by Ali Erol
The political and social aftermath of the coup attempt that took place on the 15th of July 2016 in Turkey illustrates how a single event can be the cause of a stark shift in the existing legal regime and in notions of legality. First, I offer a historical sketch of the social dynamics between the public and the Turkish military to demonstrate how these dynamics shaped the law regarding coups. Second, I examine the constitutional regulation of the state of emergency that was declared five days after the attempted coup. Taking these together, I point to how the historical context shaped the legal response to the coup attempt and the ways in which that response has shifted the legal regime away from a democratic regime using the state of emergency as a justification. This analysis goes beyond producing a mere description of what recently happened in Turkey. This particular case can help to shed light on similar contexts elsewhere, where sudden shifts in the social or the political structure lead to shifts in legal regimes and vice versa. Moreover, the Turkish case highlights how the government can use the state of emergency to create a state of exception, where it can disregard the formal rule of law and take decisions to create a new legal order. Giorgio Agamben, who famously wrote about the state of exception, suggests that such states are a “no-man’s-land between public law and political fact, and between the juridical order and life” since “the state of exception appears as the legal form of what cannot have legal form.” In these spaces of ambiguity, in these borders where desires for certainty and for answers are often met with vicious circles that collapse unto themselves, those who already hold the considerable amount of power create conditions in which their powers can be expanded and further solidified. The subsequent analysis explicitly demonstrates the mechanisms through which such expansion of power is achieved.
The Context of the Failed Coup
The social and political circumstances in which the coup attempt took place provide vital context for understanding its failure and legal sequelae. Neither Turkey nor President Erdogan’s rule was strong when the coup attempt took place on July 15th 2016. Erdogan was struggling to consolidate his power, as he sought to be the sole ruler of the country by establishing a presidential system and removing the prime ministry. Further problems for the Turkish state were caused by the PKK (Kurdistan Worker’s Party), an insurgent group that has been engaged in an armed conflict with Turkey since 1984. The ceasefire that was implemented in 2013 with high hopes of peace and resolution had disappointed, after mutual confrontations during the summer of 2015. The coup attempt happened a year after the ruling AK Party (AKP) lost the majority of the seats in the parliament due to the Kurdish People’s Democratic Party (HDP) increasing their votes. Turkey was also suffering due to the war in Syria. Not only was the Turkish economy being strained due to millions of refugees in the border camps, but Turkey’s foreign relations were tense with Russia, after the downing of a Russian jet on November 24th 2015. In addition, ISIS (the Islamic State of Iraq and Syria) had increased its attacks in different provinces in Turkey. Finally, Erdogan was still in conflict with the Islamist cleric Fetullah Gulen and his followers (now dubbed as FETO, or Fetullah Gulen Terrorist Organization by the government), who had influence in different layers of state bureaucracy. It was FETO who would ultimately be accused of carrying out the 2016 coup attempt.
Shifting notions of Legality: from legal coup to illegal coup
In many ways, the myriad factors that seem to have converged in the most recent coup make the attempt similar to four other coups that Turkey experienced in 1960, 1971, 1980, and 1997. Those who conducted the coups, at the time, cited dire circumstances, the social divide, ongoing conflicts, and the economic downturn—in short, composite picture of deteriorating leadership—in order to justify the coup at hand. However, there is one important difference between previous coups and the attempted coup that took place in July 15th 2016. Article 35 of the Turkish Armed Forces Internal Service Law legally justified the four previous coups that Turkey lived through. The service law was amended in 2013 and the phrase, “to protect and safeguard the Turkish homeland and the Turkish Republic” that was used as a legal justification in those coups was deleted from the law. Consequently, the failed coup attempt that took place on July 15th did not have any legal justification. In this section, I trace the social and legal history of Article 35 and suggest that the social and historical processes that led to the amendment of Article 35 in 2013 have given people and politicians agency to speak up against the coup attempt.
There were two social and legal factors which made the first four coups legal as well as socially justifiable. Primarily, it was the unusual nature of the civil-military relations (CMRs) in the Turkish context, which differed from those in many other countries experiencing coups. Secondly, due to this difference, the legal regime in Turkey until 2013 allowed the military interventions to be framed as legal.
