Progress, Unity, and Democracy: Dissolving Political Parties in Turkey
Kogacioglu, Dicle, Law & Society Review
In this article, I analyze two cases where the Turkish Constitutional Court dissolved political parties during the 1990s. Specifically, I examine the cases against the Islamist Refah (Welfare/Well-Being) Party and the pro-Kurdish Halkin Emek Partisi (People's Labor Party). While the former was charged with threatening the secular basis of the national social order, the charges against the latter were around its allegedly separatist character. I engage in an in-depth analysis of the lines of argument in the indictments, arguments of defense deployed by the parties, and their ultimate contestations as they appeared in the final decisions by the Court. I see the Court as engaging with a medley of themes and tendencies, [trying to resolve them for the case at hand]. I argue that despite the differences in the construction of the alleged threats, in both cases the Court deployed a similar image of the ways in which social, political, and judicial terrains interact. A rather arbitrary boundary between the political and cultural domains informs these decisions. The Court operates with the understanding that once this boundary is transgressed, what may be harmless when an issue is cultural-such as the use of the headscarf or of the Kurdish language-may turn into a political symbol threatening the basis of the united, democratic, and progressive nation-state. In this vision, the concepts of democracy, progress, and unity are intimately tied together such that the threat to one of these concepts almost simultaneously constitutes a threat to the other two. The Court imagines itself as protecting the boundary between the political and cultural domains in an effort to uphold the right of a democracy to protect itself. This line of thought also enables the court's rather routine involvement in the political domain-which has brought about eighteen decisions for political party dissolution since 1980.
In recent years, constitutionalism as a mode of political action undertaken by courts and other political entities has become key to efforts toward political reconstruction. In both South Africa and Eastern Europe, for example, constitutionalism has become the modus operandi of setting the framework of new political orders, for coming to terms with a troublesome past, and for gaining political legitimacy vis-à-vis relevant global or regional transnational institutions (Klug 2000; Scheppele 1999; Arjomand 1992). At the same time, constitutions today, as in the past, remain a crucial arena for contesting and negotiating the boundaries of the legitimate order and work as a juridico-political site for affirming and performing deeply rooted imaginations of a nation's past, present, and future.1 Constitutional courts, accordingly, emerge as major players in these contestations (Scheppele 2003b; Stone Sweet 1992).
Studies of constitutional courts focus on judicial review and on the impact of constitutional decisions on the legislative process (Stone Sweet 1992; Arjomand 1992; Scheppele 2003b). The Turkish Constitutional Court has been studied along these lines as well (Shambayati 2002; Hazama 1996). However, relatively little attention has been given to the role of constitutional courts in actively structuring the boundaries of the legitimate political domain through their power to dissolve political parties on constitutional grounds (Dobson 2003; Genckaya 1998; Peled 1992; Shambayati 2002). While dissolutions in general are thought to be exceptional in "consolidated democracies," especially in Western Europe, recent developments such as the ban on Batasuna, the Basque Party in Spain,2 and the German Constitutional Court's rejection of banning the neo-Nazi National Democratic Party point to the pertinence of studies on this capacity of constitutional courts. In this article, I engage in such a study by analyzing two instances in which Turkey's Constitutional Court dissolved political parties that were represented in the parliament during the 1990s. …