The political sand in the bucket of law: Hagia Sophia

Turkish Council of State's decision about the Hagia Sophia is a peak of anti-legality. It is such a political decision that you cannot even fathom sticking any legality on it. As you would not be able to carry water in a bucket full of sand. Let me explain why.

What sort of a decision is the Council of State decision about the Hagia Sophia? Let me put it quite clearly at the outset. It is a peak of anti-legality: No legality, absolute politics. It is such a political decision that you cannot even fathom sticking any legality on it. As you would not be able to carry water in a bucket full of sand.

Let us start with the questions:

How did the Hagia Sophia turn into a mosque?

Who doesn't know that? Obviously, Mehmed II tore down the walls of the city with his army, and making his way into the city, he said 'convert it to a mosque', which they did. Any attempt at legitimizing the legality of this conversion, including the fanciful stories of the purchase of the Hagia Sophia, is futile. The only instrument of legitimization was Mehmed II's will, i.e. the sword he wielded in his hand. Are we actually to believe that he actually bought a part of the city he conquered following the war he won? Furthermore, among which losers of a war would you able to find a patriarch, cardinal, pontiff, or even Shaykh al-Islām (the highest ranking religious leader of the ulama, or the learned ones, in Islam) that would dare not sell the property when the conqueror asks them to. This is a taking, not an exchange. He took it, and that's that.

Bahçeli may pretend to actually believe it

How did the Hagia Sophia become a museum? Mustafa Kemal, who abolished the Ottoman Empire, wanted it to become a museum and he turned it into one with a Cabinet of Ministers decision which he put his signature to. The only legitimization instrument in this case was Mustafa Kemal's will, i.e. the executive power he had. Any attempt at delegitimizing that will by arguing that his signature on the Cabinet of Ministers decision was forged is in vain. Just because Devlet Bahçeli pretended to believe that Mustafa Kemal was unaware of a decision about the fate of the Hagia Sophia when he had in fact visited it when it was a museum, we do not have to. Are we to believe that Mustafa Kemal was a leader who did not know about his signature put on a decision taken by a state he had founded? Administrators of otherwise good repute which have simply been deceived by others is an invention of our time, not applicable to those days.

The defining feature of these two manifestations of will is not law but sovereignty. Law does not make the sovereign; the sovereign lays down the law, if he so wishes. "Sovereignty of law" can only be instituted as decided by the sovereign after establishing his sovereignty, in a sovereign decree. Nobody has ever witnessed an abstract form of law functioning at all times. However, of these two manifestations of will, the former is a unilateral execution in the form of an edict whereas the latter is a decision of a council, and therefore the will of a delegation (of multiple actors), albeit in form only. The source of the authority legitimizating the first decision is the one that is resorted to for the legitimacy of the sultanate in the first place; and therefore, it comes from the heavens, it is divine, it is God himself. The sultan is therefore the “zılullahı fil alem", meaning the shadow of God on earth. The legitimizing authority of the second decision is the text of the constitution setting out the powers of the president and the cabinet of ministers, the authority in this case being an earthly one. This of course does not resolve the question of Mustafa Kemal effectively running the country in a "one-man rule" at the time but it indicates that the two political acts are based on different legal grounds.

In the first one, a legal criticism that would impact the edict is out of the question. In the second one, the decision takes the form of a legal action and therefore allows itself for any sort of legal criticism in theory if not in practice. The legal grounds applicable to the second case can only be established with a total rejection of the first. If there is the edict, then one cannot speak of an action based on a contract. A system built upon contractual acts chooses not to recognize the legitimacy of the edict.

Law on the abolition of the caliphate

As those who passed the Cabinet of Ministers decision that converted the Hagia Sophia into a museum were very much aware that what they were doing was a political act, they did not leave the job to the directorate-general of foundations or a bureaucratic unit tasked with national education or culture, and they first took the political decision.

The thesis that the Cabinet of Ministers decision lacks the "legal ground" (as it is mumbled in the revocation decision of the Council of State) does not hold water at all.  Not because the Cabinet decision did not require a legal substantiation but because the Council of State ignores the Law on the Abolition of the Caliphate, which was the last nail on the coffin for the dissolution of the Ottoman Empire. That law states that all property owned by sultans "shall revert to the nation". Why would a post-imperial administration that passed this kind of a law look for any other legal grounds in taking action about a property inherited from a sultan (even if it was under the management of a foundation)?

Imitation of legality

We can now move on to the Council of State decision.

The Council of State decision is further away from law than the first two decisions, one being the edict and the other a covenantal act. The first two decisions are decisions of political will, translating the sovereignty possessed into legal form. The first decision bears the idea of a law of war while the second the supremacy of politics over law. As for the Council of State decision, it cannot go beyond a poor imitation of law. The political will necessary to render it legal, and hence the legal basis which would legalize the decision is not present in the material decision. And it cannot be in any case, because courts would neither recognize nor understand a manifestation of will that has not been translated into law.

The judiciary can limit sovereignty and oversee the acts of the sovereign but cannot replace it. It is hard to find a more pitiful sight than a judiciary that revokes the decisions of past sovereigns in a pretend legal way while refraining from probing into the decisions of the incumbent sovereign power that have defied the laws that it itself laid. And we are simply laughing at our misery.

Why not politics first but the judiciary first?

But can the Hagia Sophia, which was turned into a mosque from a church, and then to a museum from a mosque, become a mosque again? Of course. Sure! But the way to do that is not that of law but politics. The political way is as wide open as the legal way is completely shut. As did Mehmet II and Mustafa Kemal, the head of the current state Recep Tayyip Erdoğan can avail himself of this route any time he wants. But he did not. He decided against that and went with this Council of State shadow puppetry. Why? I will offer two reasons.

