Erdoğan’s presidential regime and strategic legalism: Turkish democracy in the twilight zone

ABSTRACT

President Erdoğan and the AKP government initiated a comprehensive restoration process immediately after the failed coup in mid-July 2016. In fact, the country has been experiencing a very comprehensive and violent regime transformation since this time. I assert that recent political developments paved the way for institutionalization of a ‘plebiscitary presidential regime’ that depends on a particular combination of supreme power of the leader, an extremely weak parliament, and elections of a plebiscitary character. In this context, the paper aims to shed light on the role of the new strategic legalism which allows rule of law to be replaced by a rule by law approach, the executive prerogative principle to be dominant, and the law to be used for demobilization, all playing a highly critical role in the suppression of democratic opposition.

KEYWORDS:

• Erdoğan
• authoritarianism
• Turkey
• strategic legalism
• rule of law
• state of emergency
• plebiscitary presidential regime

Introduction

In his Prison Notebooks, Gramsci states, ‘[t]he crisis consists precisely in the fact that the old is dying and the new cannot be born; in this interregnum a great variety of morbid symptoms appear’ (Gramsci 1992, 276). Depending on the prevailing social and political conditions in interregnum periods, these morbid symptoms can take highly violent forms such as fascism, fully fledged authoritarianism, a military coup or endless declarations of states of emergency or martial law. The severe political crisis and accompanying states of emergencies and interregnum periods are so much part and parcel of the history of modern Turkey that these terms have almost lost their political and legal meanings. Yet this feature of politics in Turkey took a new form after the violent coup attempt on 15 July 2016. Following the failed coup, the government and the president, Recep Tayyip Erdoğan, began a campaign to transform the regime, which has already had serious consequences for state–society relations, the institutional organization of state power, citizenship rights, and the formation of a democratic public space. In response to the attempted coup, the AKP (Adalet ve Kalkınma Partisi – Justice and Development Party) government declared a state of emergency on 21 July 2016 and extended it seven times.

During the state of emergency, the government purged more than 125,000 state employees, closed thousands of civil society and media organizations, and jailed prominent Kurdish politicians.¹ The government’s official line was that it was taking steps necessary to efficiently and rapidly bring ‘stability’ and democracy to the country, and to eliminate all elements of the terror organization that had attempted the military coup.² Meanwhile, President Erdoğan and the AKP government initiated a constitutional amendment, which was ratified by a referendum on 16 April 2017, to clear the way for building a new political system based on the supreme power of the president, who would have absolute control of the state and civil society.

However, rather than bringing so much desired ‘stability’, it very quickly became obvious that these measures targeted a regime change by altering the institutional configuration of state power and suppressing oppositional political activity. The severe social and political consequences of these developments led to the burgeoning of a new literature on the rising authoritarianism and the character of the new political regime in Turkey. Most of these analyses have applied convenient political terminology such as competitive or electoral authoritarianism, which explains neither the historically specific political character of the emerging regime nor the changing relationship between the rule of law and legality in the country. The recent spate of studies that conceptualize current political developments mainly on the basis of authoritarian populist discourse, or the personal charisma of President Erdoğan, have also displayed similar methodological and analytical flaws. To avoid the shortcomings of such formalistic and limited accounts and comprehend the political character of the emerging regime, I assert that we need a legal and political analysis of the emerging form of legality and legitimacy that goes beyond simple empirical documentation of the recent deployment of emergency power or reproduction of the same old story which claims that what is happening is just another episode in the country’s eternal tradition of authoritarianism.

In pursuit of a more critical perspective, I outline the core characteristics of this new strategic legality embraced by the AKP and President Erdoğan and his newly imposed political regime, which I refer to as a ‘plebiscitary presidential system’ in the present paper. I claim that the state of emergency declaration in July 2016 after the failed coup and the 2017 Constitutional Referendum are two critical turning points in the organization of this new regime, which is primarily structured around the unity of leader, party, and state, and based on total erosion of intermediary groups and institutions. The secret formula of Erdoğan’s presidential regime depends on a particular combination of supreme power of the leader, an extremely weak parliament and elections of a plebiscitary character.

To apply this formula and to suppress any opposition during the transition period, the new political regime is primarily granted permanent emergency powers incorporated into the political system in novel ways. The new political system is designed so that the articulation between new strategic legality and executive prerogative principle confers exceptional power on the president, who can deploy this both in case of emergency and under normal circumstances. This ongoing institutionalization of supreme power of the president has also been underpinned by ‘proxy sovereigns’ existing within the legal system and appealing to ‘exceptional laws of all sorts found through the administrative apparatus of the state’ (Hussain 2007, 741), and ‘hyper-legality’, which produces a great number of counterterrorism regulations and administrative procedures.

In line with the construction of such a repressive legal complex, we are attesting a period in which executive-centred emergency powers have been interconnected with operations of more ordinary emergency practices and regulations. These ordinary emergency practices permeate various judicial and administrative areas and contain repressive operations since consolidation of the new regime requires more than legal amendments within the country, which has an interrupted but long history of parliamentary democracy. These interconnected legal, judicial, and political techniques have been working together to create an atmosphere of multi-layered emergency aiming to thwart the rise of any democratic alternatives.³ By deploying draconian laws and processes of judicial repression, the AKP government aims to reduce democratic opposition to the level of a whispering and mumbling public that does not have the courage or capability to challenge the rising authoritarianism. For this reason, the strategic legalism of the party combines total subordination of the judiciary to the executive with subtle judicial repression strategies in order to demobilize all sources of opposition and suppress the emergence of any possible alternatives within the current power bloc. Thus, strategic legalism becomes highly instrumental in disciplining the democratic opposition and triumphing over old statist military ruling elites, capital circles, and older allies of the party. The new legal system is also intentionally characterized by ‘strategic shapelessness’, which has become so evident from recent decisions by the judiciary and administrative agents that it has been replacing the legality based on the ‘rule by law’ attitude with an extremely fragile conception of the rule of law in the country.⁴

Furthermore, in order to regulate inevitable uncertainties emerging both from the fundamental conflicts of the republic and the organization of the transition period, current legal practices and police operations have been promoting the strategically created ‘dual state’ organized around routine ‘emergency’ operations and the insertion of new twilight zones into the legal system. To face challenges and contain oppositional energy, the period of constitutional dictatorship, based on the deployment of legal emergency power after the failed coup, has been complemented by a constant appeal to more ordinary and everyday police emergency, whose origins can be traced back to the AKP’s early reform period. Consequently, the strategically created duality and the accompanying multi-layered emergency dispositive have been purposefully blurring the distinction between legal and illegal, exceptional and ordinary within the legal system. Not only do these developments have legal and political consequences on the legal system in Turkey but also in other countries since Erdoğan and the AKP’s legal policies provide a model for other authoritarian regimes.

In the first part of the paper, I will outline the main characteristics of the concept of strategic legalism to shed light on the ways in which current legal practices and recent emergency measures have provided the necessary authority to President Erdoğan and the AKP government to implement a regime change. I assert that the disintegration of the already very fragile rule of law has been accelerated to such a degree that the relationship between the modern understanding of ‘legitimacy and legality’ has completely lost its meaning in the country because of the imposition of strategic legalism.⁵ In the following section, I will describe the general characteristics of an emerging plebiscitary presidential regime and discuss the specific character of the new political system promoted by President Erdoğan. I argue that the new political regime is designed to provide a version of sovereign dictatorial power to Erdoğan on a permanent basis in order to restructure the political regime and suppress political opposition and civil society should this be necessary to sustain his presidential power.

