The Hamartia of the Constitutional Court of Turkey: Part I

— Dr. Ali Acar, Ph.D. in Law, European University Institute

Introduction

The dismissals of so many academics by an emergency decree in early February has sparked, once again, a public debate concerning the controversial judgments of the Constitutional Court of Turkey delivered on October 12, 2016, which dealt with the emergency decrees adopted after the disastrous coup attempt of July 15, 2016. The Court declined to review the emergency decrees. The effects of these judgments continue within the country. These judgments are, in a sense, the cause of serious criticism of the state of emergency measures by international organizations including the Council of Europe and its Venice Commission, the European Union, as well as global human rights NGOs.

The state of emergency was declared by the Council of Ministers for three months to be effective throughout Turkey as of July 20, 2016. It has been prolonged twice, so far, for the following six months. It is expected to end on April 19, 2017, during which time Turkey will hold a constitutional referendum.

Constitutions in the modern world anticipate extraordinary situations and accordingly regulate what to do and how to handle these situations legally. The 1982 Constitution of Turkey’s response to the state of emergency is that the Council of Ministers presided by the President can adopt emergency decrees that have force of law. Unlike decrees having force of law in ordinary times, the Council of Ministers does not need a prior authorization of the Parliament for emergency decrees. Unlike the limited scope of ordinary decrees, emergency decrees can have a broad scope of regulation, which may even include suspension of fundamental rights and freedoms. Unlike ordinary decrees, Paragraph 1 of Article 148 stipulates that the emergency decrees cannot be challenged before the Constitutional Court; i.e. they are not subject to judicial review.

Although emergency decrees may have a far-reaching scope, this does not mean that they have unlimited capacities; at least that is not what the 1982 Constitution of Turkey is deemed to envisage. First of all, emergency decrees must meet the proportionality test, which implies they be in compliance with the exigencies that led to declaration of the state of emergency. Pursuant to Paragraph 2 of Article 121 of the Constitution, all measures to be taken by emergency decrees shall be “necessitated by the state of emergency.” The same is required in Article 15, which lays down the conditions of suspension of fundamental rights and freedoms in extraordinary situations. According to Article 15, emergency decrees are subject to further limits derived from the obligations of international law. In addition to these, Article 15 specifies some core rights and freedoms that cannot be subject to regulation by emergency decrees, such as the right to life, prohibition of torture, presumption of innocence, prohibition of retroactive implementation of crimes and punishments, non-compulsion to reveal one’s religion, conscience, thought and opinion, etc.[1]

The motive that led to the state of emergency following the coup attempt of July 15 was described by the National Security Council at its meeting of July 20, 2016 as the following: “A treasonous terrorist organization called FETO (the followers of Muslim cleric Fettullah Gulen) attempted a coup on July 15, 2016 with the hands of its infiltrators in the Turkish military… In this respect, it is hereby decided to recommend to the government that the state of emergency be declared in accordance with Article 120 of the Constitution in order to take effective measures to protect our democracy, the principle of rule of law, and citizen’s rights and freedoms. This recommendation aims, merely and exclusively, to facilitate actions to get rid of the threats directed at democracy, the rule of law, rights and freedoms.” For the same reason, a parliamentary inquiry commission was established on July 26, 2016, to investigate the coup attempt and the FETO organization’s involvement in it.

Irrelevancy of Some Provisions of Emergency Decrees

A state of emergency may require different measures depending on its exigencies. The aim of the measures should be to get rid of the cause and to return to an ordinary situation. This is what legitimizes the emergency measures. By the emergency decrees adopted following the July 15 coup attempt (21 of them have been adopted to date), many administrative bodies, especially the armed forces including military educational institutions, have been reorganized, and the status of military personnel has been altered.

