NO. 38 JUNE 2021 Introduction

The Motion before ’s Constitutional Court to Ban the Pro-Kurdish HDP An Example of the Entanglement of Politics and the Judiciary, and a Bad Omen for a Peaceful Solution to the Kurdish Conflict Osman Can

On 2 March 2021, the Turkish Prosecutor General’s office opened investigations into the Peoples’ Democratic Party (HDP). On 17 March it filed its application with the Constitutional Court to have the party banned. The Prosecutor General further sought to prohibit 687 HDP officials from engaging in political activities for five years. This would have amounted to excluding almost all HDP politicians from politics, and thus closing political channels for discussing and solving the Kurdish question for years. On 31 March the Constitutional Court rejected the application due to procedural flaws. However, on 6 June, the Prosecutor General’s office announced that it had filed a further motion to ban the party. This move to prohibit civilian and non-violent Kurdish politics risks augmenting the illegal Kurdistan Workers’ Party (PKK) and per- petuating the Kurdish conflict. It reveals the entanglement of politics and the judi- ciary in Turkey, and highlights structural deficits in the Turkish Constitution.

The catalyst was Devlet Bahçeli, president the prosecutor’s office met Bahçeli’s of the far-right Nationalist Movement Party demands. (MHP). The MHP had changed its policy just before the failed coup by parts of the mili- tary on 15 July 2016. It had turned from an Party Politics as a Trigger for the opponent of the current President Recep Application to Ban the HDP Tayyip Erdoğan and the presidential system he favours, into the staunchest defender of Given that it was the MHP president who the new system and an Erdoğan ally. On 11 attempted to have the HDP banned, and December 2020 Bahçeli publicly demanded given the timing of the application, it is that the Prosecutor General investigate very unlikely that legal considerations were the possibility of banning the HDP and file decisive in drawing it up. Even the contro- an application to do so, in order to com- versial involvement of HDP leaders during prehensively sweep Kurdish parties off the the violent clashes in Southeast Anatolia political stage. About three months later in 2014, when so-called “Islamic State”

besieged the Kurdish town of Kobani, did AKP since the other parties have no support not result in an application being discussed, in the majority-Kurdish areas. This would let alone filed. The same was true when mean an increase of 50 to 70 seats, which PKK fighters dug trenches against Turkish could help Erdoğan’s party to regain an security forces in the HDP-governed cities in absolute majority in parliament. the country’s southeast in late 2015, even It is unrealistic to hope that controversial though such construction is hard to imagine issues relating to the organisation of the without the help of district councils. elections, such as the registration of parties, Nor is there any evidence that the HDP will be decided objectively. The Supreme has become radicalised in recent years, Electoral Council, which is in charge of triggering the filing of the application in running the elections, was largely reconfig- 2021. Rather, the approach of the justice ured after the 2019 local elections – to system is linked to political and constitu- Erdoğan’s benefit. The newly appointed tional changes since 2017. members of the committee were drawn Today the HDP is the only hope for any exclusively from the Court of Cassation and chance of success for the party alliance that the Council of State. All previous judges at has formed against the governing Justice these two high-level courts had been re- and Development Party (AKP) and its part- moved from office under Law 6723 (para- ner, the MHP. In a change from its previous graphs 12 and 22) ten days after the stance, the HDP now pursues a policy of attempted coup; the new appointments peace and reconciliation, thus putting pres- corresponded with Erdoğan’s needs. sure on the government. Without the HDP’s votes in the most recent local elections (2019), the candidates of the most impor- The Impact of the Failed Coup on tant opposition party, the Republican the Judiciary People’s Party (CHP), would not have been able to win the town halls of the country’s The fact that the judiciary responded to the largest cities for the opposition alliance, demands of the MHP president so willingly including Istanbul and . The AKP is and quickly, and filed the application to steadily losing support among the citizenry, ban the HDP only three months later, is due and there is a growing risk that the presi- to the reordering of the Turkish judiciary dent might lose power at the next elections. after the failed coup by parts of the military It is therefore likely that, whenever the eco- in July 2016. President Erdoğan called the nomic conditions seem right to Erdoğan, he coup d’état aiming to topple him a “god- will bring forward the elections. However, send” only shortly afterwards. Although even with early elections, the HDP has to the insurrection was crushed, and military be removed from the equation in order for leaders as well as the police rallied behind him to win. If the HDP was banned, its sup- the president, and all political parties with- porters would probably not have enough out exception condemned the attempted time to found a new party and participate coup, he decreed a state of emergency. In in the elections. The exclusion of 687 HDP the weeks that followed, numerous “decrees politicians would be a dramatic blow for the with legal force” were passed that enabled political movement embodied by the HDP. the president to make profound changes Besides, any successor party to the HFP, to the administration’s composition, purge even if it was founded quickly, could still institutions, and influence the judiciary. be refused participation in the elections, The Constitutional Court declared itself not or it could flounder on the nationwide ten- competent to examine the constitutionality percent hurdle that any party must clear to of these decrees, thus making it possible for enter parliament. Its voters would thus not the president to push through regulations be represented in parliament. In that case, that contradict both the letter and the spirit the seats concerned would mostly go to the of certain provisions in the Constitution.

