The regime of crisis: Turkey

Europe must accept a big part of the responsibility for turning the tide in Turkey, writes Başak Çalı.

Today, if I were challenged over what could possibly be worse than a country experiencing a military coup, I know the answer. It is a country experiencing a military coup while in the midst of a human rights and rule of law crisis. This is Turkey.

This crisis –that is, a systematic deterioration on both fronts beyond isolated incidents – has been underway for several years. Freedom of expression and freedom of peaceful assembly have taken heavy hits in the past decade, reinforcing a sharp divide between encouraged and detested speech. The space for social, cultural and political diversity in turn has shrunk. Caution is advised for all who find themselves on the wrong side of the government, run under the fourteen-year leadership of the Justice and Development Party (AKP). These can be environmental activists protesting against large development projects, artists, high school students, miners, or retired teachers clicking away on Facebook. There now is a risk that comes with not going along with the established government discourse on any matter of public policy. These risks include public threats, administrative investigations and the heavy-handed and often arbitrary use of criminal laws in the form of prosecutions, arrests and pre-trial detentions. In the country’s southeast, the risks are deadly. Civilians – stuck between the government and the outlawed Kurdistan Workers’ Party (PKK) – live under the serious risk of death and extreme violence for which there are but the slimmest chances of accountability.

The long summer of 2016 that started on 15 July with the attempted (and, thankfully, failed) coup and the declaration of a state of emergency came on top of all these.  It could not be worse. Turkey – a country in the midst of a human rights and rule of law crisis – underwent a bloody attempted military coup by an affluent network once very close to the government  (now, in Turkey at least, officially a terrorist organisation). It is indisputable that the coup plotters committed a grave crime, attacking the constitutional order of the country.  People from all walks of life – pro- and anti-government – were thankful that they failed. But the post failed-coup government, instead of holding on tighter to human rights and the rule of law to undo the damage of a corrupt and violent group, has turned its back even further. The regime of crisis has become the ordinary response to the post-attempted coup governance. What sustains this regime of crisis in Turkey in the midst of ever growing concerns that it will just become a permanent feature of Turkey’s future?

First, the more popular elections the AKP won, the weaker their actual political support for human rights and the rule of law became.  The AKP has insisted that milletin iradesi – the will of the nation – is the leading consideration in all spheres of governance. Law must be conceived as an instrument to realise that will rather than, as constitutional and rights-based law would do, put limits on that will. This view is so dominant that the AKP is pushing to change the Constitution to concentrate significant powers with a president elected by this very “will of the nation”. Criticising the ruling regime, its priorities and preferences, is no longer seen as a feature of pluralist democratic debate, but as a hostile and disrespectful act against this will.  The sharp increase in criminal cases for insulting the president and the continuously rising long register of dismissed journalists and academics have been indicators of this for a long time. The attempted coup has made this even worse. Allegations of torture and ill-treatment of coup suspects abound. Coup supporters killed on the night of the 15 July have been refused proper burial services, the most elementary right owed to any family. Discussion of reinstating the death penalty, despite a moratorium since 1984 and total legal ban in all circumstances in 2006, is repeatedly offered by the President as the will of the people since the coup attempt. The leaders and MPs of the third largest political party in Parliament, the HDP, were arrested, whilst all online communication platforms were blocked or slowed down in the whole of the country.

Second, Turkey’s judicial institutions have significantly decayed in recent years – despite extensive European Union and Council of Europe-funded training programmes for the judiciary that have run for two decades. This means that, instead of institutional and impersonal application of the law (and Turkey has many good laws, starting with its impressive catalogue of constitutional rights), judges apply the law based on a personal risk assessment of their own well-being and careers. In some authoritarian states this is called “telephone justice” – the situation in which judges hand down decision based not on statutes, but based on a phone call they receive from the powers that be. In Turkey, the risk of being detained, dismissed or prevented from progressing in one’s career is now so high that a phone call may not be necessary. The judiciary is expected to mirror the political preferences of the regime at all costs. And they do. Without institutional safeguards, judges use their own judgments as a personal insurance policy. Not even the Constitutional Court is immune from this.  Turkey’s integrated position in the European human rights system means many of these will bounce back with violation judgments from the European Court of Human Rights. But a system largely based on good faith presumptions for the protection of human rights and rule of law is neither able to correct the structural problems of judicial institutional decay nor to provide effective immediate remedies to those who are arbitrarily prosecuted or detained.

Thirdly, Turkey is in the midst of a human rights and rule of law crisis at a time when human rights are suffering from a significant decline in strong political support in the West. The rise of anti-refugee and racist sentiment alongside the re-emergence of populist policies in Europe prevents Europe from taking a united, principled and strong stance on Turkey.  In turn, the ruling regime deflects European criticism as a form of double standards. Concerns raised about freedom of expression safeguards from European quarters are dismissed as ‘anti-Turkish’, pro coup or pro terrorism all too easily. Examples of “what-about-isms” make Turkey’s newspaper headlines every day. Despite major differences, for example, France’s extension of its state of emergency has been used to justify Turkey doing the same. As the host of over three million Syrian refugees, Turkey sees Europe as lacking the moral high ground to lecture it on respect for basic human rights, when the whole European continent hosts such a small number – and those it hosts are welcomed with such little grace. Europe’s own faith in human rights is thus a big part of the story, and, as such, it must accept a big part of the responsibility for turning the tide in Turkey.

This article was first published on 3 November 2016 on ZEIT Online (in German), and an updated version (also in German) can be found on our German website.

More about the author

  • Başak Çalı , Professor of International Law | Director, Centre for Fundamental Rights