Osman Can, the Constitutional Court's rapporteur, told the court on Wednesday afternoon not to ban Prime Minister Recep Tayyip Erdoğan's Justice and Development Party (AK Party) over charges of being a focal point of anti-secular activities because the government's moves were peaceful and aimed at expanding freedoms. Mithat Sancar, a professor of law at Ankara University, said the report is nonbinding and only serves to guide the members of the court as the rapporteur is allowed to make his own evaluations.
"The members [of the Constitutional Court] look at the report to get a better understanding, but in the end vote on the closure case using their own judgment. They do not necessarily vote as the rapporteur advises them to," he said in a phone interview with Today's Zaman.
The same rapporteur recommended to the court earlier this year that it allow the lifting of a ban on headscarves, but the court overwhelmingly -- 9 to 2 -- decided to leave the ban in place. The ruling has been interpreted by most as the judiciary's seizure of Parliament.
Can pointed out that it was Parliament that voted to lift the ban on headscarves on campus and that a previous decision by the top court annulling the lifting of the ban eliminated that threat, according to an unidentified source quoted by The Associated Press at the court on Wednesday.
Mustafa Şentop, an associate professor of law at Marmara University, said the court has a tendency to weigh precedent more heavily than the recommendations of its advisers -- especially on critical decisions such as the closure case and removing the headscarf ban at universities.
"When we look at the court's decisions, we see that the members are in line with the court advisor's recommendations in the majority of cases but are in conflict with the rapporteur on critical issues," he told Today's Zaman.
In another party closure case, the court sided with the rapporteur but by a critical margin of 6 to 5. The Constitution stipulates that at least seven members of the court must vote for closure for it to be effective -- this three-fifths majority criterion was adopted following constitutional amendments in 2001 to prevent the Constitutional Court from frequently dissolving political parties.
A prosecutor had demanded that the pro-Kurdish Rights and Freedoms Party (HAK-PAR) be closed as its bylaws and program contained "provisions that violate the indivisible integrity of the state with its country and nation."
The court's decision noted that political parties are "lawful organizations established freely by citizens having similar political views and to which they can freely join and from which they can resign at will," and that they are protected under the Constitution as well as the European Convention on Human Rights.
"Given the fact that in countries where democracy is adopted with all of its institutions and principles, political parties are not banned unless they pose a serious threat to the regime, it is not possible to argue that our Constitution, which has as a goal the attainment of the level of a contemporary civilization, allows for party bylaws and programs, which can be treated as manifestations of freedom of speech, to be cited as reasons for the closure of parties," the Constitutional Court stated earlier this month.
When it comes to whether or not the HAK-PAR decision can set a precedent for the case against the AK Party, Şentop said the court closed down several pro-Islamic parties in the past on similar grounds but that the recommendation of the rapporteur not to ban the AK Party has boosted public opinion, which does not want to see the party shut down.
Nevertheless, the court has closed political parties in the past, but never a ruling party and none as popular as that of Erdoğan.
"I have for a long time said that the top court would close the AK Party, but now, especially after the early results of the Ergenekon investigation, I give a small chance to the idea that the court will not shut it down," Şentop said.
Turkish authorities recently arrested more than 20 people as part of a yearlong investigation into the Ergenekon network, an ultranationalist gang planning operations that would pave the way for a military takeover. Political analysts say Ergenekon is part of Turkey's "deep state," elements in the country's security forces and state bureaucracy who are ready to take the law into their own hands for the sake of their agenda.
Şentop added that the Ergenekon indictment, announced on Monday, came a little late in order to change the fate of the AK Party. He said the closure case, which was filed on March 14, can be seen as revenge against the government which has backed the Ergenekon probe:
"Because the more the government supports the Ergenekon investigation, the less pressure the top court would feel to shut down the AK Party."
Sami Selçuk, an honorary president of the Supreme Court of Appeals, disagreed and said the Ergenekon probe has no relation to the closure case.
Constitutional law professor Zühtü Arslan also said the Ergenekon investigation is a criminal lawsuit and that neither the closure case nor the Ergenekon cases should be perceived as revenge against one another.
"Those two cases should follow separate courses without being influenced by each other," he told Today's Zaman.
He said that the country should concentrate on the need to change the political party law rather than the closure:
"More important than the top court's decision is to think about what to do after the decision has been announced. Turkey should have realized the importance of changing its political party laws which make parties vulnerable to closure."
Arslan said, in keeping with the common standard accepted in Europe today, the dissolution of a political party should only be undertaken on the condition that violence has been adopted by that party as a method.
In addition, he said, instead of banning the AK Party, the court may choose to give a lighter punishment that the party should be deprived of state aid wholly or in part, depending on the severity of the charges brought before the court.
Verdict expected soon
Arslan said since the rapporteur was quite quick in presenting his report, a verdict can be expected in two weeks, even before the Supreme Military Council (YAŞ) convenes to decide on the new top military appointments.
On the other hand, Şentop said the top court's decision would probably wait for the YAŞ meeting because convening YAŞ without a government would not be "right."
However, Arslan said the country would still have a government even if the members of the Constitutional Court decide to shut down the AK Party because they need to have their reasoning announced following the closure decision and that needs to be published in the Official Gazette.
"But if there is a decision to close down the party, then the AK Party may dissolve itself. In that case a new party can be established," Arslan said, pointing out uncertainties at this stage.
He added that the case against the AK Party is not against the politicians, so the actors involved can engage in political activities and participate in future elections as independents.
The indictment against the AK Party was filed by Supreme Court of Appeals Chief Prosecutor Abdurrahman Yalçınkaya, who demanded that the party be dissolved and that 71 current and former members, including former party member President Abdullah Gül and Erdoğan, be banned from joining a political party for five years.