The election of Recep Tayyip Erdoğan as president of the Republic of Turkey in August 2014 was a momentous turning point in Turkish political history. It was the first time that a president had been elected by popular vote, rather than by the members of parliament. Moreover, despite strong voices raised regarding possible electoral fraud, Erdoğan was elected by 52 percent of the votes, with an outright single majority in the very first round.
This election had various and significant consequences. The most important of which has been the development of a grandiose belief in the invincibility of Erdoğan, with his legitimacy now derived from the popular vote. This has become such a pervasive aspect of Turkish political culture that Erdoğan himself has become legally unchallengeable as the embodiment of the national will: the one and only sovereign who can place himself above the law.
Entwined within the process through which the AKP has established themselves as ruling majority party for the last 14 years has been an appropriation of all state institutions; curbing the separation of powers by a de facto monopoly over the parliament, seizure of the judiciary and take-over of critical outlets within the media and academia. Through these activities, Erdoğan has been able to conduct himself as he wishes – not only as the president but as the prime minister, governor, mayor, and head muhtar (headman, chief of local administrations) of the country.
This discourse on Erdoğan as the ultimate embodiment of the ‘national will’ has paved the way for the president to place himself above the constitution. In this respect, he not onlydares to not recognize the constitution but has exerted his powers to bend it to his own political will. In the period since Presidential elections, we have witnessed various forms of defiance of the constitution by Erdoğan and the impunity that followed.
The unconstitutional political moves of the President Erdoğan became even more visible during the general elections of June and November 2015. As the head of the state, the president is compelled to remain neutral towards the elections, however Erdoğan used his populist position, speaking at rallies and dominating media coverage in favor of AKP. This new defiance reached peak point when he disavowed the Constitutional Court’s verdict regarding the release of arrested journalists Can Dündar and Erdem Gül.
However, this article does not aim to discuss how Erdoğan has come to denounce the constitution and assert himself as the embodiment of the national will. Neither does it seek to give an account of how the president has established himself as the sole and the ultimate leader of the country using totalitarian methods. What I instead intend to look at is how the construction of legal system in Turkey has always been grounded upon a violent process, and how this has remained unchanged despite the transformations altering the hegemonic and constituent power behind the construction of law.
Many sociologist and theoretician of law have widely discussed that there is an imminent relationship between law, violence and the political power. In fact, it can be argued that, violence is the foundation of the law. This violence plays itself out through inclusive and exclusionary practices; that is to say, at the foundation of law, political power decides what and/or who the society consists of. Those who have been excluded at the outset remain at the margins of the societal construction and cannot assert themselves as political subjects who can speak back to the political power.
The foundation of the Republic of Turkey was by no means immune to this process of violent construction of the society through categories of citizenship, and in fact is probably one of the most vivid examples of this. Citizenship was established very early on as both ethnically Turkish and religiously Sunni Muslim. Those who do not fit to this category have generally either been forced in to line, or been declared illegal citizens, enemies of the state. The latest example of which is the president’s outrageous call for stripping of citizenship for those who “betray the state” by supporting “terrorism”, in its broadest definition.
Recent discussions over who and what constitutes a “terrorist” and over extending the definition of terrorism should be seen through lenses of the relationship between law, violence and political power instead of as the exhibition of single leader’s un-tamable will to power. Of course today, after 93 years of the Republic, this violent construction of the law plays itself out in all the more visible and intense ways. Government critics are ever silenced through the violence of law.
However, this does not immediately lead to the conclusion that law, by definition, is subjected to the political power. It is rather a battle field where different forms of struggles take place. One of these struggles, as Jacques Verges, with his sobriquet “the Devil’s Advocate” also reminds us, is to expose the foundations of the law, to highlight the invisible power struggles behind the law, to show whose justice is the dominant one.
From Jacques Verges to Arrested Lawyers: Exposing the Law of the Dominant
Jacques Verges, a Vietnamese-French lawyer, is well-known of his controversial defense cases. His name first reached international ears was with the defense of FLN (Algerian National Liberation Front) guerrillas during Algeria’s anti-colonial movement. Controversies surrounding Verges heightened in 1987 when he defended Klaus Barbie, aka the Butcher of Lyon, a French Nazi officer who was directly responsible for the death of 14,000 people and for countless other crimes against humanity.
Among other controversial clients, these two cases held a special importance for Verges in his development of what he termed a “rupture strategy”. With this, Verges was naming a strategy through which the justice of the judicial is questioned and legitimate grounds of the judicial authority are shaken.
When Verges used this strategy in the case of FLN guerrillas, he was questioning the French legal conception of “terrorist” and exposing the colonial roots of this legal framework. During the Klaus Barbie case, he was putting not a single Nazi officer but the history of France into the court by questioning the French political affinity with the Nazis at that time. He was asking what Barbie, a simple officer, could do within a political environment allowing him, if not encouraging him, to commit these crimes. In this strategy, the defendant does not get into a conversation with the court; but rather questions, exposes and denounces the violent construction of law by bringing up political questions that make this court possible. In other words, the defense deconstructs not only the law but also the violence and power relations behind it.
When the lawyers of the Libertarian Lawyers’ Association (Özgürlükçü Hukukçular Derneği – ÖHD) were brought before the court on March 23, a similar defense strategy was followed. On March 16, 2016, nine lawyers together with 24 other people had been detained on the charges of “membership to an illegal organization”.
The nine lawyers were the referred to the court where two of them would be arrested. ÖHD lawyers are active especially in cases of human rights violations in Kurdish cities, and in Turkey in general. Recently, and perhaps most famously, they have been working on the case of Academics for Peace. During the investigation, they were asked questions about their clients, their appeal to European Court of Human Rights and press statements and interviews they have given.
In their defense, Hüseyin Boğatekin told to the Criminal Court of Peace that they were proud of being charged with such accusations. Instead of defending themselves in such a fashion that law allows, they were refuting the legitimacy of the Court by questioning the justice that the Court, or the law can obtain. In his own words, Hüseyin Boğatekin told the Court “I only account for before the true justice. I do not recognize the nonsense you call investigation. I am proud of being the lawyer of the oppressed vis-a-vis the dominant’s law.” Similarly, lawyer Ramazan Demir stated that, “I have been interrogated about the defense of [the Group of Communities in Kurdistan] KCK cases. That is true. I’d do it again if needed be.”
With these statements, detained ÖHD lawyers were calling the states’ definition of “terrorism”, “illegal activity” and “illegal organization” into question. The way they dealt with the Court, hence with the law, was to expose the political power and violence of this power. They aimed at revealing how the law is constructed in Turkey and how it is used as a way to silence any form of opposition.
Even though this process has been intensified recently, in Turkey, construction of the law on the basis of violence has always been there. What was missing before was such widespread exposure. Today, even though the political elite behind this violence has changed, violence remains there creating distinctions, differentiating people in accordance with legal categories.
The growing and highly controversial discussion over citizenship-stripping for those involved with “terrorism” would be incomplete without a discussion as to the historical roots of such an authority. Given such discussions, exposure and critical assessment of this type of legal violence is more important than ever. That’s why the trial of ÖHD lawyers, despite their relatively swift release, requires more attention than we have paid so far.
See Gurbilek, Nurdan. (2014). Sessizin Payı [Share of the Silenced]. Ankara: Metis Yayınları