What Happens If A Court Bans Turkey's Ruling Party

Later this summer, Turkey's top court will convene in a chamber presided over by a bust of the country's founder, Kemal Ataturk. At the Constitutional Court in Ankara, four professional judges and seven laymen will rule on whether to close Turkey's ruling Justice and Development Party (AKP) and ban 70 of its top members and party founders—including the president and prime minister—on charges of pursuing a hidden Islamist agenda. Critics have described the proceedings as an attempted "judicial coup" mounted by hard-line believers in Ataturk's secular principles. Despite the flimsiness of the charges, the court is unlikely to acquit the party—if only because it would mean a humiliating climb-down for the judges who agreed to hear the case.

With a decision expected in mid-August, Turkey is now poised for the unthinkable. Many states have banned pesky opposition parties. Turkey itself has done so 24 times before, including banning the ruling Refah Party, a predecessor of the AKP, in 1997, on similar charges of Islamism. But the AKP is far more popular—and moderate—than Refah ever was. It won the last national elections with 47 percent of the vote, winning by the biggest margin in Turkish political history. A decision to close it and ban its top members from politics would provoke a political crisis, leaving the country leaderless and creating a dangerous power vacuum in Turkish politics. The AKP founders, Prime Minister Recep Tayyip Erdogan and President Abdullah Gul, are high-profile global figures with many friends in the West.

Their toppling would provoke an outcry from the European Union and from the United States, which counts on the AKP's support in regional trouble spots such as Afghanistan, Iran, Iraq and Syria. It would further damage Turkey's effort to join the EU, which Erdogan and Gul had done much to promote with economic and political reforms. The EU has backed away from angry warnings that talks could be suspended if the AKP were closed—one senior EU ambassador in Ankara now says "continued engagement is better than the alternative." But Europe's confidence in Turkey has been seriously eroded.

The political scene in Ankara is fraught with tension. Perhaps most dangerously for the court and its Kemalist supporters, trying to ban the AKP could backfire. According to one confidant of Erdogan's, who did not wish to speak on the record discussing party strategy, the AKP response to a ban would be to reconvene under a new banner, and then campaign in new elections. Then it would move to draft a new constitution that would shift power to elected governments—and away from the foundations of Ataturk's secular state, the judiciary, bureaucracy and military. "Closing parties is like cutting grass," says a senior AKP official. "It grows back stronger."

This is a political war the secular elite probably does not want to fight, so a more likely outcome is compromise. One scenario is that the court would find the party guilty, but impose a symbolic sentence such as cutting the party off from state funding. Another is that it could ban a few of the AKP's more controversial M.P.s from politics, but leave its top officers—including Erdogan and Gul—in place. But such a hedge doesn't address the fundamental question about Turkey's system. The nation has simply outgrown its old political mold. Its current Constitution was drafted by the military in the wake of a coup in 1980. Its guiding principle is that the people are not to be trusted with sovereign power, and elected officials are subject to shadowy non-elected bodies, including the Constitutional Court and the National Security Council, tasked to ensure that the government does not violate Ataturk's secular principles. The AKP challenged those principles, the Constitutional Court indictment argues, by scrapping a ban on wearing headscarves in universities, and by pushing through the presidential appointment of Gul—a devout Muslim whose wife wears a headscarf.

If there is any upside to the turmoil, it is that Turkey has been forced to question the old Kemalist orthodoxies. Newspapers have been debating the nation's constitution with unprecedented ferocity—including questioning sacred cows like the role of the military in politics. In one recent book, scholar Sevan Nisanyan of Istanbul Bilgi University links Ataturk's founding philosophy to Italian Fascism of the 1920s and argues that his radical secularism had nothing to do with building democracy and everything to do with using religion to strengthen the state. "Unlike Portugal or Spain, Turkey has not come to terms with its totalitarian past," he writes. "That totalitarian past, perpetuated by the cult of Ataturk, still lives on." That's strong stuff in a country where "insulting Ataturk" is still a serious crime.

A second case, being prepared by a lower court near Istanbul, also under the requisite bust of Ataturk, represents another challenge to his legacy. More than 100 alleged members of a group known as Ergenekon, including retired generals, journalists and former bureaucrats, stand accused of orchestrating a series of political killings and unrest over the last three years, including the assassination of a High Court judge. The alleged goal: to provoke the Army into toppling the AKP government. Like the case in Ankara, the Ergenekon case is a key test of whether the elected government can reassert control over Turkey. Ergenekon is the latest in a series of conspiracies between members of the armed forces and ultranationalist hit men, using assassination to defend the Kemalist system. Rarely have such conspirators been prosecuted. This time looks different, and Turkey's secular elite suddenly looks less untouchable. Turkey's military brass, the intelligence service (known as MIT) and the police have aggressively pursued suspects including academics, leftist politicians, top journalists and even two retired generals, former commanders of the First Army and the Gendarmerie paramilitary police. The Army's own top brass agreed to the arrests of the two generals last month at their homes in military compounds. If the prosecution is successful, Erdogan will have sent a powerful message that the backing of ultranationalists by the military or the police is unacceptable.

The verdict of the courts will determine who really holds power in Turkey: officials and the self-proclaimed patriots who consider themselves to be the guardians of Turkey's Constitution, or the Turkish people. It will also send a clear signal about Turkey's credibility as a functional democracy—as well as its path toward membership in the European Union. Erdogan is working to convince his secular opponents that the best course for Turkey is to strengthen its democracy—even if that means mildly Muslim parties winning the elections. "If you invest in democracy, economic stability and trust can take root," Erdogan said last week. And if you take down an elected government on flimsy charges, trouble will grow. The only question is how big.