The legal background of the decision made by the Constitutional Court regarding the closing of the Justice and Development Party has been published in the Official Gazette on Friday (October 24).
The anatomy of the decision
First of all, let us start with some technical characteristics of the decision. Compared to the length of the decision, the legal background is very short: only seven pages of the 580-page text. This means that the decision consists mainly of the exchanges between the plaintiff and the defendant.
Obviously the court did not want to be part of this very sensitive conflict, preferred to leave it to the political process. The court seems the have had hard time in reaching a decision.
Analysis of the content: Reminders
When one looks at the content, it seems the court followed a three stage process. The first one seems to be about the warnings to the political parties. According to the court, the difference between the principle political power and secondary political power should not be forgotten. A political party cannot behave as the principal political power; its program and actions are restricted by the Constitution.
In other words, according to the Court a political party cannot behave as if it was not restricted by any other power. Therefore, according to the Court, the unchangeable fundamental principles of the existing constitutional rule cannot be changed through legal means (to do this would mean using the authority of the principle political power and this is not open to the field of the law).
Analysis of the content: The conditions for closing
In the second stage, the court specifies under which conditions the political parties that violate the will of the primary founding political power (the constitution) may be closed. According to the Court:
“When the actions or the discourses in the regulations and programs of a political party are incompatible in fundamental terms with the principles stated in the fourth subclause of the 68th article of the Constitution, when it tries to destroy these principles and presents against these attributes a clear and present danger, then that party may be treated as one that deserves closing.” Therefore, “it is not compatible with the Constitution to want to close the political parties that simply express their ideas and try to accommodate the social demands with peaceful means and legal arrangements. For our Constitution, which foresees a system based on liberal democracy, has the ability to prevent the threats that will arise through the legal means thanks to the legal arrangements and administrative procedures created by it.”
This last sentence is especially important, because it makes it possible to differentiate between the responsibilities of an individual and a political party and in a way makes it difficult to close a political party. In this way, the court states that when individual acts or legal and administrative procedures are contrary to the Constitution, the judiciary will be inspecting these anyways and it recognizes that a political party will be closed only when the above conditions are met. (This argument, then, needs to be taken into consideration in the case of the closure case of the Democratic Society Party (DTP).)
Analysis of the content: Implementation of these principles to the case of the Justice and Development Party (AKP)
Finally, the court applied these principles to AKP’s case. However, what is important here is that the court did not reach its conclusion only by considering the events that lead to the case, but took a wider perspective.
According to this, in a summary, “It should be taken as normal that the AKP takes into consideration some social demands (including those religious ones), but this does not mean that the AKP has been conducting its political struggle about these demands in conformity with the concept of secularity in the Constitution.”
“These problems have been transformed into fundamental political problems capable of leading to separations and tensions in the society, the religious sensitivities of the society have been instrumentalized to serve purely political interest, and it has become difficult for the social and cultural problems to take place in the political agenda.
According to the court, when, in this context, one takes into consideration the behavior of some of the AKP members, including Recep Tayyip Erdoğan, Bülent Arınç and Hüseyin Çelik, which has been contrary to the constitutional principles, and moreover, the latest attempt at constitutional amendment for the headscarf issue, it must be recognized that since the party in consideration has adopted these actions, there has arisen ideological centers [against the existing constitutional system].
Here one should criticize Court’s describing a constitutional amendment that was approved by the majority of the Parliament as an ideological center. For this kind of approach may block some other constitutional changes and legal solutions in the future.
Conclusion: How was the AKP able save itself?
If that is so, then how was the AKP able to save itself? The answer to this question is in the anatomy that I mentioned in the beginning of this article. Indeed, by defining some extenuating circumstances, the Court seems to have tried to save the AKP from closing:
“All of the implementations of the ruling party regarding the internal and external policies and the use of the legislative and executive power, Including the actions mentioned above, have been before the eyes of the public. (…) Since the accused party managed to take close to half of the votes in the 2007 elections, this means that the people approves of the accused party by taking into consideration the actions and all of the activities ascribed to it. This shows that the democratic national will have materialized in this direction.”
Following this passage, the steps the AKP has taken for the European Union and the Human Rights are listed and it is said that “when these are taken into consideration, it is obvious that the accused party has been using its power to bring the country to the level of the developed western democracies.”
When one looks at the legal background of the decision that did not close the AKP, but still punished it by cutting the Treasury Aid it has been receiving, the AKP was actually saved itself from closing because of the positive steps it has taken in the matters of the European Union and the human rights.
* Ertuğrul Cenk Gürcan, Ankara University, SBF, The Department of the Constitutional Law.