I maintain that Carl Schmitt’s discussions on dictatorship are highly relevant to understanding the form of the emerging regime in Turkey. It is a new political regime, which rests on the restructuration of state in line with the institutionalization of multifaceted dictatorial powers, dispersed through the judiciary, security institutions, and other state organs and organized around president’s supreme authority.⁶ Therefore, holding sovereign power to re-order the political structure in case of serious crisis/necessity and enforcing the new regime via multiple emergency practices are vital for consolidation of the regime. The instability of the transition period already proved that they should always be at hand both to disorganize opposition and more importantly to create politically governable crises, which seem necessary to keep the regime supporter’s mobilization constant and vivid. However, the ongoing existence of the opposition and difficulties in subsuming the field of representation, working as an arena for competition to gain access to political power and legitimacy, creates substantial obstacles in the consolidation of the new regime.⁷ In conclusion, I underline both the fragilities of the emerging regime and of the future awaiting the opposition in this interregnum period, which is surrounded by an endless fear and hope.

The 2016 state of emergency declaration: manufacturing fear by institutionalizing strategic legalism

Following the failed coup attempt on 15 July 2016, the government declared a state of emergency throughout the country for three months as of 21 July 2016 on the basis of Articles 120–121 of the Turkish Constitution.⁸ The state of emergency was extended seven times and finally lifted on 18 July 2018. The announced aim of the declaration was to restore the state’s power and eliminate coup supporters from state institutions. The state of emergency declaration was also reinforced by emergency decrees including preventive measures. The scope and content of the decrees were so broad that they regulated every detail of public life in addition to organizing a massive number of purges.⁹ To restore state power and control civil society, these measures included the following: dissolution of institutions and organizations; dismissals and deprivation of some rights; measures related to public officials (particularly for members of the judiciary, military personnel, police forces, and state officials in almost every department of state institutions); changes to existing legislation and introduction of new legislation (IHOP 2018, 6). By 19 July 2018, 32 Emergency Decrees had been issued.¹⁰

In line with these measures, among others, the passports of thousands of state employees were cancelled, periods of custody were extended and access to defence counsel was restricted. Additionally, at least 228,137 persons were detained (from 16 July 2016 to 20 March 2018), more than 129,000 state employees were expelled, a total of 2,271 private sector education institutions and 1,427 associations were dissolved, 39 radio stations, 34 TV channels and 73 journals and newspapers were shut down, 15 foundation-owned higher education institutions were closed, and trustees were assigned to 99 municipalities, most of them in the Kurdish region and governed by the pro-Kurdish party (HDP), and trustees were also assigned to 985 companies (Akça et al. 2018, 8; IHOP Report 2018).¹¹ As a result of this governing by emergency decree, legislative and judiciary processes turned out to be almost dysfunctional. It became obvious that the state of emergency decrees was being used as an instrument to make the legislative, the judiciary, and the executive dependent on the final decision of President Erdoğan.

In this context, the AKP and President Erdoğan saw the failed coup attempt as an important opportunity (‘the gift of God’ in the words of President Erdoğan) to prepare the ground for the transition from parliamentary democracy to a plebiscitary presidential regime.¹² A new system, organized around the executive-centred rule by emergency decrees, effectively abandoned parliamentary democracy. Turkey is actually on the way for institutionalizing unbounded executive by enabling decrees for a long time. As of 2011, the AKP government had already essentially adopted a system of governing with a decree in power of law (KHK – Kanun Hükmünde Kararname) to reconfigure the organizational structure and functioning of ministries, and to establish new institutions and mechanisms.¹³ However, the recent declaration of a state of emergency not ‘only exacerbated the “over-centralisation” of political power’ (Taş 2015, 780), but also gave way to the replacement of a norm-guided system by a system of arbitrary laws based on the exigencies of the ‘emergency.’ These emergency decrees differ from normal decrees in law in terms of the judicial review process, jurisdiction, and content (Yazıcı 2016).

In ‘normal’ times, enactment of a decree in law is carried out by the Council of Ministers and the president only has a formal authority in the process of enactments. In exceptional times, however, the Council of Ministers and the president use substantive authority to bypass the parliament. The most important distinction between these emergency decrees and normal ones lies in the judicial review process. Under the 1982 Constitution, judicial review of the emergency decrees by the Turkish Constitutional Court is not possible (Yazıcı 2016, xvii-xix). Moreover, these decrees differ from the emergency decrees of 1990 s since ‘the abstract act of norm-making through the decrees was accompanied by the executive act in the same document’ (Göztepe 2018, 530). In other words, these emergency decrees created a ‘legal black hole’, a juridically produced lawless void, a space that depends on the suspension of rule-of-law controls (Dyzenhaus 2006, 30–39).¹⁴ By undermining the parliament’s law-making authority, emergency declaration provided the necessary authority for a transition period to establish a plebiscitary regime based on the centralization of all power around the supreme power of the president and his total control of state apparatuses. However, this ambitious regime transformation project and realization of the above-mentioned formula goes beyond institutional configuration of state power.

In this context, the anti-coup protests were also welcomed by the party as an initial sign of the much desired unification of state, movement and leader.¹⁵ Popular reactions were seen as a chance to expand Turkish-Islamic ideology and to entrench the authoritarian hegemony of the party. For Erdoğan and the AKP, the anti-coup reaction was an opportunity to build extensive political networks in civil society and provided solid legal grounds for the legitimation of ‘the re-founding the polity’ (Bargu 2018, 32). However, it appeared that the scope of the mobilization was not enough to organize a simple transition and change the institutional configuration of political power. In order to be able to do this, the party appealed to the ‘logic of exception’ and combined judicial and extra-judicial violence to manufacture existential insecurity and fear among all political opposition (Akkoyunlu and Öktem 2016).

As a result, an era of ruling through emergency decrees replaced the parliamentary democracy and the already fragile rule of law, which always exemplified the very thin conception of rule of law in the country. Turkey’s legal and political tradition depends on incorporating the concept of ‘executive prerogative’ into the legal and political system to enable politicians, security personnel, and judicial decision makers to contain the social and political conflicts that have constantly emerged from the state’s foundational contradictions since the establishment of the republic (Parslow 2016, 33, 2018, 4). However, this ‘executive prerogative’ principle became the foundation for state activities and legal practices to a greater extent after the 1980 coup. The strict functioning of this concept of executive prerogative can be seen in particular in the state of emergency declarations under the 1982 Constitution, which is viewed as the climax of the history of ‘authoritarian constitutionalism’ in the country.¹⁶

After a very short EU accession period, the AKP gradually introduced the new form of authoritarian constitutionalism, which geared to empower executive by deepening the usurpation of judicial power by the executive branch; reformulate the role of the exceptional criminal courts within the criminal justice system; entrench firmly anti-terror law and most importantly, gradually displace the dominance of military by introducing the new executive prerogative power, which is organized around the supreme authority of president. As mentioned by Bali, ‘many of the AKP’s worst practices today are themselves rooted in the longer legacy of Turkey’s statist tradition’, however, the Party became highly innovative in reproducing this legacy in novel forms (Bali 2016, 6).

