Boiling the Frog

In their posts concerning Turkey’s presidential elections, Fareed Zacharia and Michael Meyer-Resende objected to characterizing authoritarian regimes such as Turkey, Hungary and India as ‘competitive’ solely by virtue of regular elections, which are formally free but fundamentally unfair. Both criticized international observers for providing legitimacy to such regimes by certifying their elections. Indeed, while noting that “the lack of a level playing field” gave Recep Tayyip Erdoğan “an unjustified advantage” over his opponent Kemal Kılıçdaroğlu, OSCE observers did not conclude that the elections fell short of international standards – as they had done in Hungary, as Meyer-Resende reminded.

As valid their critiques are, Zacharia and Meyer-Resende miss the main problem in Turkey: not just a “flawed vote” but Turkey’s entrenched and, by now, stabilized authoritarian politico-legal regime in entirety. The playing field in Turkey is not only “massively tilted in favor of Erdogan” now; it has always been tilted in favor of the majority – long before Erdoğan. The architect of this system was the junta that staged the 1980 coup, who sought to ensure that pro-Kurdish parties would be left out of the Parliament after transition to civilian rule. And it is not just election observers, but the entire international community, which gave democratic legitimacy to this junta-made constitutional regime.

The list of Turkey’s authoritarian laws and their legitimization by the European Court of Human Rights (ECtHR) and the European Union (EU) are long, which I analyze in my 2020 book. Here, I limit my discussion to the issue of electoral competitiveness. First, I describe the politico-legal context that enabled Erdogan’s rise. Second, I contrast the developments in Turkey regarding election competitiveness to European legal standards and strikingly late political demands.

The uneven playing field- 2002 elections

Any assessment of elections under Erdoğan needs to start with the elections that brought him to power. Erdoğan claimed democratic legitimacy based on the strong mandate he argued to have received from the electorate, which enabled him to form a single-party government. Yet, this legitimacy rested on a fallacy. Of the 18 parties that took part in the 2002 elections, only two could enter the Parliament, leaving 45 percent of the electorate without representation. One of the two parties that made it was the Justice and Development Party (Adalet ve Kalkınma Partisi-AKP), which acquired 65 per cent of the parliamentary seats with a mere 34 per cent of the votes.

Such an anti-democratic outcome possible was possible thanks to the 10 percent threshold that applied to parliamentary elections. What’s more, the threshold was introduced, in June 1983, by the military regime several months before it stepped down in November 1983. Fearing that a future pro-Kurdish party would receive high support in the southeast region where the Kurds are the majority, the junta introduced a national threshold to deny them political representation. The generals were right in their projections. In 2002, the pro-Kurdish Democratic People‘s Party (Demokratik Halk Partisi-DEHAP) could not enter Parliament because its nationwide votes remained at 6.2 per cent – although it received up to 56 per cent of the votes in the Kurdish region.

To illustrate the extent of this democratic deficit, let’s zoom in on the provincial level. In Diyarbakır, the largest Kurdish city, DEHAP received 56 percent of the votes, whereas the AKP a mere 16 percent. Had the threshold been 5 percent as in Germany, DEHAP would have gained eight of the ten parliamentary seats allocated to Diyarbakir – and AKP none. Instead, six seats were allocated to the AKP and four to independent candidates.

To reiterate, what enabled and long sustained Erdoğan’s majoritarian rule was the very military tutelage he claimed to overcome. Thus, even under a procedural/thin definition, the AKP’s rise to power was not grounded in democracy. Neither have any of the elections held in and since (and before) 2002 been competitive or fair.

Surely, electoral thresholds can be necessary to avoid political instability, especially in systems characterized by many small parties, which result in successive coalition governments. At the same time, where a threshold is much higher than the widespread 5 percent (maximum) threshold in the rest of Europe, legitimate questions should rise as to whether a higher threashold has a discriminatory motive against minority representation rather than the claimed purpose of political stability.

