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The ‘Pelican Brief,’ the ‘Coup’, and the Matter of Parliamentary Immunity: The End of the End of Turkish Democracy
Recent Turkish parliamentary scandals—the "resignation" of Prime Minister Ahmet Davutoğlu, the appointment of Binali Yıldırım, and the question of legal immunity for serving MPs—might seem rather inconsequential in the context of the violence, corruption, and increasingly brazen anti-democratic measures instigated, encouraged, tacitly supported or at least ignored by the ruling AK Party and President Recep Tayyip Erdoğan. They might seem even less consequential in the context of the coup attempted on 15 July 2016. But together with other relentless and increasingly unabashed assaults on democracy in Turkey, they betray what one observer has called a “slow-motion coup,” one that has been eviscerating Turkish democracy long before the events of 15 July.
Even before the "post-coup" purges devastated Turkish universities, 147 academics had been under investigation, either by the government or their respective universities, for signing a petition demanding an end to state violence in southeastern Turkey. At least seventeen were fired and twenty-six were taken in police custody. The president deemed all 1,128 signatories enemies of the state, with Sedat Peker, a mafioso close to Erdoğan, promising to “bathe in their blood.” That same month, Zaman newspaper was effectively taken over the by the government on grounds of providing support to the “Fetullah Terrorist Organization” (FETÖ)—the latest casualty in the long line of government takeovers and closures of newspaper and other media outlets on similar grounds.
On 6 May Cumhuriyet newspaper Editor-in-Chief Can Dündar and Ankara Bureau Chief Erdem Gül were sentenced to five years in prison on charges of revealing state secrets for publishing photographic evidence that the Turkish government was smuggling weapons to jihadist forces operating in northern Syria under the cover of humanitarian aid. On the day of the verdict, a self-professed admirer of the aforementioned Peker shot at Dündar in front of the courthouse by. Around the same time the government rejected calls for a state inquiry, and imposed a broadcast ban on stories relating to the sexual assault of forty-five boys in schools owned by the Ensar Foundation (a religious organization with ties to the AKP). A recently established Parliamentary Commission on Prevention of Divorce suggested that women divorce too quickly because of the promise of spousal support, and proposed a one-year, post-divorce moratorium on alimony. At least twenty-one people have been killed in Kilis, a Turkish city close to the Syrian border, by rockets fired from "Islamic State"-controlled areas in Syria, with the government remaining silent, save for the farcical comment from the governor of Kilis, Süleyman Tapsız, that rockets do of course fall “because of gravity,” and a statement from the president’s spokesperson that the "Islamic State" is not necessarily targeting Turkey—rockets might be falling on Kilis “accidentally.”
The state violence against which the previously mentioned petition was signed continues unabated (insightful analyses of the situation in the southeast have previously been published by Jadaliyya here and here). The “refugee crisis” continues, with the shameful deal between Turkey and the European Union no longer making headlines, and steady reports of refugee rights violations and increasing tensions between refugee and "host"populations particularly in the already strained and impoverished Turkish-Syrian border areas seemingly falling on deaf ears. National unemployment stands at 10.9 percent (with youth unemployment at nineteen percent, and regional unemployment in the southeast of Turkey at 16.5 precent). Income from tourism has dropped by at least thirty percent over last year, almost certainly because of the string of recent bombings in Istanbul and Ankara—including the attack on Atatürk airport, barely a month ago but already fading from memory. All in all, internal party politicking and parliamentary immunity seem incidental: far removed from the stark realities of daily life in an increasingly (if not already) authoritarian state, and insignificant compared to the explicit assault on democracy orchestrated on 15 July.
Yet both the intra-AKP wrangling and the 20 May parliamentary vote on the question of legal immunity for serving MPs remain significant—institutional reminders of the slow-burning, subterranean manoeuvrings that have been bubbling their way to the surface since at least the Gezi Park protests of 2013. No one critical of the AKP government has shed many tears over the forced resignation of the prime minister. Davutoğlu has long been considered, and has long behaved like Erdoğan’s puppet, a placeholder that enabled the latter to effectively amalgamate executive and legislative power, a la Putin and Medvedev. Among others, Davutoğlu’s stance during the Gezi Park protests—he towed Erdoğan’s line, accusing internal and foreign provocateurs of exploiting the naiveté of Turkish youth to destabilise the country—garnered him even less sympathy than that afforded to former president Abdullah Gül, who was likewise close to, and later fell out with Erdoğan, but who, though by no means radically progressive, dissented from his stance during Gezi noting the democratic right to protest and dissent. Yet Davutoğlu’s fallout with Erdoğan, subsequent removal from office, and its potential consequences, are perhaps more significant. As Erdoğan has previously stated, Turkey is now a presidential system in all but name. The ease with which Davutoğlu was forced out, and the speed with which other AK Party MPs fell in line speaks to the success with which Erdoğan consolidated his grip on the Turkish state, well before the aftermath of the failed coup.