Aydinli, who compares CMRs in various contexts, notes that CMRs vary across contexts.  She writes that in Latin America, for instance, the military is usually perceived with more animosity by the public—as a power hungry organization that often preys on the public interest and for that reason needs to be kept in check. In the US, the author notes, the CMRs are based on a sense of professionalism—to the extent that civilian politics can manipulate the army for its own gains, as was the case in the Iraq war. However, in Turkey this perception is different. As Aydinli writes, “[t]he nature of Turkish civil-military relations reflects the centuries-long historical experience of the Ottoman Empire (and its gradual decline), a traumatic War of Independence (1919-1923), a Cold War that was actually quite hot in Turkey, and an immense modernization project which was ultimately entrusted to the Turkish army itself.” This history created conditions where CMRs in Turkey did not fit within the paradigms of other CMRs. Therefore, Aydinli concludes: “[T]here is nevertheless a distinguishing characteristic of civil-military relations in Turkey that is marked by broad societal support of the military and, ultimately, a widespread view of the military as the ultimate protector of the nation—even, if necessary, against its own political representatives.” This relationship was, perhaps, one of the most important factors that enabled previous coups to succeed and be socially justified.
However, previous coups were not only socially justified, they were executed on legal grounds—derived from the aforementioned CMRs in Turkey. The legality of the previous coups most importantly relied on Article 35 of the Armed Forces Internal Service Law that stated: “The duty of the Armed Forces is to protect and safeguard the Turkish homeland and the Turkish Republic as stipulated by the Constitution”. The phrasing of this particular law gave the army a role above and beyond the political institution. In effect, the phrasing suggests that the political institution could only exist if the army allowed it to exist in a way the army saw fit. Instead of being professionals under civilian political control like the US army, the Turkish army saw itself as an overseeing authority that was socially, politically, and economically a vital part of the country. For these reasons, the coups that took place almost every decade since 1960 relied on the aforementioned dynamics of CMRs in Turkey and the laws that were shaped by those CMRs as legal grounds of justification.
While Article 35 was shaped by a particular social and historical context, it also stemmed from Turkey’s legal history. The first article of this kind, which defined the duty of the army, was introduced in 1934. At the time, a similar statement was housed in Article 34 of the Turkish Armed Forces Internal Service Law, which read: “The duty of the army is to watch and protect the Turkish homeland and the Turkish Republic as stipulated by the constitution. The Army is charged with learning and teaching the art of military service. To accomplish this duty, necessary institutions and facilities are made and precautions are taken.” After the first coup in 1960, the 1924 constitution was abolished for a new constitution and the above statement was merely transposed without alteration into Article 35 of the Turkish Armed Forces Internal Service Law.
During the 1990s, however, there was a shift in the social perception of the army, which was the result of four important social dynamics. First, the rise of political Islam, which started in the 1970s, made substantially greater headway in the 1990s. Second, due to the Kurdish insurgency in the southeast of Turkey, the military became much more vocal and visible in Turkey’s daily social and political life—gaining independence from the influence of civilian rule. Third, in the 1980s the president at the time, Turgut Ozal, introduced neoliberal reforms and made one of the first attempts to secure more civilian control of the military. Fourth, the mid-1990s was also the period when Turkey aggressively pursued membership of the EU and the accession process was underway.
However, total civilian control of the military was not possible until the AKP came to power in 2002. This was due to the complicated relationship the Turkish republic had with its Ottoman past. In its foundation, the Turkish Republic attempted to distance itself from its Ottoman past through reforms in law, education, alphabet, dress, and in almost every aspect of life. One reason for this distancing was to establish a unified nationhood that drew from a shared sense of being Turkish, rather than relying upon a shared Islamic faith, as had been the case in the Ottoman Empire. Therefore, the separation of religion and public and political life was deemed necessary. Religion was replaced with ethnicity. In an attempt to create such separation, however, founders of the Turkish republic instituted various mechanisms of control over religious life. One such mechanism of control was the establishment of Directorate of Religious Affairs (DRA). Oncu notes, for instance, that the purpose of such regulative mechanisms was never to get rid of religion, but rather to dictate what type of religious life people could have. Therefore, Oncu argues, the purpose of the DRA was:
[T]o provide the citizens with Islamic religious services such as the appointment of preachers, muezzins and imams and the distribution of sermons. The true objective of the DRA, which was to establish control over the Islam practiced in civil society in order to contain any form of opposition against the development of modern capitalism from the quarters of heterodox Islam.
