Turkish Court Challenges Rulers

Coups generally are the province of soldiers with tanks. On March 14, however, Turkey's senior prosecutor, armed with chutzpah and an indictment, proposed one to the judges of Turkey's constitutional court. Gavels in hand, they hesitated. Today they accepted the indictment and agreed to think about it.

To call what they are considering a coup is not too harsh. In a democracy the voters don't just have the privilege of selecting the government, they also have the exclusive right to "throw the bums out." What prosecutor Abdurrahman Yalcinkaya proposes in his bid for the history books is that the constitutional court close Turkey's ruling AK Party and thus remove a duly elected government. He also wants the court to ban Prime Minister Tayyip Erdogan and President Abdullah Gul from politics for five years, along with 69 AK Party grandees. He charges that AK, which wants to remove a ban on headscarves, is "a focal point of antisecular activity."

Turkey's constitutional court has a long, dubious history of closing political parties, but it has never removed a sitting government. Especially not one that garnered an almost unprecedented 47 percent of the popular vote eight months ago, despite a threatened coup by Turkey's generals, who opposed Gul's becoming president. There is simply no plausible civilian alternative to an AK Party government. Given the seriousness of what he proposes, Yalcinkaya should have some Islamist "smoking gun" with which the AK Party plans to slay the secular republic. His indictment, however, reveals that he does not. There is nothing that would raise eyebrows in any democratic state. What Yalcinkaya does show is that the constitution that makes his coup attempt "legal" is truly the child of 1980s military coups and needs wholesale revision. How bizarre is the constitution? For one thing, Yalcinkaya says it permits Gul to continue as president even if banned from politics, and the court appears to accept this.

In truth, Yalcinkaya's ploy is another round in the battle Turkey's "Kemalists" are fighting to retain their hold on the state. Hitherto this social elite, with bureaucrats, judges, and generals at its core, has relied on the army protect its position. The generals, however, lost last summer's confrontation, when the AK Party won the election they helped precipitate, and show little appetite for another round. Maybe Yalcinkaya hopes to provoke chaos that will lead to a military coup. Certainly it is hard to believe that he imagines the Turkish people will take his side. Before this imbroglio, opinion polls had AK's support at 55 percent.

What now? Thus far Erdogan and Gul are keeping admirably calm and urging their supporters to do likewise. Some argue that Yalcinkaya has a weak case and AK will prevail on the merits. The constitutional court, however, has a record of seeing the law as politics conducted by other means. Take the opinion that precipitated last summer's election. The court argued that when Turkey's constitution says the president "shall be elected by a two-thirds majority of … assembly members" on the first ballot, it also means that a two-thirds quorum must be present for the ballot to take place. What makes this eccentric ruling truly rotten is that the constitution goes on to envisage a president being elected by a simple majority on the third ballot, as all presidents elected under this constitution have been. The court's dubious interpretation of a single sentence vitiated this provision and gave a one-third minority a veto over the selection of new presidents—judicial reasoning few competent legal scholars anywhere would support. Its practical effect was to align the court with the military's coup threat and precipitate last summer's election.

The court will take months to decide the closure case. Meanwhile, today's febrile markets will likely impose fearsome uncertainty charges on Turkey's economy, and real opportunities for progress on the Cyprus and Kurdish questions will fall victim to paralysis. AK is therefore considering changes to the constitution to render the case moot—maybe by bringing Turkish party closure law into line with European norms and restricting its application to parties advocating violence. The AK Party has the necessary 60 percent of assembly votes to bring constitutional changes to a referendum, but not the 65 percent required to obviate this time-consuming step. The support of the Nationalist Opposition Party (MHP) would do so, but while willing to help prevent AK's closure, MHP is apparently not willing to support reforms that would prevent the party's leading personalities—in particular the charismatic Erdogan—from being removed from public life. A referendum on AK's closure is likely.

In a democracy, all would attend the people's verdict, but will the court? It could order AK's closure prior to the referendum or void the result by declaring it unconstitutional. This would precipitate another election, likely won overwhelmingly by a reconstituted AK Party II (the present AK less those banned), which would then seek to reverse the bans. During this time, of course, the army and a majority of the Turkish people will be hovering ominously in opposing wings.

In fact, Turkey's democracy now faces a moment of truth. Some voices call for "compromise," but how is horse trading to be conducted with a constitutional court? Some Turkish papers report Yalcinkaya saying that AK faces a closure case because it passed constitutional amendments (with MHP support) permitting women university students to wear headscarves—amendments the court is now reviewing. Maybe then a continuing headscarf ban is the quid pro quo for AK's survival. Since Turks overwhelmingly favor lifting the ban, such a deal would resolve nothing.

The fate of Turkey's democracy and the country's recent economic renaissance are surely a vital Western interest. Yet aside from the German and Swedish foreign ministers and the EU's enlargement commissioner, no top Western official has yelled "Foul!" U.S. Deputy Assistant Secretary of State Matt Bryza straddled the fence by encouraging respect for "democratic institutions and the rule of law." But how could there be respect for both if what is legal lacks democratic legitimacy. Dick Cheney, recently in Ankara, apparently kept silent. In private and in public, the West must explain to Turkey's Kemalist establishment and the generals who stand with it an essential fact of democracy: those who lose elections must accept the result. The West must speak firmly and without equivocation. The hour calls for the spirit of Harry Truman, who insisted that starting down the road to democracy was the price of Turkey's place in NATO and the West.