The “Pelican Brief”
During Erdoğan’s time at the head of the AK Party (a position he had to resign from when he became president), the party’s Executive Committee relinquished its right to appoint city and town representatives to the party leader – a right enjoyed, until recently, by Davutoğlu. During the 29 April 2016 meeting of AK Party’s Executive Committee, forty-eight of the fifty-one members of the Committee signed and passed a petition to restore the right to the Committee. Most observers perceived this as an intra-party coup, and rumours circulated that it was a consequence of Davutoğlu ignoring Erdoğan’s appointment suggestions (which, of course, Erdoğan had no to right to make in the first place). On 1 May, a website dubbed the “Pelican Brief” (after the John Grisham novel) emerged online, with the stated aim of shedding light on the rift between the Hoca (“Teacher,” as Davutoğlu was nicknamed by virtue of having a PhD) and the Reis (“Chief,” as Erdoğan is often called by supporters). The website “revealed” that Davutoğlu’s remaining supporters within the AK Party accused Erdoğan of organizing a intra-party coup, and alleged that a deal had originally been made between Erdoğan and Davutoğlu to assure the latter’s prime ministership.
When Erdoğan was elected president in 2014, there were three candidates to replace him as head of the AKP, and thus, prime minister. There was the previously mentioned Gül, already out of favour with Erdoğan, seen as too sympathetic to Gezi, and opposed to the presidential system Erdoğan was pushing for. There was Binali Yıldırım, unflinchingly supportive of Erdoğan, but deemed ill-equipped and insufficiently charismatic for prime ministership. Finally, there was Davutoğlu, whom Erdoğan liked for prime minister, but few others did. In exchange for ‘making’ Davutoğlu prime minister, the “Pelican Brief” alleged, Erdoğan demanded that Davutoğlu support him on all matters of governance; develop a foreign policy doctrine that would defend the AKP’s policy on Syria; and, when the time came, support a presidential system and step aside. When Davutoğlu, as the ‘Pelican Brief’ detailed, reneged on his side of the bargain, he was dispensed with.
That some of Davutoğlu’s indiscretions seem relatively minor speaks to the tightness of Erdoğan’s grip on power, and the increasing extremes of loyalty he demands. Among the indiscretions enumerated by the “Pelican Brief” was Davutoğlu’s failure to openly support four ministers (some of Erdoğan’s closest allies) implicated in the 2014 graft scandal; his suggestion that Hakan Fidan (a close ally of Erdoğan, and current head of MİT, the Turkish national intelligence agency) run for parliamentary elections, which would have taken him out of MİT and thus potentially loosened Erdoğan’s grip on the agency (Erdoğan allegedly accused Davutoğlu and Fidan of maneuvering without his permission, for which Fidan subsequently apologized, withdrawing his candidacy); and his lack of support for Erdoğan’s position on the pre-trial release of Can Dündar and Erdem Gül (Erdoğan thought they should remain in pre-trial detention, and chastised the courts for their release. He was unhappy when under the leadership of Davutoğlu, the AKP released a statement noting that ‘this [was] the president’s personal opinion and not that of the AK Party’). When in April Erdoğan suggested denationalization for ‘members of terrorist organizations and their supporters’ (which, in Turkey, can include large swaths of the population, including journalist, academics, activists and NGOs supporting, for instance, government accountability in southeastern Turkey, or indeed, signing a petition demanding peace in the region), Davutoğlu was again defiant, suggesting that such measure was outside of the realm of possibility.
