Judicial Control of Decree-Laws in Emergency Regimes - A Self-Destruction Attempt by the Turkish Constitutional Court?

Selin Esen

Ankara University Faculty of Law

Due to a coup d’état attempt on 15 July 2016, in accordance with Article 120 of the 1982 Constitution, the Council of Ministers presided over by the President of the Republic declared a state of emergency on July 21st for three months. On October 11th it was prolonged for a further three months. The declaration of the state of emergency and its prolongation was approved by the Grand National Assembly of Turkey. Since the state of emergency was declared the Government issued eleven emergency decree-laws to date.

These decree-laws invite criticism because they contain fundamental and permanent changes to some of the state instutions, such as closing military schools and overhauling military health institutions. Yet the decrees contain several other aspects that raise very serious questions of compatibility with the Constitution and European human rights standards. Indeed, the scope of these decrees concerns not only the coup attempt, but the fight against terrorism in general. Yet, both for physical and legal persons, the punishments foreseen in the decrees apply not only to cases of membership or belonging to a terrorist organisation, but also to contact with such an organisation. Decree-laws stipulate immediate closure of hundreds of schools, hospitals, foundations, associations, unions, confederations, newspapers, television and radio stations linked to US-based cleric Fethullah Gulen, (who the Government holds responsible for the coup) or to terrorism in general, and confiscation of their assets and a prohibition on claiming damages. Decree-laws permit immediate dismissal of tens of thousands of public employees including judges and  prosecutors with no evidentiary requirements. They provide authorisation of detention without access to a judge for up to thirty days, and automatic cancellation of passports of persons being investigated or prosecuted without court order. Decree-laws also envisage complete legal, administrative, criminal and financial impunity for administrative authorities acting within its framework and the fact that administrative courts will not have the power to stay the execution of any of these measures.

The main opposition party, the Republican People’s Party (CHP), applied to the Constitutional Court (‘CC’) claiming unconstitutionality of several articles of four decree-laws (Nos 668, 669, 670 and 671). The judgements of the CC regarding these cases have exacerbated issues concerning the ‘unbalanced check’ on the executive branch in Turkey. Below, I will first explain the place of the emergency decree-laws in the 1982 Constitution. Then I will contest the case-law of the CC regarding the emergency decree-laws. Finally, I will assess the recent judgements of the Court.

The 1982 Constitution authorizes the executive to issue decrees having the force of law. The Constitution enshrines two separate types of decree-laws, namely (ordinary) decree-laws (Art 91) and emergency decree-laws (Arts 121–2). It establishes significant differences between the two kind of decree-laws. First, unlike ordinary decree-laws, emergency decree-laws do not require a prior enabling act of Parliament. Second, while ordinary decree-laws can regulate only economic and social rights and freedoms, all fundamental rights and freedoms including civil and political rights can be regulated by emergency decree-laws (Art 91). Yet, in times of war, mobilization, martial law, or state of emergency, the exercise of fundamental rights and freedoms can be partially or entirely suspended, or measures may be taken, through emergency decree-laws, which derogate from the guarantees embodied in the Constitution. Third, according to Article 148.1 of the Constitution, the constitutionality of emergency decree-laws cannot be reviewed by the Constitutional Court, while there is no such restriction for ordinary decree-laws. However, emergency decree-laws shall be published in the Official Gazette, submitted to the Parliament on the same day for approval (Art 121–2). If the Parliament approves emergency decree-laws they will become ordinary laws. They can then be subject to judicial review by the CC. Should the Parliament reject them they will cease to have force.

Article 148.1 has been criticised since the 1982 Constitution came into force on account of some of the worst violations of human rights taking place during the periods of emergency regimes. Indeed, given the fact that for more than 40 years since the Republic was founded in 1923 one part, several parts or the whole of the Turkish territory has been under an extraordinary regime, such a prohibition on judicial review gains even greater significance.

Application of Article 148.1 renders constitutional guarantees under emergency regimes inapplicable and meaningless. In fact, according to the Constitution, emergency decree-laws under a state of emergency and martial law must be issued on ‘matters necessitated by the state of emergency’ (Arts 121–2). In other words, the Constitution requires the executive to observe the proportionality between the exigencies of the situation and measures to be taken. Also, Article 15 of the Constitution puts some limits on the executive’s ability to restrict fundamental rights and freedoms in times of emergency. Firstly, measures taken under an  extraordinary regime will not violate Turkey’s obligations under international law. Secondly, measures must be taken only to the extent required by the exigencies of the situation — that is, conform with the principle of proportionality. Thirdly, rights and freedoms named in the second paragraph may not be violated even under an extraordinary regime. Accordingly, a person’s right to life, and the integrity of his or her material and spiritual entity, shall be inviolable, except where death occurs through a lawful act of warfare; no one may be compelled to reveal his or her religion, conscience, thought or opinion, nor be accused on account of them; offences and penalties may not be made retroactive, nor may anyone be held guilty until so proven by a court judgment.

The CC partly eliminated the adverse consequences of Article 148.1 of the Constitution that exempts emergency decree-laws from judicial review with two decisions in 1991 (E.1990/25, K.1991/1, 10 January 1991, Official Gazette 5 May 1992-21162; E.1991/6, K.1991/20, 3 July 1991, Official Gazette 8 March 1992-21165).The CC pointed out that emergency rules are limited ‘legal regimes’ deriving from the Constitution. Hence, a state of emergency is a legal regime within the understanding of ‘democratic State governed by the rule of law’ in accordance with Article 2 of the Constitution that cites the characteristics of the Republic.

