Attack of the Judges

Abdurrahman Yalcinkaya doesn't look like a revolutionary. With his sober black suits and neatly clipped white moustache, he looks the archetypal fifty-something Turkish bureaucrat. Yet Yalcinkaya—the chief prosecutor of Ankara's Court of Appeals—has set into motion a series of events that effectively puts the Turkish government on trial. Last month he filed an indictment with Turkey's constitutional court that seeks to shut down Turkey's ruling Justice and Development Party (AKP) for the crime of "undermining Turkey's secular Constitution" and ban from politics more than 70 AKP members, including most of the cabinet, the prime minister and the president, for years. The court has agreed to hear the case, and if Yalcinkaya wins, it would amount to nothing less than "a pre-emptive coup by the judiciary," says veteran Turkish commentator Cengiz Candar.

But unlike Turkey's previous coups—which have included three tanks-on-the-street military putsches and one constitutional "soft" coup since 1960—the Army, the historic defender of Turkish secularism, has remained scrupulously silent. This time it's the judiciary, which, by its own account, is defending Turkey's staunchly secularist state against what it sees as the AKP's encroaching Islamism.

At base, this is a conflict over who runs Turkey. Is it the old Republican elite, fanatically loyal to the principles of Turkey's founder, Kemal Ataturk? Or is it the new, democratically elected AKP, which wants to take Turkey into Europe yet also, undoubtedly, intends to bring Islam closer to the political mainstream? Yet the roots of this conflict go far deeper than the endless debate over secularism versus religion. This is also a conflict over whether the Turkish people can be trusted to choose their own rulers and policies—or whether their democratic choice is to be managed by a class of self-appointed guardians. Clearly, the old Republican elite believes it is its mission to save the people from themselves, and the elite seem willing to go to almost any length to preserve its decades-old supremacy, including destabilizing Turkey's fragile economic stability with prolonged legal wrangling and alienating Turkey's allies in the West.

Optimists hope the upshot of this battle will be a more equitable, more democratic political system, of the sort the EU has been lobbying for years. But that outcome is far from certain—and will only come after months of political wrestling. Yalcinkaya's indictment doesn't leave Turkey's Prime Minister Recep Tayyip Erdogan any room for compromise. If the Constitutional Court agrees with Yalcinkaya, the AKP and its leaders will be effectively wiped off the political map. Yet Erdogan's only defense is to use the AKP's popular support and its parliamentary majority to change the Constitution to limit the court's powers before they get a chance to shut it down. Such changes will permanently limit the powers of the judiciary, and profoundly change Turkey's political landscape.

So far, Erdogan has publicly played down the crisis. He ordered aides and parliamentarians to maintain a strict silence about the coming trial. "The judiciary will do its duty, and the government will continue to go about its business," Erdogan said last week. While his aides prepare the government's court defense, Erdogan is also working full tilt to select a slew of constitutional reforms that could save the party's life. The parliamentary arithmetic is tricky. The AKP controls more than 60 percent of the votes in Parliament, as well as the presidency. That's not quite enough to change the Constitution without the support of other parties. But there's a crucial loophole. The AKP has enough votes to call a national referendum to force through its proposed constitutional amendments.

To that end, the government is preparing a kind of "à la carte" reform package that bundles measures to remove the Constitutional Court's powers to ban political parties with a bunch of reforms long demanded by the European Union. Among them: scrapping Article 301 of the penal code, which criminalizes "insulting Turkishness" and has been used to prosecute a series of writers and journalists, most notably Nobel Prize-winning author Orhan Pamuk. Another would allow state TV and radio to broadcast more programs in the Kurdish language—a key demand of the EU and of moderate Kurdish parliamentarians.

The fact that the judiciary could threaten to oust a popularly elected government exposes deep flaws in the present Constitution, which was penned by the military in the wake of a 1980 coup. It is powerfully Kemalist, and shot through with a deep distrust of politicians and Parliament, and accordingly grants the judiciary sweeping powers to supervise and overrule elected governments. Prof. Ergun Ozbudun, a leading constitutional expert at Ankara's Bilkent University who has worked on suggested revisions to Turkey's basic law, calls the present system a "supervised democracy"—one that is "very far from the democratic standards which exist in the West, and which Turkey aspires to adopt."

Even if the struggles between the government and the courts eventually create a more stable political system, and that's a big if, the economic cost will have been enormous. In the wake of Yalcinkaya's indictment, the Turkish lira lost nearly 13 percent of its value, and even staunchly secularist institutions like the union of Turkish industrialists called the court's attack on the AKP "unacceptable." Yet many ultrasecularists are prepared to sacrifice Turkey's newfound prosperity to preserve their privileges, argues Ihsan Dagi, professor of international relations at Middle East Technical University in Ankara. "Bureaucrats see the market economy as a threat since it erodes their power by enabling people to make their own fortunes … without relying on the state and its bureaucratic patronage," says Dagi.

The wild card in this clash is Turkey's most powerful ultrasecularists: the military. So far, top generals have maintained an absolute silence, but if their past tendencies are a guide, they likely support Yalcinkaya's indictment. Yet the military is also careful to safeguard its own popularity, and in the past has intervened only against unpopular governments, or to stave off political anarchy. The AKP is demonstrably popular, and the last time the military intervened in politics it got into serious trouble. Last summer when the AKP was trying to get its founding member, Abdullah Gul, elected to the presidency, the military posted a note on its Web site casting doubts about the constitutionality of the parliamentary vote. Turkey's Constitutional Court, perhaps following the military's lead, duly declared the process invalid. The AKP immediately called a new general election and won an even larger share of the vote, putting the military squarely on the wrong side of popular opinion.

So barring the highly unlikely prospect of a military intervention, the government's democratic mandate will, in all probability, eventually trump the court's waning authority, based as it is on an undemocratic Constitution. But such an outcome presents a different set of problems. For all its faults, the judiciary is the only "safety valve" that Turkey has against "a violation of the fundamental principles of the Republic," says law professor Mumtaz Soysal, a prominent secularist. With the judiciary's constitutional powers reduced, even moderate secularists who oppose Yalcinkaya's indictment fear there will be nothing to stop the AKP from pushing an Islamist program. That's the kind of revolution the Turkish judiciary definitely did not envision.

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