The biggest problem, however, seemed to have been Davutoğlu’s perceived ‘wavering’ on the need for an executive presidency. Appetite for a presidential system seems not to extend far past Erdoğan and his staunchest supporters. In the first national elections following the Gezi Park protest (in June 2015), when the presidential system was made the centerpiece of AKP’s electoral platform, the party failed to gain a parliamentary majority for the first time since it initial election in 2002. During the subsequent reelections in November 2015 Davutoğlu made little reference to the presidential system, and the AKP regained its majority. Yet Erdoğan was displeased, and Davutoğlu’s suggestion that the party should wait for the ‘right time’ to discuss the constitutional changes required for a presidential system seems to have pushed Erdoğan over the edge. Davutoğlu was, in his own words, ‘forced [to call for a congress on party leadership] by conditions beyond his control’, and declared that he would not stand as a candidate in the leadership election.
Though the congress was to take place on 22 May 2016, on 19 May a meeting was held among high-ranking members of the AK Party, followed by a press conference announcing that the previously ill-equipped and insufficiently charismatic Binali Yıldırım, Minister of Transport, Maritime and Communications, would be the sole candidate for party leadership, and thus, prime ministership. Yıldırım’s confirmation came as little surprise – party insiders have previously alleged that Erdoğan told Davutoğlu that he if wouldn’t tow the line, Yıldırım would run the party. Wasting no time Yıldırım announced that he would ‘work in complete harmony with our founding president and leader [Erdoğan] and with every single member of the AKP family’, and that, the Turkish constitution notwithstanding, ‘the people’ were demanding an executive presidency, with the president responding accordingly and appropriately. In the twilight zone of Turkish politics, pro-AKP media spun the whole Davutoğlu—Yıldırım—Pelican Brief kerfuffle as evidence of the need for a strong, ‘single-headed’ presidential system.
The Matter of Parliamentary Immunity
Equally, if not more significant is the question of legal immunity for serving MPs. Turkish law protects MPs, whilst in office, from being tried and punished for crimes they are accused of committing prior to, or during their time in office (they can be tried and punished once they leave office). On 20 May, the third round of parliamentary voting took place on an AKP proposal for a ‘temporary addition’ to the constitution. Passed with 376 votes (meaning that not only AKP, but also some opposition MHP and CHP members voted for the proposal) the ‘addition’ lifted the legal immunity of currently sitting MPs, rendering prosecutable those against whom cases were already pending.
Though this might seem like an "equal opportunity" measure, and the lifting of legal immunity is not necessarily, in and of itself, a bad idea, there are a number of issues that make it extremely problematic in this case. First, the measure only applies to those against whom cases have been opened prior to 20 May, that is, the day on which it was passed. As such, it appears rather vindictive and opportunistic—as opposed to being actually concerned with bringing ‘criminal’ MPs to justice. Indeed, some members of the CHP and HDP (including Demirtaş) argued instead for an unconditional lifting of all legal immunity—but that is not something the AKP was willing to consider.
Second, and related to this, the vastly disproportionate number of cases pending against members of the pro-Kurdish HDP is an immediate cause for concern. During the AKPs time in government, pro-Kurdish parties have twice been disbanded, and pro-Kurdish candidates have had to resort to running as independents in order to circumvent the electoral threshold of ten percent. With the formation of the HDP, a pro-Kurdish party (though one very different from those of the past) had, for the first time, surpassed the ten percent electoral threshold in both the 2015 national elections and re-elections. Since then, the government has exerted significant pressure on HDP MPs and supporters.
As of 4 May, 366 cases were pending against members of the HDP, which has only fifty-nine MPs, fifty of whom are facing prosecution; 185 cases were pending against members of the main opposition party, the CHP; forty-six against members of the ruling AKP; and eighteen against members of the nationalist MHP. The numbers mean that something like eight-five percent of HDP MPs, thrity-eight percent of CHP MPs, twenty-two percent of MHP MPs, and nine percent of AKP MPs are liable to be tried and potentially imprisoned for crimes they are accused of committing. By 2 July, 799 “files” (not yet, but liable to become cases) were opened on 152 MPs.
Third, and again not unrelated: although the measure applies to all criminal cases, it was immediately suggested that as “the Turkish public” is most interested in prosecuting those suspected of participating in, and supporting “terrorist activities,” the measure would be enforced primarily in such cases (as opposed to cases of say, traffic violations). Unsurprisingly, there are a disproportionate number of such cases pending against members of the HDP. Forty-nine of the 366 HDP cases are against the party’s co-chairman, Selahattin Demirtaş. They range from insulting the prime minister and president, to inciting hatred and enmity among the population, to voicing support for the previously mentioned Cumhuriyet journalists Dündar and Gül. Most of the charges against members of the AKP, a CHP MP has suggested, are for various traffic violations. The (justified) fear is that the law will be used to try to rid parliament of the pro-Kurdish HDP, whose seats, the AKP hopes, will go to them, giving the party the necessary majority to push through the constitutional amendments required for a presidential system.
