10 Mai 2022

De-AKPification

How to Treat AKP-Operatives in a Post-AKP Turkey

Opinion polls by Turkey’s reputable polling firms consistently indicate that the governing AKP and its de facto coalition partner, the far-right nationalist MHP, are losing their popularity and heading to a potential defeat in the upcoming presidential and parliamentary elections of 2023.1)For example, one recent poll from April 2022 found that 60% of Turkish people do not believe Erdogan can solve the country’s economic problems. See Ozer Sencar, Twitter post, May 6, 2022, 11:57 a.m., https://twitter.com/ozersencar1/status/1522606465713852422?cxt=HHwWjMCyme6gsaEqAAAA. A poll from February 2022 found the percentage of votes for AKP to be 24.6%, and the main opposition party CHP’s to be 20%, a clear and unprecedented narrowing of the gap between Turkey’s largest two parties. See Kamuran Samar, “2023 Cumhurbaşkanlığı seçimleri: Son anketler ne diyor?,” Euronews, March 29, 2022, https://tr.euronews.com/2021/10/12/2023-cumhurbaskanl-g-secimleri-son-anketler-ne-diyor. As an anti-AKP victory, or at least the real possibility thereof, draws near day by day, a vital question arises: how should opposition forces treat AKP operatives in the judiciary and bureaucracy? Is it possible to “de-AKPify” ex- or soon-to-be-ex-AKP operatives?

The question is already a timely one, since many ex-AKP sympathizers, including its one-time media apparatchiks have started to distance themselves from the AKP. Two former Erdogan supporters, one his finance minister and the other his prime minister, have now even parted ways with him and established their own political parties, joining opposition forces. The question is also germane to emerging and broader discussions on comparative constitutional restoration: if democratic erosion is gradually reversing course, as political parties responsible for that erosion are losing power worldwide, how do opposition forces isolate, marginalize, perhaps coopt, and sometimes rehabilitate, persons and institutions once fueling the engine of democratic erosion by being AKP affiliates?

The Tailored Treatment

I cannot offer comprehensive answers to all these questions, except to suggest two things – that the opposition’s attitude towards ex-AKP affiliates should combine a degree of pragmatism and, in each and every case, legality; and that the opposition should tailor its treatment based on the title and relative strength of the AKP affiliate. This means adopting a case-by-case basis for its treatment of AKP operatives.

Consider three different profiles from the judiciary: (1) Various judges on certain first-instance criminal courts in Istanbul, who refused a few years ago – undoubtedly under instructions or pressure from the AKP – to obey Constitutional Court judgments in defiance of judicial hierarchy and the Constitution’s clear command that Constitutional Court judgments are binding on all.2)See Article 153(6) of the Turkish Constitution: “Decisions of the Constitutional Court shall be published immediately in the Official Gazette, and shall be binding on the legislative, executive, and judicial organs, on the administrative authorities, and on persons and corporate bodies.” The cases concerned political detentions, which the Constitutional Court ruled had violated the detainees’ (all critics of the government) personal freedoms.3)For the details of the controversy, see Basak Cali, “Will Legalism be the End of Constitutionalism in Turkey?,” Verfassungsblog, January 22, 2018, https://verfassungsblog.de/will-legalism-be-the-end-of-constitutionalism-in-turkey/ (describing the first instance courts’ rejections as “the first legalist defense of anti-constitutionalism furnished by a first instance court in Turkey”). (2) Consider second, Yusuf Sevki Hakyemez, current member of the Constitutional Court who was appointed by Erdogan. He previously served as a consultant to the AKP in its long-abandoned peace initiative concerning the Kurdish conflict. (3) Thirdly, Kenan Yasar, current and most recent member of the Constitutional Court and also an Erdogan appointee, who unsuccessfully ran in parliamentary elections as an AKP candidate three times.

All of these judges from different tiers of the Turkish judiciary have – or had – certain ties to the AKP, but treating them similarly would be a tremendous disservice to Turkish politics moving forward. Hence, a tailored approach is necessary.

