The problem of sovereignty

“Sovereign is he who decides on the exception” is a statement by the famous German political philosopher Carl Schmitt that has become a maxim: It has actually been read as a candid observation that instantly deciphers the reality contained in the question of political sovereignty, namely the theological content of politics. This statement is an avowal of a tragic reality that people usually prefer not to accept, yet which repeats itself constantly in the political process.

Still, it is best not to accept it, otherwise politics becomes impossible. For politics cannot be conducted without a degree of optimism that it is somewhat possible to put the world back on its normal track.

The presence and power of a focal point capable of deciding on exceptional situations, and deciding that the routine of law can be departed from under certain circumstances, is felt not only in exceptional states; those exceptional decisions step in to assert the privilege of determining all normal times as well. That is why coups, viewed in Turkey as an exception and an extra-routine phenomenon, remain decisive even outside the periods when they are actively in operation. Because stepping outside the legal routine—that is, deciding on an exceptional situation—is regarded as the most natural right of certain individuals and institutions.

In the Republic of Turkey, no one has the right to disregard the laws. More precisely, a right to remain indifferent to laws is neither recognized nor defined in any law. However, in contrast to this theoretically indisputable reality, in actual practice, what is written in the laws or the Constitutional text can be suspended without being seen as binding on certain actors at all.

As İsmet Berkan brilliantly summarized in his last seven articles in Radikal newspaper, a total of six coup attempts have been undertaken within the last seven years. Each of these attempts, on its own, constitutes a full attempt to abolish the entire constitutional order of Turkey. Among the organized deeds mobilized during these attempts, you can find everything: lies, fraud, slander, the use of public resources for personal ambitions, bombings, murders, and terror.

When one looks at the totality of the picture presented by these attempts, a concentration threatening the existence of the state is plainly visible. There is no shortage of evidence to point out these criminal centers; if anything, there is a surfeit. Yet, no judicial will steps forward against these attempts.

Prosecutors who suddenly discover in the ruling party the possibility of "becoming a center of anti-secular activities"—which no one else could see—and act on their own initiative in the name of the duty assigned to them by law to file a closure case, somehow manage to maintain their silence against these "junta-style formations and concentrations targeting democracy" that everyone sees plain as day.

In fact, it would be fine even if they merely remained spectators. Those who decide to open a closure case against the AK Party in the name of law do not hesitate to fall right into the middle of the intense efforts of these coup attempts—each displaying the concentrated effort of numerous organized crime groups—and to stand in the same ranks with them.

Today, the high judiciary is rewriting the text of the constitution through the attitude it has displayed so far, whether in the 367 decision, in cases related to other constitutional amendments on the agenda, or in the closure case. It creates powers for itself that the explicit provisions of the constitution do not grant, and adds them to the constitutional text. It writes legal text like a legislator. Despite the famous legal principle stating "There is no room for interpretation where explicit text exists," it subjects even the most explicit legal provisions to its own interpretation.

Here, the exceptions effectively introduced to the literal text of the law are not even seen as a constitutional violation. What is taking place is a reminder of sovereignty through violation and exception, viewed as an utterly natural and self-evident right.

Of course, one must not overlook the reality that the formula "sovereignty belongs unconditionally to the nation" does not function in all its simplicity within a constitutional state. Universal principles of law naturally impose certain limitations on the exercise of this sovereignty.

However, as you will appreciate, these limits do not constitute an exception in law; rather, we are currently suffering not from a legal will that establishes exceptions, but on the contrary, from a will that imposes exceptions on the very operation of legal principles.

Although these exceptions point to the current address of sovereignty, this address cannot be accepted as an insurmountable fate standing before politics—that is, before humanity's pursuit of freedom and justice.