The debate in Turkey over the political role of the country's highest court masks an underlying struggle between two undemocratic forces, reports Gareth Jenkins The publication last week of the reasoning behind two recent decisions by Turkey's Constitutional Court has triggered another furious debate about the state of democracy in the country. On 9 February, the government of the moderate Islamist Justice and Development Party (AKP) attempted to amend the Turkish constitution to lift the ban which currently prevents women wearing headscarves from attending university. On 14 March, Abdul-Rahman Yalcinkaya, the public prosecutor at the High Court of Appeals, applied to the Constitutional Court for the closure of the AKP on the grounds that it was trying to erode secularism, and based his case primarily on the party's attempts to lift the headscarf ban. On 5 June, the Constitutional Court annulled the AKP's attempt to amend the constitution. On 30 July, it voted by 10 votes to one that the AKP was guilty of trying to erode secularism but opted to punish it with a $20 million fine rather than shutting the party down. But it was only last week that the court published the reasoning being its decisions. In making decisions, Turkey's Constitutional Court often appears to follow a logic of its own. For example, in the reasoning published in the country's Official Gazette last Friday on the AKP closure case, it accused the government of abusing religion by attempting to shape the public sphere according to Islamic principles. But it cited the AKP's strong performance in the last general election in July 2007, when the party won 46.6 per cent of the popular vote, as one of the reasons why it had decided to impose a fine rather than close the AKP down. This would appear to imply that a party which had performed poorly in an election -- and was thus less able to do anything -- should receive a harsher punishment than one which was actually in a position to implement its alleged agenda. Or at least that the court was intimidated by a party which could in the future clip its wings. Under Turkish law, the Constitution Court can only rule on whether or not constitutional amendments have followed correct procedures, not on their content. However, in the published reasoning, the court didn't claim any procedural errors. It voted by nine to two to annul the amendment simply because those nine officials didn't happen to like headscarves. The publication of the court's reasoning triggered a justifiable outcry amongst the AKP's supporters who accused it of exceeding its authority and setting itself up as the ultimate arbiter of political authority in the country. AKP Spokesperson Cemil Cicek even announced that the government would begin work on plans to reform the Constitutional Court in order to remove its political influence and ensure that it fulfilled only a judicial and regulatory role. The court's bald admission that it was taking a political rather than strictly judicial decision came as a complete surprise to AKP supporters, despite its role in outlawing the country's Kurdish parties and four of AKP's predecessors on blatantly political grounds. All that has changed since the military's humiliating failure to prevent Abdullah Gul from becoming president last year is that the court has assumed even greater importance in what is now a rearguard campaign by the establishment to preserve its rigid definition of secularism. One of the main weaknesses of Turkish democracy is the lack of an effective system of checks and balances. The country has only one parliamentary chamber and the presidency has very limited powers. The debate about headscarves and secularism has distracted attention from worrying signs that the AKP in general and Prime Minister Tayyip Erdogan in particular are becoming increasingly authoritarian. As long ago as summer 2004, Erdogan famously told AKP deputies who complained that they were not being allowed time to debate legislation in parliament that the laws had already been finalised by his advisors and that their only function as members of parliament was to approve them. Since the AKP's July 2007 election victory and the elevation to the presidency of Abdullah Gul -- who had previously been one of the few ministers to stand up to Erdogan in Cabinet -- Erdogan's authoritarian tendencies and intolerance of criticism have become more pronounced. Corruption and nepotism have now reached the levels perpetrated by the AKP's predecessors. Yet the only successful prosecution of someone close to Erdogan occurred in Germany, where some of his close associates were convicted of embezzling millions of euros from an Islamic charity called Deniz Feneri. In contrast, the AKP has had little hesitation in using its growing influence in the judicial system to pressure the party's opponents. Last Monday, the trial opened of a gang of secular ultranationalists known as Ergenekon, which was set up by retired members of the security forces to try to destabilise the AKP through a campaign of violence. There is no question that the gang posed a real, if relatively minor, threat to public safety. But the pro-AKP public prosecutor has used it as an excuse to imprison some of the AKP's most outspoken opponents on charges of being members of the gang, even though there is no evidence to suggest that many of them even knew that Ergenekon existed. The Turkish Capital Markets Board (CMB), which is now dominated by political appointees, had refused to act on a report detailing irregularities in Deniz Feneri. On the contrary, Erdogan recently called on AKP supporters to boycott newspapers owned by the Dogan Group after they began publishing evidence of corruption involving party members, prompting the CMB to initiate criminal proceeding against the group on charges of falsifying invoices for business transactions between its companies. As a result, although many of the accusations levelled against the Constitutional Court by AKP supporters are valid, the real battle now taking place in Turkey is not between democratic and undemocratic forces, but between two fundamentally undemocratic ones, each prepared to use its juridical clout to pursue its own political goals.