However, the emergency decrees have not only aimed at the reorganization of the military. The controversy starts at the point where some emergency decrees have disbanded TV channels, newspapers, news agencies, hospitals, educational institutions, foundations, NGOs, universities, trade unions, etc. and/or have confiscated their assets. The degree of controversy increases when viewing some regulations of the emergency decrees, in that it is hard to believe and support the view that some of the emergency decrees have anything to do with the reason for which the emergency was declared. A random selection of examples is the following, but it is not exhaustive.[2] The election method for university rectors has been changed by Emergency Decree 676 so that academics in a given university would not longer have any say in who their rector will be. By the change, only the Higher Education Council and the President are now involved in the process of appointing rectors. Emergency Decree 680 has abolished the threshold of seventy points previously necessary to be achieved in the written exam to be taken by applicants for public prosecutors and judges. With the same emergency decree, the penalty that would be imposed on TV and radio channels that do not obey impartiality and fair airtime for advertisements by political parties during election times was abolished. Again by the same emergency decree (680), the right to allocate lottery licensing, which a state run institution was carrying out before, was transferred to the Sovereign Wealth Fund, a state own private company established in August 2016. In the latest Emergency Decree, 687 of February 9, 2017, it is made mandatory for vehicles carrying passengers or goods to have winter wheels. Do these regulations have anything to do with the state of emergency? Obviously not.

There are further and clearer examples of measures which many would agree are irrelevant to the purpose of the state of emergency, thus they do not have a legitimate base. For example, one group of academics who happened to have signed a petition calling for the government to return to peace talks on the Kurdish question, and some others who had just supported the rights of the former group to freely express their opinions (regardless of the content of the petition) were dismissed from their university positions by a simple list attached to the Emergency Decrees.[3] And this was done without any requirement of evidence, let alone any judicial proceeding. Thereby, the presumption of innocence, among others, has been ignored and compromised. As there is no individualized evidence provided, no one knows what exactly those academics have been charged with and why they were dismissed. The only allegation is that they have “affiliation” or “relation” to a terrorist organization. It is reported that more than ninety thousand public officials, of whom about five thousand are academic scholars, have been dismissed by the emergency decrees.[4]

Due to the lack of relationship between the emergency decrees and the purpose of the underlying emergency, some of the decrees were challenged before the Constitutional Court. In Part II of this Post, I will focus on the Constitutional Court’s judgments. I evaluate the judgment as a big and tragic error or hamartia, as the current circumstance in Turkey leads one to consider it as tragedy.

Suggested citation: Ali Acar, The Hamartia of the Constitutional Court of Turkey: Part I, Int’l J. Const. L. Blog, Mar. 30, 2017, at http://www.iconnectblog.com/2017/03/the-hamartia-of-the-constitutional-court-of-turkey-part-i/.

[1] For a comprehensive illustration of the regime emergency decrees are subject to under the 1982 Constitution of Turkey, see 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/

[2] According to Kemal Gözler, a constitutional lawyer, more than half of the contents of the twenty emergency decrees are irrelevant to the exigencies of the state of emergency, see, Kemal Gözler, “15 Temmuz Kararnameleri [July 15 Emergency Decrees]”in Turkish , (February 17, 2017 ) at http://www.anayasa.gen.tr/15-temmuz-kararnameleri.pdf

[3] Among these academics are leading scholars, the dismissals of whom are condemned by the international associations as well, see, “International Association of Constitutional Law Condemns the Dismissal of Academics in Turkey”, February 14, 2017, at https://iacl-aidc-blog.org/2017/02/14/statement-international-association-of-constitutional-law-condemns-the-dismissal-of-academics-in-turkey/. For Kemal Gözler’s statement on two prominent constitutional law scholars’ dismissal (Prof. İbrahim Kaboglu and Assoc. Prof. Murat Sevinc) who were dismissed by the state of emergency, see http://www.anayasa.gen.tr/kaboglu-sevinc.htm (February 9, 2017).

[4] On the scope and impacts of the measures taken by emergency decrees see “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, parag. 8-9, available at https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=09000016806db6f1. Also on how the freedom of expression and media has been affected under the state of emergency in Turkey, see Commissioner for Human Rights of the Council of Europe, “Memorandum on freedom of expression and media freedom in Turkey”, CommDH(2017)5, Strasbourg, February 15, 2017, especially parag. 20, available at https://wcd.coe.int/com.instranet.InstraServletcommand=com.instranet.CmdBlobGet&InstranetImage=2961658&SecMode=1&DocId=2397056&Usage=2.