Waiting for Turkish Democracy

By Joakim Parslow, University of Oslo

It is hard to imagine a better metaphor for the state of the rule of law in Turkey than the over 6,000 olive trees that were uprooted in the village of Yırca in November 2014 in order to make room for a coal-driven power plant for the Kolin Group. Olives have been a staple of life for the inhabitants of the Mediterranean and Aegean regions for millennia. The trees require up to thirty years of care and patient waiting before they reach maturity, but once they do, they can continue to yield fruit for hundreds of years. This is why ancient Athens made cutting down a sacred olive tree punishable by death: Olives are not just a source of light and sustenance; they are also a symbol of historical continuity, of this generation’s responsibility to respect the customs and gifts of past generations for the sake of future generations. Indeed, some of the trees in Yırca were over 80 years old, having been planted when the Republic of Turkey was barely a decade old. Whether or not the hired thugs of Kolin—a conglomerate with close ties to Turkey’s ruling AK Party—broke the black-letter law when they arrived in Yırca at night, beat and handcuffed villagers and tore up thousands of trees before the Council of State published its decision to suspend the government’s rapid expropriation order of the olive grove, they were violating something deeper: the notion that there are limits what you can do to other people and to the environment they depend on.

There is a school of thought in political science for which this event comes as no surprise at all. While lawyers and rights activists discuss the rule of law as if it were a matter of conscience or universal principles, scholars of this school consider such normative conceptions to be a “figment of the imagination of jurists” and contend that the “rule of law” is merely an expression of the balance of forces between power holders. In states where power is evenly distributed among different actors and is exercised by different institutions, actions tend to conform to the rule of law because it is in everyone’s interest. The resulting institutional equilibrium can become so regular that it eventually comes to be taken for granted. But it can also be destabilized if institutions fail to do their job or if the balance of power shifts to one side. In this view, arbitrary government action is only to be expected in countries like Turkey, where power has become increasingly concentrated in the hands of the AK Parti, leaving its leaders free to use the legal instruments at their disposal without concern for deeper rule-of-law principles.

The view that Turkey’s rule of law is marred by an imbalance of power finds unexpected support in the discourse of Turkish government leaders such as Recep Tayyip Erdoğan, Prime Minister for the AK Parti since 2002 and President of the Republic since August 2014. But for him, the AK Parti is not the perpetrator but the victim of power abuse. In Erdoğan’s eyes, the rule of law has failed to take root in Turkey because of a succession of authoritarian leaders, from the single-party state of the Republican People’s Party during the 1923-1950 period, through successive military coups, to the “tutelary” (vesayetçi) old guard that continues to place obstacles in the way of democratic reform from its entrenchments in unelected institutions such as the Armed Forces and the higher judiciary.

Erdoğan has long argued that his AK Parti is the first to truly take on this unaccountable structure of laws and institutions and its political supporters. And because the RPP remains the largest opposition party, he has delighted in pointing out its historical responsibility for the draconic laws of the interwar years, in particular when blaming the party for the “Independence Courts” it used to purge political opponents in the 1920s, “apologizing” on behalf of the RPP for the massacre of Kurds in Dersim in 1937, or criticizing the single-party regime’s use of mosques as depots during the war years. The implication of this rhetoric is that Erdoğan’s AK Parti is chipping away at an anti-democratic structure of tyranny running from the RPP’s Jacobin rule in the 1920s and 1930s to the military interventions in 1960, 1971, 1980, and 1997.

The AK Parti has in fact removed many of the vestiges of Turkey’s authoritarian past since it came to power in 2002. It passed a new penal code and code of criminal procedure to replace the codes of the 1930s, when Turkey’s legislators were so inspired by Mussolini’s Fascism that they copied parts of Alfredo Rocco’s most authoritarian amendments to the Italian penal code into Turkish legislation. It removed the death penalty as well as the State Security Courts, notorious throughout the 1990s for their military judges who were all too happy to accept testimony produced under torture. Likewise, his AK Parti expresses pride in having lifted the immunity of the generals who conducted the 1980 military coup. In short, the AK Parti has, in its own words, led a “Silent Revolution” in the face of constant opposition from anti-democratic forces throughout the state apparatus. Though this revolution has not yet been completed, it will, if only Turks will wait a little longer, eventually result in a state that respects the limits placed upon its power by democratically produced laws. The culmination of this gradual process will, according to the AK Parti, come in the form of a completely new constitution to replace the 1982 “Coup Constitution,” one that for the first time will provide the Turkish people with the modern, democratic framework it needs to rule itself.