SWP Comment 38 June 2021

2 The next step in consolidating the presi- positions and men who can openly be called dent’s power was to prepare a revision of illiberal. The previous predominance at the the Constitution in order to introduce a Constitutional Court of the Kemalist elite – “Turkish presidential system”. The draft criticised as recently as 2009 by the Venice modification was drawn up behind closed Commission – has thus been transformed doors, excluding not just the public but also into its mirror opposite. The last four ap- the AKP and MHP parliamentary parties, pointments, which have changed the bal- and was then hurried through parliament. ance of power in Erdoğan’s favour, have The legally required referendum took place occurred in the past two years. Erdoğan also during the state of emergency. It was ex- appointed the current Prosecutor General, tremely difficult for critics to air their who applied to have the HDP banned, last opinions in public; demonstrations against year. the change to the Constitution were banned. It is therefore unlikely that the court will Nevertheless the draft change only received reject the application, which would amount the smallest possible majority in the refer- to opposing the openly stated wishes of the endum. president and his inofficial coalition part- Under the new system, Erdoğan is no ner, the extreme nationalist MHP. The only longer just president but (once again) also uncertainty regarding the ban application is chair of the AKP; there can now be no that two-thirds of all judges have to vote in pretence that the AKP’s internal affairs are favour of a ban. This is more than the eight run democratically. As a result, there is relatively neutral judges, as compared to almost no parliamentary oversight of the the seven that can fairly clearly be catego- president’s actions, who is invested with rised as “pro-Erdoğan”. executive power. Moreover, Erdoğan can now largely decide the composition of the council of judges and prosecutors, and thus The Legal Quality of the influence the staffing of the Court of Cassa- Ban Application tion, the Council of State and the Supreme Election Council. In future, the president The fact that the application to ban the will appoint 12 of the 15 members of the HDP was filed due to party-political con- Constitutional Court directly, and the siderations rather than constitutional ones remaining three indirectly, since his party does not change the requirement for the selects the judges whom parliament then process itself to adhere to technical and elects by simple majority. The Council of material norms. Legally speaking, the ques- Europe’s Venice Commission views these tion arises whether the application is even changes as a degeneration of the system admissible. It is therefore an absolute neces- towards “an authoritarian and personal sity for its wording to meet legal procedural regime” and has called on Turkey not to criteria. It has to avoid vague phrasing and implement them or to reverse them imme- non-specific accusations, and must only diately. The Commission has been ignored. make accusations that can, beyond any Eight of the 15 members of the current doubt, be ascribed to certain persons and Constitutional Court already owe their the party. Finally, the Prosecutor General’s appointment to President Erdoğan. His pre- office must present both the incriminating decessor Abdullah Gül appointed five mem- and the exonerating evidence that is necessary bers; two were elected in 2010 by parlia- for a just and balanced completion of the ment, which was then still acting democrat- case. If the application is deficient in this ically. The old Kemalist elite no longer has regard, the court must refer it back to the any representatives at the court. The only Prosecutor General’s office. difference in the judges currently appointed The material conditions for banning a to the Constitutional Court is between con- party are set out in the Constitution. For servative men who at times defend liberal instance, parties may be banned if their