In line with this new ‘executive prerogative’ mentality, a new principle of ‘strategic legalism’ was more systematically inscribed into the heart of the legal system to secure the regime change after the failed coup.¹⁷ In order to understand the role of strategic legalism, what we need above all is an analysis that makes explicit the relationship between the character of newly emerging legality and escalating authoritarianism. As argued by Kim Lane Scheppele, there are salient differences between the old fascist regimes and new authoritarian ones in their use and transformation of the dominant legal framework. She succinctly asserts that the ‘Hitler Scenario’ does not help in understanding new legalistic autocrats’ rise to power since there is no widespread state of emergency or ‘human-rights violations on a mass scale’ (Scheppele 2018, 575).¹⁸ However, this perspective ignores to a certain extent how these new autocrats transform the foundations of rule of law by following the principles of strategic legalism, which reduces the rule of law to the concept of rule by law, executive prerogative principle and law as a means of government and demobilization.

I assert that the Turkish example illustrates perfectly how this new form of legality has been legally organized and applied. Strategic legalism is ‘use, abuse and misuse of rule of law’ to achieve politically ‘legitimate’ aims, hence, reducing the rule of law to the existence of legal norms by strategically manipulating/abusing legal powers, processes, and rules (Corrales 2015, 38).¹⁹ The strategic legalism of the AKP encompasses, among others, the following components: (i) the expansion of discretionary power in political and legal decision-making processes, (ii) increasing dominance of the executive prerogative principle, based on insertions of new ‘legal black and grey holes’ into the legal system, (iii) reduction of the rule of law into rule by law approach, hence, instrumentalization of legal regulations in line with governmental strategies (iv) insertion of new liminal judicial venues such as the Criminal Judgeships of Peace (Sulh Ceza Mahkemeleri), (v) tactical use of legal instruments such as tax, libel, or defamation laws to oppress opposition, hence, turning criminal procedure into an instrument of suppression,²⁰ (vi) distortion of legal foreseeability, and finally, (ix) politicization of judiciary, which goes hand in hand with the ‘judicialisation of politics’, that means direct transformation of political questions into legal ones (Ferejohn 2002, 42).

The underlying logic behind the new legal and political institutional design on the basis of strategic legalism was to curb the powers of all other areas of state authority in order to strengthen the president’s supreme power. In fact, these regulations introduced new operational logic for the governing of all other institutions: a new reason of state based on supreme power of the president and multi-layered emergency power, functioning through the medium of arbitrary strategic legal regulations and judiciary institutions. The new legal cases provide plenty of evidence for how strategic legalism has been embraced by higher and lower courts.

Rule of law and courts are supposed to be an antithesis of arbitrary rule. However, recent trials at courts in Turkey have proven that these trials provided a highly efficient stage for the governing party to prosecute any kind of opposition in the country for crimes against the regime (Shen-Bayh 2018, 329). Grounding the indictment and the verdict on pseudo evidences or subjecting statements made at a time marked by a relatively free environment to criminal investigation have become an almost common practice. As succinctly emphasized by Oder, in Cumhuriyet trial, ‘regular news and columns, including direct political criticism published before the coup attempt in 2016, have been treated as evidence for the support of terrorism. Telephone calls for ordering meals or holiday bookings have been regarded as evidence since the restaurant and the travel agency were on a list of FETÖ (Fetullahçı Terör Örgütü) supporters provided by the intelligence service.’²¹ After comprehensively analysing Aslı Erdoğan, Atilla Taş, Necmiye Alpay, Ahmet Altan and Ahmet Şık cases, Yaman Akdeniz and Kerem Altıparmak, also states that ‘in every one of these investigations, writers under investigation for what they have written and for expressing their opinion are subjected to home searches that go on for hours. Following their arrests by the police, their investigation files have been restricted with a secrecy order. The suspects are then put in pre-trial detention by the criminal judges for peace. Once the indictments are prepared, the unfounded nature of the measures becomes evident. For example, one fails to understand why their homes were searched or why the investigation was classified as secret’ (Akdeniz and Altıparmak 2018, 27–28). The creation of new judicial institutions facilitated concomitantly the implementation of judicial repression strategies as well.

In that context, the authorization of the Criminal Judgeships of Peace (Sulh Ceza Hakimliği) is a perfect example of the above-mentioned strategic legalism and how the new legal system works by appointing ‘proxy sovereigns’ that can decide on the thresholds of normal and exceptional state case by case, within the legal system.²² The AKP government abolished Criminal Courts of Peace and established the Criminal Judgeships of Peace by Law no. 6545 of 2014, which entered into force on 28 June 2014.²³ The power of the Criminal Judgeships of Peace includes issuing search and seizure warrants (including permitting wiretaps for the interception of communications), arrest and detention warrants, judicial review of the decisions of public prosecutors on non-prosecution, the removal of content from the Internet and the closing down of websites; the decisions on traffic misdemeanours (speeding fines, etc.) and, in accordance with Decree Law no. 667, removing the right for a lawyer to exercise advocacy.²⁴ These courts are operating with only a chief judge instead of a panel of judges (Kaygusuz 2018, 13). The invention of these courts facilitated the direct control of the judges very broadly since the legal amendment greatly reduced the number of judges, responsible for the above-mentioned cases by closing the former criminal courts of peace. For instance, it reduced the number of judges who need to be controlled by current government from 93 to 6 in İstanbul alone (Erdoğan 2015, 273).

More importantly, the criminal decisions of a judgeship of peace can only be appealed horizontally, that is, only to another criminal judgeship of peace. Thus, it created a closed circle within the legal system. As emphasized by International Commission of Justice (ICJ), in the old system ‘the randomness of the choice of appeal body, as well as the high number of judges that could be entrusted with such an appeal, provided strong guarantees against possible influences by members of the executive or legislative powers. The closed-circuit system of appeal by criminal peace judges abolished this guarantee. For example, while in the old system around 100 judges in Ankara were involved in decisions on pretrial measures, now only 10 are empowered to decide on them.’²⁵

A closer examination can easily show that how these courts have made decision-making in freedom of speech cases and shutting down websites exceptionally fast and ‘efficient’ and how they became a legal vehicle to suppress political opposition. The number of decisions taken by Criminal Judgeships of Peace is striking: just nine peace judges took approximately 7,700 decisions in Ankara per year, about 700 concern detention, some 2,000 relate to other ‘protective measures’ and Internet-related decisions, some 1,500 are appeals against decisions by other peace judges (Venice Commission 2017, 5).²⁶ Considering that every decision usually includes closing down hundreds of web pages, the removal of content from the Internet and blocking access, it can be imagined how rapidly and comprehensively they invoke legal measures to suppress any threat to the current government. In particular, they are highly effective in controlling the social media since they are entrusted with authorization of requests to remove online content by the Prime Minister or other government ministers. According to the ICJ report, ‘almost 212 such decisions were issued since July 2015 and almost all of them were requested by the Prime Ministry. They were all executed by TIB/BTK and approved by Criminal Judgeships of Peace in Ankara. One hundred and thirty-seven of these decisions were issued by a single Criminal Judgeship in Gölbaşı, Ankara’. Meanwhile, ‘all the appeals made against the blocking decisions were rejected by other criminal peace judges. In other words, with regard to about 4368 separate Internet addresses criminal peace judges accepted all requests from the Prime Ministry and rejected all appeals made by potential victims.’²⁷

Strategically deploying the law and court as instruments to repress opposition and to disperse oppositional energy is by no means a new tactic in Turkey. In line with this mentality, laws and the judiciary have been perceived as mere techniques and instruments for gaining and maintaining power during the AKP rule as well. Even the so-called early democratic legal reforms followed the same mentality against oppositional forces such as the military, Kemalist civil society organizations, and Kurdish parties and activists (Akkoyunlu and Öktem 2016, 513). The AKP has effectively used legal instruments to contain any challenging oppositional activity, including the women’s movement, labour organizations, and the university students’ movement. However, the scope of the ‘judicialization of politics’ and 'politicization of judiciary' has been broadened to such a large extent by new emergency measures that the rule of law has begun to systematically disintegrate. This is a result of transforming the constitutive character of the legal system and building a new ‘dual’ legality on the basis of strategic legalism.²⁸ This strategically created dual character of the new system is also related to the escalating power of the executive.

