The Immunity Vote: a Long Road Down

By Olivia Rose Walton

Last week’s vote to remove the immunity of MPs risks hounding the predominantly Kurdish Peoples’ Democratic Party (HDP) out of parliament entirely, seriously threatening any chance of a diplomatic solution to the Kurdish crisis.

The Immunity Vote

Source: Voice of America News

Last week, the Turkish parliament voted overwhelmingly to lift the constitutionally protected parliamentary immunity of its members of parliament (MPs). The decision is the latest blow to free speech and accountability in the country, and could have a seismic effect on both Turkey’s democracy and its government’s war against pro-Kurdish movements.

Of 550 MPs, 135 members — from all four parties — will be affected. The Peoples’ Democratic Party (HDP), the first pro-Kurdish party to be elected to parliament, could be worst hit: nearly all of its representatives now face prosecution, often related to charges of “membership in a terrorist organization.”

Parliamentary immunity is a mechanism designed to protect the free speech of representatives from interference by the judiciary, executive, or other non-elected bodies. Removing it at this point — with most of parliament obedient to President Recep Tayyip Erdoğan and his Justice and Development Party (AKP) — risks leading to even more antidemocratic practices in Turkey.

The AKP has managed to take back the government from military elites — the dominant force in Turkish politics for decades. But they’ve only reinforced the centralized political power structure that has long characterized the Turkish state. On top of the immunity vote, opposition parties have been effectively sidelined or hounded, leaving their electorates at risk of disenfranchisement.

None of this bodes well for democracy in Turkey.

Closing the Door

The 2013 Gezi Park protests triggered a wave of support in Turkey for more pluralistic politics. Kurds and their supporters, particularly in the southeast, took advantage of the shifting political landscape, mobilizing a successful campaign to vote the HDP into parliament.

The June 2015 elections — which saw the HDP win over 13 percent of the vote — marked the first time in the country’s history that a pro-Kurdish party crossed the parliamentary threshold. The HDP’s success spurred the hope that the 2013 ceasefire between the state and the Kurdistan Workers’ Party (PKK) would lead to a more lasting political settlement.

But that optimism was short-lived. The HDP’s success coincided with the AKP’s defeat; for the first time since 2002 the AKP lost its parliamentary majority.

A month after the election, the state sparked conflict with the PKK again, breaking the ceasefire; by November, talk of a negotiated truce had been replaced with full-scale fighting between the army and Kurdish fighters, and strident rhetoric on the need for security and a strong military hand in the southeast.

During the inter-election period, the HDP, the Nationalist Movement Party (MHP), and main opposition Republican People’s Party (CHP) bled votes to the AKP. When Erdoğan called for early elections in November, the AKP came back to win 49 percent of the vote — higher than even party pundits had expected.

In this context — the AKP’s re-asserted dominance in parliament and its predilection for obedience over dissent — the removal of parliamentary immunity last week comes as no surprise. But it’s deeply worrying nonetheless.

The immunity measure has the potential to help secure virtual single-party rule under an executive president, disenfranchising those who voted for the MPs now facing prosecution and closing the door on future democratic challenges.

A Democratic Necessity

Parliamentary immunity only protects representatives in their capacity as members of the parliament: that is, it is a right afforded through membership in the parliament, and not to specific individuals. Most parliamentary systems opt for one of two types of immunity: non-accountability or non-violability.

The former is limited to what a representative does as a member of parliament — whatever they do as private citizens remains subject to criminal law. Non-violability also covers the private actions of representatives. However, it is usually subject to parliamentary oversight, and MPs can be criminally charged if parliament approves it.

Turkey’s parliamentary immunity was established as part of the 1981 Constitution, drawn up after the 1980 military coup. It includes both non-accountability and non-violability — a fairly common practice. In a post-authoritarian state going through a process of democratic consolidation, immunity can be crucial for ensuring that the old guard doesn’t use its power and connections to silence those trying to legislate for increased civil and political liberties.

In Turkey’s case, where democracy was managed in a top-heavy fashion overseen by the military from the late 1950s on, parliamentary immunity has enabled representatives to say and do things that the establishment (old and new) has not always approved of.