SWP Comment 38 June 2021

3 charters or programmes are anticonstitu- not unequivocally clear. In other words, tional. However, a ban will only be imposed it has not been established yet whether if the Constitutional Court establishes that the acts on which the accusations are the party has become the focal point of based were even committed and/or such activities. This condition is met if large whether they can be ascribed to a party numbers of party members act anticonstitu- member. tionally, if central party committees tacitly The overwhelming majority of these acts or expressy tolerate such acts, or if party consist of utterances that the Prosecutor ∎ committees themselves deliberately engage General categorises as “terrorist propa- in such activities. Depending on the gravity ganda”. A smaller proportion has been of the contravention, the court can either considered proof of “membership of decide to impose a ban or not; in the latter [HDP] politicians in a criminal organisa- case, it can order state funding for the party tion”; an even smaller proportion has to cease in part or entirely. This sanction been interpreted as “acts against the ex- has so far only been used during proceed- istence and integrity of the state”. How- ings to ban the AKP in July 2008. ever, generally speaking, these acts are Officials can only be ordered to cease verbal criticisms of the politics of the their political activities in the event of a state and/or the AKP government. party ban. A two-thirds majority of judges The charge of “membership in a criminal is necessary to impose any sanction on a organisation” alleges that HDP politicians ∎ party. Ever since the HADEP (a predecessor are members of the Democratic Society of the HDP) was banned in 2003, the Con- Congress (DTK). Yet although the DTK stitutional Court has also taken into consid- has been inundated by political lawsuits, eration whether a party condones the use it has not been banned and must there- of violence. fore continue to be considered a legal Considered under these criteria, the organisation. application to ban the HDP yields the fol- A further charge refers to “involvement lowing results: in unauthorised demonstrations” – un- ∎ Exactly as in Kemalist times, the appli- der the Constitution, however, demon- cation begins with a reference to the strations do not require any authorisa- ∎ ethnocentric orientation of the Constitu- tion. tion as formulated in its preamble: “no Most of the statements that have been protection shall be accorded to an activity categorised as anticonstitutional stem ∎ contrary to Turkish national interests, from the period of peace negotiations Turkish existence, the principle of in- between the Turkish government and divisibility of State and territory, histori- the PKK (2013–2015). At the time, Erdo- cal and moral values of Turkishness, the ğan and allied politicians made very nationalism, principles, and reforms of similar statements. Atatürk, and the civilisation envisaged Statements by prominent HDP politi- by Atatürk”. cians, for example the former Co-Chair ∎ The application claims that the HDP has Selahattin Demirtaş and former Member become the focal point of acts that run of Parliament Sırrı Süreyya Önder, form ∎ counter to “the indivisible unity of the key parts of the application. Demirtaş state with its territory and its nation”. had criticised the Turkish government However, the HDP has neither challenged for standing by during the “Islamic State” the country’s territorial integrity nor siege of the Syrian-Kurdish town of openly advocated federalism. Kobani in 2014, and claimed that this The majority of the evidence consists of had triggered violent demonstrations. acts for which the course of events is Önder’s case revolves around statements ∎ insufficiently documented, and of utter- made in 2015 during the trench warfare ances whose content and intentions are in HDP-ruled towns. However, all of this

SWP Comment 38 June 2021

4 has already been addressed in individual that there is an organic connection be- criminal proceedings against the two tween the two organisations. Anyone politicians; the European Court of Hu- that advocates this teaching, the applica- man Rights (ECHR) has called on Turkey tion claims, is guilty of supporting terror- to revise the verdicts in their cases. ists or is even a terrorist himself. Acts by individual party members listed Finally, the application neglects to men- in the application, such as participation tion or take into account any facts that ∎ ∎ in arms deliveries or recruiting PKK exonerate the party, and thus does not fighters, are indisputably relevant for comply with a key requirement of a ban any party ban – if proven. However, application. their number is very limited, making it It is therefore not surprising that im- doubtful that these acts are sufficient to mediately after the text of the application turn the party into a focal point of anti- became known, doubts were voiced as to constitutional activities. It is also ques- whether the application was admissible in tionable whether such acts can be attri- its current form. The wording gives the im- buted to the party as a whole, since the pression that it was formulated in a great party leadership has always distanced hurry, even precipitately – further proof itself from them. that the procedure was not launched based This also holds for the employment by on legal considerations but rather at the HDP-led municipalities of persons previ- behest of politicians, which is why the ∎ ously convicted of terrorist acts, and for application was rejected. the use of municipal equipment (such as construction machines and diggers) to dig trenches for PKK fighters during the A Long Tradition of Party Bans afore-mentioned trench warfare. in Turkey The application concentrates mainly on proving that the PKK is a terrorist organi- It is worthwhile looking at the constitu- ∎ sation which uses violence. However, tional history of political parties in Turkey this has been the firmly established and to contextualise the current application institutionalised classification of the for a ban. Until 1961 parties had the status organisation for decades, not only in of associations. They could therefore be Turkey but in Europe as well. Crucially, banned by civilian courts if petitioned by the application would need to prove the executive. Only in the 1961 Constitu- a direct link between the HDP and the tion did parties gain constitutional status: PKK. Here, the evidence presented is they were defined as indispensable compo- mostly limited to mere assumptions, nents of democratic political life. There- questionable constructions, and vague after, they could only be banned by a Con- formulations. Repeated value judge- stitutional Court verdict upon application ments are often designed to replace by the Prosecutor General’s office. Officially, tangible proof. For example, the applica- the executive has since then played no role tion interprets the approximate simul- in proceedings to ban parties. This arrange- taneity of PKK actions and declarations ment was substantially retained in the 1982 with HDP actions and comments to Constitution. prove that such a connection exists, On the surface, the fact that parties have without giving detailed evidence. constitutional status and that the procedure Parallels between the HDP’s and the for banning them is separate from the ex- PKK’s political stances are also often con- ecutive seem to suggest that political parties ∎ sidered evidence. For example, the fact can operate freely in Turkey. However, that both the PKK and the HDP call for appearances are deceptive. Since the foun- Kurdish children to be taught in their dation of the Constitutional Court in 1961, native language is presented as proof 25 parties have been banned in Turkey,