Marginalization, Embracement, and Wait-and-See 

(1) The various first-instance criminal court judges who defied the rulings of the Turkish Constitutional Court should be marginalized; they should be subjected to the highest administrative sanctions by judicial authorities – once those authorities themselves have been sufficiently “de-AKPified,” which would be no small achievement. Further, they should be prosecuted and criminally tried for attempting to violate Turkey’s constitutional order, a crime punishable by heavy imprisonment for life under the Turkish Criminal Code. That the opposition should treat these judges with little “mercy,” so to speak, is due to several considerations: first and foremost, their defiance of the Turkish Constitution has not only caused a tremendous and unprecedented attack on Turkey’s already-unraveling adherence to the rule of law, but also resulted in justified domestic and international speculations concerning the efficacy of the Turkish Constitutional Court as a judicial institution capable of remedying constitutional wrongs. This means a severe loss of prestige with potential – and so-far-avoided – practical consequences, including a reconsideration of its status by the European Court of Human Rights as an effective remedy to be exhausted before applicants from Turkey can bring their complaints before the Strasbourg Court. Given these judges’ status as first-instance court judges, it is easier and less costly for opposition forces to name and shame them as opposed to senior court judges. Many AKP-affiliated individuals are known to have been appointed as judges and prosecutors, following the judicial purge after the coup attempt of July 2016 – the opposition should also carefully study those persons.4)Investigative journalist and MP Ahmet Sik has compiled a tentative list. See “Hâkim ve savcı olarak atanan AKP’lilerin listesi ortaya çıktı,” Cumhuriyet, February 18, 2019, https://www.cumhuriyet.com.tr/haber/hakim-ve-savci-olarak-atanan-akplilerin-listesi-ortaya-cikti-1254227.

(2) Yusuf Sevki Hakyemez presents a very interesting case. The opposition should do nothing in his case. His involvement with the AKP was brief and consultative in nature, and at a point in time when the AKP pursued a peace and reconciliation process with the Kurds – a policy which it has long abandoned and totally reversed. As I have argued, despite being an Erdogan appointee, and perhaps much to Erdogan’s disappointment, he is a predictable liberal vote in politically salient cases that come before the Constitutional Court, and his scholarship prior to joining the Court is also reflective of his current judicial stance.5)For example, Hakyemez’s monograph (derived from his doctoral thesis) on the Turkish Constitutional Court’s (now arguably-abandoned) understanding and application of the concept of “militant democracy” is an important contribution to Turkish constitutional law scholarship. The monograph strikes a fairly liberal tone and is critical of the Court’s checkered past where it consistently banned anti-establishment political parties. See Yusuf Sevki Hakyemez, Militan Demokrasi Anlayisi ve 1982 Anayasasi (Ankara: Seckin Yayincilik, 2000). In sum, he illustrates that not all ties to the AKP should be regarded negatively. The opposition should try to fully embrace him and avoid criticism, to the extent possible.

(3) Kenan Yasar is an Erdogan appointee who recently joined the Constitutional Court. However, his involvement with the AKP has been far longer and deeper compared to that of Mr. Hakyemez. His profile is typical of a rural conservative who has tied his fortunes to the AKP to move up the social and economic ladder: Yasar was heavily involved in local politics in a central Anatolian city during his three-time candidacy from the AKP. He was also the center of controversy when it became known that he had tweeted anti-Semitic tropes, which he later deleted and expressed some faint-hearted remorse about. All of which is to say that he is galaxies far from the ideal profile we would usually associate with a judge, let alone a member of the Constitutional Court. All that being said, the opposition should adopt a wait-and-see approach. Despite all his shortcomings, Mr. Yasar can still redeem himself with his yet-to-be-seen voting behavior on the Court. If he exhibits redeeming features, the opposition should consider rehabilitating him: that is, to avoid criticism and to portray him as an example of how AKP affiliation, however deep, does not necessarily equate to being an AKP operative. If it turns out, however, that he has no redeeming qualities, then the opposition should actively argue that he must recuse himself from politically salient cases before the Constitutional Court, along with some other members of the Court. It is not guaranteed that this strategy would necessarily work. However, pressuring him into recusing himself in cases where he would otherwise have cast an AKP-friendly vote would still provide the opposition an opportunity to remind him of his checkered past, unbecoming of a judge. The naming-and-shaming effect of such a strategy should not be underestimated. It might force him to concede to the opposition, from time to time, even if only to maintain a façade of impartiality, and more importantly, it would send a signal to other members or to-be members of the Court and other courts: their past will be scrutinized, and if and when necessary, used against them, to the extent politically and constitutionally possible.

