Dysfunctions
Lawfare in Turkey: Ergenekon versus the AKP
By Ersin Kalaycioglu. Bitter Lemons 17/7/08
Jul 20, 2008 - 5:57:27 AM

When explosives were unearthed in Umraniye, Istanbul on June 12, 2007 the reaction of the press was deja vu. The press referred to it originally as the "Umraniye" affair, yet as the legal investigation deepened it was defined as the doings of an alleged clandestine and ultra-nationalist "Ergenekon" organization. Since the early 1970s, several prosecutors and some high-ranking politicians such as then prime minister Bulent Ecevit had pointed to an underground or counter-guerilla organization that had most probably been set up by the security establishment in line with NATO planning of the 1950s. In fact, a similar organization called "Gladio" was identified and prosecuted in Italy in the 1990s. However, the Turkish version survived the post-Cold War era unscathed.

When suicide weapons were discovered in the trunk of a crashed car in Susurluk, Balikesir in 1996, where a police chief, former ultra-nationalist Grey Wolf and a deputy of the National Assembly from the right of center True Path Party from the southeast were among the passengers, the press claimed some such clandestine state organization as the "counter-guerilla" was at work again. After several court cases and a major multi-party investigation by the National Assembly, thousands of pages of claims emerged, though no sentences emerged from the courts against any high ranking official or politician.

Most recently, two retired generals were arrested as part of the "Ergenekon" investigation, which had been moving at a snail's pace for a year with no indictment while many suspects had been in custody for a year or so. In the meantime, Kuddusi Okkir, who was arrested in June 2007 as the financial sponsor of the "Ergenekon", contracted cancer while in custody. In July 2008, he was set free to die in the care of his family, who were not able to find the financial means to arrange for his funeral. Several examples of less bizarre but equally messy handling of the incarcerated persons and their personal belongings by the prosecution surfaced. Some of the press called foul, others argued that coup-makers were getting support from the sympathizers of authoritarianism in the press.

More or less in parallel, the general prosecutor has pressed charges against the ruling Justice and Development Party (AKP) on the grounds that it violated the Political Parties Act and the constitution and that the AKP had become a focal point of anti-secular activities in March 2008. It seems that the decision of the general prosecutor coincided with a move by PM Recep Tayyip Erdogan to render it possible for women students at Turkish universities to attend classes with a style of head cover called the "turban" that had been outlawed by Turkey's administrative courts. Erdogan's move was supported by the Nationalist Action Party (MHP) and 80 percent of the deputies of the National Assembly supported constitutional amendments that provided equality before the law to women students irrespective of their attire.

The constitutional amendments were appealed to the Constitutional Court by the main opposition party as a violation of the secularist principles of the constitution. That court, by an overwhelming majority, decided that the amendments indeed violated those principles. However, to do so the Constitutional Court overlooked the fact that the 1982 constitution authorized the court to monitor only the legislative procedures of constitutional amendments but not their substance. Therefore, the AKP and its sympathizers charged that the Constitutional Court had overstepped its boundaries and decided on the unconstitutionality of the amendments by violating the very constitution it is supposed to uphold. In the meantime, the general prosecutor used the Constitutional Court decision on the amendments to further buttress his arguments that the AKP was trying to undermine the secular principles of the republic.

The overall perception of the Turkish press has thus been that the Ergenekon affair and the AKP's closure case are related and politically motivated. The claim is that there is a tit for tat relationship between the AKP and its nationalist adversaries who are using the Turkish court system as a means of "lawfare" to strike each other down. If the court eventually decides that the "Ergenekon" organization exists and is indeed involved in a plot against democratic government, the argument regarding a power struggle between political forces that use the courts as an arena for their struggle will falter. However, with an indictment that takes more than a year to compose, the chances are that we will probably not know about that case for another three to five years. On the case of closure of the AKP, the Constitutional Court will make its decision known in a few weeks. Whatever it decides, this will probably not be enough to convince the main political adversaries and they will continue to accuse one another and the court, as was the case earlier with the court's decision on the constitutional amendments.

The political backdrop of these court cases reveals the big divide in Turkey between those who belong to a kulturkampf of secularists versus those who belong to a kulturkampf of traditionalist religious conservatives. Turkish society and politics are deeply divided between two warring camps that view one another with the utmost enmity and distrust. Consequently, whenever political issues that pertain to secularism and religion come to the fore of Turkish politics, the old enmities and distrust surface to undermine the legitimacy of the government in the eyes of its opponents across the cultural divide. The policies, moves and declarations of the government are interpreted with a mindset that perceives it as the enemy that is ready to compromise every major value of the country.

The initiatives of the AKP government since the 2007 presidential election in the National Assembly seem to have precipitated a confrontation that fell on this cultural division of the Turkish polity. This in turn has again precipitated serious concerns and debate about the fundamentals of the Turkish political regime. It renders the implementation of democracy cumbersome and the rule of law a victim of egregious power struggles.-

Source: Ocnus.net 2008