US embassy cable - 02ANKARA8165

C O N F I D E N T I A L SECTION 01 OF 03 ANKARA 008165 
 
SIPDIS 
 
 
E.O. 12958: DECL: 11/13/2007 
TAGS: PGOV, PREL, PHUM, TU, POLITICAL PARTIES 
SUBJECT: CAN AK PARTY REMOVE OBSTACLES TO PARTY LEADER 
ERDOGAN'S BECOMING P.M.? 
 
 
REF: ANKARA 6856 ANKARA 6683 
 
 
(U) Classified by Polcouns John Kunstadter; reasons 1.5 (b,d). 
 
 
1. (C) Summary: On the surface of it, and given AK Party's 
strong parliamentary majority, there should be a 
straightforward, if sequential, legal way ahead for 
disenfranchised AK Party chairman Erdogan to reclaim his 
political rights, gain election to Parliament, and be 
appointed Prime Minister.  However, resistance by some 
elements of the Kemalist State and Establishment political 
considerations cloaked in legalisms render the process, 
timing, and result uncertain.  End summary. 
 
 
2. (U) Nov. 14 the 550 M.P.s of Turkey's 22nd parliament take 
their oath of office.  Directly thereafter, AK Party chairman 
Erdogan, ruled ineligible to run for Parliament, and thus 
ineligible for the prime-ministership under the current 
constitution, is expected to meet President Sezer to try to 
reach an understanding on whom Sezer will pick from AK to 
form the next government.  Sezer is expected to give the 
mandate Nov. 15 or 16; he will need to balance his right to 
choose against Erdogan's desires as leader of a party with an 
overwhelming parliamentary majority.  Forming the government, 
including the built-in procedures for holding a vote of 
confidence, could take two to three weeks. 
 
 
3. (C) Given Erdogan's ambition to recover his political 
rights and become Prime Minister, and AK voters' expectation 
that this will happen, the questions are (1) can AK blaze a 
way for Erdogan through Turkey's thorny constitutional and 
judicial thickets? and (2) will the Kemalist State tolerate 
such a challenge, even if made slowly? 
 
 
------------------ 
THE LEGAL BARRIERS 
------------------ 
 
 
4. (U) The obstacles in Erdogan's way are Article 312(2) of 
the Turkish Penal Code (TPC), Articles 76, 78 and 109 of the 
1982 Constitution, and -- as AK vice chairmen Mercan and Aksu 
acknowledged to us Nov. 12 and 13 -- resistance on the part 
of what they called "certain power centers". 
 
 
5. (U) Erdogan was convicted in 1998 under Article 312(2) for 
"inciting religious hatred" by reciting a poem in a 1997 
speech.  Article 312(2) was revised as part of the EU-related 
reform package passed in August 2002, and a Diyarbakir State 
Security Court ruled in September that Erdogan's record 
should be erased because his speech no longer constituted a 
crime under the revised language.  However, the High Court of 
Appeals overruled the lower court decision; subsequently the 
Supreme Election Board determined Erdogan ineligible to run 
in the November 3 elections (reftels).  Article 76 of the 
Constitution states that anyone convicted of "ideological" or 
"anarchistic" activities, generally interpreted as including 
anyone convicted under Article 312(2), is not eligible to be 
elected to Parliament, even if pardoned. 
 
 
6. (U) Article 78 of the Constitution states that 
by-elections to the Parliament cannot be held until 30 months 
have elapsed since the general elections, unless 5% (28) of 
the seats are vacant, in which case they can be held 
beginning three months after the general elections. 
 
 
7. (U) Article 109 of the Constitution states that the 
President shall appoint the P.M. from among the members of 
Parliament. 
 
 
8. (U) Erdogan, therefore, cannot currently be named P.M. 
because he is not a member of Parliament.  He cannot run for 
the current Parliament unless his political rights are 
restored and by-elections can be conducted. 
 
 
------------------- 
KEMALIST RELUCTANCE 
------------------- 
 
 
9. (C) The Kemalist State, which in Turkey is in some ways 
markedly separate from, and more powerful than, the political 
party arena (septel), is at best wary toward moves to enable 
Erdogan to become P.M.  President Sezer has publicly warned 
that attempts to change laws or amend the constitution for 
the benefit of specific individuals would politicize the Law. 
 Sezer is also concerned that amending Article 109 to permit 
someone not in Parliament to be nominated as P.M. would 
fundamentally alter the parliamentary character of Turkey's 
political system.  Echoing this latter concern, one leading 
Establishment press commentator declared that such an 
amendment would leave Turkey with a "half-breed" system, 
neither parliamentary nor presidential.  Opposition CHP 
leader Baykal has voiced opinions parallel to those of Sezer; 
Baykal's expression of willingness to consider ways to help 
Erdogan is ringed with conditions which AK is likely to find 
unpalatable. 
 
 
10. (C) On one level of rectitude, Sezer's argument 
concerning the consequences for Turkey's parliamentary system 
is logical.  Making this argument also allows him to hint 
that AK's choice of this route could provoke the kind of 
political confrontation AK does not want between a highly 
popular (though indirectly elected) President and a highly 
popular (though unelected) party chairman whose constituents 
want to see as P.M. 
 
