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The Motion Before Turkey's Constitutional Court to Ban the Pro NO. 38 JUNE 2021 Introduction The Motion before Turkey’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 Ankara. 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.
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