A Case-by-Case Evaluation Will Be Key 

These are just some examples of how the opposition could adopt a tailored and case-by-case approach when it comes to treating active or ex-AKP affiliates. Notably, the examples I discuss are from the judiciary, and therefore any intervention, however justified and legal, may be costly. In addition, not all one-time AKP affiliates should be regarded as AKP operatives either. The opposition will have to evaluate these nuances and consider carefully whom to rehabilitate and whom to marginalize – both in the judiciary and in ordinary politics, ahead of an impending post-AKP world.

All bets are off, of course, if Erdogan becomes president again. If he does, though, AKP operatives in the Turkish judiciary will be the least of our concerns.

References

References
1 For example, one recent poll from April 2022 found that 60% of Turkish people do not believe Erdogan can solve the country’s economic problems. See Ozer Sencar, Twitter post, May 6, 2022, 11:57 a.m., https://twitter.com/ozersencar1/status/1522606465713852422?cxt=HHwWjMCyme6gsaEqAAAA. A poll from February 2022 found the percentage of votes for AKP to be 24.6%, and the main opposition party CHP’s to be 20%, a clear and unprecedented narrowing of the gap between Turkey’s largest two parties. See Kamuran Samar, “2023 Cumhurbaşkanlığı seçimleri: Son anketler ne diyor?,” Euronews, March 29, 2022, https://tr.euronews.com/2021/10/12/2023-cumhurbaskanl-g-secimleri-son-anketler-ne-diyor.
2 See Article 153(6) of the Turkish Constitution: “Decisions of the Constitutional Court shall be published immediately in the Official Gazette, and shall be binding on the legislative, executive, and judicial organs, on the administrative authorities, and on persons and corporate bodies.”
3 For the details of the controversy, see Basak Cali, “Will Legalism be the End of Constitutionalism in Turkey?,” Verfassungsblog, January 22, 2018, https://verfassungsblog.de/will-legalism-be-the-end-of-constitutionalism-in-turkey/ (describing the first instance courts’ rejections as “the first legalist defense of anti-constitutionalism furnished by a first instance court in Turkey”).
4 Investigative journalist and MP Ahmet Sik has compiled a tentative list. See “Hâkim ve savcı olarak atanan AKP’lilerin listesi ortaya çıktı,” Cumhuriyet, February 18, 2019, https://www.cumhuriyet.com.tr/haber/hakim-ve-savci-olarak-atanan-akplilerin-listesi-ortaya-cikti-1254227.
5 For example, Hakyemez’s monograph (derived from his doctoral thesis) on the Turkish Constitutional Court’s (now arguably-abandoned) understanding and application of the concept of “militant democracy” is an important contribution to Turkish constitutional law scholarship. The monograph strikes a fairly liberal tone and is critical of the Court’s checkered past where it consistently banned anti-establishment political parties. See Yusuf Sevki Hakyemez, Militan Demokrasi Anlayisi ve 1982 Anayasasi (Ankara: Seckin Yayincilik, 2000).

SUGGESTED CITATION  Tecimer, Cem: De-AKPification: How to Treat AKP-Operatives in a Post-AKP Turkey, VerfBlog, 2022/5/10, https://verfassungsblog.de/de-akpification/, DOI: 10.17176/20220510-182359-0.

One Comment

  1. Winston Do 12 Mai 2022 at 07:56 - Reply

    Thanks for this post. I believe the unprecedented level of recent years‘ erosion in the judiciary and in other public institutions will require in the post-dictatorial transition period a carefully designed comprehensive vetting and lustration process for ALL judges and prosecutors, as well as high level public officials , based on their decisions and practices in contravention of rule of law and democracy in post 17/25 December 2013 AKP era.

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