Recent state of emergency policies has led to the unification of legislation and implementation of laws by eroding the boundary between the executive, the legislative, and the judiciary branches of government. During that period, executives became almost a legislative body and superseded not only legislation but also the judiciary. Temporary suspension of the separation of powers can be seen as part of state of emergency policies. However, these measures in combination with the absolute power of the executive have begun to transform the main character of the political system in Turkey. A new system based on discretionary prerogatives has made emergency a normality in the daily functioning of state power. This is nothing new, either, in a country which has spent almost half of its political life under a state of emergency.

However, this relationship between the legal emergency power and introduction of a new legality for a regime change under civilian government has unique characteristics and results. In line with the new strategic legality, the executive prerogative principle has been gradually restructured to make it possible to deploy techniques of ‘judicialization of politics’ and ‘politicization of judiciary’ concomitantly. It has become obvious that the unification of powers, deployment of emergency power, and these new legal techniques will gain permanency in institutionalizing the new political regime. At this point, Carl Schmitt’s thoughts on plebiscitary dictatorship become particularly relevant for the functioning of Turkey’s new political regime.

The ‘constitutional dictatorship’ and the new legal order: fabricating plebiscitary presidential regime

As Schmitt argues, the logic of an ‘executive commissar’, who aims to restore the normal state of affairs during a state of emergency is completely different from an executive commissar in normal times. This is particularly true when this commissar is seen as a lawmaker and his or her precautions are directly implemented as a law. In such a case, the extraordinary lawmaker combines the legislative and executive in his or her person, since his or her actions have ‘legislative’ character. The transformation of measures, taken by him/her, into executive decrees opens the way for the imposition of new principles and logic into the legal system, and his or her acts designed to protect the law can completely destroy the legal and parliamentary system. Hence, for Schmitt, the executive commissar, rather than the législateur, remains at the heart of the personality of dictator (Schmitt 2004). By uniting legislation and the implementation of laws, executive commissars directly implement the norms they legislate. Here, state of emergency policies provides the necessary authority to transform the character of rule of law permanently and give way to the emergence of a new plebiscitary presidential regime that proves better suited to the task of governing in times of permanent crisis and war. The constitutional dictatorship, the power, established by specific articles of constitution on a temporary basis, once again turned into a crucial weapon to destruct constitution itself in the absence of judicial review, well-established constitutionalism and active citizenship.²⁹

As discussed above, the extended state of emergency has provided legal and political grounds for transformation of the regime by positioning an arbitrary will at the centre of the legal system in Turkey. A new combination of prerogative state (Massnahmenstaat) and normative state (an administrative body) has also intensified such a transformation (Frankel 1941, xiii). Meanwhile, there is the danger of a complementary emergence of ‘dual politics’ which depends on the bifurcation of the state structure into ‘a parallel phenomenon of public/judicial/rational and private/extra judicial/irrational’ in the country (Wilson 2016, 1). Although this bifurcation is nothing new in Turkish politics, either, and ‘deep state’ activities are well known, the deployment of non-civil actors, the mobilization of radical Islamist sects, the establishment of violent organizations such as the Ottoman Hearts, in addition to a growing public presence of prominent mafia leaders, all signal that the gates have been opened for a new era of ‘dual’ state and politics (Tugal 2016). Since the failed 2016 coup, there has been an increased public presence of extremely nationalist and Islamist social groups in the country. Moreover, the government issued a decree (no. 696) to provide ‘immunity to civilians who fought against last year’s coup attempt and terrorist acts that followed’. However, the vague term ‘terrorist acts that followed’ has also been deemed to open the gate for paramilitary activities.³⁰

Consequently, the growth of judicial discretion and increasing government power through emergency decrees finally led to the emergence of new version of ‘dual legality’ that provides judicial and administrative decision makers with a special authority that the constitution never intended them to possess (Scheuerman 1996, 8). While maintaining the formal architecture of democracy, the special legal and political structure has been established to deploy both formal and informal mechanisms of coercion against any oppositional activity under the aegis of state of emergency arrangements. These policies aim to inscribe existential insecurity into the political field for the so-called adversaries of the nation/ummah/the AKP by ‘environmentalizing fear’ (Virilio 2012, 15). More specifically, by orchestrating and managing fear, the AKP government suppresses political organizations and groups that dare to challenge the current transitionary policies of the party.

In addition to the above-mentioned new strategic duality, there is a kind of ‘strategic shapelessness’ both in terms of policy, judicial decision-making, and institutional structure in the legal field but this ‘strategic shapelessness’ has been pragmatically created so as to govern the country in an authoritarian way, as argued by Arendt in the case of totalitarianism.³¹ This strategic legality has been supported by a special conception of legitimacy, mainly derived from elections and with a plebiscitary character that exalts the ‘direct’ decision of the people and grounds political legitimacy in the decision of people beyond constitutional principles (Green 2010). There are a variety of debates in political science literature on the compatibility of plebiscitary politics with democracy. However, in the context of Turkey, it seems that the explicit and implicit aim of emergency policies goes beyond changing the institutional configuration of state power towards a ‘plebiscitary democratic’ regime.

Recently developed hybrid regime terminologies, such as competitive authoritarianism, delegative democracy, or electoral authoritarianism are not adequate to capture the core character of the newly emerging authoritarian regime in the country since they mainly focus on only one side of the political system, follow a highly descriptive/minimalist understanding of democracy and, most importantly, they neglect how sovereignty, legitimacy, and political power is organized and implemented within the modern state.³² In that context, we need more appropriate theoretical tools to understand the ongoing regime formation. I assert that the plebiscitary presidential regime is a promising concept to trace the historical transformations of the political power.³³ For Shogan, it refers to the rise of the executive regime’s ‘aggressive assertion of executive independence, direct appeals to the people, active manipulation of public opinion, and rhetorical prowess’ (Shogan 2003, 149). Public opinion emerges as the most important source of support for the president’s policies and the direct relationship between the president and the people has been promoted within such a system. In light of this, all intermediary institutions, including political parties, seem to be in fact unnecessary.

Turkish version of plebiscitary presidential system includes, basically, (i) institutionalization of supreme power of the president, and accordingly sublimation of personality cult in politics, (ii) erosion of constitutionalism by eliminating/suspending separation of powers,³⁴ (iii) repressing the power of intermediary institutions, including the political parties, state bureaucracy and trade unions, etc. (iv) inserting strategic legalism into the legal field (v) turning elections into an approval of the trust to leader, and finally (vi) reducing public into spectator and enhancing the role of group acclamation and opinion in politics. By revitalizing the plebiscitary constituent of the presidential regime, this system actually promotes the strong emotional identification between leader and masses.³⁵ It should be noted that such a tendency towards establishing a plebiscitary presidential regime cannot solely be attributed to Turkey. Even if the Turkish presidential model has still been under construction, it provided a kind of model for other right-wing authoritarian populist leaders, who desire to capture political power in line with new plebiscitary political principles.