One does not have to be an inhabitant of Yırca to spot the hypocrisy of this rhetoric. From emergency expropriations that benefit the AK Parti’s favored business partners to political takeovers of oppositional media, Turkey’s justice system seems increasingly arbitrary, a mere instrument that enables the government to arrest and seize at will. On closer scrutiny, however, the AK Parti’s behavior turns out to be less lawless than it appears. Far from breaking with Turkey’s judicial traditions, the AK Parti’s autocratic turn has been facilitated by precisely those old authoritarian laws and institutions which it is “not yet” prepared to uproot.

Understood on its own terms, this politics of waiting has a certain internal logic. A democratizing party like the AK Parti cannot, no matter how popular it is, simply change the state over night or sideline the nefarious networks that, according to Erdogan, are attempting to undermine the democratization process. That would be a violation of the rule of law. Instead, it must gradually alter the culture and legal framework of Turkish politics, using the power granted to it through elections to patiently prune the institutional remnants of the single-party state while replacing authoritarian judges, generals, and bureaucrats with more liberal-minded cadres. Beyond that, it must refrain from intervening in ongoing trials or police investigations of the AK Parti’s opponents, such as purported members of Fethullah Gülen’s “parallel state” in the courts and media. Indeed, the ongoing threat from such organizations provides the AK Parti with its strongest justification for not removing all of the remnants of Turkey’s authoritarian past in one fell swoop. As long as ordinary courts are subject to pressures from shady “deep-state” networks it is necessary to maintain pockets of extraordinary legal powers with which the state can defend itself from the forces of lawlessness.

When the AK Parti removed the State Security Courts in 2004, therefore, it simultaneously replaced them with a new category of “specially authorized” courts (Özel Yetkili Mahkemeler) with wide powers of investigation and detention. Between 2007 and 2012, these courts conducted a series of absurdly wide-ranging trials against military officers, journalists and others suspected of conspiring to overthrow the AK Parti, as well as politicians, students and academics accused of being part of either the PKK’s civilian wing or “The Revolutionary People’s Liberation Party-Front” (DHKP-C), a far-left militant group. Only when some of these “specially authorized” prosecutors began investigating officials close to the AK Parti such as the National Intelligence Agency’s chief Hakan Fidan in February 2012 did the party remove the specially authorized courts and transfer their political functions to a new category of “Regional Heavy Penal Courts” (Bölge Ağır Ceza Mahkemeleri), which have been described as “fresh make-up on the specially authorized courts.” In addition, the government has established so-called “Criminal Judgeships of Peace” (Sulh Ceza Hakimliği), a new single-judge position responsible for carrying out “various tasks” that arise during investigations, including ordering detentions, shutting down access to websites, seizing companies and banks suspected of corruption—and, crucially, considering appeals against their own decisions. It is these judges who have been behind most of the recent instances of judicial overreach, such as the detention of hundreds of journalists and ordinary citizens charged with “insulting the president,” the jailing of judges and prosecutors who dared to investigate individuals close to Erdoğan for corruption, and the seizure of Koza İpek, a holding group with several oppositional media outlets in its portfolio, just days before the snap elections on November 1, 2015. The arc of the AK Parti’s moral universe may be very long, Erdoğan seems to be saying, but it bends toward justice.

But Turks do not have endless amounts of time. It is estimated that roughly half of the unfortunate citizens who are detained by police on suspicion of having “insulted” a statesman like Erdoğan are eventually acquitted. An acquittal is obviously better than a sentence, but simply being arrested and interrogated for having criticized an elected official constitutes a serious violation of rights, in particular when it involves lengthy pre-trial detentions. Similarly, Turks may be patient when it comes to cultivating their olive trees, but they cannot afford to wait when the AK Parti uses its powers to permanently destroy the country’s environment. In May 2013, when the AK Parti-governed municipality of Istanbul decided to bulldoze the sycamore trees in the Gezi Park in order to build a shopping center in the shape of an aggressively neo-traditionalist reproduction of the Ottoman barracks that once stood there, thereby blithely bypassing an ongoing development cancellation case in the Istanbul First Administrative Court, it sparked sit-ins and protests that eventually spread to much of the country.