To that end, DRA aimed to keep Islam out of social and political life. However, there were some, who had strong emotional ties to the Ottoman Empire and consequently were outcast by the aforementioned reforms, who wanted Islam to be a part of social and political life. Under the leadership of Necmettin Erbakan, they initiated the Islamist movement in 1969 with the National Order Party. The movement experienced its greatest successes in 1990s and became a part of the coalition government in 1996.
The National Order Party’s success was an important moment in Turkish history, marking the point at which (?) the Turkish Armed Forces manifested themselves as a meta-political watchdog. In 1997, there was the fourth coup directed at this particular coalition government in order to curb the rise of political Islam in Turkey. Consequently, in addition to the DRA, the Armed Forces was another regulatory mechanism through which the founders of the republic sought to keep the social and political life away from Islamist tendencies.
Erdogan, being a student of Necmettin Erbakan and a second generation Islamist politician, grew from the failure of the National Order Party and he knew that in order to establish himself as an Islamist leader of Turkey, he had to break the hold of the Turkish Armed Forces over the political life. From 2002 until 2007, Erdogan cited the EU talks and the ascension process as reason to introduce reforms that placed the military more firmly under civilian leadership. The most important reform came in 2013, when Article 35 of the Turkish Armed Forces Internal Service Law was amended in the parliament. Until that time, the law stated:
“The duty of the Armed Forces is to protect and safeguard the Turkish homeland and the Turkish Republic as stipulated by the Constitution”
Moreover, the article defined military service as:
“Responsibility to learn and conduct the art of war in order to protect the Turkish homeland, independence and Republic.”
After the amendment in 2013, Article 35 became:
“The duty of the Armed Forces is to protect the Turkish homeland against threats and dangers to come from abroad, to ensure the preservation and strengthening of military power in a manner that will provide deterrence, to fulfill the duties abroad with the decision of the Parliament and help maintain international peace.”
And military service was redefined as:
“The responsibility to learn and conduct the art of war.”
The result of this change in language framing the duty of the Turkish Armed Forces and the purpose of the military service was two-fold. The statutory role of the army ceased to be about safeguarding the republic from perceived threats. Further, the actions of the military were assigned under the control of the parliament. The shift that occurred in the framing of the duty of Turkish Armed Forces and military service also shifted what the army and soldiers were allowed to do. The phrase that had served as the legal justification of coups thus far was no longer there, therefore making coups de facto illegal and politically unjustifiable.
There are several factors which made this amendment very important. First of all, the clause that defined the Turkish Armed Forces as the protectors of the republic had been a part of the legal regime in Turkey since the inception of the republic. Secondly, as mentioned above, CMRs in Turkey were different to those in other parts of the world and the Turkish Armed Forces have almost always been at least an implicit part of life in Turkey. Thirdly, because Erdogan and the ruling AKP—the Islamist political establishment since 2002—were pushing to change CMRs, those who supported Islamism as well as some liberals celebrated this as a move towards freedom, while secularist nationalists who sympathised with the military were cautioning that this was another step towards Erdogan establishing Islamist rule. Consequently, the amendment was publicly debated. In addition to newspaper reports on the issue, the change was also debated in newspaper columns, op-eds, and on political radio and TV shows. Not only did this kind of public debate allow for a larger discussion and questioning of the assumptions that have existed regarding the role of the military in Turkey’s legal, social, and political life, but it also allowed the manifestation of the anti-military sentiment which had been growing since the 1990s. This anti-military sentiment, coupled with the debates over the amendment and shifting notions of legality, gave rise to the hostile reaction by the public to the July 15th 2016 failed coup attempt.