Elimination of political rivals or the case of Selahattin Demirtaş

To exemplify how Erdoğan uses the courts to eliminate competition from his powerful rivals, both Zacharia and Meyer-Resende refer to the case against İstanbul’s mayor Ekrem İmamoğlu – who was a potential opposition candidate to run against Erdoğan in the presidential elections. Convicted to over two years imprisonment under Erdoğan’s instructions, İmamoğlu’s eligibility for public office had become questionable. The appeal court sat on the case until the presidential elections, making it too risky for İmamoğlu to run. In light of Erdoğan’s victory last Sunday, the court will quite likely uphold İmamoğlu’s conviction before the upcoming local elections in 2024 – eliminating him from that competition as well.

Illustrative as it is, İmamoğlu is not the first leading opposition figure who has been the target of judicial harassment in the Erdoğan era. The precedent was set with Selahattin Demirtaş, the Kurdish opposition leader held in captivity since November 2016. To understand, we need to go back to 2015.

After he came to power in 2003, things went well for Erdoğan – until they did not. The Kurdish movement had for decades circumvented the threshold by entering in pre-election coalitions with social democratic parties or running with independent candidates. In June 2015, the Kurds dared, for the first time, to participate in general elections with their own party. By then, they were represented by the Peoples’ Democratic Party (Halkların Demokratik Partisi – HDP), the successor of five pro-Kurdish parties dissolved by the Turkish Constitutional Court (speaking of an uneven playing field). The HDP ran on a platform, symbolized by Demirtaş’ famous speech, to bar Erdoğan from introducing a ‘Turkish-style’ presidential regime. In a “spectacular” victory, the HDP won 13.1 per cent of the votes and 80 seats in the Parliament in June 2015. This deprived the AKP of not only the two-thirds majority it needed to change the constitution or at least the three-fifths to put the regime change to a referendum, but even the simple majority to continue its single-party rule. Demirtaş had caused Erdoğan the first defeat in his career – İmamoğlu would bring the second.

Erdoğan resorted to the next authoritarian strategy in his playbook; disregarding election results. After the June 105 elections, he blocked the coalition negotiations and then used the hung Parliament’s ‘inability’ to produce a government as a pretext to hold repeat elections in November. Running on a law and order platform, the AKP won back some of the nationalist votes it had lost in June, leading to its fourth single-party rule. Yet, the HDP still passed the threshold, was still the third largest party at the Parliament and, most importantly, still deprived Erdoğan the parliamentary majority he needed to change the constitution.

Erdoğan now needed external support to hold a referendum. He formed an alliance with the HDP’s nemesis, the far right Nationalist Movement Party (Milliyetçi Hareket Partisi-MHP). The latter made the ousting of HDP deputies from the Parliament a quid pro quo for crowning Erdoğan’s career with one-man rule. As I wrote earlier on this blog, once again resorting to law to achieve outcomes he failed to win in the ballot, Erdoğan (with the MHP) presented to the Parliament an unconstitutional constitutional amendment to lift the parliamentary immunities of 55 out of the 59 HDP deputies. In November 2016, 13 of these de-immunized deputies, including the HDP’s co-chairs Demirtaş and Figen Yüksekdağ, were put behind bars. Once they were out of the picture, the AKP-MHP alliance changed Turkey’s political regime through a referendum. Erdoğan became the first president of his new regime in 2018.

All along, HDP deputies remained behind bars. As I write these lines, the HDP is facing a dissolution case – which led it to enter into this month’s presidential elections under the banner of another party and, almost certainly, to lose some votes due to voter confusion.

European institutions’ legitimization of authoritarianism

All along, these authoritarian laws and policies have been provided democratic legitimacy by European institutions, including the ECtHR and the non-judicial organs of the CoE and the EU.

To start with Strasbourg and the threshold. In its 2008 ruling in Yumak and Sadak v. Turkey, while considering “in general” a 10 percent threshold to be “excessive”, the Grand Chamber did not find a violation of the right to elections. I will not repeat what I wrote about this ruling on Verfassungsblog. Suffice to say that the majority did not consider any of the factors that render the playing field uneven for the Kurds and did not problematize the deprivation of Turkey’s largest minority group of political representation. Moreover, in an astonishing factual mistake, it characterized the law as a will of the legislature “following the military regime” (paragraph 45), attributing democratic legitimacy to a law enacted by the junta before stepping down.

