as a contradictory, anti-democratic, unsubstantiated,
sloppy, and most of all politicized indictment. In language not
likely to please jurists, the defense argues the prosecutor acted in
bad faith by filing the indictment and warns Turkey is in danger of
becoming an arbitrary bureaucratic or "juristocratic" regime where
standards of law and democracy are left behind. The otherwise
technical defense objects to the indictment's inclusion of "evidence"
from before AKP's founding or from non-AKP members; argues that
statements do not meet the legal threshold for becoming a "center" of
anti-secular activities; and compares evidence proffered against AKP
with similar statements uttered by former presidents and prime
ministers. It offers AKP's own definition of secularism to defend
party policies and actions, and argues that lifting the headscarf ban
at universities through constitutional amendments fails to constitute
an anti-secular act. END SUMMARY.

A Modern Definition of Secularism
--------------

2. (C) Rather than work from the indictment's "rigid...19th century"
definition of secularism, AKP holds party actions and policies up to
its own definition, which foresees peaceful co-existence of all
individuals and does not threaten the basic rights and freedoms of
others. AKP actions comply with norms established by the European
Court of Human Rights and therefore cannot be anti-secular, according
to the pleading. The defense notes the absence of a distinction in
Turkey between secularism (separation of state and religion) and
laicism (state control of religion).


3. (C) The indictment's fundamental argument for AKP's
anti-secularism revolves around constitutional amendments adopted by
AKP and the far-right Nationalist Action Party (MHP) to lift the
university headscarf ban. The defense argues it is inappropriate to
link views about girls getting a university education while wearing a
headscarf with secularism. The indictment's evidence consists of
remarks protected by freedom of expression. The constitutional
amendments (which likely triggered the indictment) should be
attributed to parliament and not AKP, the defense contends.

"A Web of Contradictions" and No Legal Basis
--------------

4. (C) AKP's defense denounces the prosecutor's accusations of
anti-democratic behavior, "takiyye" (religious dissembling),or a
secret agenda as contradictory, in view of AKP's record of
transparency and its "conservative democrat" political identity. AKP
argues that one out of two voters supported the party in July 2007
elections and its deputies represent 80 of Turkey's 81 provinces,
making AKP "the guarantor of unity and integrity in Turkey." Rather
than being a center against secularism, AKP "socializes secularism",
strengthening the public's embrace of the secular nature of the
state, according to the defense. The politicization of the case --
evident in the slipshod use of unsubstantiated or disproven newspaper
clippings and other legal weaknesses -- hurts Turkish jurisprudence
(and the public's trust in law),democracy, the nation, and the
state. The defense highlights the indictment's implicit assumptions
that the Republic is not sufficiently defended by the voters and that
the public's loyalty is debatable.


5. (C) The closure case lacks legal basis, AKP argues; the conditions
for being a "center" of anti-secular activities - laid out in
Constitution Article 69 - have not been realized. The prosecutor's
indictment consists largely of statements, which alone are not
sufficient to make the party a "center." Acts mentioned in the
indictment are not anti-secular in nature, nor is there evidence the
party accepted such acts. As the defense points out, the chief
prosecutor failed to request that the party sack violators of
Constitutional Article 68/4, as required by the Political Parties
Law; charges the PM violated that Article by making unconstitutional
remarks are therefore groundless. As far as statements go,
politicians should enjoy free speech.


6. (C) The defense attacks the indictment's claims of potential
violence stemming from AKP's rule as contradictory. Establishing the

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potential for violence is a key element in justifying the case
externally, as the EU Venice Criteria for legitimate party closure
hinge on violence. The indictment claims Islamic terrorism could
facilitate a shift from AKP's "moderate Islam model" to a Sharia
state, however, none of the evidence presented supports a link to
violence or could be characterized as a call to violence, according
to AKP's pleading. In addition, although the indictment claims AKP
aims to call for violence, it also acknowledges AKP won't need to
resort to violence "by using the advantages of being in power and by
using the democratic system."


7. (C) To refute charges that AKP officials' statements constitute
anti-secular activities, the defense cites similar statements by
Republican People's Party (CHP) Deniz Baykal (and quotes CHP's recent
billboards stating, "Do not stay in between. Religion is ours. The
state is ours. The nation is ours."),former Prime Ministers Bulent
Ecevit and Tansu Ciller, former PM and President Suleyman Demirel,
and MHP Chairman Devlet Bahceli. Countering the claim that lifting
the university entrance exam co-efficient penalty for vocational
students (including religious imam-hatip students) is anti-secular,
the defense argues the co-efficient was only introduced in 1998,
fifteen years after the constitution was approved.

"Legal Strangeness"
--------------

8. (C) The defense criticizes as "legal strangeness" the indictment's
inclusion of remarks made before AKP was established, claiming the
prosecutor wants to psychologically impact Court members. Rhetoric
and acts by unidentified individuals or by public employees (such as
undersecretaries, deputy undersecretaries, directors general,
governors, sub-governors, chief physicians, mayors, school
principals, etc.),who should be subject to individual criminal or
disciplinary investigation, cannot be attributed to the party, as the
indictment attempts to do. Moreover, the defense notes, there are no
anti-secular aspects to the acts of public employees named in the
indictment. President Gul's inclusion in the closure case is
blatantly unconstitutional, according to the defense, which refutes
the charge that he approved a Ministry of Foreign Affairs circular
concerning outreach to Fethullah Gulen schools by noting that before
AKP, presidents, prime ministers, ministers, and even an AIR FORCE
general visited and praised Gulen schools.


9. (C) Contacts disagree about the nature of AKP's preliminary
defense. Ankara University Law Professor Mithat Sencar, who
describes the indictment as "so weak it is hard to take seriously,"
said the preliminary defense's "purely legal" and "lackluster"
content, as well as the early filing, give the impression AKP has
already accepted its closure. Former President of the High Court of
Appeals Sami Selcuk by contrast sees a politically charged document
that engages in unnecessary political attacks on the prosecutor; he
does, however, agree that AKP's definition of secularism is spot-on.
Other contacts call it "flimsy at best" and "a negative for AKP" in
that the court is more likely than not to find additional evidence in
the pleading that AKP is subverting the secular regime.


10. (C) COMMENT. AKP's defense is largely an indictment of the chief
prosecutor for shoddy jurisprudence. The attacks against the
judiciary are sharp, and the lessons on political science terminology
and secularism are didactic; AKP intends to lay claim to the moral
high ground and go down swinging. By filing early rather than
requesting an extension, as is often done, AKP leaders may have
sought to project an image of confidence and control to offset rumors
of internal disarray. It also signals that to the limited extent it
can, AKP is anxious to move through this process as quickly as
possible.


11. (C) The timeline is largely determined by the court, however, and
is expected to take months. Following the prosecutor's response to
AKP's defense, the court will hear oral arguments. A rapporteur will
then prepare an assessment, during which both sides can submit
additional written pleadings. Once the eleven justices have received
the assessment, the chief justice will set a date to convene.
Factoring in the court's usual August recess, most contacts predict a
decision by October at the earliest. END COMMENT.

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

WILSON