However, 10 out of the 11 members of the court found the party "guilty." Six members voted for the closure of the party, four ruled that Treasury subsidies to the party should be cut and one member voted for the dismissal of the indictment. In the end, the ruling party was ordered to pay a monetary penalty. It is true that the decision will provide some relief in the short term. At the least, it seems that the markets will not be devastated. The EU process will not be interrupted; a new one won't be added to the 24 political parties that have been closed thus far in Turkey. If a decision had been taken to close the party, a deep unease would have taken grip in much of society. This has been prevented by the decision.
While all of this is true, we have to respond to a question over whether the issue has been resolved with a "no." A party that proceeded with a constitutional amendment to lift the headscarf ban in accordance with the established rules and procedures was found guilty for this action alone. A notion called "crime without action" was invented for this case; statements and views, almost all of which should be reviewed within the context of freedom of expression, were presented as offenses to justify the closure of the party. This means that the Constitutional Court took the accusations seriously even though it issued a mild penalty.
The real part of the issue rests with this because the 1982 constitution recognized such broad discretion of the Constitutional Court in determining the "focal point of actions contrary to laicism" that the ability of the parties to defend themselves against this broadly defined and interpreted discretion became very weak. The subtext of the 1961 and 1982 constitutions suggests that the choices of the people should be controlled; if popular choice becomes influential in the political and administrative systems through representation and participation mechanisms, the power elites will lose their advantages and privileges.
Meanwhile, an interesting development took place. Constitutional Court Chairman Haşim Kılıç, who announced the decision on the AK Party, made an important statement. A careful review of the statement will show that the chairman's speech included some parts which will serve as a roadmap to be followed in future democratization process. The court chairman made the following remarks:
"None of our colleagues can say he is happy with party closures. We all have difficulties with serious lawsuits for the sake of democracy. However, unfortunately, changing the rules comes to the agenda when party closure issues come to the agenda because the required constitutional amendments have not been made on this matter. However, this is not how things should be. We would like the parties to agree on closure cases. The discussions gained momentum because of political party closure cases. We would like to make a call to the political actors once more. You have to reach a consensus to make the necessary amendments swiftly if society is uneasy with this. We, as society, have to do our best to make sure that the entire community coexists in peace and harmony."
What the chairman is trying to explain is this: If political parties do not want to be faced with penalties like closure -- which is fairly grave and embarrassing in democracies -- they have to take action to introduce bold reforms in fundamental laws, democratize the system and make party closure difficult. It should be underlined that this is a proper and timely warning. Furthermore, its issuance by the chairman of the top court increases its importance further.
For one reason or another, politicians have abstained from making changes on this matter. They keep the coup constitution and they react when the rights and authorities recognized by this constitution regarding the judiciary are used. There is either insincerity or inconsistency in this approach.
The AK Party case showed that this system cannot be sustained any longer in Turkey. Fundamental reforms should be introduced. Unless these reforms are made, the sword of Damocles will remain suspended above political parties. Now the ball is in the AK Party's possession.
