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The Hamartia of the Constitutional Court of Turkey: Part II

–Dr. Ali Acar, Ph.D. in Law, EUI

“If research and writing can dwarf all of the pleasures of … heavens,

are not the humanists … miserable drudges? Taking an opiate and

then sitting in one’s corner, smiling blissfully, oblivious of the torments

of one’s brothers, is considered as respectable as heaven

 if the drug is scholarship. But is it less hellish?” [1]

The Way to a Tragedy

In Part I, I provided a brief account of the irrelevancy of some of the emergency decrees adopted following the July 15, 2016 coup attempt in Turkey to the underlying exigency of the emergency. In this Part, I consider and assess the Constitutional Court’s decision concerning some of these decrees.

The Republican’s People Party (CHP) challenged the constitutionality of some emergency decrees before the Constitutional Court, based on the claim that some regulations in the emergency decrees are irrelevant to the underlying exigency of the emergency. The Court rejected the CHP’s applications in four cases.[2] And here starts a tragedy caused by the hand (!) of the Court, which might otherwise have prevented the grief from taking place or at least worsening. In the judgments, the Constitutional Court relied on a strictly literal reading of paragraph 1 of Article 148 of Constitution. To remind the reader, Article 148 of the Constitution stipulates that emergency decrees are not subject to judicial review.

However, in spite of the wording of Paragraph 1 of Article 148 of the Constitution, the Constitutional Court did indeed review, in two cases in 1991,[3] the contents of emergency decrees and in fact struck down some of their provisions. These decisions have created a sort of precedent, and one had the right to believe that the Court had established a standard of review concerning emergency decrees. The Court ruled in those cases in 1991 that calling any measures a decree adopted under a state of emergency would not avoid constitutional review if the scope of the decree went beyond what was necessary under a particular state of emergency. In other words, the Court had held that the government may not regulate matters that are irrelevant to the exigencies of the state of emergency via emergency decrees.

The Constitutional Court now seems to have overturned its precedent without well-considered and well-crafted arguments. By relying on the strict literal interpretation of Paragraph 1 of Article 148, the Court is not convincing at all given the fact that the rest of the Constitution contains many elements to urge the Court to protect fundamental rights and freedoms, even in times of a state of emergency. Now, with the authorization and permission of the Court, anything can be put into the bag of emergency decrees. As a constitutional law scholar points out, “the executive can dissolve all political parties, adjourn the parliament or even prohibit the Constitutional Court from reviewing the constitutionality of laws with an emergency decree-law.”[4] Or the Constitutional Court itself might be dissolved altogether, as argued by a human rights scholar, Kerem Altıparmak. This would then amount to an indirect amendment of the Constitution.

The judgment of the Constitutional Court of October 12, 2016 on the emergency decrees can be considered as a hamartia, because what has been witnessed so far in Turkey urges one to think that a tragedy is on the way, if it has not already arrived.

The “Hamartia” of the Constitutional Court

Hamartia is a term that is a significant element of tragedy. It is used by Aristotle and “[it] has been translated variously as tragic “fault,” “flaw,” “mistake,” “fallibility,” “frailty,” and “error,”[5] or “a single great error.”[6] The Turkish Constitutional Court’s “hamartia” now leads the judicial system, which has been argued to have lost its independence long ago, towards collapse.

Dr. Sean McEvoy states that “tragedy is about the idea that we live in a flawed world full of suffering and full of injustice and misery, but it also shows us that those things are caused by our actions.” The initial stage of a tragedy starts with disappointment caused by the action of an individual. This account can be extended to institutions. If an institution willingly ceases to be or to do what it promises to be or to do, disappointment begins. The decree of disappointment may grow to be a tragedy. Just think about Creon (of Sophocles’ Antigone, one of the best examples of Ancient Greek tragedies). He promised to be a fair and powerful ruler at the beginning, but caused an enormous sorrow, and thereby ended up being an unjust, a cruel ruler, and a miserable man at the end. With his very first order, i.e. the ban on the burial of Polyneices’ corpse, he disappointed everyone, and then caused the tragedy. There are further elements of tragedy in the current circumstances in Turkey, like suicides (of Antigone and Haemon), fear (of Ismene),[7] etc.