The Legal Aftermath
After the attempted coup, a series of changes took place in the social and legal life in Turkey. Both these changes, and the way in which they have been executed, rely on rhetorical grounds as well as legal procedures, and echo the way in which military juntas in the past have operated after a coup in Turkey. In particular, after the failed coup attempt, there have been mass detentions, suspensions and dismissals of those who have been accused of or perceived as not being allied with Erdogan and his brand of Islamism. For instance, 3,000 members of the judiciary, including 1,481 judges, have been suspended. These arrests, suspensions, and firings—now dubbed the purge—affected close to 60,000 people across many institutions: from security to education to religion to intelligence. The purge reached proportions that have not been seen before in Turkey’s political history. The aim of the purge was to ‘cleanse’ all the branches of governmental institutions from the members of FETO. The process by which those members have been determined, however, has not consistently relied on a legal process. State officials, security forces and the state-sponsored media told people to report individuals and social media accounts that they believed to be related to FETO or to have been disseminating propaganda against the state. Only after these detentions and suspensions became too much to sweep under the rug did Erdogan declare a state of emergency – 5 days after the failed coup attempt. After the state of emergency was declared on July 20th, nine decree-laws were instituted. According to Article 91 of Turkish Constitution “[t]he Grand National Assembly of Turkey may empower the Council of Ministers to issue decrees having the force of law.” These decrees have the same status as a law
In this section, I report what social and legal changes have happened since the declaration of the state of emergency in Turkey and show how these changes made by the civil authority abandon a basic commitment to a democratic rule of law.
To do this, it is important to demonstrate how the Turkish constitution lays out the concept of state of emergency and regulates its invocation/establishment. Article 120 of the constitution states that
“In the event of serious indications of widespread acts of violence aimed at the destruction of the free democratic order established by the Constitution or of fundamental rights and freedoms, or serious deterioration of public order because of acts of violence, the Council of Ministers, meeting under the chairpersonship of the President of the Republic, after consultation with the National Security Council, may declare a state of emergency in one or more regions or throughout the country for a period not exceeding six months.”
There are other articles in the Constitution invoked by this article, such as Article 15 that states:
“In times of war, mobilization, martial law, or a state of emergency, the exercise of fundamental rights and freedoms may be partially or entirely suspended, or measures derogating the guarantees embodied in the Constitution may be taken to the extent required by the exigencies of the situation, as long as obligations under international law are not violated. (As amended on May 7, 2004; Act No. 5170)
Even under the circumstances indicated in the first paragraph, an individual’s right to life, the integrity of his/her corporeal and spiritual existence shall be inviolable except where death occurs through acts in conformity with the laws of war; no one shall be compelled to reveal his/her religion, conscience, thought or opinion, nor be accused on account of them; offences and penalties shall not be made retroactive; nor shall anyone be held guilty until so proven by a court ruling.”
Similarly, Article 17 states: “Everyone has the right to life and the right to protect and improve his/her corporeal and spiritual existence” but the “state of emergency does not fall within the scope of the provision of the first paragraph.” Article 18, for instance, prohibits forced work and labour, unless there is a state of emergency. The article clarifies that “during a state of emergency, any physical or intellectual work necessitated by the needs of the country as a civic obligation shall not be considered as forced labour.” Article 19, which concerns liberty, security, and detention times, states that “the person arrested or detained shall be brought before a judge within … forty-eight hours and in case of offences committed collectively within at most four days.” However, the article also notes “these periods may be extended during a state of emergency, martial law or in time of war.” And according to Article 121, “During the state of emergency, the Council of Ministers, meeting under the chairpersonship of the President of the Republic, may issue decrees having the force of law on matters necessitated by the state of emergency.”