This new model aims to fulfil the new logic of representation, organized around the figure of president as well. It endeavours to subsume field of representation by superseding the dominant logic of representation in the parliamentary and presidential system, which embraces the contestation and competition, with the new authoritarian logic, which is based on a self-authorizing ‘symbolic representation’ of the ‘real’ people, and backed by symbolic identification between the leader and the masses.³⁶ This means that a new totalitarian track has already been embedded within the political system, even if it does not have a clear ideological background and suffers from the ongoing existence of parliamentary legacy.³⁷

Besides the tenacity of civil society and opposition, and difficulties in providing institutional and economic stability in such a political system, problems emerging from imposing such a logic of representation also create permanent obstacles to the consolidation of this new model. It should be mentioned that flawed but ‘competitive’ nature of the field of representation, which functions as a ground for producing legitimacy and new plebiscitary leaders’ ambiguous commitment to elections protects the structural place of opposition in the political system to a certain extent, even if it is constantly under threat. However, emergence of the dictatorial powers dispersed through the judicial and security apparatuses, the rise of the unbounded executive power around president figure and imposition of the above-mentioned symbolic representation constantly threatens both elections and the existence of opposition in the system. Traces of the all above-mentioned features can clearly be seen in the Turkish case. Turkish politics have witnessed the ascendancy of symbolic representation under the discourse of ‘national will’ (milli irade), the erosion of separation of power and institutionalization of executive dominated system with new presidential system, the widespread insertion of extremely discretionary and arbitrary power into security and judiciary institutions in the form of strategic legalism and dominance of the elections in a plebiscitary character.

The nationalist and Islamist movement finally seem very close to realizing its final aim of unifying state and society around a strong leader who controls and dictates everything and removes all the ‘barriers’ of non-elected state bureaucracy in politics (including council of state, constitutional court, court of appeal, or basic rights and freedoms and principles of democracy). As an extension of such mentality, new constitutional amendments changed the diffusion of power within different areas of state authority, completely erased the separation of powers, lead to an extreme power concentration, and thus dangerously institutionalized the personalization of politics. A brief glance at recent constitutional changes can elucidate the structural transformation of the relationship between the executive, the judiciary and the legislative branches of government and the dangerous enhancement of the executive’s supreme power.

The 2017 constitutional amendment: the rise of the new presidential regime

The recent constitutional amendment opened the way for an extremely powerful presidency and profoundly transformed the parliamentary system. The popularly elected president now holds the most powerful political position and the legislative, executive, and judicial powers are all under his or her control. Under the amendment passed, the president could serve three consecutive five-year terms and continue to be the chairman of his or her political party. This is a crucial divergence from post-1980 coup political and institutional tradition, which legally depends on the neutrality of the president. Although the 1982 Constitution also provided important authority to the president in several areas, the role of the president is somewhat symbolic. The president attained the chance to intervene in the selection of candidates for the parliamentary membership now since he or she directly controls his or her own party. In short, the president is no longer non-partisan and also controls legislation as he or she is head of his or her party.

During his or her term, the president has the power to issue presidential decrees on questions related to executive power. This allows the president to bypass legislation, whose authority is already highly dependent and restricted. The president can also send laws back to parliament. Moreover, as head of the both the state and the government, the president appoints Ministers, high-level state administrators, chooses half of the Board of Judges and Prosecutors, appoints 12 of the 15 members of the Constitutional Court of Turkey, determines the country’s annual budget, and has the right to dissolve the parliament. Control mechanisms have been arranged in terms of the power concentration around the president. The president also has full power to declare a state of emergency, which paves the way for possibility of a constant state of emergency in the country. The president is able to serve a third term if there is a call for a new parliament during the second term (Öztürk and Gözaydın 2017, 220). Despite such supreme power being granted to the president, there is no mechanism to supervise or control the abuse of this power within the political system.³⁸ Consequently, the president is not only the sole head of the executive and state but also an embodiment of unification of state and party.

The position of the president within the new political system is unique in terms of granting power, the system of check and balances, the separation of powers, and the role of the executive. Rather than a president within a presidential system, these changes will most likely lead to the emergence of a ‘plebiscitary president’ (Green 2010, 122). Once the president is elected, he or she will be completely free to govern the country according to his or her arbitrary will and supreme power. The only legitimate means of governing, by popular will, or a more fashionable term, national will (milli irade), expresses itself in the election of the president. Other sources of legitimacy, such as constitutional protection of basic rights and freedoms, separation of powers, sustenance of the democratic public space, as well as free, fair, and competitive elections, have been, at best, sidelined or, at worst, completely suppressed. Therefore, the constitutional referendum and the election of the president were projected as a matter of life and death by the AKP cadres, President Erdoğan and pro-AKP media circles while any act of opposition to the leader is viewed as treason to the nation.³⁹

It is clear that these legal amendments and their accompanying ultranationalist discourse, which is structured around conspiracy theories and reactionary emotions such as resentment, aim to institutionalize the above-mentioned system of legality and legitimacy, based on the president’s discretionary prerogatives and the aforementioned strategic legalism. In that context, a very brief glance at recent violations of the right to freedom of speech and the right to assembly and demonstration and related legal amendments shows how the relationship between strategic legality (depending on the increasing authority of ‘proxy sovereigns’ in the legal field), the new executive prerogative principle (based on the supreme power of executive), and the deployment of police forces (acting both as law enforcement and judicial agents) has been playing a significant role in the institutionalization of the new regime. These right violations and daily police operations have become a salient vehicle to convey a message to the public that any opposition could be prosecuted for a crime against the regime and the border between freedom of speech and crime can easily be suspended (Akdeniz and Altıparmak 2018).⁴⁰

Obviously, the sole aim of such a relationship is the erosion of both institutional and informational uncertainty, and intensification of the pressure on the opposition, media, and civil society associations.⁴¹ The best strategy for overcoming these uncertainties is to erode the autonomy of institutions, absorb the oppositional energy using violent methods, and suppress freedom of speech. To achieve this, the AKP and President Erdoğan follow a double strategy to combat uncertainty: manufacturing fear and enhancing judicial repression.⁴² In addition to the emergence of the above-mentioned strategically created double legality, the AKP government pushed freedom of speech almost completely into twilight/grey zones, within which the distinction between legal and illegal is blurred as far as any kind of oppositional political activity is concerned.⁴³ It appears that this double strategy has worked well to date.

