Recently, Turkey has been debating a legal package in which the Justice and Development Party (AKP) government promises security to the population. The package, which includes a whopping 132 articles, touches upon a wide array of constitutional issues such as the duties of the police force, the authorities of the administration, and citizens’ exercise of their basic rights of expression and assembly.
Such an ambitious attempt to redesign citizens’ rights and freedoms, and the state’s organization and authorities along the concept of security, undoubtedly suggests that the government is aspiring to a constitutional initiative which goes far beyond the limits of an ordinary bill.
Let us start out with two observations which might help us focus accurately on the Domestic Security Bill. First of all, with this legal package, the government passes from the legal sphere to a more de facto sphere. Secondly, the package clearly suggests that the government has completely abandoned its previous ideological and political discourse, which had had a more universal tone.
Up until now, the government had justified even its most illegitimate political interventions against democracy and law through a discourse of democracy and rule of law. The fact that it now switches to a discourse of security clearly points to more than a simple change in political wording. That is because the Domestic Security Bill places such a wide range of our rights and freedoms on the agenda of the political crisis that it becomes inevitable to observe that this new political initiative has innumerable connections and implications in a vast sphere spanning from the crisis of AKP to a crisis of power. In other words, the AKP is striving to redefine the entire field of politics and power by creating a de facto situation with this so-called bill which actually is nothing but an ordinance. Precisely for this reason, we need to understand it within the context of a vast array of crises.
AKP’s latest crisis
The first political layer underlying the bill is the political crisis of the AKP. Before finding itself in the midst of this latest crisis, the AKP had gone through two important periods in its rule. In the first period, which lasted from 2002 until 2007, the AKP pursued a strategy of low-intensity conflict against traditionalist nationalist forces, including the army and bureaucracy, whereas in the second period, which ran from 2007 to 2013, the AKP formed a coalition with the Fethullah Gülen sect where the members of the latter were integrated into the state’s organizational structure.
While the emphasis in the first period was on a political discourse of “more democracy” against tradition, in the second, it shifted to the construction of democracy against “coups and military oversight”. The collapse of the second period was brought about precisely by this coalition and AKP’s coalition partner, the Gülen sect. Now, AKP is preparing for its third term in government. The Domestic Security Bill is one of the key instruments in this preparation. The AKP plans to build its new term in government around a wide range of de facto situations to be created by this bill.
The profound contradictions of the government
Another political reason for the drafting of the bill is the dissolution of the coalition between the AKP and the Gülen sect, and the resulting power crisis. With the unraveling of the said coalition, almost all actors found themselves mired in profound contradictions. Nevertheless, the AKP was hit the hardest by these contradictions. This conflicted pitted the two sides of the coalition against each other in a fight for control over state apparatuses and institutions, which is still going on.
It can easily be seen that this conflict pushes both sides into a serious contradiction in terms of political position and ideological discourse. Having won an initial advantage against the Gülen sect, the AKP now strives to establish its newfound power by suppressing its own profound contradictions. The AKP, which claimed just a year ago that the legal, judiciary and police institutions were engaged in a conspiracy against it, now implies that all these institutions are fully reliable with this bill. As such, it overtly declares that the only criterion of legitimacy for the legal and judiciary system, and indeed for all state institutions, is the AKP’s interests.
After claiming a year ago that the judiciary and police force were acting against its very democratic concerns, the same actor now claims, without even trying to conceal the affected expression on its face, that concerns about democracy and the AKP’s instrumentalization of the judiciary are totally unfounded. The Domestic Security Bill reveals this profound contradiction that the AKP faces in the social and political arena and shows that the state, legal system and the judiciary have utterly lost their integrity. A detailed analysis of the bill’s content can help us better understand this.
Administration turns into the judiciary, citizens become “enemies”
A detailed analysis reveals what kinds of violence the AKP’s legal initiatives can potentially unleash. First, the police is given the right to keep citizens in custody up to 48 hours without any judiciary process, which redesigns the administrative structure as a quasi-judiciary institution. The judiciary in Turkey is already a quasi-administrative institution; now, things are getting worse as the administration turns into the judiciary.
A similar method was deployed by the UK in Northern Ireland in 1970s, when, under Regulation 10, individuals who allegedly posed a threat for the society were interned and placed in detention camps. However, very quickly the UK opted to draft a typical anti-terror law to obtain results. Just like in the UK in 1970s, the Domestic Security Bill turns everyone in the country to a potential object of sheer violence and transforms citizens into politically dangerous elements who can be sent by the government to detention camps, which would be a breach of the constitution.
The provision that allows the police to conduct strip searches and wiretapping without a judge’s permission is an instrument that will bolster plans to intern public enemies on a large scale. The legal system gives way to detention camps, and citizens turn into enemies.
