The Enemy, The Law, The Reason

The repercussion of the prosecution of Can Atalay will have a major impact on the politics in Turkey. Atalay is a socialist lawyer and rights defender who was sentenced to 18 years in prison following the ‘Gezi Trial’. Atalay, who has been under arrest since April 25, 2022, was elected as a member of parliament for Hatay, in the general elections of May 2023. He was in prison as an arrestee, awaiting the final court decision when he became a parliamentary candidate and when he was elected. This raised the question of whether he might enjoy the parliamentary immunity granted to MPs. But Atalay was not released from prison. And has been in prison since. When asked to consider Atalay’s case, the Constitutional Court affirmed that his “rights to be elected and engage in political activities” and “right to freedom and security” had been violated and that he should be released immediately. However, the Court of Cassation failed to implement the Constitutional Court’s decision, raising the spectre of a constitutional crisis. 

In this piece, I want to introduce the case of Atalay as an instance of judicial implementations under the Palace Regime through the framework “enemy criminal law”. The “enemy criminal law”, as suggested by Günther Jakobs, is a concept whereby the state deploys criminal law against political opponents, accusing them as dangerous enemies under the “criminal law of state of necessity”. According to this, if somebody is dangerous for the security of the state, s/he is deemed unfit for society and regarded as an “unperson”, un-citizen, even un-defendant. Accordingly, it is not necessary for someone to have committed a crime, in order to be depersonalized and be subjected to the enemy criminal law. The enemy criminal law is a version of the “perpetrator criminal law”, hence it does not matter which crime he commits, even, whether s/he committed a crime or not. What matters is who is the perpetrator and whether s/he the is considered dangerous and risk-bearing in terms of society or not. If a person is considered risk-bearing a presupposition already occurs that her/his actions will bring serious destruction to the state order at any moment. (Jakobs exemplifies this in his explanation on“Law on Prosecuting the Preparation of Serious Acts of Violence Endangering the State” for Germany.) The enemy criminal law, then differs from preventive criminal law since an unperson/enemy is considered as neither a member of the society nor the citizen of the state thereby unworthy of punishment, which is exposed to normal citizens. Therefore, the state does not engage with this “someone”. And its response and policies of crime and punishment are only to its own citizens. Hence, the state does not concern itself with whether the unperson committed/will commit a crime or not. In fact, the unperson/enemy faces an isolation from the society rather than a trial and is excluded from accessing human rights and through that procedural guarantees within a normal judgement, which citizens/right holders have access to.

If we go back in history “raison d etat” lies at the heart of the enemy criminal law. The sovereign has not only the right but also deems it necessary to implement enemy criminal law because it is responsible to maintain the security of the community or rather the state and its order. Because of this necessity, the sovereign is omnipotent, in other words the law does not have the power to limit the sovereign. From Botero – the spiritual father of enemy criminal law – to Schmitt and to today’s political powers, it is widely accepted that “if there is an enemy, there is necessity and the necessity has no law or constitution.” Therefore, it is inevitable that the law will be suspended the law when there is necessity. The state as well as its judicial institutions and mechanisms have to overcome the quasi danger and if necessary, protect the political union even if that means breaking the law without breaking the law. At this point, the constitution is a manifest of political unity rather than a text that limits, political power, separates powers, and assures rights and freedoms. The mission of the constitutions then is above all, to draw the border between us and them (self and other), that is, friend and enemy. The enemy here is – of course – not only the external enemy. In the modern paradigm, especially in its current version, the differences between internal and external enemies, war and punishment, have become indistinct. And it is at this point of becoming indistinct that the “the state of exception” or “the state of emergency” emerges. In a state of emergency, the state suspends the law based on the “right to self protection”. If some “elements” within the country are pointed out as the cause of the state of emergency, they are not the citizens but the internal enemy anymore. Therefore, criminal laws in force for citizens become abolishable. In connection with this, human rights and freedoms also become abolishable; now, we are in the area of the enemy criminal law. The state sees itself in a kind of civil war, not judgement and punishing

The Regime of Palace/Court

As Jakobs also notes, although we have not seen an ideal type of enemy criminal law implementation yet but we witness its implementation at different levels and forms today. The “enemy criminal law” which was coined by Jakobs in 1985 became globally an influential concept after the September 11, 2001 attacks in the United States. It has become popular again, as a tool in the hands of authoritarian/right-wing populist regimes after 2008. Furthermore, nowadays enemy criminal law is not taking place in a veiled manner, behind closed doors or under a cover, but as a part of the election campaign of right-wing populist political parties. In Turkey, we see that it is more severely implemented and not only by the executive, but also by the judiciary, which is not politicized but already political. The regime in Turkey is one of the precursors of this general trend, with its focus on aspects such as Political Islam and the nativist and nationalist discourse, which we can express as today’s version of the “The Contract of Turkishness”. The case of Atalay takes place in this historical context, as an obvious instance of the enemy criminal law practices and as a case which reveals the tendency of The Turkish Government. 