As a result, securitizing journalistic activity, criminalizing opposition, suppressing freedom of speech, and constructing a surveillance state have all gone hand in hand. It is a well-known fact that freedom of speech has always been anchored in a very shaky ground in Turkey. However, the situation is becoming increasingly serious in recent years. As discussed by Akdeniz and Altıparmak, ‘thousands of criminal cases are filed under flimsy pretexts by political figures against almost anyone who criticizes the government including students, public officials, media organizations and social media users. The accused in these cases are almost always found guilty.’ (Akdeniz and Altıparmak 2018, 5). The suppression of freedom of speech has been legitimized on the grounds of security policies as usual. After the Gezi Uprising, internal opposition activities were defined as the greatest threat to security by the National Security Council (Milli Güvenlik Kurulu, MGK). Meanwhile, the domestic securitization of the Kurdish issue was also entwined with regional politics (Akkoyunlu and Öktem 2016, 517). The emergence of the autonomous Kurdish region in the North of Syria became the defining moment for every actor in the region. It contradicted the AKP’s foreign policy, which was based on the ambitious project of building a Sunni bloc in the region after the Arab Spring.⁴⁴

In such a historical context, The Party elevated the level of the 'prosaic politics of emergency', which was gradually intensified since the AKP’s early years of power to govern certain sections of society such as Kurds, Alevis, student, and women movement. When so-called ‘authoritarian turn’ occurred, Erdoğan and the Party have already had a highly matured security dispositive at hand, which is armoured by repressive authoritarian legal framework.⁴⁵Thus, they could easily generalize these policies to the whole opposition to organize transition period and eliminate possible threats to the new regime.

Considering the deployment of formal and informal mechanisms of repression, it is also obvious that we are entering a new era of mass surveillance, human rights violations, and oppression of political opposition that has unique characteristics. All the above-mentioned legal amendments and institutional changes were arranged to implement a regime change and transform not only the institutional configuration of state power but also state–citizen relations. To achieve this aim, these despotic laws and judicial repression strategies have been designed so as to reduce the democratic public to a whispering and mumbling public that does not have the capacity to challenge the rising authoritarianism and plays only a theatrical role.

The ‘sovereign dictatorship’ with constitutional guarantees: fortifying the new political order

Once again, Schmitt’s discussions on dictatorship seem highly relevant for understanding the emerging form of political regime in Turkey. According to him, dictatorship refers to an exercise of state power free of any legal restrictions, for the purpose of resolving an abnormal situation (Hoelzl and Ward 2014). In his book Dictatorship, Schmitt differentiates between commissary dictatorship and sovereign dictatorship on the basis of their relationship with legal order and argues for the historical transformation of commissary dictatorship into a sovereign one (Schmitt 2014). While in a commissary dictatorship the dictator ‘remains within the prescriptions of a constitutional order and constitution can be suspended without ceasing to be valid’ (Schmitt 2014, 118), in a sovereign dictatorship ‘the entire existing order is a situation that dictatorship will resolve through its own actions.’ For Schmitt, this form of ‘dictatorship does not suspend an existing constitution through a law based on the constitution – a constitutional law; rather it seeks to create conditions in which a constitution – a constitution that it regards as the true one – is made possible. Therefore, dictatorship does not appeal to an existing constitution, but to one that is still to come’ (Schmitt 2014, 119). For this reason, sovereign dictatorship appeals to the constitutive power.

Even if the legal structure of the constitution has been protected and a state of emergency has been declared with reference to the constitution, the emerging political regime in Turkey, which I refer to as a plebiscitary presidential one, also carries certain characteristics of a sovereign dictatorship.⁴⁶ As a result of the president being granted the power to declare a state of emergency and to dissolve parliament without judicial review, this dictatorial power has already entered the heart of the political system. Therefore, I assert that the new political regime has been designed so that the power of sovereign dictatorship can be exercised by a president who has emergency power without any legal limitations permanently at his disposal, particularly when the existing constitutional order is in danger from his or her perspective.⁴⁷ Hence, the sole aim of the new system is to grant the president the power to ordering and reorder the political structure without any intervention, when he or she deems this necessary in times of political crisis. Therefore, the only permanent or stable feature of the new political system is that it can be re-regulated and/or restructured through the supreme power of the president. The system is designed so that the president will embody the constitutive power and will permanently have this power to change the constitutional order only with an occasional recourse to elections which are in plebiscitary character. Hence, the current amorphous character of the new political system arises from the possible need to change the system permanently and the difficulty of institutionalizing a new form of permanent sovereign dictatorship in the very body of the president.

A political regime of this type has salient fragilities, emerging from both the organization of legitimacy and the operationalization of popular sovereignty. It is clear that the presidential policies and regulations will deepen the erosion of the separation of power and will more comprehensively intensify the deinstitutionalization of the state power to such an extent that state institutions will no longer function as usual. Furthermore, state of emergency policies and recent legal amendments will also reinforce the tendency towards extreme personalization of politics, escalate the tendency to reduce politics to manipulation, intensify the political polarization, accelerate the disintegration of rule of law, and, finally, lead to the destruction of public space and constant suspension of constitutional rights and freedoms in the country. In the light of these structural tendencies, it is obvious that authoritarian regime formation will gain more aggressive and despotic momentum, fortified by sovereign dictatorial power.

Conclusion: unstable regime consolidation and dynamics of democratic opposition

Turkish politics depends on the strategic alliances, political polarization, and deployment of repressive security policies for a long time. To finalize the institutionalization of the new political system, President Erdoğan constructed a new nationalist ‘patchwork coalition’ superseded the old alliance between the AKP and the Gülenists’ religious and nationalist ‘secret’ power networks – which was initially named as a ‘parallel state’ and then as the FETÖ after the failure of coalition between the AKP and Gülen (Akkoyunlu and Öktem 2016).⁴⁸ Right after the end of the state of emergency period, Erdoğan and his new ally Devlet Bahçeli, the head of the Nationalist Movement Party (MHP), forced another snap election on 24 June 2018. Not surprisingly, Erdoğan was elected president with 52.59 percent of the votes in the first round and the AKP obtained 42.56 percent in the parliamentary election.⁴⁹

The new nationalist alliance of the AKP and the MHP obtained the votes needed for a majority in the parliament. Right after the election, President Erdoğan began to issue presidential decrees to restructure the organization of the state and governmental affairs. More importantly, the new government passed a new law to allow a post-state of emergency period which opens the way for institutionalizing state of emergency regulations and implementations. This new law includes granting local governors the power to restrict freedom of travel, giving authority to state institutions to dismiss public employees suspected of being members of terrorist organizations or having any connection with these, introducing new strict restrictions on meetings and demonstrations, depriving the National Intelligence Agency of cover by the Right to Information Act, allowing decisions about detention to be delayed for up to 90 days.⁵⁰ The government also amended the law on watchmen, which grant watchmen the authority to carry guns and conduct identity checks as well as stop-and-search powers, in January 2020.⁵¹

The strategic legalism and accompanying multi-layered emergency have provided smooth paths for consolidating Erdoğan’s presidential regime and containing any mobilization for democracy by combining subtle strategies of judicial repression, colonization of state institutions, proliferation of liminal judicial venues, and finally, introduction of twilight zones into the legal system. So far, President Erdoğan and the AKP have successfully promoted a plebiscitary presidential system and projected their policies as the only viable option for the future of the country by igniting extreme nationalism, demoralizing political opposition, and polarizing the country in line with ethnic and religious divisions. However, right after the results of the municipal elections on 31 March 2019, it became obvious that there are serious problems in the consolidation of the new regime. The AKP lost the municipality of several major cities and enforced the renewal of the election in İstanbul. Subsequently, the Higher Election Council gave a highly disputed decision to re-run the elections in the city. In spite of all political pressures, Ekrem İmamoğlu, candidate of the opposition, won the re-run election by significantly increasing his votes. Growing civic activism for İmamoğlu, his clear victory and international pressure hampered the current government’s attempt to bypass election results at least in İstanbul. Otherwise, such an act could irrevocably destroy the principles of democratic legitimacy in the country. However, such a clear defeat could hinder neither Erdoğan from appointing new trustees to several Kurdish cities nor pro-government media from criminalizing elected Kurdish mayors again as being a member of terror organizations.

