[OPINION] The invisible part of the iceberg in the state of emergency

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A woman detained as part of operations targeting the members of the Gülen movement.

By Göksel İlhan

With the extension of the state of emergency (SoE) for a period of three months by the Turkish government, the “state of emergency” has become the new “state of normal.” 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, even the legitimacy of the declaration of the SoE cannot find a place for itself in media or public discussions. However, the declaration of the SoE has apparent contradictions with constitutional and universal principles in several aspects.
In theory the introduction of an SoE is very exceptional and should only aim to prevent the failure of a nation. With the declaration of the SoE, the Council of Ministers can issue decrees having the force of law required by the SoE. These decrees can partially or entirely suspend the exercise of fundamental rights and freedoms of citizens.

Articles 119 and 120 of the Turkish Constitution as well as 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 clarified 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.”

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. The same day, the Turkish government derogated from the European Convention on Human Rights. This decision was driven by the notorious coup attempt of July 15. The foiled coup 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 arrested 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 start 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 SoE regime does not comply 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.” This statement implies that the objective of the SoE was not to suppress ongoing acts of violence, but to punish the perpetrators. Unless there are ongoing, widespread acts of violence seriously deteriorating the public order, fighting against terrorism can only be dealt with by means of normal measures defined by criminal and antiterrorism 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 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 SoEs set out more general objectives, such as the “fight against terrorism” and the “fight against entities threatening national security.” However, the Turkish Constitutional Court confirmed in its earlier decision (No: 21162) that “with these kinds of [SoE] 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 with the constitutional framework.

Moreover, the scope of the 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 somehow be considered linked to this group, and it can be decided that their families, relatives and friends are related. Moreover, the proof of this linkage is up to an arbitrary assessment, with no administrative appeal and no evidentiary requirements.

On the other hand, while the said SoE 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 the 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 have been guilty. This behavior is no different than the ancient judicial practices in medieval Europe.

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 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 SoE 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. 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.

The state of emergency is a regime established under the Constitution with a pure view to apply 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, this regime would result in the exploitation of the SoE as a pretext to carry out a politically motivated crackdown to silence dissidents.

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