SWP Comment 38 June 2021

5 Parties Banned by the violence as a political means to reach its Constitutional Court goals or at least considers the use of vio- lence legitimate. Parties can also not expect The Constitutional Court imposed bans for the European Court for Human Rights to violating the principle of secularity on the National Order Party (MNP, unanimously) intervene for their protection if they aspire in 1971, the Inner Peace Party (HP, 10 vs. 5) to a political order that fundamentally con- in 1983, the (RP, 9 vs. 2) in 1998 tradicts a democratic constitution as stipu- and the (FP, 8 vs. 3) in 2001. In lated in the European Convention of Human 2008 the party currently in office, the Justice Rights. For “democracy, the rule of law, and Development Party (AKP, 5 vs. 6), only just and human rights” are the three pillars of avoided a ban. Europe’s common political order. The following parties have been banned To a large extent, ECHR legislation on for separatism: the Workers’ Party of Turkey banning political parties developed based (TIP, unanimously) in 1971; the Turkish Labour on cases from Turkey that were submitted Party (TEP, unanimously) in 1980; the United to the court after 1990, the year in which Communist Party of Turkey (TBKP-T, unani- Turkey acknowledged the court’s mandatory mously) in 1991; the Socialist Party (SP, 10 vs. 1) in 1992; the People’s (HEP, 10 vs. competence. So far, seven appeals have 1), Freedom and (ÖZDEP, un- been examined by the court. Except in the animously) and Socialist Party of Turkey (STP, case of the Islamist Charity Party (RP), the unanimously) in 1993; the Democracy Party ECHR established that the Turkish Consti- (DEP, unanimously) in 1994; the Socialist Unity tutional Court had breached the Conven- Party (SBP, unanimously) in 1995; the Party for tion in all cases. Democratic Change (DDP, 10 vs. 1) in 1996; In Turkey parties were banned mainly the Labour Party (EMEP, unanimously) in 1997; for their separatism and their violations of the Democratic Mass Party (DKP – Liberal the principle of secularity; in a few cases, a Kurds, 6 vs. 5) in 1999; the People’s Democ- ban was also imposed for exclusively formal racy Party (HADEP, unanimously) in 2003; reasons (see box). With all of these bans, and most recently, in 2009, the Democratic there was a fundamental failure to verify Society Party (DTP, unanimously). Bans for formal reasons have been im- whether the accused had posed on the Farmers and Workers Party (İÇP, legitimised or employed violence and terror unanimously) in 1968; the Progressive Ideal as a method and instrument. Party of Turkey (TIÜP, unanimously) in 1971; However, the Turkish Constitution also the Great Anatolia Party (BAP, unanimously) identifies other reasons for banning politi- in 1972; the Republican People’s Party (CHP, cal parties, aside from separatism and unanimously) in 1991; the Green Party (YP, 10 violating secularity: contraventions of the vs. 1) and Democratic Party (DP, unanimously) principles of democracy, human rights and in 1994; and, most recently, the Resurrection the rule of law, as well as propaganda aimed Party (DIRIP, unanimously) in 1997. at establishing a dictatorship (Art. 68/4). So far, not a single motion to ban a political more than in all other countries who are party has been justified using these reasons, members of the Council of Europe. despite such principles forming part of the In democratic countries, political parties invariable characteristics of the Republic can only be banned due to acts that actively and being protected within the Constitution target the constitutional order or threaten by so-called “eternity clauses”. Yet the fact the territorial integrity of the state. Merely that no application for a ban has been having charters or programmes that are in- based on these reasons does not mean that compatible with the constitution is not suf- such principles are not endangered. How- ficient cause. Under ECHR legislation, and ever, these are not the primary defensive according to the recommendations of the lines of the political conflict – it is not Venice Commission, proceedings to ban primarily a confrontation about more or a party must establish that the party uses less democracy, respect for human rights or

