Turkey's Ruling Party Escapes Court Ban
On July 30, 2008, Turkey's Constitutional Court announced its decision not to close down the ruling Justice and Development Party, nor to impose a five-year ban from political life on Prime Minister Erdoğan, President Abdullah Gül or 69 other party members. Ruling that the party had nevertheless engaged in anti-secular activities, the court decided to cut by half the party funding from the Treasury for 2008.
The indictment against the party alleged that it had flouted the constitution and the Law on Political Parties, which prohibit political parties from activities which violate the "principles of the secular Republic." It cited an attempt by the ruling party through parliament to lift the restriction on the wearing of the headscarf by adult women in university, as well as speeches by party leaders, as proof of its alleged scheme to introduce an Islamic state.
"Today's decision by the Constitutional Court not to close down the ruling Justice and Development Party has averted a political crisis in Turkey," said Emma Sinclair-Webb, Turkey researcher at Human Rights Watch. "The ruling party should honor its election promises now and revive the long-stalled reform of human rights in Turkey."
On July 28, 2008, Turkey's highest court will begin deliberation on an indictment against the ruling Justice and Development Party, alleging that it seeks to create a Sharia state in Turkey, in violation of the country's secular constitution.
1. What is the case about?
The Chief Prosecutor of Turkey's Court of Cassation is asking the court to ban the party, and exclude Prime Minister Recep Tayyip Erdoðan, President Abdullah Gül, and 69 other party members from participating in politics for five years. The court heard arguments in the case from the end of May to early July 2008.
2. What led to the charges?
The indictment against the ruling party was issued on March 14, just over a month after the Justice and Development Party-controlled parliament had adopted constitutional amendments aimed at lifting the long-standing ban on women wearing the Islamic headscarf on university campuses. The headscarf is seen by secularists in Turkey as a political and religious symbol that threatens the secular nature of the state. The parliament's decision put it on a collision course with the Constitutional Court, which had previously ruled against the wearing of the headscarf at universities. The Constitutional Court struck down the constitutional amendments on June 5.
3. What are the main allegations against the party?
The 162-page indictment argues that the party has flouted the constitution and the Law on Political Parties, which prohibit political parties from activities which violate the "principles of the secular Republic." It alleges that "the secular republic is in danger as it has never been before," and that the danger is real and imminent. According to the indictment, the ruling party's "ultimate aim is to establish a state system based on religious principles (Sharia) in place of a state based on the rule of law" and concludes that "it is not a remote possibility" that the party will turn Turkey into "a country ruled by Sharia and, if necessary, that Islamic terror will be used to this end."
4. Is there evidence to justify the serious allegations made?
The attempt by the ruling party through parliament to lift the restriction on the wearing of the headscarf by adult women in university is cited as proof of its alleged scheme to introduce an Islamic state. Aside from the effort to lift the headscarf ban, most of the evidence in the support of these accusations is made up of speeches and statements made by officials and deputies of the Justice and Development Party, including 61 by the prime minister, 10 by the president during his tenure as foreign minister from 2003 to 2007, and 16 by Bülent Arýnç, the former speaker of parliament.
5. How has the Justice and Development Party responded to the charges?
The Justice and Development Party has rejected the charges that its long-term aim is to establish a theocracy, stating: "We have never had and never will have a secret agenda." In its written and verbal defenses to the court (submitted on June 16 and July 3 respectively), the party argued that the statements made by its officials constitute legitimate free expression and that the ban would violate the right to freedom of association.
6. Has the Constitutional Court ever tried to ban a political party before?
Since its establishment in 1962, the Constitutional Court has banned 24 political parties in Turkey. A number have been closed on the grounds of violating the principle of secularism, others for religious fundamentalism, others for emphasizing Kurdish ethnic identity - which the court stated posed a threat to the territorial integrity of the Turkish Republic, and others allegedly for their communist ideological agenda.
7. What does human rights law have to say about party closures?
Freedom of expression and freedom of association are protected under the European Convention on Human Rights, to which Turkey is party. Those rights can be limited on the grounds of public order, but any restriction must be prescribed by law, only be done for a legitimate aim, and be necessary in a democratic society (i.e. be the least restrictive measure possible to meet the legitimate aim). Speech that incites violence can be legitimately restricted in some circumstances. However, the speeches and statements presented as evidence in the case do not promote or incite violence.
The European Court of Human Rights, which assesses state compliance with the convention, has heard nine cases against Turkey concerning political party bans by Turkey's Constitutional Court. In all but one case, the European Court has ruled against the decision to ban, finding Turkey in violation of articles 10 and 11 of the European Convention (freedom of expression and freedom of association.)
The Venice Commission of the Council of Europe, an expert body that advises on law reform consistent with human rights standards, has developed guidelines on party closures. The guidelines state that: "The fact alone that a party advocates a peaceful change of the Constitution should not be sufficient for its prohibition or dissolution."
8. What has the Constitutional Court's legal advisor said about the case?
Osman Can, the legal advisor (rapporteur) to the Constitutional Court submitted an advisory opinion on the case on July 16, which was distributed to the judges of the court. The opinion, which is not binding on the court, argues against the closure of the party, citing the European Convention on Human Rights and Venice Commission guidelines. It advises that in democratic countries, those elected by the vote of the population should only be removed from power by votes cast in elections. The Justice and Development Party won 47 percent of the popular vote in the July 2007 general election.
Can's opinion concludes that the ruling party's activities fall within the freedom of thought and expression enshrined in the constitution. It cites a recent ruling by the court against the closure of the pro-Kurdish Rights and Freedoms Party (HAK-PAR). Despite an indictment alleging that its statute and party program violated "the indivisible integrity of the state with its country and nation," the court found that HAK-PAR's activities fell within the bounds of free speech.
9. How is the court likely to decide the case?
There are three options open to the court. It could close down the party and ban some or all of the 71 named officials and deputies from politics for five years. Alternatively, it could decide not to close down the party and instead impose a sanction on the party by cutting off Treasury funding and banning some of its leadership - notably figures such as the prime minister - from politics for five years. A third, less likely, scenario is that the court could adopt the view of its legal adviser and decide not to sanction the party in any way or to restrict the political activities of those named in the indictment.
The court's decision to veto the constitutional changes relating to the headscarf in June 2008 provides the strongest indication that it is likely to sanction the party and the leadership, although it does not provide a clear indication of whether the court will ban the party. It could either reason that its June decision provides justification for a party closure or decide that the sanction on the government and parliament imposed in June obviates the need for closure of the party but justifies the need to punish its leadership.
10. Is the Constitutional Court decision's final?
Yes, in terms of Turkish law. The Constitutional Court is Turkey's highest court. There is no further right of appeal in Turkey against the decision the court's judges will reach in the coming days. It would be open to the Justice and Development Party to appeal to the European Court of Human Rights.
11. What are the likely human rights implications of a ban?
The banning of Turkey's democratically elected government, on the basis of a move to lift the ban on the headscarf in universities, and numerous speeches by members of the party which have not advocated violence, would have damaging consequences for human rights in Turkey, including for free expression and association and the right to political participation. It would be an extremely negative precedent.