 
11. (C) However, concerning the politicization of the Law, 
senior AK officials as well as a broad section of Turkish 
society consider the Turkish constitution and laws already 
subject to arbitrary and political interpretation.  One 
recent example cited in the press and on the street: Erdogan 
was ruled ineligible to run for Parliament in a controversial 
decision while Motorola deadbeat Cem Uzan was allowed to run 
a campaign which violated the election and broadcasting laws 
in a wholesale manner.  AK vice chairman Aksu also voiced to 
us the party's view that Sezer has politicized his office and 
in doing so has given the impression that he favors the 
Establishment CHP, which is the sole opposition party in the 
new Parliament.  AK is still wont to argue that since the 
President of Turkey can be elected from outside Parliament 
(e.g., Sezer), criteria for selecting the P.M. should be no 
different. 
 
 
12. (C) Another contact, a former National Security Council 
staffer who served in the military's West Working Group 
(WWG), which helped execute the "post-modern" coup to remove 
then-P.M. Erbakan from power in 1997, observed to us Nov. 8 
that there are "hard-line" senior Turkish military officers 
who will not willingly come to terms with Erdogan or other 
top AK officials formerly associated with Erbakan.  He 
claimed that the WWG, under a new name, has been up and 
running again in a monitoring mode since May 2002.  On the 
other hand, TGS Chief Gen. Ozkok has made it clear here and 
in his just-concluded U.S. trip that the Turkish military 
accepts AK's victory and will work with the new government 
(AK vice chairman Aksu told us Ozkok sent a congratulatory 
telegram to Erdogan).  Other high-ranking TGS generals had 
said the same, and told us the view was widespread within the 
General Staff, even before the election when it was clear AK 
would gain a plurality. 
 
 
13. (U) Other challenges face Erdogan.  He is still a 
defendant in several trials brought by the State against him 
for alleged corruption as mayor of Istanbul 1994-98.  Any 
conviction would render him ineligible to restore his 
political rights for a further three years beyond the end of 
a new sentence.  At the same time, the Chief Prosecutor is 
seeking to force Erdogan to resign as party chairman; if 
Erdogan were to restore his political rights and get into 
Parliament as an ordinary member of AK, he might not benefit 
from the customary practice that the President gives the 
mandate to form a government to the (M.P.) chairman of the 
largest party. 
 
 
----------------------- 
POSSIBLE LEGAL REMEDIES 
----------------------- 
 
 
14. (U) Opinions are divided among the legal experts we have 
consulted, but it may not be necessary for AK to revise 
Article 312(2) further in order for Erdogan to become 
eligible to run for Parliament.  Those convicted under 
Article 312 can apply to a civil court to win back their 
right to run for office three years after serving their 
sentence.  Erdogan will be able to apply to have his rights 
restored in February 2003. 
15. (U) Although AK has not formally indicated its 
intentions, the party is considering options including 
amending constitutional Articles 76 and 78 and possibly 109, 
as well as TCP Article 312 as insurance against legal 
challenges by the Chief Prosecutor which AK and many others 
expect.  Article 76 prohibits those pardoned for certain 
crimes from running for office; a court decision restoring 
Erdogan's political rights would appear to be different from 
a pardon, but AK may try to amend both Article 76 and Article 
312 to eliminate any possible doubts. 
 
 
16. (U) AK is also considering whether to seek amendment of 
Article 78 in order to hold by-elections sooner than in three 
months and without having to vacate 5% of the seats, a number 
which would, vice chairman Aksu acknowledged, give the 
by-elections the character of a referendum on the 
government's performance.  If AK is successful in amending 
Article 78, it would plan to vacate one seat and have Erdogan 
run.  An alternative is to challenge the voting results in 
Siirt province, where a significant number of voters was 
reportedly denied access to the polling booths, although the 
Supreme Election Board's Nov. 9 certification of the results 
and other factors make it improbable that such a challenge 
would stand.  If Erdogan were elected to Parliament in a 
by-election, he could arrange to have the government resign 
and then expect be appointed P.M., although Sezer would not 
be constitutionally bound to select him. 
 
 
17. (U) Regarding a constitutional amendment, AK has 363 
votes, thus 33 more than the minimum needed, although with 
330 to 366 votes an amendment is automatically subject to a 
national referendum.  AK will need four of the nine 
independent M.P.'s votes to pass an amendment with a 
two-thirds majority (367), which still leaves the amendment 
subject to a national referendum if the President insists. 
 
 
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COMMENT 
------- 
 
 
18. (C) A solution which both satisfies Erdogan's and his 
grassroots' aspirations and keeps the State calm depends on: 
(a) Erdogan's ability to control his impatience, to move at a 
judicious if steady pace, and to avoid being seen as 
confronting basic symbols of the Kemalist State; (b) Sezer's 
ability to temper his prerogatives, statist views and 
wariness of AK with political realism in the face of a party 
which has won an overwhelming parliamentary majority owing to 
the popularity of its leader. 
 
 
PEARSON