Rupture and repair: military courts and the Turkish Court of Jurisdictional Conflict

Military trials of civilians, state security courts and similar exceptional venues have long been a controversial feature of the Turkish judiciary. However, while much of the contestation regarding the existence such courts has played out in the field of politics, the day-to-day negotiation of the boundary between ordinary offences and the ‘exceptional’ treats to national security that constitutes their raison d’être has generally taken place on the margins of public attention, carried out, not by politicians or army generals, but by jurists operating in the realm of legal technicalities. Focusing on Turkey’s Court of Jurisdictional Conflict (Uyuşmazlık Mahkemesi), this article demonstrates how the interaction of judges and legal scholars over several decades established this practice. It then analyses a series of rulings regarding the jurisdiction of military courts over civilians immediately before and after the 1980 coup d’état. The analysis shows that even when the army suspended the constitution and dissolved parliament, Turkish judges on both sides of the civilian-military divide continued to negotiate their respective jurisdiction in keeping with established doctrine. By obscuring the separation between the law and the exception, they both maintained the autonomy of military courts and solved the jurisdictional conflicts they gave rise to case by case. The Court of Jurisdictional Conflict is thus symptomatic of the Turkish legal tradition’s tendency to leave the state’s fundamental contradictions intact while containing the resulting conflicts within the framework of a flexible legality.