Turkey returned from the brink of an unprecedented constitutional crisis when its Constitutional Court refrained from banning the ruling Justice and Development Party, (AKP). Instead, in a narrow decision, the Court chastised the party for providing an environment for anti-secularist activities and punished it by imposing a fine. Having averted a political calamity, the AKP now faces a challenge: it must reinvigorate its ranks and quickly move ahead with a new and credible agenda. The party may have survived, but the political system will feel the effects of this crisis for a long time and, in the medium term, Turks and others may be surprised by what transpires. This court case may only be the second most recent skirmish in the continuous battle between state and society or civil-military relations.

The Court Case

The case brought by the State Prosecutor was political and devoid of serious legal foundation. It read more like a list of newspaper clippings than a well-thought out juridical case, consisting of a litany of every single conceivable utterance and newspaper clipping by an AKP member that could somehow be interpreted as proof that the party was supportive of anti-secularist activity. Even supporters of the prosecutor and avid opponents of the AKP were upset by the paucity of the legal brief. Moreover, in a conspiratorial fashion, the indictment even accused the United States of promoting “moderate Islam” in Turkey and argued that Prime Minister Recep Tayyip Erdogan’s participation as co-leader of the Dialogue of Civilizations with Spain’s prime minister as proof of AKP’s toxic intentions.

The court decision was narrow: 6 of the 11 judges did vote to ban the party and some or all of the 71 of its members listed in the indictment. Only four judges, unwilling to let it get off scot-free, voted to penalize the party, and one judge voted against the case altogether. Despite the majority 6 six votes, the Constitution requires 7 affirmative votes in favor of closing before a party is banned, hence the AKP barely escaped. The Turkish Supreme Court is unlike its U.S. equivalent—one does not need to be a legal scholar to serve on it. In a fact, a number of the judges, including a former diplomat and a politician, have probably never even seen the inside of a law textbook much less go to law school.

Had one judge voted the other way, the party would have been banned and a serious blow would have been dealt to Turkey’s democracy. With the stroke of the pen, an overwhelming electoral victory would have been overturned. More importantly, given the political nature of the case and the absence of a legal basis for the indictment, such a decision would constituted a judicial coup d’état and a precedent for dislodging governments for policies that run contrary to the wishes of a powerful institution, such as the military and civilian bureaucratic elite and the judiciary.

The Rise of the AKP

The AKP first came to power in November 2002 when it won some 34 percent of the votes and, given Turkey’s electoral system, which requires a party to win a minimum of 10 percent of the votes to win the right to enter parliament, also garnered some two thirds of the parliamentary seats. It success as a moderate Islamist party sent shivers through the secularist establishment in the military and civilian bureaucracy, judiciary, media, and academia. Many of the AKP’s leadership had been part of previous pro- (though far less moderate) Islamist parties that had been banned or overthrown as late as 1997. Governing on reformist platform that promised to bring Turkey closer to the EU, the AKP, to the consternation of hardline secularist groups, was wildly successful. 

Other than its origins, its cardinal sin was the attachment of so many of its leaders to the headscarf. Erdogan and his then foreign minister and now President, Abdullah Gul, and numerous others had spouses who wore a headscarf, deemed “Islamist” by the secular establishment. Rules governing “public spaces” in Turkey ban the use of headscarves by university students, civil servants, and parliamentarians. In addition, no woman with a headscarf can enter a military establishment and officers whose wives wear scarves are routinely purged from the military’s ranks.

The headscarf issue is where Turkish and American variants of secularism diverge. Whereas in the United States, the separation of church and state means that the state does not interfere in any way in people’s private beliefs and behavior, the Turkish state, by contrast, rules and controls religion. The irony is that this effort only applies to the majority Sunni branch of Islam. There is a religious affairs ministry with a large bureaucracy that not only supervises mosques but, when necessary, even tells prayer leaders what to preach. On the other hand, the state also tries to prevent any signs of religiosity from invading the public sphere. The interpretation of secularism has hardened over time, as secular elites have perceived themselves to be under pressure from a rising new conservative elite that does not buy into the state’s control of religion. Erdogan and the AKP crossed the line as far as the secularists were concerned when they decided to change the laws to enable women with headscarves to attend university.

During its first term, the AKP had resolutely tried to avoid controversial cases and ducked pressure from its base to engage on the headscarf question. The party finally decided to challenge the establishment when in April 2007 it decided to elevate Gul to the presidency, unleashing the current crisis. Gul, though much liked and respected by everyone across the political spectrum, gathered the ire of many, including in the military because his wife wore a headscarf. The idea that someone donning such apparel could “inhabit” the house that founder Ataturk built was too much for many in the hardcore secularist camp. Retired military officers, currently under indictment and in prison for anti-regime activities, organized rallies to protest the decision. The Constitutional Court was again in the limelight when it was asked to validate the opposition’s dubious contention that a minimum of 367 parliamentarians had to be present in chambers at the time of a presidential selection. The court, as events and news reporting have since demonstrated, came under severe pressure, including from senior military officers, to block Gul’s elevation. In addition, the military issued a thinly veiled threat on its website against the AKP. The resulting deadlock was broken when new elections were held and the AKP increased its share of the vote to 47 percent. Not since 1965 had a political party succeeded in winning such a large percentage of the votes. Moreover, for the first time since 1954 had an incumbent party managed to increase its share of the vote.

The victory opened the way for Gul’s elevation. In retrospect, some analysts have argued that AKP erred in sending Gul to the presidency. It ought to have selected a less controversial figure, at least one whose wife did not wear a headscarf. The AKP, however, faced a dilemma: if it shied away, it would have acknowledged that hardline secularists could still determine its choices even when it had won a resounding victory. Gul himself would have felt humiliated had he not been selected as AKP’s candidate.

