By FARUK OZCAN
In the aftermath of the failed coup attempt, the Turkish government declared “state of emergency (SoE)” on 21 July 2016 for three months (1). Within this period, Turkish government adopted various types of excessive and disproportionate emergency measures, among others, detention of judges, prosecutors, journalists and Gulen movement affiliated figures, dismissal of tens of thousands of public servants, closure of associations, media outlets and over one thousand educational institutions (2).
This three-month of SoE period has been prolonged three times since then. Similar severe emergency measures taken progressively by the government have dramatically curtailed many civic rights and freedoms and sparked off a growing social trauma. Moreover, a controversial constitutional referendum towards a regime change was held on 16th of April this year likewise under the SoE. More importantly, on the verge of a fourth extension, President Erdogan emphasized that SoE would continue until “welfare and peace” in the country is achieved (3).
In the light of the foregoing practice, the Turkish government has employed the “state of emergency” which ought to be temporary as the new “normalcy”. Amongst grave violations of basic human rights under the SoE regime, the public discourse in Turkey has mostly focused on the number of people jailed and what kind of remedies are available for the victims of the SoE. In the ongoing cacophony along with information pollution, the legitimacy of the declaration of the SoE could not find a place for itself in media or public discussions. However, even the declaration of the SoE had apparent contradictions with constitutional and universal principles in several aspects let alone its extension several times.
In theory, the introduction of an SoE ought to be very exceptional and should only aim to prevent the circumstances threatening the life of the nation. With the declaration of the SoE, the Council of Ministers can issue decrees having the force of law (emergency decrees) required by the SoE. These decrees can partially or entirely suspend the exercise of fundamental rights and freedoms of citizens (4).
Articles 119 and 120 of the Turkish Constitution as well as the Act no. 2935 on State of Emergency (SoE Act) clearly set forth the situations that may require the declaration of an SoE, namely “natural disasters”, “dangerous epidemic diseases”, “heavy economic depression” or “widespread acts of violence.” The Constitutional Court further clarifies these circumstances in its judgment on March 5, 1992, no: 21162, stating that “the state of emergency regime can be invoked in the event of internal disturbances, uprisings, the emergence of a situation necessitating war, the state of war, natural disasters, heavy economic depression and similar circumstances that would deeply weaken the security of the state and society” (5).
The Council of Ministers of Turkey declared the SoE to be effective from July 21, 2016 for a period of three months, pursuant to Article 120 as a remedy against the foiled coup. The same day, the Turkish government derogated from the European Convention on Human Rights (6). The failed coup attempt was indeed a serious act of violence of an exceptional character threatening the public order, described in the Constitution as a condition for declaring an SoE. However, the coup attempt was thwarted and the perpetrators were detained within hours. Furthermore, the government officially announced the same day that the constitutional order had been entirely restored and that the civil government had full control over the country.
Overlooked contradictions started just at this point as the SoE was declared six days after the suppression of the coup attempt, when the constitutional order had been functioning thoroughly for almost a week. At the time of the declaration of the SoE, there were no ongoing, widespread acts of violence deteriorating the public order or serious indication of that. The public emergency situation was neither actual nor imminent. In this regard, the declaration of SoE regime has not been complying with the Constitution in terms of the “reason” element.
President Erdoğan stated that the National Security Council recommended the declaration of the state of emergency with an aim to “immediately eliminate all elements of the terrorist organization that committed the coup attempt.” (7) This statement implies that the objective of the SoE was not to suppress ongoing acts of violence, but to punish the so-called perpetrators by administrative acts. Unless there are ongoing, widespread acts of violence seriously deteriorating the public order, fight against terrorism can only be carried out with by means of normal measures defined by criminal and anti-terrorism laws. Given its exceptional and extraordinary nature, suspending the democratic principles of the Constitution for an interim period, the conditions of the SoE cannot be interpreted broadly so as to extend its application arbitrarily.
One can clearly see the inconsistency in the phrases used in different SoE emergency decrees and articles. The very first article of the first SoE decree (No. 667) lays down the goal as the “fight against the coup attempt.” The subsequent articles and decrees set out more general objectives, such as the “fight against terrorism” and the “fight against entities threatening national security” (8). However, the Turkish Constitutional Court had confirmed in its earlier decision (No. 21162) that “with these kinds of decrees, one can only take specific and case by case measures to the extent strictly required by the exigencies of the situation only to eliminate the causes of the public emergency situation.” Therefore, the use of these general terms implies that the objective of the SoE has deviated from the factual incident, which was the coup attempt. Extending the scope of the SoE through general, obscure, subjective and uncertain phrases makes it contradictory to the constitutional framework.