Though the Chief Prosecutor’s Office announced that MPs would not be compelled to testify, prosecutors have been given the green light to initiate proceeding with or without their testimony. Demirtaş has refused to testify, but MHP’s leader Devlet Bahçeli chose to appear in court on 13 July on charges of inciting violence during a speech in Bursa in 2013. Asserting that the matter of parliamentary immunity was exaggerated by media and that his charges of incitement to violence were actually an incitement to fight PKK terrorism, he argued that it was time for MPs to put their trust in the justice system—for reasons enumerated above, an argument that has undoubtedly rang hollow for HDP MPs.
Though Yıldırım has declared 15 July an official “Democracy Holiday” (Demokrasi Bayramı), for many, there has been little to celebrate about Turkish democracy, and it is likely that there will be less still. As of 17 July, 1,440 people have been injured and 265 have died in the attempted coup (161 civilians and 104 soldiers, some of whom at least were apparently unaware that they were staging a coup, claiming, for instance, that they were instructed to block sections of the FSM bridge in Istanbul as a training exercise). 2,839 mostly military personnel, including twenty-nine generals, have been taken into custody. 2,745 judges and prosecutors were (at least temporarily) relieved of their duties, on grounds of membership in terrorist organisations and attempting to overthrow the government—250 are already in custody. Ten members of the Danıştay (the highest administrative court in Turkey), two members of the Constitutional Court, and eleven members of the Yargıtay (the Court of Cassation) have also been placed in custody, with custodial warrants out for another 129 Yargıtay justices. Eight thousand police officers have been temporarily relieved of duty on grounds that they supported the coup on behalf of FETÖ. By 19 July the purge was extended to the Ministry of Education and YÖK (Yüksek Öğrenim Kurumuö, or the Higher Education Council), with 15,200 staff suspended at and by the Ministry of Education, four university rectors suspended by YÖK, and 1,577 university deans resigning their posts. By 20 July, all academics have been temporarily banned from travelling abroad.
Three main narratives (though with some variations) have thus far been offered to account for the events of 15 July. The first holds that what took place was an unsuccessful, military coup d’état, against which the government is now defending itself. The second concurs with the first half of the assessment, but suggests that the government had seen it coming and let it unfold, so as to quash it and gain the political capital necessary to purge the judiciary, military and civil service of its detractors once and for all. The third holds that the whole thing was orchestrated by the government and/or president for the reasons enumerated by the second narrative. From the perspective of Turkish democracy, the “truth” of the matter is at this point (almost) irrelevant. Erdoğan has been working diligently to consolidate his grip on executive, legislative and judicial power. In his eyes, and in the eyes of many of his supporters, the attempted coup has given him the legitimacy to ramp up those efforts. Even without the coup, he was inching closer to the executive presidency he has been pining for. In the aftermath of 15 July 1its institution seems almost inevitable. To mash up (and paraphrase) Althusser and Chaucer: In the last instance, all roads lead to a presidential system.
 For more on FETÖ see “Erdoğan critic and ex-police chiefs go on trial over corruption inquiries.”
 Incidentally, the “Pelican Brief’s” stated aim was to defend Erdoğan against rumours circulated by supporters of Davutoğlu.
 The vote was by secret ballot, but it was speculated that all MHP and some 25 of 133 CHP members voted for the bill. The CHP’s leader, Kemal Kılıçdaroğlu, publically expressed his party’s support for the bill. Though most CHP MPs voted against the measure, some justified supporting the bill by suggesting that if it did not pass in parliament the AKP would put it to referendum—where it would pass anyway, but which presented the risk of an additional question on the presidential system, which might pass with it. Yet for many of those who gave CHP ‘one more chance’ in the last elections—the CHP has been trying to re-brand itself as a liberal force in Turkish politics, and compete for the votes of younger, more liberally minded generations, which, following the Gezi Park protests, have often gone to the HDP—its complicity in the passing of the immunity measure, even with the aforementioned rationale, was difficult to swallow.
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