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Gökhan Bacık
Dec 12 2018

The Turkish state is the law

Sırrı Süreyya Önder, former member of parliament for the pro-Kurdish People’s Democratic Party (HDP), was sent to prison last week on terrorism charges. He had served as a key conduit for the Kurdish side in the failed peace negotiations between the Turkish government and the Kurdistan People’s Party (PKK), so many observers were quick to point out that the decision was a serious inconsistency, given Önder had played a role based on government consent.

 

Önder’s case is far from unique. In countless cases, people have been arrested on terror charges for acts done with the Turkish government’s consent or even support. Thus, many pundits remind us, and rightly so, that it is inconsistent to arrest people for their past deeds, since none of these actions had previously been defined as crimes.

Though observers are correct to find these arrests legally inconsistent, their reactions ignore a key historical fact about the traditions of the Turkish state. A short analysis of Turkish state tradition would reveal that it runs on a peculiar theory of justice that has historically legitimised such inconsistencies in the name of state interests.

Normally, the rule of law requires that no one is above the law. All members of a society including the government are equally subject to the law. The government recognizes that the law is an autonomous realm free from political influence.

In Turkey, however, the state is above everything, including the law. Thus, the state in the Turkish tradition never recognizes the law as an autonomous realm. Yet, by its historical nature, the Turkish state tradition is skeptical of autonomous realms not only in law but also in economy, intellectual life, and even religious affairs. In all such realms, the state’s expectation is a state-oriented, state-comes-first attitude.

As a direct result of this model, there are two tracks of judicial activities in Turkey. The first track is about all legal procedures among individuals concerning their ordinary or common disputes like issues of robbery, inheritance or trade. On this track, since the state is not part of the disputes, courts are expected to deliver justice among people. Thus, the motto of this track is the standard one: Justice is the basis of ruling.

Then there is the second track, in which the state is directly or indirectly involved, and courts are expected to deliver not justice but a judgement based on reason d’état. On this track, the motto of the Turkish courts is definitely different: the interests of the state are the basis of ruling. Trials and hearings at this level are purely political procedures.

This alla Turca theory of justice has its origin in the transcendental nature of Turkish statehood. Still running on the course of transcendental statehood, Turkey lacks a Western type of social contract to function as a legal framework to provide an equality-based relationship between people and the state. This transcendental nature enables the Turkish state to be completely free from the people’s interrogations. It also enables the state to change its mind as often as it likes, since there is no social contract to allow people to remind it of the legal ramifications or absence of political consistency. Not bound by any external frame of consistency, whatever the state does or says automatically becomes “true” and binding.

Enjoying its transcendental nature, the Turkish state unilaterally changes the definitions of crime, justice, terrorism and many other key concepts. So, the government can easily declare people as enemies who were previously saluted as heroes, while an act previously seen as perfectly legal is suddenly declared a crime. Therefore, it is meaningless for the pundits to point out how the government is inconsistent today for arresting some people.

Remembered that most of the trials today in Turkey proceed on the second track, with courts  expected to deliver a judgement according to the state interest. The only thing that can bring normalisation back to Turkey is ironically again the state’s decision. And this is a matter of time, rather than justice: Turkey will return to normalisation once the Turkish state is satisfied with the purges of domestic enemies, particularly the Kurds, the Gülenists, and the Gezi people.

In Turkey today, justice is a grace of the state, and the state will decide the right time to favor its subjects.