ERBAKAN SEEKS JUSTICE IN EUROPE
Last month he made a tour of Germany to contact world famous jurists to defend the RP at the European court and found very understanding interlocutors in Europe who did not even bother to listen to his explanations. They said, “No need for you to go into the details of this unjust treatment and verdict. We do not accept such an action as closing down a political party.”
Yet Erbakan and his colleagues, especially FP (Virtue Party) parliamentarian Professor Mustafa Kamalak, who defended the party at the Constitutional Court, had very interesting stories to tell the Europeans. They count 40-50 cases of violation of the basic rules of law and stress that no country can have such violations of the penal code rules.
They maintain that Chief Prosecutor Çilingirođlu ruled on March 4th, 1997 that as long as Article 103 of the Political Parties Law was in force it was not possible to file a lawsuit against or close down a political party. After Çilingirođlu’s retirement, however, Vural Savaţ took over and launched on May 21st, 1997 the lawsuit for the party ban.
Against Paragraph 2 of Article 103, the Constitutional Court filed a lawsuit and then repealed it. In other words, the plaintiff, the prosecutor and the judge were the same body. “No such thing is possible in law,” remarks Professor Kamalak. On the other hand, the prosecutor maintains that under Article 18 of the Law for the Foundation of the Constitutional Court, it is authorized to take up a law by itself and declare it unconstitutional.
Professor Kamalak goes on, “Let us say for a moment that it is possible. When did Article 103 go out of force? According to Article 153 of the Constitution, a law goes out of force upon promulgation in the Official Gazette of the Constitutional Court’s verdict. It can be postponed up to a year by the Constitutional Court, but cannot possibly be moved forward. This repeal of Article 103 was published in the Official Gazette on February 22nd, 1998. Yet the verdict for the ban of the RP was announced on January 16th, 1998. Penalties are not retroactive under the Penal Law.”
Penal Code is different, party ban is different, says Chief Prosecutor
The Chief Prosecutor of the Republic, Vural Savaţ, who brought up the trial with the Constitutional Court, says in answer that they are wasting their time. The ruling of the Constitutional Court has nothing to do with the penal code. Nobody has been imprisoned because of the ruling to ban the party. Closing down a party is not a penalty, but a precaution against a danger. Turkey is facing the danger of religious fundamentalism and is taking measures against it so that what is now happening in Algeria, Afghanistan, and several Islamic countries ruled by Sheriat will not take place in Turkey.
Professor Kamalak defies this argument and says that the Constitutional Court has made various rulings in its 35 years of existence to the effect that the party ban is a penalty.
In the summer of 1957, Justice William O. Douglas of the U.S. Supreme Court came to Turkey by car from Iran and was met at the Turkish frontier by the editor of Pulse, Vedat Uras, who, as a young Turkish diplomat at that time, had been assigned as his guide. Justice Douglas wrote a travelogue, “West of the Indus”, on his return home. He explains in his book how the American Supreme Court took several contradictory rulings on issues such as segregation in the course of time. Almost everywhere in the world a previous court ruling is a good precedent for a judge, but it is never binding on him.
So Professor Kamalak’s argument about previous rulings of the Constitutional Court that a party ban is a criminal law case does not hold water. It was so at that time, but it is not the case now.
Besides, Paragraph 2 of Article 103 of the Political Parties Law was repealed because Articles 141 and 142 of the Penal Code punishing communism and Article 163 punishing theocratic State order in Turkey were repealed in the 1980s during the Özal period. When these three articles of the Penal Code (141, 142 and 163) were abolished, Article 103 of the Political Parties Law lost its function and a reactionary party ceased to be a penal code case, ruled the Constitutional Court. Besides, even though Article 103 went out of force on February 22nd, 1998 upon its promulgation in the Official Gazette, it was ruled upon on January 9th, 1998, a week before the verdict for the RP ban.
Acquittals for Erbakan from penal aspect
Furthermore, the prosecutor took separate legal actions against Erbakan and some others at the criminal court with the charge of violating laws and Atatürk reforms. But when they argued that these things had taken place five or 10 years ago and pleaded a lapse of time, the tribunal dismissed the case and acquitted them.