All in all, it became obvious that sustaining mobilization of regime supporters by the production of permanent political crisis and manufacturing internal enemy is gradually losing its momentum. Escalating economic crisis, growing problems with foreign powers and opposition’s tactical alliances in election times also restricted Erdoğan and his power elites’ possible repertoires of political manoeuvre to consolidate new regime. Hence, to externalize the ongoing problems of regime consolidation, to suppress possible emergence of Kurdish state in the region, to isolate Kurdish political movement in the country and to unify national constituency around consolidation of presidential regime, Erdoğan and his ally Bahçeli once again started a comprehensive military operation in Northern Syria against the local Kurdish forces, People’s Protection Units (Yekîneyên Parastina Gel, YPG). The recent military operations in Idlib, the province of Syria, should also be evaluated within this context. Future of the new regime depends on the durability of the current nationalist alliance; sustainability of rentier economic and political networks⁵²; viability of Erdoğan’s control of state bureaucracy, which is based on the allocation of executive authorities in state bureaucracy among nationalist networks and Islamist sects; continuation of mass support for Erdoğan among urban poor; success of strategies of averting elite defection, and the last but not least, new regime’s competence of thwarting the opposition’s ability to build an alternative democratic power bloc.⁵³

Considering, the long-lasting leftist traditions, the resolution of Kurdish political movement, the growing women’s movement and the relatively strong civil society, the governing party does not have the capacity to completely contain all the oppositional energy and suppress all oppositional political activity at present. As can be seen from the relatively recent ‘March for the Justice’ in July 2017, and more importantly, the rising citizenship activism around election times, the country still has a strong democratic opposition, although it is much divided and there are conflicts and struggles within the opposition groups.⁵⁴ In the light of this reality, the missing link is still the formulation of a comprehensive democratic project to build a new power bloc among all those who are excluded and repressed as a result of the AKP’s rampant neo-liberal and authoritarian economic and social policies. Hence, there is a strong desire and will to organize radical democratic momentum and what is still lacking is a well-organized democratic political corpus and spirit in the twilight zone of escalating state violence. The current violent legal practices and the emerging political regime, wrought by sovereign dictatorial power, aim to turn this current interregnum into a constant twilight zone for the supporters of democracy by paralysing their minds and bodies within constant social, legal, and political precariousness. In that context, we should remember the fact that the future is always open to change conventional political attitudes, to organize the democratic spirit and to reactivate utopian promises for a new and egalitarian republic. As the great intellect of ‘inventing’ democracy in times of violent interregnums, Gramsci, states, it is time to renew our perspective by summoning up ‘optimism of the will’ to challenge the suffocating pessimism of the current authoritarian ‘Zeitgeist’.

Acknowledgments

I would like to thank Cihan Tuğal, Ertuğ Tombuş, Jürgen Mackert, Kerem Altıparmak, Evrim Kılıç Yılmaz, Ezgi Pınar, Özlem Albayrak, Gregor Fitzi, the participants of ‘The Research Lab: Constitutional Politics in Turkey’ at Humboldt University, and anonymous reviewers for their very insightful comments.

Disclosure statement

No potential conflict of interest was reported by the author.

Additional information

Notes on contributors

Zafer Yılmaz

Zafer Yılmaz is an Einstein Fellow in Comparative Political Sciences and Political Systems of Eastern Europe, Department of Social Sciences at Humboldt University in Berlin. He works currently on the rise of authoritarianism, transformation of the rule of law and citizenship in Turkey. His articles on family policies and new Islamic charity mentality; populism, authoritarianism, and the AKP’s political ideology; the Gezi Uprising, and the culture of political protest, and the constitution of legal emergency power in Turkey are published in various academic journals and books.

Notes

1. For exact figures, see IHOP’s report on state of emergency (April 2018) and Akça (January 2018).

2. See OHAL dün gece ilan edildi, Hürriyet, 21 July 2016, http://www.hurriyet.com.tr/son-dakika-haberi-tum-ulkede-ohal-ilan-edildi-40156536.

3. For the concept of dispositive see Bussolini (2010).

4. For the rule by law, see Ginsburg and Moustafa (2008); Dyzenhaus (2006), and Moustafa (2014).

5. Peter Maguire defines the concept as ‘the use of laws or legal arguments to further larger policy objectives, irrespective of facts or laws’ (Maguire 2001, 9). I significantly diverge from Maguire’s conceptualization in the text.

6. The dictatorial power refers to unbounded discretionary and arbitrary power, which is de facto or de jure outside the realm of judicial review and investigation. Plebiscitary presidential regime differs from fascism by reducing the role of the political party and political ideology and promoting fundamentally personal political power of the leader.

7. The ongoing existence of the opposition, emerging from both its structural place in the field of representation and historical struggles to protect such a place, is one of the most important aspects of the new regime that differentiates it from classical fascism and totalitarianism.

8. See IHOP (2018).

9. Emergency decrees regulated a wide range of areas from the abolition of the election of university presidents to use of snow tyres, dismissals of public employees, and the introduction of bans on various television programmes that include matchmaking and marriage. For the content of decrees, see İHOP (2017); Bargu (2018); Akça, et al. (2018).

10. For the numbers of decrees, see Göztepe (2018). For an analysis of these decrees, see IHOP Report (2018); Akça et al. (2018). For the delegative aspect of these decrees with regard to legislative power and personalized punishment, hence, the delegation of the judicial power to executive authority, see Altıparmak et al. (2018a).

11. For the exact numbers, see the IHOP Report. To obtain the final figures, the author also included those from Emergency Decree 701. See Official Gazette, 8 July 2018, number 30,472, http://www.resmigazete.gov.tr/main.

12. See Turkey coup: Erdoğan mourns casualties – and vows retribution, Guardian, 18 July 2016. https://www.theguardian.com/world/2016/jul/17/recep-tayyip-erdogan-mourns-coup-casualties-and-vows-retribution.

13. Authorization Act no. 6223, dated 6 April 2011, conferred powers on the Council of Ministers, issuing decrees for six months. During this period alone, the AKP government signed 35 decrees. See Taş (2015, 780). The AKP also introduced effective use of omnibus bills.

14. In terms of the Turkish Constitution, judicial review is only possible when the parliament passes these decrees into law in the parliament. See Yazici (2016).

15. For the meaning of such a unification in the context of Nazi Germany, see Schmitt (2001).

16. In authoritarian constitutionalism, ‘the constitution, rather than constraining the exercise of public power, is coopted to sanction oppressive uses of it’ (Isiksel 2013, 702). Although the state of emergency declaration is subject to parliamentary approval, it may be extended indefinitely and may cover all or parts of the country (Isiksel 2013, 718). For an analysis of the state of emergency regime and implementations after 1980 coup, see Jacoby (2005); Üskül (2003).

17. The strategic legalism has in fact been gradually operationalized in the series of terrorism trials that began in 2008 with the Ergenekon case. However, the state of emergency declaration after the failed coup in 2016 became a critical turning point in the institutionalization and imposition of the strategic legalist approach.