There is no agreement about what justice is, yet the Turkish judiciary has some legal tools to employ to achieve some degree of agreement, or not to allow a severe injustice to take place. It suffices to consider Articles 121 and 15, to which I called attention in Part I. Paragraph 5 of Article 90 of the Constitution provides another legal tool, according to which the international human rights conventions to which Turkey is party take precedence over domestic laws. Although one can point out that Turkey has derogated from the international human rights treaties (ECHR and ICCPR)  during the time of current state of emergency, these derogations are not regarded as unproblematic from the point of view of international human rights law.[8] Besides, as the Commissioner for Human Rights of the Council of Europe has noted in his Memorandum, although derogation from the ECHR in times of emergency is possible, “a derogation implies an altered application of the tests of necessity and proportionality to interferences with human rights during the state of emergency, in other words measures may only be taken to the extent strictly required by the exigencies of the situation.”[9] The same points have been reiterated by the Venice Commission in its recent Opinion on emergency decrees in Turkey.[10]

Conclusion

The raison d’être of constitutional courts is or should be to protect constitutionalism, at the core of which lies the rule of law and the protection of fundamental rights and freedoms, and this provides a sense of justice assured. However, the Constitutional Court of Turkey has alienated itself from the idea of justice and protection of human rights, as the Court now seems to have turned its back on the available legal tools to protect human rights. In so doing, it disappoints many deeply, and allows a severe injustice to take place by the emergency decrees. Of course, one can say that the Constitutional Court of Turkey has never had a promising record for the protection of human rights. Under the current circumstances however, the more the Constitutional Court continues to allow injustices, the sooner it will end up with a big tragedy, which may brush away all of its record, even in its good aspects (especially following the introduction of the individual constitutional complaint mechanism), and maybe its existence altogether.

The judgments of October 12 are not merely unfortunate, and do not merely imply the self-destruction of the Constitutional Court, but destruction of many things; among which are the lives of real people supposed to live under a democratic constitutional regime subscribed to the rule of law. All those people, who have lived a great sorrow, can do now is to wait and see that justice will be restored; but no one knows when. And when it is restored, will it be considered justice at all at that point?

Suggested citation: Ali Acar, The Hamartia of the Constitutional Court of Turkey: Part II, Int’l J. Const. L. Blog, Apr. 4, 2017, at http://www.iconnectblog.com/2017/04/the-hamartia-of-the-constitutional-court-of-turkey-part-ii/.


[1] Walter Kaufmann, Tragedy & Philosophy, Doubleday & Company Inc. (Garden City, New York), 1968, p. xvi.

[2] 1) E.2016/166, K. 2016/159, 12 October 2016, Official Gazette 4 November 2016-29878;

2) E. 2016/167, K.2016/160, 12 October 2016, Official Gazette 4 November 2016-29898;

3) E. 2016/171 K. 2016/164, 2 November 2016, Official Gazette 8 November 2016-29882;

4) E. 2016/172 K. 2016/165, 2 November 2016, Official Gazette 8 November 2016-29882.

[3] E.1990/25, K. 1991/1, January 1, 1991, published in Official Gazette on March 5, 1992 and E.1991/6, K. 1991/20, July 3, 1991, published in Official Gazette on March 8, 1992.  

[4] Selin Esen,“Judicial Control of Decree­Laws in Emergency Regimes — A Self-Destruction Attempt by Turkish Constitutional Court?”, December 19, 2016, Blog of the IACL, AIDC, available at https://iacl-aidc-blog.org/2016/12/19/judicial-control-of-the-decree-laws-in-emergency-regimes-a-self-destruction-attempt-by-the-turkish-constitutional-court/.

[5] Julian Young, “The Philosophy of Tragedy”, Cambridge, New York, Cambridge University Press, 2013, p. 35.

[6] Leon Golden, “Hamartia, Ate, and Oedipus”, The Classical World, Vol. 72, No. 1 (Sep., 1978), p. 3.

[7] For Kemal Gözler’s observation and statement that constitutional law scholars have feared to make public statements on the current constitutional amendments due to the current political atmosphere, see Kemal Gözler, On the Silence of Turkish Constitutionalists in the Face of the Amendment, Int’l J. Const. L. Blog, Mar. 16, 2017, at: http://www.iconnectblog.com/2017/03/on-the-silence-of-turkish-constitutionalists-in-the-face-of-the-amendment/.

[8] On the discussion for the problematic aspects of Turkey’s derogations from human rights treaties, see Martin Scheinin, “Turkey’s Derogation from the ECHR – What to Expect?”, EJIL:Talk, Blog of European Journal of International Law available at http://www.ejiltalk.org/turkeys-derogation-from-the-echr-what-to-expect/ and  “Turkey’s Derogation from Human Rights Treaties – An Update”, EJIL:Talk, Blog of European Journal of International Law available at http://www.ejiltalk.org/turkeys-derogation-from-human-rights-treaties-an-update/.

[9] “Memorandum on the human rights implications of the measures taken under the state of emergency in Turkey”, CommDH(2016)35, Commissioner for Human Rights of the Council of Europe, Strasbourg, 7 October 2016, para. 14. available at https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=09000016806db6f1.

[10] Venice Commission, “Opinion on the Measures Provided in the Recent Emergency Decree Laws with Respect to Freedom of the Media”, 13 March 2017, available at http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2017)007-e  especially para. 25-26.

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Published on April 4, 2017
Author:          Filed under: Developments
 

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