SWP Comment 38 June 2021

6 the rule of law. Instead, the political fight nationwide protests in 2013, were followed was (and is) usually focused on secularity in late 2013 by the corruption investiga- and separatism. tions into government members by those Bans on parties that were accused of loyal to the preacher Fethullah Gülen; both separatism were usually decided unani- showed just how fragile the government mously by the Constitutional Court. When of current President Erdoğan already was banning Islamist parties, the court’s judges at the time. In the parliamentary elections normally arrived at a maximum of nine of 7 June 2015 the AKP lost its absolute votes in favour out of the 11. This demon- majority for the first time since entering strates that there is substantial social con- government thirteen years earlier, in 2002. sensus on rejecting Kurdish demands for In order to avoid having to share power, © Stiftung Wissenschaft minority rights – seen as separatist – Erdoğan decided against a coalition with und Politik, 2021 whilst there is disagreement about the role the Republican People’s Party (CHP), which All rights reserved of religion within society and politics, i.e. could have led to more democratisation and This Comment reflects about secularity. normalisation. Instead he entered into an the author’s views. unofficial alliance with the extreme-right- wing Nationalist Movement Party (MHP). The online version of Instrumentalising Party Bans in As a result, peace negotiations with the this publication contains the Political Arena illegal Kurdistan Workers’ Party (PKK) were functioning links to other declared a failure, parliament was dis- SWP texts and other relevant sources. At the constitutional level, party bans were solved, and re-elections were decreed. The made more difficult in 2001 as part of the government camp recategorised the pro- SWP Comments are subject preparations for EU accession negotiations. Kurdish Peoples’ Democratic Party (HDP), to internal peer review, fact- The reasons to impose a ban were restricted which had been mediating in the govern- checking and copy-editing. in scope, and the quorum for pronouncing ment’s negotiations with the PKK, as For further information on our quality control pro- a ban was raised to three-fifths of the judges. puppets of the terrorist PKK, and declared cedures, please visit the SWP It is entirely due to these changes that the its politicians to be terrorists. The current website: https://www.swp- AKP avoided a ban in 2008 even though application to ban the HDP thus did not berlin.org/en/about-swp/ the court declared it a “focal point of anti- come as a surprise. quality-management-for- secular activities”. During revisions to the Kurdish voters in particular can hardly swp-publications/ Constitution in 2010, the quorum for party consider the application to be legitimate. SWP bans was raised again, to two-thirds, which They will surely interpret it to mean that Stiftung Wissenschaft und corresponds to 10 of the 15 judges. the representatives they elect are criminal- Politik The constitutional amendments in 2010 ised even when they do not resort to vio- German Institute for put an end to the dominance of the mili- lence but espouse democracy. There is a International and tary over civilian politics, and diffused the great risk that Kurds will feel even less of a Security Affairs tense relationship between religion and sense of belonging to Turkey and that some Ludwigkirchplatz 3–4 state at the constitutional – though not the will be radicalised anew, which will make 10719 Berlin social – level. However, any expectations the prospect of democratisation in Turkey Telephone +49 30 880 07-0 that this would establish a democratic con- even more remote. Fax +49 30 880 07-100 stitutional order and herald the end of www.swp-berlin.org party bans have not been fulfilled. [email protected] This is primarily due to the fact that ISSN (Print) 1861-1761 the government camp, faced with rapidly ISSN (Online) 2747-5107 diminishing social support, intends to doi: 10.18449/2021C38 use this political instrument once again to retain power. The demonstrations to save Translation by Tom Genrich Gezi Park in Istanbul, which turned into (English version of SWP-Aktuell 44/2021) Prof Osman Can was Short-Term-Fellow at the SWP in 2019 on the IPC Foundation’s Mercator Fellowship Programme.

The Centre for Applied Turkey Studies (CATS) is funded by Stiftung Mercator and the German Federal Foreign Office. SWP Comment 38

June 2021

7