For a while now, Turkish oppositionists have solely been able to express the governing style here with words such as “the regime of palace (court)”.

We can explain what we should understand from these expressions as follows: With reference to Butler’s discussion in “Precarious Life”, we have closely witnessed in Turkey, the ghostly and severe resurrection of old-school absolutist sovereignty and its consideration of law along with neoliberal governmentality. If we lay aside the criticisms of all considerations that impute a transcendental position to law for the moment- we are faced with a model of sovereignty that absolutely ignores the restrictive power of law, which is seen democratic constitutional state that existed in times before the principle of separation of powers declared its birth. Naturally, the punishment/war against “the enemy of the political unity” has some analogies with the old school appearance/performances of sovereignty and the judiciary is also significant instrument and stage for these performances. 

I would also like to point out that, from military coups to the current judicial and administrative practices, Turkey has been one of the instances of a country that is in permanent “state of emergency”. But in this period of the palace regime, we have been facing a special and more severe form of the rising authoritarianism, as witnessed around the world but especially so in Turkey. The aggression, and crimes that occur in the exceptional field against individuals and groups coded as enemies and/or inhumane are treated as a means of crisis governing and gathering power. In this context, the dissidents from Turkey who are or may be subjected to political trials face the risk of unpersonalization and expulsion from legal subjectivity in various forms.

This latest “judicial crisis” within the case of Atalay has made the picture in question more obvious. It is apparent that, as the reason of political power, there is a necessity and risks in terms of the Gezi Trial in which Atalay and other activists have been tried. The majority of the activists in question were sentenced to very heavy prison sentences and there has been a violation of their rights by authorities, for instance, they were put in prison without final decision, in other words, detention was not implemented as a precaution. 

Despite the decision of The Constitution Court and the articles of Constitution that governs parliamentary immunity and the binding of decisions of The Constituon Court for every organs including judiciary, Atalay was not released. The Minister of Justice already stated what the independent judiciary should do and said that Gezi Trial was out of the parliamentary immunity on June 7. Although, he is a citizen of the Republic of Turkey and even a member of the parliament, Atalay is considered out of The Constitution’s remit. According to the government and The Court of Cassation, and with reference to Schmitt, he is out of political unity, and, if we go back to Jakobs, he is out of the society. In this respect, the state and their judicial mechanisms acted in accordance with their mission and protected the political union against “the enemy of state” and broke the law/Constitution without breaking law. 

In addition, this case showed how expanded and ghostly the concept of enemy has become. From the enemies, as old as the history of the state to the parties of established order, anyone can be declared an enemy at any time. It seems that the political power wants to defeat all manners that go beyond the native and national approach of the judiciary. As a matter of fact, the Turkish Court of Cassation filed a criminal complaint against the Constitutional Court judges as a political message. Moreover, the statements, which defended the discourse of “national judiciary” which have been expressed by government officials laid bare this state. The government’s message was clear; whatever was obligatory would be done, and the Constitutional Court would be disabled.

In Lieu of a Conclusion: If There is No Law?
Consequently, the political judiciary and its practices of enemy criminal law have become a dominant governing paradigm for“The Regime of Palace”. This paradigm reveals itself in a lot of cases. Kurdish-socialist politician Gülten Kışanak has not been released even though the legal maximum arrest period has expired. Turkey withdrew from the İstanbul Convention, contrary to its own constitution and international law. The shield of impunity become involved in cases where those coded as “enemies” are victims, as in the Hrant Dink Case and many other similar examples abound. Despite the positive decision ruled by the Constitutional Court, most of the members of Academics for Peace could not return to duty. In the age of depoliticization, a socialist MP from a socialist party, Can Atalay still is in prison.

At this point, the following question inevitably comes into play; what have we done, and what will we do, while we are surrounded by to such a degree of state violence and the politics/law of hostilizing? If I leave aside the part of what we will do for now; we, as socialists, critical lawyers, etc. from Turkey, that is, those who are always in the exceptional zone, those who have been declared as enemies or can be declared as enemies at any time, know this: Although the boundary between citizen criminal law and enemy criminal law is sharp, there is no sharp transition from the citizen criminal law period to the enemy criminal law period/practices. Before Nazi Germany, it was the practice of the state of emergency in Reich, and after that, it was the chain of rights violations against the members of RAF. Nowadays, we can see the authoritarianism and even fascism that insidiously lies within the rule of law in the attitude of Western democratic states regarding Israel’s attacks on Palestine and in the attitude they have recently towards refugees. We, of course, actively witness what we see. But, at this moment, when the political power cannot tolerate even the slightest outage, we have to both investigate and defend the rule of law and even the Constitutional Court.

With reference to Douzinas, we have to raise our demand for immanent and transcendent justice right now. We have to do this not at the door of the court, “before the law”, but inside it with our legal arguments and of course outside it, that is, on the street, squares like Can Atalay did. As the Progressive Lawyers Association wrote on the banner they opened while walking in robes during a protest, “if there is no law, there is the street”.

twitter/X account: @ezgi_duman_