The reversal of this right is thus extremely significant. Simon Wigley, a philosophy professor at Ankara’s Bilkent University who has written extensively on Turkish politics, believes that in many ways Friday’s vote is a sign of the Turkish state reverting to type — same old game, new (Islamist) name:

My personal view is that the state and political apparatus has always been heavily centralized and top-down in Turkey. All that has happened is that those who control the various government institutions have changed. Their political goals may be different, but their ability to achieve them remains the same.

Wake-Up Call

Turkey’s political goals have certainly changed in recent years. Under AKP rule since 2002, Turkey has repositioned itself as a world leader both in terms of its diplomatic clout and its spending on humanitarian aid. This makeover has been a mixed success.

The country’s regional aims — exemplified by former prime minister Ahmet Davutoğlu’s “zero problems with neighbors” policy — have for the most part fallen flat, but Turkey’s geostrategic importance, especially for refugee-shy European Union leaders, remains solid.

Yet the events of the past few days illustrate the tension between Turkey’s internal political dynamics and its international role. Just two days after Friday’s vote, the AKP chose a new leader whose primary role will be to dissolve his own power in favor of absolute power and an executive presidency for Erdoğan.

The very next day the United Nations launched the first World Humanitarian Summit in Istanbul. Erdoğan was in attendance.

The UN declared the summit a “wake-up call” for world leaders, a chance to reformulate the humanitarian aid system in response to the current global crisis. Erdoğan weighed in as well.

In a column for Daily Sabah he said the meeting “has the potential to be remembered as a turning point in history for millions of people around the world whose lives depend on the good will, intelligence and creativity of fellow humans.” Or it could be “remembered as a missed opportunity by future generations, who won’t be kind in their judgment if we fail them.”

If one takes Erdoğan at his word, then the move to strip MPs of immunity is part of a broader Turkish plan to make itself and the region more stable and humane — a move against terrorism and not one against democracy. Of the 667 dossiers filed against MPs, 405 implicate the HDP with many accusing HDP party members of supporting the PKK, an organization that is on both Turkish and American terror lists.

Daily Sabah’s triumphant coverage of the Friday vote certainly demonstrated the powerful hatred of the HDP by pro-government supporters. Yet it is not immediately obvious that stripping the immunity of MPs is the best strategy for consolidating power. Previously, parties deemed dangerous to the status quo — too Islamist, too Kurdish, too leftist — have simply been dissolved by the Constitutional Court. Between 1980 and 2009, eighteen parties met their end this way. Why wasn’t that method enough for the AKP today?

According to Wigley,

“It is now harder to dissolve a political party in Turkey via the Constitutional Court, ironically because of the constitutional amendments introduced by AKP to protect itself against closure back in 2007. Moreover, the current court has made some decisions that do not accord with the AKP’s preferences. So it seems unlikely that an attempt to close [the] HDP via the constitutional court would succeed.”

This explanation makes sense, but the loss of immunity also has the potential to hurt the AKP, which has used the privilege in the past to get out of trouble. Tapes released in December 2013 allegedly recorded AKP ministers involved in financial corruption and political interference on a massive scale.

Four ministers were set to stand trial in what Erdoğan, then–prime minister, called a coup attempt organized by the “parallel state” — his name for exiled cleric and ex-AKP ally Fetullah Gülen’s network of supporters. Capitalizing on the power of immunity to protect MPs from criminal prosecution — to effectively rule on evidence before it goes to court — the AKP voted not to lift the four ministers’ immunity.

This suggests that the bloc in support of lifting immunity may be trying to have its cake and eat it too: they are in favor of parliamentary immunity only when it suits their needs. Lifting immunity is politically expedient given Turkey’s polarized and violent political landscape.

A final and crucial factor often overlooked in headlines on the subject is that the immunity amendment is a temporary clause — a mechanism that applies only to current MPs with existing dossiers against them, likely skirting the need to make any lasting changes to the constitution (though legal experts are divided on this question). HDP group vice chair Çağlar Demirel announced this week that the bill itself is “unlawful,” and the party is putting pressure on the CHP to join it in taking the matter to the Constitutional Court.

The HDP needs a total of 112 MPs to bring a case to the Constitutional Court, making it dependent on CHP support — which at this stage looks unlikely. Whether or not that court would even able to resist AKP political pressure is also in doubt.

The Invisible Opposition 

Yet the question remains why the AKP in parliament was so insistent on removing immunity now — and why the opposition CHP and MHP followed suit.