Based on Article 121, the Council of Ministers have been producing decree laws since July 20th 2016, with the state of emergency being the first such law produced in response to the aftermath of the failed coup attempt. Though the stated aim of the state of emergency is to protect a democratic government under peril, there is a certain irony in that the decree laws that have been put in place thus far, and the conduct of the state as well as the security forces, are effectively abolishing a democratic rule of law, and replacing it with an authoritarian abuse of legal process. For instance, on 21st of July, the Minister of Justice, Numan Kurtulmus, declared that the state suspended the European Convention on Human Rights. This declaration was based on Article 15 of European Convention on Human Rights, which states:
“In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.”
For the suspension to take effect, the Council of Ministers did not have to produce a decree law. However, Turkey’s representative to the European Council, Erdogan Iscan, had to communicate the decision to European Council General Secretary Thorbjorn Jagland. It is important to note that while suspending human rights is a common practice during state of emergencies, it still is an extraordinary situation and ultimately results in harm, human rights abuses, and other unjust treatments for those who are deemed to be guilty or even suspects.
Two articles in the decree law that was published in 23rd of July, however, need further scrutiny. In the second chapter of the decree law number 667, which regulates the “the precautions regarding the application of state of emergency”, Article 9 of the decree law 667 reads: “In the scope of this decree law, those individuals who have made decisions and followed orders cannot be managerially, financially, or criminally punished because of their duties.” And Article 10 states: “In the lawsuits against the procedures and decisions made in the scope of this decree law, [those procedures and decisions] cannot be held from being executed.” Moreover, Article 148 of the constitution states “[h]owever, decrees having the force of law issued during a state of emergency, martial law or in time of war shall not be brought before the Constitutional Court alleging their unconstitutionality as to form or substance.”
When all of these are taken together, it appears clear that the state of emergency sets up a legal structure that prevents any individual from seeking a legal remedy or protection since human rights are suspended. No agent of the state can be held responsible in any court; moreover, procedures and decisions by the courts cannot be stopped by the constitutional court. Unsurprisingly, there are now reports emerging from human rights organizations, such as Amnesty International, that security forces are beating, torturing, starving, and raping those who are detained. A journalist with whom I have spoken, who preferred to remain anonymous, said that he and many other journalists he knows are trying to find a way to flee the country due to lack of legal regulation regarding how detentions are conducted. However, their passports could be seized, as has happened to their colleagues, and there are no regulating legal bodies where they can ask about the status of such seizures.
Consequently, after invoking a state of emergency, Erdogan and the AKP government changed the legal structure using decree laws. In the state of emergency’s legal frame, no agent of the state has responsibility for their actions and there is no higher regulating body to which people can appeal about wrongful conduct suffered or about any aspect of the state of emergency. Such adaptations of laws get rid of the ways in which the laws and the legal regulatory bodies act as checks on the state’s power. This creates a political regime whereby the state’s power cannot be checked by a higher authority. Consequently, the decree laws the AKP government put in place and the constitutional provisions under the state of emergency abolished democratic rule of law in Turkey. In other words, in their attempt to foil the coup Erdogan and AKP have created legal conditions that make the political regime more similar to a military junta than a democratic government under peril.
Conclusion: The State of The State of Exception
Due to an attempt at establishing a nation state during the collapse of the Ottoman Empire, Turkey had unique CMRs. This unique relationship manifested itself in the legal regime; more specifically in Turkish Armed Forces Internal Service Law Articles 34 and 35. These Articles worked as justificatory clauses for the previous four coups in the history of Turkish republic. However, the existing CMRs were dependent upon ongoing efforts to solidify national identity, which meant a strict control over religious public life. This eventually led to Islamist political movements that emerged in the 1970s, of which the current government is an offshoot. In their attempt to fix the CMRs in Turkey that were oppressive of certain groups, such as certain religious groups who wanted to see religion take precedence in public life, the AKP government made a series of changes. The biggest change regarding CMRs came in 2013 with changing Article 35 of Turkish Armed Forces Internal Service Law. Publicity around this change, coupled with Erdogan’s large following, generated a massive response against the coup attempt that took place on July 15 2016. Erdogan declared a state of emergency five days after the coup attempt, which was meant to last for only three months. However, on October 3rd, the Turkish government extended the state of emergency for another three months. During this state of emergency, the AKP government took advantage of the state of exception they have created and issued a series of decree laws that undermined the democratic rule of law and the very justification for a state of emergency, which was to protect the democratic government under peril.