For instance, in 1993, during the pilgrimage to Mecca, Erbakan said, “God Almighty has ordered that you will all together fight Jihad as a moral army, as servants of God. We, the soldiers of the Islamic army, will fight with all our might to prevail the Koran order.” Referring to the inscription on the Saudi Arabian flag “La ilahe illallah” (There is no god but Allah), he said, “We, one and a half billion Muslims, are running. We are gathering under the La-ilahe-illallah flag.” All these statements are punishable under the Turkish Penal Code for actions working for the establishment of a theocratic State order in Turkey.
Under Article 163 of the Penal Code, there was an eight-year prison sentence, but Article 163 was repealed in the eighties, along with similar Articles, 141 and 142 for communism. However, other provisions of the laws still carry penalties for such activities. For instance, Article 312 of the Penal Code carries an up to 4˝-year prison sentence for actions “provoking the people to hatred and animosity”. It is under this article that most of these fundamentalist activities are dealt with by the Judiciary now that Article 163 does not exist any more. The Chief Prosecutor of the Ankara State Security Court (SSC), Cevdet Volkan, ruled last week that Erbakan made his statement in Mecca on May 30th, 1993 and the legal action against him was taken on June 2nd, 1998. The lapse of time for the relevant article being five years, it was two days too late and the charge was dismissed.
If Erbakan, who is now serving a five-year term for no active duty in politics, sobers up about Turkey’s political realities, he may retake the reins of his fourth political party, the FP, and may well be able to serve the country within the bounds of the Constitution. There are signs that he will do so and in the mean time continue to play a role in Turkish politics with underhanded management of the party in moderation. But this moderation is bringing his trusted man, Recai Kutan, the FP Chairman, at loggerheads with the hardliners lead by Recep Tayyip Erdođan, the Mayor of Istanbul.
Recep Tayyip Erdođan replaces Erbakan – not in the party, in tribunals only, at least for the time being
Under Article 312, Tayyip Erdođan was sentenced to one year (reduced to 10 months for good conduct) last April by the Diyarbakýr SSC for reciting a poem ( issue no: 5). If the Court of Appeal confirms it, he may well disappear from the political scene, at least for a while. Even though it seems rather a heavy penalty for reciting a poem, Tayyip Erdođan’s political record is not at all bright as far as religious fundamentalism goes and that was the real reason for the ruling, rather than merely a poem.
Recently, security forces captured a video recording of Tayyip Erdođan during the search they carried out in the Kayseri branch of the National Youth Foundation. It was Tayyip Erdođan’s statement in 1995 during the inauguration of the RP’s Ümraniye office in Istanbul. The video cassette was sent to the Ankara SSC, but then referred to the Istanbul SSC because the statement was made there.
The video cassette proves that the Mayor of Istanbul made the following statement in Ümraniye in 1995:
“They keep on saying that ‘secularism is being lost’. Of course it will be lost. You cannot prevent it as long as the nation wants it that way. You cannot possibly forestall it. This nation is 99% Muslim. You cannot be both secular and Muslim at the same time. You have to be either Muslim or secular. When the two come together it makes an adverse magnet effect. It is impossible for the two to coexist. It is impossible for one who says ‘I’m Muslim’ to also say ‘I’m secular’. Why? It is because the creator of Islam, Allah, has absolute sovereignty. To say ‘Sovereignty unconditionally belongs to the nation’ is a huge lie. The sovereignty belongs to the nation when you go to the polls. But materially and morally sovereignty belongs to Allah. We have to duly understand it. The solution is obvious. The Islamic world of one and a half billion people is waiting for the Turkish nation’s uprising. We will. The lights are in sight. This uprising will begin…”
This video cassette may indeed put Tayyip Erdođan’s political career in the grave for a long time, if not for a lifetime.
At the FP local congresses and rallies, Tayyip Erdođan has massive backing up and proves to be quite a match for Chairman Recai Kutan. The party management is, threfore, afraid of holding its national convention before the elections and will go to the polls under Kutan’s management. In the meantime, the FP’s mouthpiece, Milli Gazete, is accusing Tayyip Erdođan of being an American stooge, but it does not seem to be making any adverse impact on his popularity. uras@ada.net.tr.