As for the imprisoned HDP deputies. Although their cases qualified for priority treatment, it took the ECtHR 21 months to issue a ruling. The Court’s initial response was limited to Demirtaş; the remaining HDP deputies, left out for no apparent reason, had to wait another four years. Finding the arrests to be politically motivated in violation of Article 18, the ECtHR called for the immediate release of the deputies. I wrote earlier about the defects of the Demirtas judgment and will address here only the issue of competitiveness. Demirtas had argued that the prolonged nature of his detention sought to secure his absence in the public debates concerning the 2017 referendum on the presidential system and the 2018 presidential elections. Moreover, he ran in the latter as the HDP’s candidate. The ECtHR agreed in the presence of bad faith but issued its ruling in November 2018 – five months after the elections for which Demirtas had to run from prison.

Then there is the HDP. The party also petitioned Strasbourg, arguing that the arrests of its deputies violated its own electoral rights under Article 3 of Protocol 1. Yet, in unwanted legal formalism, the ECtHR applied to a political party the rules of standing it had set for trade unions and associations, concluding that the HDP’s grievances “relate to action taken against its members”, not against itself. The ECtHR, which has long emphasized the importance of parties for democracy and proclaimed itself as a court that “attaches importance to protection of the parliamentary minority from abuse by the majority”, did not even hear the case of a minority party whose presence and influence at the Parliament were unconstitutionally diminished by the majority.

As for the political organs… With the exception of the Parliamentary Assembly of the Council of Europe (although only in 2013), none of the European institutions have called on Turkey to lower Europe’s highest electoral threshold. It took the European Commission 18 years after its first progress report on accession to invite the Turkish government to “address” the threshold “as a priority” – in November 2015, after Erdoğan had already disregarded the elections where the Kurds had overcome the threshold. Only from 2018 onwards did the European Commission implicitly call on Turkey to lower the threshold. By then, Erdoğan had already consolidated his authoritarian rule and the EU had lost its leverage on Turkey.

Turkey still reaps the benefits of its EU accession status and CoE membership. Not a single European liberal democracy brought an inter-state case in Strasbourg to challenge the recent rule of law breakdown in Turkey, let alone the state violence in the Kurdish region. Erdoğan’s defiance of binding ECtHR judgments goes unpunished. It was only in February 2022 and with respect to only one judgment (concerning the politically motivated arrest of civil society activist Osman Kavala) that the Committee of Ministers triggered the infringement mechanism against Turkey – and has not followed up on that since. No infringement proceeding has been launched for Turkey’s blatant disregard of the ECtHR’s earlier call for the immediate release of Demirtas, which moreover was upheld by the Grand Camber in December 2020.

We need a new mindset

Anti-liberal regimes have the lead in the fight over democracy. They are not only winning the elections by cheating but are then re-defining liberal norms by equating democracy with majoritarian rule. The progressive front needs to develop new tools and strategies in addressing this threat.

The case of Turkey is full of lessons. The opposition has no chance of winning against autocrats unless they act in solidarity, especially with the most vulnerable amongst themselves. The CHP’s support to the AKP-MHP’s efforts to oust the HDP deputies “to avoid any accusation of wishing to protect persons supporting terrorist activities, although it considers the Amendment unconstitutional” was critical in putting Demirtas behind bars. Leaving aside the immorality of this decision, Kılıçdaroğlu should have foreseen that his party would be the next in line. Supranational institutions must differentiate between authoritarian regimes and liberal democracies. The ECtHR’s persistence in applying its doctrines equally to all member states leaves human rights activists at the mercy of national courts, which are often complicit in state violence and repression. The EU’s premature decisions to give accession status or membership attribute democratic legitimacy to authoritarian regimes. Liberal democratic governments must make full and timely use of all their sanctioning tools to deprive autocrats of the legitimacy, reputation and money that memberships to international institutions and bilateral/multilateral trade agreements bring – which are crucial in sustaining their power at home.