18. For an insightful analysis of ‘autocratic legalism’ see Scheppele (2018).

19. I follow Corrales’s definition of ‘autocratic legalism’ in formulating the concept of strategic legalism. See Corrales (2015). I chose the term to put more emphasis on the strategic aspect, which is related to the pragmatic cost-benefit calculation of the legal and judicial actors in implementing authoritarian legal policies.

20. The total number of criminal investigation regarding the defamation is 38,254 in 2016 (Akdeniz and Altıparmak 2018, 26).

21. See, Bertil Emrah Oder, Independent Journalism v. Political Courts: The Cumhuriyet Trial in Turkey and Strasbourg, Verfassungsblog, 4 May 2019, Accessed on 15 September 2019. https://verfassungsblog.de/independent-journalism-v-political-courts-the-cumhuriyet-trial-in-turkey-and-strasbourg/.

22. On this concept, see Amoore (2013, 6).

23. For the abolished criminal courts of peace, see the Venice Commission, Opinion on the Duties and Functioning of the Criminal Peace Judgeships, 10–11 March 2017, accessed on 21 February 2019, https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDLAD

24. See the Venice Commission Turkey Report (2017, 5–6).

25. ICJ 2018, 12. See The Turkish Criminal Peace Judgeships and International Law, 2018, accessed on 24 February 2019, https://www.icj.org/wp-content/uploads/2019/02/Turkey-Judgeship-Advocacy-Analysis-brief-2018-ENG.pdf.

26. For the numbers, see the Venice Commission Turkey Report (2017, 5).

27. See ICJ (2018, 14–15).

28. Here, I follow the insights of E. Frankel’s prominent work on dual state. See Frankel (1941).

29. For Rossiter, the constitutional dictatorship refers to the declaration of state of emergency and martial power, hence, implementation of legal emergency power in general. See Rossiter (2002).

30. See Immunity to civilians thwarting coup stirs debate in Turkey, Hürriyet, 25 December 2017. http://www.hurriyetdailynews.com/immunity-to-civilians-thwarting-coup-stirs-debate-in-turkey-124701.

31. For the concept of planned shapelessness, see Arendt (1962, 402), and for the analysis of the legal structure in the early republican period in Turkey around this concept, see Parslow (2018).

32. For complex examples of these studies, see O’Donnell (1994); Schedler (2013); Levitsky and Way (2010).

33. For the elaboration of the concept, see Shogan (2003); Green (2010); Lowi (1985).

34. Actually, the AKP appealed to ‘the mechanisms of constitutional change – constitutional amendment and constitutional replacement – to undermine democracy’, which is defined as ‘abusive constitutionalism’ by Landau. For further discussion see Landau (2013).

35. For a discussion on plebiscitary tendencies in presidential system, see Linz (1990).

36. For the symbolic representation, see Müller (2016).

37. See also Simten Coşar’s very insightful arguments in Regime Change in Turkey: Old Symbols into New Settings, Bianet, 23 July 2019, https://m.bianet.org/english/women/210695-regime-change-in-turkey-old-symbols-into-new-settings.

38. In the new system, the impeachment process has been reduced to a near impossibility. Under Article 105, parliamentary investigations into the president can be initiated with the signatures of 301 members of the proposed 600-seat parliament. Parliament can set up a commission of inquiry via a secret ballot of 360 deputies. If the commission decides to send the president to the Supreme Court for trial, the president will only be tried following a secret ballot of 400 deputies (Öztürk and Göazydin 2017, 219).

39. The Constitutional Referendum of 16 April 2017 was passed with 51.41 percent yes votes. However, both opposition and international institutions raised the question of electoral fraud. On electoral manipulations in the 2017 Constitutional Amendment, see OSCE reports, Republic of Turkey, Constitutional Referendum, 16 April 2017, http://www.osce.org/odihr/elections/turkey/324816?download=true. Published on 22 June 2017.

40. See Akdeniz and Altıparmak (2018).

41. See Schedler (2013, 21).

42. For judicial repression strategies in authoritarian regimes, see Moustafa (2014) and Shen-Bayh (2018). As succinctly argued by Akdeniz and Altıparmak, ‘in contrast with the ‘rough’ methods employed in the 80 s and 90 s … this new style of contending opposition is ‘less brutal but much more effective’’ (Akdeniz and Altıparmak 2018, 6).

43. In the grey zones, the legal constraints are so minimal that ‘they pretty well permit government to do as it pleases’ (Dyzenhaus 2006, 42).

44. For global and regional dynamics of authoritarianism, see Somer (2016).

45. For the elaboration of the concept of prosaic politics of emergency, see Feldman 2010.

46. The Constitutional Court enacted several legal restrictions on the constitutional emergency power regime by its decisions in 1990, 1991, and 2003 (Göztepe 2018, 530). During the last emergency, the Court has given up its long-standing leading principles to protect the rule of law by disregarding the fact that the act of declaration of a state of emergency has the potential to usurp constitutive power and change the entire political system if it becomes permanent due to a lack of judicial review. See Greene (2018).

47. For Schmitt, sovereign dictatorship is exercised by a national assembly.

48. The Gülenists provided the AKP with a widespread social and economic network, a qualified pool of human resources who could occupy bureaucratic posts. Their main aim was to infiltrate into the capillary of state power and it seems that they received the full support of the AKP in doing so. They generally ‘resorted to tactics including the leaking of questions on examinations for entry to military schools, police academies, and public employee positions; participation in unauthorized intelligence gathering about the private lives of politicians and bureaucrats; and coordinated disinformation campaigns in the press’ (Bargu 2018, 30).

49. Very recently, Turkey held local elections on 31 March 2019.

50. See, Law No. 7145, 25 July 2018, Official Gazette, 31 July 2018, No. 30,495, http://www.resmigazete.gov.tr/main.aspx?home=http://www.resmigazete.gov.tr/eskiler/2018/07/20180731.htm&main=http://www.resmigazete.gov.tr/eskiler/2018/07/20180731.htm.

51. See Çarşı ve Mahalle Bekçileri Kanunu Teklifi’nin ilk 9 maddesi kabul edildi, Anadolu Ajansı, 29 January 2020, accessed on 15 February 2020, https://www.aa.com.tr/tr/turkiye/carsi-ve-mahalle-bekcileri-kanunu-teklifinin-ilk-9-maddesi-kabul-edildi/1717395.

52. The political economy of the new regime should be taken into consideration to understand its full character and orientation. For a discussion, see Önis (2019).

53. Two prominent figures in the AKP, Ahmet Davutoğlu, and Ali Babacan, who has the support of ex-president Abdullah Gül, already declared their will to organize a new political party. It turns out that these parties will be a real challenge to Erdoğan and the AKP since especially Babacan has highly positive image among international circles and the AKP constituency.

54. The March for Justice was organized by the main opposition party, CHP (Cumhuriyet Halk Partisi). In the elections of 31 March 2019, CHP gained the municipalities of İstanbul and Ankara with the aid of the party’s alliance with the İYİ party (Good Party) and the support of the Kurdish population in the metropolitan cities. In the re-run İstanbul election, the defeat of the people’ alliance, the alliance of AKP and MHP, became much clearer. See Turkey’s President Suffers Stinging Defeat in İstanbul Election Redo, 23 June 2019, accessed on 23 June 2019. https://www.nytimes.com/2019/06/23/world/europe/istanbul-mayor-election-erdogan.html.