Moreover, the scope of the emergency decrees has been further extended by targeting individuals who are considered to be a member of, affiliated with or linked or related to those groups, structures and entities that are decided to be a threat to national security. This provision grants the power to the authorities to arbitrarily label more than half the Turkish nation to be a “national threat” due to its open-to-comment, highly ambiguous and subjective nature. As millions studied in Gülen-linked schools, stayed at their student houses or dormitories, participated in activities of Gülen-affiliated civil organizations, made charity and bursary donations through their charities, they can one way or other be considered linked to this group, and it can be decided that their families, relatives and friends are related. On top of that, the proof of this linkage is up to an arbitrary assessment that no evidentiary element is required so it is impossible to know on what criteria it is based (9).
On the other hand, while the said emergency decrees were written in a way to find tens of millions of people guilty, relevant provisions have been implemented for “certain” persons/segments of society and the rest have been spared. This selective approach raises even more serious suspicions regarding intention of the decrees, meaning that the aim of these decrees was not to find the guilty but to create a broad definition of offense for people who have already been arbitrarily convicted/decided beforehand to be guilty. This behaviour is no different than the ancient judicial practices in the medieval inquisition.
In the SoE regime, the executive power is granted a wholesale monopoly of the production of law on SoE measures, bypassing the legislature without seeking an authorization act. Therefore, the SoE declared in Turkey without the necessary conditions being met has resulted in a “de facto usurpation” of the legislative power. Similarly, the principal function of an independent judiciary and criminal law is to distinguish between the guilty and the innocent. However, with the issuance of the emergency decrees, the executive power has effectively assumed this task as it has consolidated all the powers within itself to declare any entity it wishes as a terrorist organization and to relate anyone to these entities.
Meanwhile, the Turkish Constitutional Court rejected the main opposition Republican People’s Party (CHP)’s appeal for the annulment of emergency decrees issued by the government in the SoE period on the grounds of non-competence (10). In addition, despite the fact that Turkish judiciary was incompetent and reluctant to show off a judicial activism for ruling on the emergency decree victims’ cases, the European Court of Human Rights (ECtHR) underpinned the SoE regime in Turkey with at first its Zihni case (11) then its recent Koksal case (12) using the subsidiary pretext. Along with the fact that these decisions are not subject to the review of domestic or international courts, the new “state of emergency” era has also resulted in complete usurpation of the judicial power.
Granting extraordinary executive powers to government in an attempt to reinstate the public order, SoE regime is quite likely to shelter unjust measures. Hence, temporariness of this exceptional regime depending on emergency necessities is a worldwide fundamental constitutional principle. (13) However, having been ruled under SoE regime nearly for a year, the Turkish practice is being carried out in totally opposite way to this general custom. This outlandish practice was already criticized by venerable authorities of Council of Europe (CoE). The CoE Commissioner for Human Rights urged the Turkish government to repeal the emergency decrees and expressed his regret for the first extension of the SoE in October 2016 (14). In the same vein, the Venice Commission raised the justification issue for the prolongation of SoE the following month (15). Although the current position of ECtHR regarding the post-coup cases does not give white hope for a potential judicial ruling on legitimacy of the extension of SoE regime in Turkey, the legality of emergency measures remain valid for a such long period will inevitably be examined in a future case to be held by ECtHR. Nevertheless, having the possibility of restoring the violated rights later on by international bodies as a last resort would be hardly relieving.
Briefly, the state of emergency is a regime established under the Constitution with a pure view to applying in extraordinary situations on a very exceptional basis. The conditions of the declaration of SoE are limited to situations of public emergency seriously threatening the life of a nation. The SoE measures need to be taken to the extent strictly required by the exigencies of the situation and cannot include subjective, obscure and uncertain definitions. Otherwise, it would result in the exploitation of the SoE as a pretext to carry out a politically motivated crackdown to silence dissidents as we witness in Turkey at the moment. Constantly extending the state of emergency may well have the danger of turning the temporary nature of this regime into an institutional permanent normal order as opposed to the rule of law.
2. See the Council of Europe Commissioner for Human Rights’ Memorandum on the human rights implications of the measures taken under the state of emergency in Turkey, https://rm.coe.int/16806db6f1
4. See, Venice Commission’s Opinion for an exquisite analysis of the constitutional framework of state of emergency regime in Turkey,
5. Constitutional Court of Turkey’s judgment no: E. 1990/25 K. 1991/1 http://www.kararlaryeni.anayasa.gov.tr/Karar/Content/b1077894-6c60-4143-b866-5918178b684e?excludeGerekce=False&wordsOnly=False
8. Compare the decree law no. 667, https://rm.coe.int/168069661d and the decree law no. 672 and others, https://rm.coe.int/16806a2e17, also see the Venice Commission’s Opinion, para. 67
9. The Council of Europe Commissioner for Human Rights’ Memorandum, para. 11-12
13. See the Venice Commission’s Opinion, para. 41
14. The Council of Europe Commissioner for Human Rights’ Memorandum, para. 12
15. See the Venice Commission’s Opinion, para. 40-44