One argument is that the party is bent on replacing Turkey’s parliamentary system — in which the president has a relatively symbolic role — with an executive presidency, reducing the ability of the legislature to keep a check on presidential power.

For this the AKP needs an absolute majority in parliament. Not everyone in the AKP agrees with this strategy. Former AKP leader Ahmet Davutoğlu announced his resignation as prime minister on May 5 amidst rumors that he was not as committed to rewriting the constitution as Erdoğan is.

In this context, lifting immunity seems primarily designed to solidify AKP power in time to secure an executive presidency.

Last Sunday’s extraordinary AKP congress — entitled “The Blessed March Goes On” — certainly suggests this is the case. The party convened the congress to “elect” a leader — and prime minister — to replace the sidelined Davutoğlu.

There was only one candidate, preselected by Erdoğan: Binali Yıldırım, an Erdoğan loyalist who has since announced a new cabinet of like-minded ministers. A statement by Erdoğan was read aloud to AKP delegates — a defiant act considering the constitution requires the president to be non-partisan.

As it was read aloud, the entire congress stood to attention, a show of respect and obedience. Yıldırım made his allegiance clear: “Honorable president, we swear that your passion is our passion, your cause is our cause, your path is our path.”

Indeed, both last Friday’s vote and Sunday’s congress suggest that the AKP’s long-term plan is succeeding. One of the primary risks posed by parliamentary immunity is that if a single party becomes dominant, it can act to remove, undo, or undermine democratic procedures, safe in the knowledge that its representatives are immune to prosecution while they are in office.

The dominant party can lay the groundwork for whatever constitutional changes it wishes to make. So once the AKP uses the current temporary suspension of immunity to annihilate the HDP it’ll be back to business as usual, only this time the AKP will have the sole power to decide which MPs get immunity and which ones don’t.

This isn’t the first time this has happened. According to constitutional law professor Ergun Özbudan, the same procedure was used in 1994 to remove six deputies from the pro-Kurdish Democracy Party (DEP).

History repeats itself without even changing its clothes: again pro-Kurdish politicians are being kept from representing those who voted them in. The risk, says Özbudan, is that this may again result in increasing violence, as it did in the 1990s.

The AKP seems to think this risk is outweighed by the benefits of maintaining a tight grip on its parliamentary majority. Having lost it once before, with the HDP’s success at the ballot boxes on June 7, 2015, the AKP has acted to ensure its majority is secured.

And it has done so with the acquiescence — even support — of the CHP and the MHP, neither of which could be seen to oppose a motion pitched as anti-terror. The MHP in particular lost a significant proportion of its vote to the AKP between the June and November elections last year.

Indeed, the AKP appears to have both parties against a wall.

The remnants of the old, secular elites, embodied in the CHP — which despite its support base never wins more than 25 percent of the vote — can’t keep up with the AKP’s near-total capture of key government institutions, despite the takeover being fourteen years in the making. And after Friday’s vote their weakness will only be compounded; CHP head Kemal Kılıçdaroğlu could even face prosecution.

Erdoğan Takes the Reins

Turkey’s parliament, then, may be about to whittle itself down to just three major parties, all of which have declared either their support for, or their inability to prevent, the AKP’s “blessed march” to an executive presidency.

This is a significant blow to pluralistic representation in the Turkish parliament. Because immunity is inherently a function of the elected person’s capacity to represent those who voted for them, and not their private capacity, to remove parliamentary immunity disenfranchises the people who voted for those representatives.

Moreover, MPs who are prosecuted lose their seat and are not permitted to stand for office again. HDP co-chair Selahattin Demirtaş is under no illusions as to the existential threat faced by his party. In an interview with the Guardian, he expressed serious doubts that any kind of peace can be achieved in the southeast without the HDP in parliament: “If immunity is lifted and [HDP MPs] are arrested, the youngsters who support our party will lose all hope in democratic politics.”

If Demirtaş’s predictions are borne out, it could mean that a vote touted as a move against support for terrorism may end up closing off the one avenue that could have lead to a negotiated, democratic peace. This may well be the toll exacted in exchange for an executive presidency, with the reins firmly in Erdoğan’s hands.

 

 

This article was originally published on Jacobin, and has been syndicated here with permission.

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