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.

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Erdoğan’s presidential regime and strategic
legalism: Turkish democracy in the twilight zone
Zafer Yılmaz
To cite this article: Zafer Yılmaz (2020): Erdoğan’s presidential regime and strategic legalism:
Turkish democracy in the twilight zone, Southeast European and Black Sea Studies, DOI:
10.1080/14683857.2020.1745418
To link to this article: https://doi.org/10.1080/14683857.2020.1745418
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ARTICLE
Erdoğan’s presidential regime and strategic legalism: Turkish
democracy in the twilight zone
Zafer Yılmaz
Einstein Fellow, Institut für Sozialwissenschaften, Vergleichende Demokratieforschung und Politische
Systeme Osteuropas, Humboldt Universität zu Berlin, Berlin, Germany
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 com-
bination of supreme power of the leader, an extremely weak parlia-
ment, 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.
ARTICLE HISTORY
Received 15 April 2019
Accepted 23 February 2020
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.
CONTACT Zafer Yılmaz zafer.yilmaz@hu-berlin.de Einstein Fellow, Institut Für Sozialwissenschaften,
Vergleichende Demokratieforschung und die Politische Systeme Osteuropas, Humboldt Universität zu Berlin, Berlin,
Germany
SOUTHEAST EUROPEAN AND BLACK SEA STUDIES
https://doi.org/10.1080/14683857.2020.1745418
© 2020 The Author(s). Published by Informa UK Limited, trading as Taylor & Francis Group.
This is an Open Access article distributed under the terms of the Creative Commons Attribution-NonCommercial-NoDerivatives License
(http://creativecommons.org/licenses/by-nc-nd/4.0/), which permits non-commercial re-use, distribution, and reproduction in any med-
ium, provided the original work is properly cited, and is not altered, transformed, or built upon in any way.

During the state of emergency, the government purged more than 125,000 state
employees, closed thousands of civil society and media organizations, and jailed promi-
nent Kurdish politicians.
1
The government’sofficial 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 organiza-
tion 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.
2Z. YILMAZ

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 emer-
gency 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 democ-
racy. 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
SOUTHEAST EUROPEAN AND BLACK SEA STUDIES 3

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 multi-
faceted 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 judi-
ciary, 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 dis-
solved, 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,
4Z. YILMAZ

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’(Taş2015, 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 (Yazıcı2016).
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 (Yazıcı2016, 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 author-
itarian 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).
SOUTHEAST EUROPEAN AND BLACK SEA STUDIES 5

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 contra-
dictions 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 ‘authoritar-
ian 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 excep-
tional 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 under-
standing 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 prero-
gative 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, instrumenta-
lization of legal regulations in line with governmental strategies (iv) insertion of new
liminal judicial venues such as the Criminal Judgeships of Peace (Sulh Ceza
6Z. YILMAZ

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, function-
ing 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 (FetullahçıTerör Örgütü) supporters provided by
the intelligence service.’
21
After comprehensively analysing AslıErdoğan, 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 investiga-
tion 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 con-
comitantly 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 thresh-
olds 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 (includ-
ing 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,
SOUTHEAST EUROPEAN AND BLACK SEA STUDIES 7

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 guaran-
tees 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 deci-
sions, 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 sup-
press 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 anewtacticinTurkey.Inlinewiththis
mentality, laws and the judiciary have been perceived as mere techniques and instruments
for gaining and maintaining power during theAKPruleaswell.Eventheso-calledearly
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).TheAKPhaseffectively used legal instruments to contain any
challenging oppositional activity, including the women’smovement,labourorganizations,
and the university students’movement. However, the scope of the ‘judicialization of politics’
8Z. YILMAZ

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 characterofthelegalsystemandbuildinganew‘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 com-
missars 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
SOUTHEAST EUROPEAN AND BLACK SEA STUDIES 9

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 estab-
lished to deploy both formal and informal mechanisms of coercion against any opposi-
tional 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 organiza-
tions 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 struc-
ture 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 authoritarian-
ism, 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 sover-
eignty, legitimacy, and political power is organized and implemented within the modern
10 Z. YILMAZ

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) institutio-
nalization 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 super-
seding 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 consolida-
tion 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
SOUTHEAST EUROPEAN AND BLACK SEA STUDIES 11

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 amend-
ments 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 pre-
sidency 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 concentra-
tion 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 Gözaydın2017, 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
12 Z. YILMAZ

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 opera-
tions 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 meth-
ods, 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 comple-
tely 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
SOUTHEAST EUROPEAN AND BLACK SEA STUDIES 13

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 author-
itarian legal framework.
45
Thus, 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 repres-
sion 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 authoritar-
ianism 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 differ-
entiates 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
14 Z. YILMAZ

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 organiza-
tion 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 coali-
tion’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
SOUTHEAST EUROPEAN AND BLACK SEA STUDIES 15

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 regula-
tions and implementations. This new law includes granting local governors the power to
restrict freedom of travel, giving authority to state institutions to dismiss public employ-
ees 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 deci-
sions 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 mobi-
lization 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 elec-
tion 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 sup-
press 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
16 Z. YILMAZ

new regime depends on the durability of the current nationalist alliance; sustainability
of rentier economic and political networks
52
; viability of Erdoğan’scontrolofstate
bureaucracy, which is based on the allocation of executive authorities in state bureau-
cracy 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’.
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
SOUTHEAST EUROPEAN AND BLACK SEA STUDIES 17

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 introduc-
tion 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 institutiona-
lization and imposition of the strategic legalist approach.
18. For an insightful analysis of ‘autocratic legalism’see Scheppele (2018).
19. I follow Corrales’sd
efinition 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).
18 Z. YILMAZ

27. See ICJ (2018,14–15).
28. Here, I follow the insights of E. Frankel’sprominent 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’svery insightful arguments in Regime Change in Turkey: Old
Symbols into New Settings, Bianet,23July2019,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,
aqualified 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
SOUTHEAST EUROPEAN AND BLACK SEA STUDIES 19

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 Çarşıve 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’salliancewiththeİYİparty (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’sPresident
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.
Acknowledgments
I would like to thank Cihan Tuğal, ErtuğTombuş, 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.
Notes on contributor
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, authoritar-
ianism, 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.
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