Byzantine law rises from the grave
According to another article in the package, protesters will be made to pay for any damages inflicted to property when protests turn violent, which in fact brings the Byzantine legal principle of collective responsibility back from the grave. From now on, participants in a protest will be held collectively responsible for damages. In Byzantine law, an entire community was held responsible for damages inflicted by some of its members!
Another tragic provision further aggravates the punishment for wearing scarves and gas masks in a protest, which in fact criminalizes the most basic human urge of self-protection and in a sense wages war against human nature itself. Indeed, modern law considers that the human urge for self-defense is legitimate and that it is an element of human nature which cannot be intervened with. With this bill, however, even trying to protect oneself against gas becomes a criminal offense!
An implicit declaration of war
Let us now take up the most tragic and potentially lethal article of this domestic security ordinance: The police will now have the right to use firearms in protests which turn violent. Anyone with even a limited knowledge of basic law can see that this will have dire consequences: This provision will legitimize the police officers’ killing of Ali Ismail Korkmaz, Berkin Elvan, Ethem Sarısülük and others during the Gezi protests and indeed all other dissident figures. Furthermore, this article can also result in police officers on trial going free for such murders. It not only encourages state violence but can also eliminate ongoing lawsuits.
This indeed is an implicit declaration of war, because its result will be to criminalize dissidents and turn them into legitimate targets of violence. Overall, all these provisions can be said to redefine the rights of citizens and abolish all constitutional rights and freedoms in covert fashion.
Ordinance with constitutional impact
Taking into account the above-mentioned considerations, the Domestic Security Bill is indeed not a law but an ordinance or decree and as such paves the groundwork for dictatorial operations and functions. Besides it has a constitution-making impact in a number of ways. First, this law has been designed not according to legal methodology and jurisprudence, but as a political ordinance for all state officers. It is totally devoid of any true constitutional concern and effort, and in fact abolishes the current constitution. Instead, it focuses on the urgent needs of the government in power.
The bill deploys not a social and legal discourse, but rather the discourse of the police and constabulary. Furthermore, it provides clues as to the day-to-day orders to be given by the government. For all these reasons, this bill cannot be analyzed from a perspective of law and jurisprudence. Indeed, it is not even a law, but rather an ordinance which creates power and has a constitutional effect.
Protesters are now the archenemy
This bill has yet another characteristic which sheds light on the AKP’s new legal and administrative strategies. The Domestic Security Bill expands the scope of the security perspective built on the concept of terror and terrorists to include social protests and protesters.
The section outlining the legal rationale for the bill makes it clear that the government worries not only about “terror” and “terrorists” but also “social protests” and “protesters,” and tries to criminalize the latter: “Social protests which erupted in recent years have turned into a platform for terrorist propaganda, and protesters have posed a threat against the lives of citizens, damaging and even pillaging public and private buildings, vehicles and property. This has prompted the government to take new measures without compromising the balance between freedom and security.”
As can be seen in this section, through a semantic shift, mass protests and demonstrations, which are an ordinary component of any democracy, have been redefined as a political instrument and platform directly associated with “terror” and “violence.” Democratic protests are hereby portrayed as “subversive.” Furthermore, the government puts in place a new strategy of administration and intervention. Accordingly, while in the past the concepts of “traitor”, “anarchist” and “terrorist” were deployed to create a perception of “enemy” and “threat,” today’s new enemies and threats are to be found in democratic street protests and mass demonstrations and meetings, which are set to become objects of violence.
A democratic response to the crisis
In December 2013, Turkey plunged into a political crisis which has yet to be settled. It seems that this political conflict will eventually lead to the rise of permanent and consistent legal, judiciary and police organizations, and indeed a brand new political and legal order overall. We are far from that point now. With the Domestic Security Bill, the AKP has shown that it has opted for anti-democratic means in overcoming its crisis of power. This bill is an overt declaration that it will base its new power not inside but outside the sphere of law. Indeed, the government already announced this openly when the Minister of the Interior Efkan Ala declared “I do not recognize the Constitution!”
Here the question which begs an urgent response is this: What kind of a democratic response to this crisis can be organized, and by whom? At the moment, 67 out of the 132 articles of the package have been approved by the parliament. The parliamentary opposition tries to resist the bill by extending the talks, opening up the debate and giving popular reactions against the government which counts on its majority in the parliament. This gives us hope, because, for the first time—since the People’s Labor Party (HEP) crisis of 1994—the parliament seems to have turned into a veritable political arena, a platform of social and political representation. Wide masses also seem to have grasped the political targets of the bill and are voicing their opposition.
The serious parliamentary and social opposition against the bill inspires hope in another way regarding the possible democratic response to the political crisis in Turkey. In the face of all this reaction, the government recently seemed to content itself with the articles that had already passed—which sufficed to meet its targets outlined above—and has decided to send the rest of the bill back to the parliamentary commission that drafted it. In effect, it is trying to nullify the attempts of the opposition to block the bill, and wants to put these 67 articles into action. It seems that the government is ready to utilize all kinds of tricks to bypass the law.