This showcases the ways in which the political narrative in a given context can be used to change the legal structure for the benefit of that political regime during times of crisis. This has certainly been the case in Turkey thus far. What allowed four previous coups to take place in Turkey were the CMRs in the Turkish context and their influence upon the legal system. As such, the Turkish Armed Forces could intervene in the ongoing political situation at any given moment and fabricate their own facts or create legal structures as they saw fit. There was, in fact, a historical legal precedent for these coups. The historical timeline however, shifted the political fact in favor of Islamist politicians starting from the 1990s. Therefore, the same moment of crisis that would once have favoured one political regime, today favored another. And in the aftermath of a coup attempt, the existing political crisis created a state of emergency and repeated everything that would have already taken place under military junta.
In a way, it is possible to read the history of the Turkish republic as a continuously implied state of emergency. The possibility to create and legally justify an explicit state of emergency has always existed since the inception of the republic until 2013. And merely three years after the amendment of Article 35 of the Turkish Armed Forces Internal Service Law, there is a civilian led overt state of emergency—initially set for three months. While it is impossible to know where the current of state of emergency will lead or when it will really end, the continuous states of emergencies pose a more serious question: Even if this state of emergency might be over in the near future, will it be possible for Turkey to distance itself from a legal regime that has continuously relied on watchdogs who could initiate immediate states of emergencies citing social and political concerns?
 Ali Erol is Professorial Lecturer at the School of International Service at American University, Washington, DC. I appreciate the reviewers for their invaluable feedback. I would like to send my sincere appreciation to all my lawyer and journalist friends who have helped me with this article and whom I am not naming for safety purposes. But you know who you are, thank you. I would also like to posthumously thank Dave Brubeck for his music that pushed me through the writing process.
 Giorgio Agamben, State of Exception (University of Chicago Press 2005) 1
 Steven A. Cook, ‘How Erdogan Made Turkey Authoritarian Again’ (The Atlantic, 21 July 2016) <http://www.theatlantic.com/international/archive/2016/07/how-erdogan-made-turkey-authoritarian-again/492374/> accessed 27 October 2016
 Ali E. Erol, ‘A Short History of Polarization: Origins of the Failed Coup in Turkey and Its Consequences for Turkish Society’ (KRYTYKA, 22 July 2016) <http://krytyka.com/en/journal/opinions/short-history-polarization-origins-failed-coup-turkey-and-its-consequences-turkish> accessed 27 October 2016
 Ersel Aydinli, ‘A Paradigmatic Shift for the Turkish Generals and an End to the Coup Era in Turkey’  The Middle East Journal Volume/issue and page number?
 ibid 584
 ibid 584
 ibid 585
 This and subsequent translations of Turkish Armed Forces Internal Service laws are my translations.
 Yavuz Cilliler ‘Popular Determinant on civil-military relations in Turkey’  Arab Studies Quarterly 506 Issue or volume number?
 Aydinli (n 5) 587
 Bernard Lewis, Emergence of Modern Turkey (Oxford University Press 1968)
 Cihan Tugal, ‘Gulenism: Middle Way or Official Ideology’ in Umut Ozkirimli (ed) The Making of a Protest Movement in Turkey: #occupygezi (Palgrave Macmillan 2014)
 Ali E. Erol ‘Coherence Co-Constructed: Using Coherence for Analysis and Transformation of Social Conflicts’  Narrative and Conflict: Explorations of Theory and Practice 71 Volume or issue number?
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 Amnesty International ‘Turkey: Independent Monitors Must be Allowed to Access Detainees Amid Torture Allegations’ (Amnesty International, 24 July 2016) <https://www.amnesty.org/en/latest/news/2016/07/turkey-independent-monitors-must-be-allowed-to-access-detainees-amid-torture-allegations/> accessed 27 October 2016