The first is to be able to throw their hands in the air and exclaim "this is how the judiciary decided, so we have to abide by it" in international political and diplomatic discussions. And therefore, keep the backtracking option alive. This is because the first person to know that the decision about the Hagia Sophia does not only address the domestic public opinion but also, and perhaps foremost, aims for international organizations and community is Recep Tayyip Erdoğan himself. Erdoğan's speech that has gone viral again after the decision of the Council of State in which he admonishes "those wishing to see the Hagia Sophia open for worship" is clear indication of this. But not all is about using a try-and-see tactic, nor is it all about defence; it would be naive to believe that while there are more castles to be conquered. That is where the second reason emerges: exploiting the news-making political implications of a decision dressed in legal (judicial) clothing in the coming days. The places where the political fist clothed in the glove of the Council of State punched show the places to be punched further down the line.

If you are the sultan

The first punch goes to the 1934 Cabinet of Ministers decision signed by Atatürk, but this is not the only punch. As a document stipulating the will of an Ottoman sultan, the waqf deed (deed of endowment), taken as a basis for the revocation of the Cabinet of Ministers decision, makes a large dent in the law on the abolition of the caliphate (if short of rendering it obsolete).

Because, if what follows from this is that a decision of a Republican government can be revoked by recognizing the legal admissibility of a deed of endowment created by Mehmed II, then it would be necessary to know what should be done about the provision in the deed which goes "Should the Ottoman state collapse..." Mehmed II says, "Should the Ottoman state collapse, the trustee of my waqf (foundation) shall be the head of the state that will be established in its stead." This means that the Council of State, by declaring the 1934 Cabinet decision to be against Mehmed II's will, contravenes another provision in the deed against the will it has honoured. If the deed of endowment is valid, then the trustee of the foundation at the time was the president of the time. In summary, this looks like the letter that Mehmed II allegedly sent his father Murad II for him to take charge of the army during the Second Kosovo War: If you are the sultan, come sit on the throne. If I am the sultan, then I command you to come. If the deed is invalid, then it is not the judiciary's place to counter the decision. If the deed is valid, then it is not as easy as some seem to think to eliminate the decision made by Mustafa Kemal by penning long, verbose paragraphs, since he was in fact the trustee, if we are to go by the deed. A fait accompli does not signify a legal action but sovereign one.

What 'reverting to the people' means

No special decision was taken in the republican era about the fate of the foundations sultans had established.  However, the law on the abolition of the caliphate might be a fair guide: The law says that the property of the Ottoman sultans "shall revert to the nation". In practice, this provision was interpreted specifically to apply to the property of the sultans whose offspring were still alive during the first years of the republic. But this interpretation is a given because of the nature of things as at the time there was no other sultan or heir apart from Abdulhamid, Vahdettin, and Mehmed Reşad and caliph Abdulmejid Efendi, whose property would be subject to this arrangement. In any case, in the Ottoman practice, the inheritor of the property of the sultan is not his offspring but rather the new sultan.  With the change in the principle of sovereignty, transitioning from the rule of a dynasty to the republic, it was already premeditated that this property would be reverted to the "state", or the nation, as it is deemed in the republican jargon.

It does not matter if it makes legal sense or not

So, the Council of State decision, at its most basic, is an attempt to pass off political  decisions as legal decisions that would be taken on the basis of documents left by Ottoman sultans (could even be forged documents; if so, even better). It is the first such attempt. Of course, the Republic did not represent a complete severing of the ties with the Ottoman Empire. It was generally recognized that there was legal and political continuity in many respects. So, the heritage was not rejected completely. But the break-off in terms of the principle of sovereignty was certain; the most important indication of this being the decisions made with respect to the sultanate and the dynasty. It was such a severe break that not only Mustafa Kemal's but also Erdoğan's presidency was only possible by means of this break-off. Of course, in this transition many problems difficult to accept from a legal perspective were experienced in a wide array of issues, including property, and readjustments were necessary and perhaps are still necessary. However, legally fixing some damages and violations that occurred while the principle of sovereignty was changing is one thing and placing the law-making will of sultans above the law-making will of the republic is entirely another thing. We will be seeing many other staged dramas like this until the result of this one is clearly declared. Many provisions of the Civil Code are already under attack. No-one should be surprised if the Civil Code itself is the next target.

Notes:

1)The deed of endowment (waqf deed) serving as the basis for the Council of State decision. This is not sufficient to prove that the foundation that Mehmed II had established was one of the actively operating foundations prior to the proclamation of the republic. Just because it is a historical document, it does not automatically mean it is a document in force. In fact, the dilapidation of the Hagia Sophia during the last days of the Ottoman reign and the first years of the republic clearly shows that there was not an active foundation taking care of the building.

2) Mustafa Kemal visited the Hagia Sophia when it was a mosque as well as following its conversion into a museum (on 6 February 1935). No records of the first visit exist but we know in detail about the second one. The claim that the signature is forged and therefore the Cabinet of Ministers decision is controversial does not hold water against this second visit.

Another argument is that Atatürk had not received the surname Atatürk at that point and that the Surname Act had been promulgated later: There are instances where that surname was used before the act was passed. Furthermore, people seem to think that that surname was given to Atatürk by that law while in fact it was he himself that had this surname put in the text of the act and therefore received it.

3) When Cemal Gürsel remarked in 1964 that he was the trustee of the Hagia Sophia, he was referring to the provision in Mehmed II's deed of endowment. Of course, this remark is metaphorical in nature; there is no such trustee. The main idea behind that remark is an underscoring of the political dimension of this affair in relation to sovereignty.

November 15, 2019 Justice as a Russian roulette