Blog of the International Journal of Constitutional Law

Turkey’s Constitutional Court bans pro-Kurdish party

Under the 1982 Turkish Constitution, Turkey’s Constitutional Court – a stronghold of Kemalist-statist interests and an active defender of Turkey’s militant secularism – is vested with the power to order the closure of political parties whose agenda is found to be “in conflict with the indivisible integrity of the State with its territory and nation, human rights, national sovereignty, and the principles of the democratic and secular Republic” or when “the internal functioning and the decisions of political parties [is] contrary to the principles of democracy” (Article 143).

On Friday, December 11, the Court voted to shut down the pro-Kurdish Democratic Society Party (DTP) and banned dozens of members from joining other political parties for five years. It also expelled two of the party’s politicians, including Ahmet Turk, the DTP leader, from parliament. Various media outlets report that the court found the party guilty of co-operating with the Kurdistan Workers Party (PKK), which has been fighting for autonomy in Turkey’s mainly Kurdish southeast. The detailed reasoning for ruling has not yet been published. However, the Turkish newspaper Hurriyet reports that Hasim Kilic, the Constitutional Court CJ, said the party’s closure “was decided due to its connections with the terror organization and because it became a focal point of the activities against the country’s integrity.”

Over the last 26 years, reports our colleague Hootan Shambayati who studies Turkish constitutional politics at Bilkent University, Ankara, the Turkish Constitutional Court has ordered the closure of political parties on 19 occasions (seventeen of those since 1991). While some of these closures were based on technical grounds (e.g. parties’ failure to comply with certain bureaucratic standards), others were based on ideological grounds. For example, the Court dissolved several pro-Kurdish parties, and, most notably, two major Islamic parties – the Welfare (Refah) Party (1998) and the Virtue (Fazilet) Party (2001). In February 2003, the European Court of Human Rights dismissed an appeal against the Court’s ruling in the Refah dissolution case and concurred with the Court’s view of Shari’a norms as incompatible with core principles of democracy. In April 2008, the Court agreed to hear a challenge to the very constitutionality of the moderately religious AKP – Turkey’s ruling party over the last few years. In a widely publicized decision issued in July 2008, the Court came very close to banning the AKP but stopped just short of doing so; six of the eleven judges, one vote shy of the necessary seven votes, found the AKP platform unconstitutional. In so doing, the judges signaled that no further “Islamization” will be tolerated by the Court and by its secular and military establishment backers.

The ruling is not likely to be endorsed with open arms by the European Union, which had warned Turkey that banning the DTP would violate the rights of the Kurdish minority. Ironically, as one of my students suggested to me, it is quite likely that the Turkish Constitutional Court based its reasoning, at least in part, on the ECtHR. CJ Kilic recently said that: “A political party has to make a distinction between pro-terror and peaceful messages. The European Court of Human Rights is clear on this point.” CJ Kilic seems to refer to the ECtHR reasoning in the Herri Batasuna v. Spain case (July 2009), where it upheld the Spanish Constitutional Court’s ban on the Basque Batasuna party and its proxies for its assumed association with – and failure to condemn – a terrorist organization (ETA) despite not having acted illegally itself. These pro-ETA parties, ruled the ECtHR “contradicted the concept of a ‘democratic society’ and presented a major danger to Spain’s democracy.” The analogy between the two cases is questionable in many respects, so it’d be interesting to see whether the Turkish Constitutional Court actually cited the ECtHR’s Batasuna decision. If it did, as my student suggests, that would mean the ECtHR’s defense of democracy in one country (Spain) might have had a negative effect on democracy in another (Turkey).



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