Judicial Structure
Turkey’s Constitutional Court was established in 1962 in accordance with the constitution of 1961. It is comprised of 11 members appointed by the president. Essentially, the court serves to “examine the constitutionality, in both form and substance, of laws, and decrees with the power of law and the Rules of Procedure of the Turkish Grand National Assembly.” Generally, decisions are made by an absolute majority, but in cases of constitutional amendments and the closing of political parties, a three-fifths majority is required. Under Article 301 of the Turkish penal code, penalties can be imposed on those who insult Turkish identity or the country’s institutions. Turkey’s courts and prosecutors, along with the country’s military, have often framed their role as defenders of the country’s secular institutions and Ataturk’s legacy. Since its inception, the Constitutional Court has closed 24 parties.
Past Cases of Judicial Intervention
From the remnants of a previously disbanded Kurdish party, the Democratic Party (DEP) was created in 1993. The DEP’s objective was to promote civil rights for all citizens of Turkey. In 1994, the Constitutional Court banned the DEP and stripped its members of parliamentary immunity. Party members eventually faced accusation by government officials of treason and separatism for collaborating with the PKK. The People’s Democracy Party (HADEP) was formed in the place of the now banned DEP. A number of HADEP party members were sentenced to jail terms for having ties with PKK rebels, and in 2003 the party was banned by the Constitutional Court on charges of “separatism and supporting terrorism.”
The Islamist Refah Party, led by Necmettin Erbakan, took a plurality of the parliament seats in the 1996 elections. Also known as the Welfare Party (WP), it was accused of taking part in anti-secular activities and consequently, six of its leaders were banned from political party activities for five years. On January 16, 1998 the Constitutional Court dissolved the WP on grounds that it had become a center of anti-secular activities.
In 2001, the courts ruled to ban the Virtue Party, founded by the elites of the dissolved Welfare Party. Claiming that the party, which represented the main opposition to the government, was involved in anti-secular activities, the court expelled two members from parliament and banned five more from politics for five years.
A case was brought against another pro-Kurdish party, the Kurdish Democratic Society Party (DTP) in 2007. The Constitutional Court agreed to review the case, which claimed that the DTP, which had twenty members in the parliament at the time, had close ties with Kurdish separatist rebel groups.
Current Issues
Turkey’s Constitutional Court ruled in late March that it would hear two cases against the ruling Justice and Development Party (AKP), an Islamist party. The cases seek to ban 70 members of the AKP, including Prime Minister Recep Tayyip ErdoÄŸan, from serving in the government for 5 years, and to levy a similar punishment on party member President Abdullah Gul.
The Chief Prosecutor of the High Court of Appeals and initiator of the suit, Abdurrahman Yalcinkaya, has claimed that the AKP has engaged in anti-secular reforms in violation of the constitution, including lifting the ban on women wearing headscarves at universities and attempting to limit restrictions on religious education. Yalcinkaya has also claimed that AKP members have made anti-secular comments.
Critics of the party fear that AKP reforms, including municipal bans on alcohol sales, are intended as moves to establish a more Islamic state. They view the AKP as using democracy to install Shari’a law while refuting the secular traditions of the constitution.
The 162-page indictment submitted by Yalcinkaya reportedly includes passages taken from books published by the AKP’s opposition party, the Republican People’s Party. The document also includes news articles about the AKP that were later proven erroneous.
The court voted seven to four to hear the case against President Gul, and unanimously to hear the case against the other 70 party members. Eight of the eleven sitting judges were appointed by the former, highly secular, President Ahmet Necdet Sezer.
The case has raised questions about the stability of Turkey’s democracy, and has cast more doubt on the country’s chances of joining the European Union. It is also seen as a continuation of the struggle between secular and religious parties – tensions highlighted since the AKP’s rise to power in 2002. The decision to hear the case has been received poorly by the Turkish media, and has had a negative effect on the country’s economy.