One court that has often acted as an irritating thorn in the side of the AK Parti is the Council of State (Danıştay), the highest court of appeal for cases in the administrative judiciary. Though far from being a bastion of the liberal rule of law—the court recently ruled to permit the Gezi Park development project after all—it has repeatedly tried to prevent the AK Parti from simply disregarding the existence of legal limitations on governmental action. In November 2013, after the government had been jolted by the sudden revelation that police had been investigating several individuals closely connected to party for corruption, the Ministry of Justice issued a regulation making it obligatory for police investigators to inform the ministry about all ongoing criminal probes. The Council of State annulled the regulation after just five days. More recently, the Council of State even halted the AK Parti’s plans to build Istanbul’s third airport, a gargantuan project that will have a capacity of 150 million passengers a year when it is completed. According to the  Environmental Report produced by the Turkish Ministry of Transport, Maritime Affairs and Communication as well as the report published by the Turkish Chamber of Architects (TMMOB), 657,950 trees would have to be felled and another 1,855,391 “moved” to make way for the airport. Among the companies involved in building the airport, which has been designed by the Norwegian company Nordic Office of Architecture, is the Kolin Group.

The legal grounds with which the government tried to provide the Kolin Group with the land it needs to build the airport is the same set of laws that it used to destroy the olive grove in Yırca November 2014. The government’s expropriation order of the grove, which it issued in May 2014, referred for legal justification to a “Law on Expropriation” passed in 1983, when much of Turkey was still under the rule of the Armed Forces following the 1980 military coup d’état. Article 27 of that law, to which the government’s decision referred, outlines the conditions under which “urgent expropriation” is permitted, and builds, in turn, on a “Law on Obligations for the National Defense,” which specifies the state’s powers to expropriate properties and enlist labor forces in times of emergency or war. That law is from June 1939, when President İsmet İnönü, the “National Chief” of the RPP’s single-party state after Atatürk’s death in 1938, was preparing the country for the eventuality of war. It appears the AK Parti needs the laws of Turkey’s dark past in order to build its bright future.

Now that the Council of State has halted these projects, the government will either have to cancel them or find other legal justifications. Alternatively, Erdoğan can simply ignore the high court’s ruling, as he has done since the Council of State annulled the government’s decision to use 74 acres of the Atatürk Forest Farm in Ankara to build Erdoğan’s new presidential palace, effectively making the 650-million-dollar building he lives in, illegal. In more consolidated democracies, such willful disregard of court rulings would spell a constitutional crisis, but for Erdoğan it simply indicates that the constitution must be updated to provide a de jure foundation for the de facto power that he has gained through his unprecedented popularity. Not surprisingly, the draft constitution that the AK Parti has submitted for consideration suggests—in addition to transitioning from a parliamentary to a presidential system to better reflect Erdoğan’s powers as Turkey’s first directly elected president—removing the Council of State and replacing it and the current Court of Cassation (Yargıtay) with a single Court of Cassation (Temyiz Mahkemesi) to act as the court of final appeal for both the ordinary and the administrative courts.

With the elections on November 1, 2015, the AK Parti fell just below the 330 seats it needs to put these constitutional amendments to a referendum. If it does manage to come up with the required votes, and the amendments are adopted in a referendum, they will, in Erdoğan’s eyes, also provide a retroactive justification for everything he has done up until now—a justification in the legal sense that his actions will be shielded from future scrutiny and in the symbolic sense that they will vindicate his claim to being a historically unique president, one whose legitimacy has outgrown the strictures of Turkey’s current constitution.

In the meantime, the AK Parti government continues to rely on statutes and institutional mechanisms that have served as a legal bedrock of Turkish authoritarianism from the étatisme of the single-party regime to today’s expropriations and political trials. Far from representing an arbitrary slash-and-burn approach to Turkey’s legal tradition, dramatic incursions such as the destruction of 6,000 olive trees in Yırca is facilitated by some of its most firmly rooted features, by institutions and laws that the AK Parti inherited from the country’s authoritarian past and has put to use to build its “New Turkey.” If these are the legal foundations of Turkey’s future democracy, is it a democracy worth waiting for?