–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?” 
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. 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, 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.” 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.