Constitutional Crisis Roils Turkey's Legal System

13 Kasım 2023 Pazartesi

The Court of Cassation rejected the Constitutional Court's decision, initiating a criminal complaint against certain Constitutional Court members. The partisan press targeted these individuals, associating them with both FETÖ and PKK. Despite Article 153 of the Constitution stipulating that "Constitutional decisions are final" and "Constitutional Court decisions are immediately published in the Official Gazette and bind the legislative, executive, and judicial organs, administrative authorities, real and legal persons," the president argued that the Constitutional Court consistently erred, the system lacked the necessary speed, necessitating a new constitution. The claim "we are arbitrators, not parties" elevated the Presidency above the Constitutional Court and the Court of Cassation, rejecting the distinct position of the Constitution above all laws.

A profound "political crisis" erupted, characterized by the new head of the main opposition CHP party as "an uprising and the elimination of the constitutional regime under Erdoğan's leadership."

So what is the problem?

Why is Can Atalay's detention so significant? What underlies this "political crisis"? What do the President and the "government" (the Palace) wish to achieve but face obstacles within the existing presidential system? Can Atalay is likely not the root cause...

Local and general elections come to mind first. Since the Gezi protests, there hasn't been a single general election, presidential election, or referendum without allegations of manipulation. For this regime, the process of determining the legislature and its members poses a significant, seemingly insurmountable obstacle. The second major impediment is the executive and judiciary's accountability to a constitution. These areas constitute the living space of the parliamentary system (judiciary, legislature, political parties). Therefore, the new constitution aims to overcome these hurdles by empowering the president and the government on a "new ground." Almost all characteristics of this "new ground" can be found in the theories of "Hitler's jurist" Carl Schmitt on the Sovereignty and Constitution relationship (legal order).

A leaf from history...

In his works titled Politische Theologie, Die Diktatur, Schmitt contends that the state is "the monopoly of the final decision," defining sovereignty's essence as "the monopoly of decision." The entire legal system is thus relativized by a power standing outside and above it, subjected to conditions determined by this power, and hence, arbitrary. In contrast to the "proxy dictators" of Rome tasked with maintaining order, the function of the "sovereign 'dictator'" is to completely dismantle the existing order and establish a new one.

According to Schmitt, a constitution isn't a set of legal norms but a political decision determining a political community's form and identity. The constitution is rooted in the sovereignty principle, signifying the highest authority capable of deciding in a crisis or emergency, requiring the suspension of the normal legal order. Sovereignty's principle isn't based on the constitution; it's the power to make a "decision of exception," to act in the name of the common good, even if it contradicts existing law. Schmitt argues that the sovereign isn't bound by rational or moral criteria. He critiques liberal and democratic state theories that attempt to limit sovereign power by rational means and pluralist views denying the existence and importance of sovereignty in the modern world.

Returning to my "thinking model," the economic crisis deepens as the geopolitical environment rapidly intensifies. It becomes crucial for the regime, in the process of "fascism," to reach the last "station" before roadblocks emerge. However, friction caused by the last remnants of the "parliamentary" secular republic impedes progress. That pushes the government and its leader toward seeking a constitution-sovereignty relationship as described by Schmitt.

In a final move, the President and the government aim to eliminate the remnants of this "friction" with a constitution subordinate to the sovereign's will. That signifies a desire to completely dissolve the secular republic and effectively terminate the multi-party system. Consequently, this crisis marks the secular Republic's final chapter, with subsequent crises unfolding on vastly different grounds.


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