The voters too would have been disappointed because they cast their votes fully cognizant of what the AKP stood for and what it planned to do. In fact, they were rewarding the AKP and punishing the secularists with their choices. Despite the numerous interruptions in their country’s politics—three actual coups and other indirect ones—Turks have grown accustomed to democratic politics. The Turkish voter goes to the polling booth with the expectation that his or her vote matters to the outcome; the voters have in the past demonstrated an extraordinary sense of independence and punished those parties which they deemed to have failed them. For instance, former Prime Minister Bulent Ecevit’s party, which had come in first in the 1999 elections, was decimated in the subsequent election as only one percent of the electorate voted for it. The reason was simple—hubris and mismanagement during his tenure had resulted in the worst economic crisis of a generation. Time after time, when there has been an intervention in the ordinary course of political life, voters have come back to reward the party perceived to have been victimized or wronged. Had the AKP been banned this time, it is quite possible that the electorate would have come back and punished those who pushed for the ban deepening the crisis further.

The Impact of the Current Crisis

The crisis this time has served to weaken all the institutions involved: the military, which is seen to have masterminded the judiciary’s assault on the AKP; the judiciary with its flimsy case; the AKP, for having provoked the crisis by squandering the opportunity created by its unprecedented victory at the polls in July 2007; and parliament, with its ineffectual opposition and incapability to stand up to a brazen usurpation of its prerogatives and powers.

Ironically, the AKP also stands to benefit from the crisis. The Court in its ruling did issue a warning to the AKP and the whole process has forced the AKP leadership to rethink not just its strategy but also how it conducts its own affairs. There is no question that the AKP had been unresponsive to the concerns and fears of many of its citizens, in particular women. The Turkish cabinet has had one woman with the brazenly token responsibility of “women’s affairs.” This is surprising given the length to which the party went to successfully recruit talented and professional women before the last round of elections. Yet none of them were deemed meritorious to be included in the cabinet that has remained very much a “boys’ club” of Erdogan’s intimates. Many parliamentarians have also been critical of the leadership for keeping the cabinet virtually intact since the beginning of its mandate in 2002.
AKP senior cadres whom I talked to earlier this July are aware of the party’s shortcomings and its need to return to its core agenda of reforms and prioritize the European Union accession negotiations. In fact, Erdogan, in his speech following the court ruling, emphasized the EU process and forcibly said there can be no turning back from the path of complete EU accession.

It would also not be surprising that once the court ruling is published in the official gazette with all its details, that Erdogan will order a major cabinet reshuffle, introduce more women and new blood into its midst and also reverse some of the more egregious appointments made in the senior ranks of the bureaucracy where individuals with affiliations to religious orders were favored at the expense of more meritocratic ones. Though not necessarily as widespread as AKP’s detractors contend, nonetheless, the appointments were a source of tension with the more secular elements of society and bureaucracy.

The AKP will then have to focus on substantial policy issues that will likely have long-term implications for the Turkish body politic. The crisis demonstrated once and for all the weakness of the institutional basis of the Turkish political system. The constitutional foundations of this system are weak because they are based on the 1982 Constitution written under military tutelage and rammed through the public in a referendum where no one was allowed to campaign against it. The Constitution has become a straightjacket and tinkering with it over the years may have improved it ever so slightly. The constitution and the accompanying laws restrict all kinds rights, especially those related to the freedom of thought.

Perhaps the most interesting statement made in the context of the court ruling was the court president’s, Hasim Kilic, call for a revision of the constitution and the laws regarding party closures. He argued that, if the country is to avoid such drama in the future and resemble democratic societies, parliament must act expeditiously to revise the constitution (although these would come too late to save the pro-Kurdish Democratic Society Party—DTP—which is next on the Constitutional Court’s chopping bloc this fall). The AKP had every intention after its electoral victory to design a new constitution. It out together a committee of jurists and academics and then inexplicably abandoned the project. It now has no choice but to push for a new constitution along with EU-related reforms.  In turn, such a move, will also require that it begins to pay attention to Turkey’s most pressing political problem, that of its minority Kurdish population.

All of these herald a new round of civil-military tensions in Turkey. Underlying much of the criticisms of the AKP among hardline secular elites was that the EU process would be undermining the secularist Kemalist nature of the Turkish state. This state is rigidly ideological; it is based on interpretations of the founder Kemal Ataturk’s ideas. Whether or not he would have sanctioned such interpretations today is not knowable. Yet, this is country where university presidents and provosts routinely visit Ataturk’s mausoleum, pledge once there to follow in his footsteps and denounce others who may not be following his line.

Already, an investigation of secularist gangs composed of party leaders, retired high-ranking officers, businessmen, journalists and academics, have revealed the deep division in society but also the extremes to which some in the secularist establishment were prepared to go to provoke a military coup to not only get rid of the AKP but also disrupt Turkey’s ties with the West. While these have people have tarnished the secularists’ reputation, they have not disappeared and many remain deeply disappointed with today’s court ruling.

If one result is crystal clear it is that the court case has backfired. It was an attempt at a judicial coup by arch secularists and in the end even the judges did not have sufficient courage to go through with a ban. The seeming reprimand of the party and the fine may appear to have been an effort to satisfy all sides, but the court case was the last arrow in the quiver of non-military options at exercising radical change and bringing down the government. Now, the only way they can achieve their goal is through a full-fledged and old-fashioned military coup with tanks and soldiers in the street. This is what they were trying to avoid and they lost. As a result, if the AKP succeeds in revamping its personnel and agenda, it will emerge far stronger that the secularists elites and their military supporters.

This may be good for democracy except that Turkey suffers from another ill; it has no effective opposition party. Until such a party emerges, civil-military tensions will continue and may even augment. Turkey is not out of the woods yet.