September 16, 2014

Why the ruling power cannot legally do away with the movement

Sercan Zorbozan*

If it is interpreted in accordance with daily incidents and developments, the law loses its objectivity. It is affected by the points of view of those who oversee these incidents, and it is thus amended to serve the personal goals of the private actors.

The Justice and Development Party (AKP) administration has tried hard to ensure in its fight against the Fethullah Gülen movement that the law is amended to serve its changeable and superficial arguments. And it is still working to achieve this goal. It is trying to implement a state of martial law that it declared by forming partial courts that had never been seen in our near past. But the result is nothing more than the arrest of some people based on ungrounded accusations. Martial law is a state of affairs decreed and created by the sovereign; this is the starting statement in Carl Schmitt's book "Political Theology." But he also clarifies the distinction between a state of emergency and one of illegality. He holds that the sovereign creates and guarantees his own self and integrity. This is the core of state sovereignty; and it is defined as the monopoly of ruling as required.

We first need to elaborate on what must be avoided. The law, which keeps the course of life in order and prevents chaos, is interested in what is normal. Law is not concerned with states of emergency. On the contrary, where normality is broken and social chaos becomes a possibility, the law is disturbed. And in cases where a state of emergency is declared, many legal rules are suspended and the sovereign claims further powers in many fields. But power is not transferred in every state of emergency. As noted by Schmitt, it remains in the realm of legal assessment; for this reason, it cannot be fully exempt from inspection. What must be avoided is the project of eliminating a religious community by exceeding the limits of the law. Where the boundaries of constitutional law are violated, the law of the blood feud takes reign; this is a tribal law whereby the powerful brutalize and persecute the poor.

But we see that the Gülen movement has stayed alive in an environment where the law is violated and many of its components have been adapted to political ambitions and blood feuds because the government apparatus has failed to appreciate the whole case; for this reason, its plans failed. The police officers who conducted the corruption operations were placed under arrest on espionage charges, and they were then sent to jail on the basis of superficial accusations, including illegal wiretapping. There are also attempts to sink Bank Asya; but the bank has now been shored up after many people, in protest against these attempts, deposited money with the bank.

The political administration is left with no legal card in its fight against the Gülen movement; it cannot eliminate this movement, because exceptional situations will always emerge, and the political administration will be negatively affected by the state of emergency it has declared in the absence of decision-making mechanisms.

Let me finish by quoting Schmitt. Legal expert Gerhard Anschütz responds to the question of what method should be employed in the absence of a budget law. He says there are some gaps that cannot be filled by any theoretical operation based on the science of law, unlike a gap in a legal or constitutional text. Public law ends there.

*Author and writer.

Published on Today's Zaman, 16 September 2014, Tuesday