According to the CC, repeating one of its well established precedents, it does not look to the title of a legal document designated by the Parliament or the executive in order to decide whether it is within the scope of the constitutional review. When deciding the legal status of a rule, the CC takes into account the content of relevant rule. The Court ruled that while the Constitution recognizes the power of the government to issue decree-laws in a state of emergency and under martial law (Arts 121–2), it also limits this power in various ways. That is to say, emergency decree-laws can be issued only during a time of emergency and on matters necessitated by emergency situations. If the state of emergency is declared for one part of the territory instead of throughout the country, the power to issue emergency decree-laws also is limited geographically to the regions for which the state of emergency is declared. Thereby, the CC concluded that Article 148.1 of the Constitution only excludes judicial review of decree-laws issued within the foregoing limits. To put it another way, the Court accepted that it could review the constitutionality of emergency decree-laws and judge whether they exceed the limits provided in Articles 121 and 122 of the Constitution.

In 2003 the CC enlarged the scope of its precedent (E.2003/28, K.2003/42, 22 May 2003, Official Gazette 16 March 2004-25404) . The Court ruled that the power of the government to issue emergency decree-laws was not only limited by Articles 121 and 122, but also by other relevant provisions of the Constitution. The Court interpreted the phrase ‘matters necessitated by the state of emergency’ in Article 121 in broad perspective, taking all rules of the Constitution concerning emergency rule into consideration. Consequently, the Constitutional Court took into consideration Article 125.6 of the Constitution and annulled the emergency decree-law, which excluded administrative acts of the governor in the state of emergency region from the scope of judicial review. Article 125.6 stipulates that ‘[t]he law may restrict the issuing of an order on suspension of execution of an administrative act in cases of state of emergency, martial law, mobilization and state of war, or on grounds of national security, public order and public health.

Clearly, this precedent of the Court made a significant contribution to protecting fundamental rights and freedoms in state of emergency and martial law. Thereby, the CC did not allow an emergency regime to either become an ‘extra-legal regime’, or to change its extraordinary character and turn into an ‘ordinary regime’.

However, recently the CC departed from precedent (E.2016/166, K. 2016/159, 12 October 2016, Official Gazette 4 November 2016-29878; E. 2016/167, K.2016/160, 12 October 2016, Official Gazette 4 November 2016-29898; E. 2016/171 K. 2016/164, 2 November 2016, Official Gazette 8 November 2016-29882; E. 2016/172 K. 2016/165, 2 November 2016, Official Gazette 8 November 2016-29882). The Court unanimously rejected applications claiming the unconstitutionality  of decree-laws. In these judgments, following its previous decisions, the Court notes that emergency regimes in democratic countries are not arbitrary governments that exclude law. The objective of emergency regimes must be guarding and defending the constitutional order. This is why, even though emergency regimes grant significant powers to the executive and considerably restrict rights and freedoms, they are still legal regimes. The CC also remarks that requiring all acts and actions of the administration to be under the control of the judiciary is part of the principle of rule of law.

The CC applies the literalist interpretation method while assessing Article 148.1 of the Constitution and also studies the original intention of the framers of the Constitution. The CC states that Article 148.1 explicitly prohibits actions being brought before the CC alleging unconstitutionality as to the form or substance of decree-laws issued during state of emergency, martial law or in time of war. The Court concludes that the framers of the Constitution aimed at only parliamentary control for emergency decree-laws.

The rationale of the CC in these decisions seems self-contradictory. On the one hand,  the Court still recognizes its discretionary power to designate the nature of a legal document and thus whether it is within the scope of the constitutional review. On the other hand, the Court claims that such designation regarding the nature of a rule should not result in constitutional review of an emergency decree-law. However, such a designation requires reviewing content of the decree-law, which would render Article 148.1 of the Constitution meaningless. The Court’s approach enables it to take all rules out of the sphere of emergency decree-laws. However, the Court disregards that the opposing view is equally valid. In other words, the executive can dissolve all political parties, adjourn the parliament or even prohibit the CC from reviewing the constitutionality of laws with an emergency decree-law.

The Court claims that unless the Constitution empowers the CC expressly,  reviewing constitutionality of emergency decree-laws is beyond the scope of its powers. On the basis of the wording of Article 148.1 and the intention of the framers of the Constitution, the Court decides that judicial review of emergency decree-laws will infringe Article 11 of the Constitution, which provides for the superiority and binding effect of the Constitution, and Article 6, which prohibits persons and organs from exercising state authority that does not emanate from the Constitution. It seems as though the Court ignores one of the fundamental functions of the constitutional courts —to maintain the superiority and binding effect of the Constitution by controlling the constitutionality of laws or other norms having force of law. Hence, a constitutional court must interpret the constitution as a whole and embrace a right-based approch. That requires it to read constitutional limitations regarding rights and freedoms as narrowly as possible.

To conclude, the CC’s judgements are unfortunate for constitutionalism, whose primary aim is to limit the government and safeguard rights and freedoms. Clearly, the CC’s reasoning and ruling may result in self-destruction, since the consequences of its judgements permit the executive to suspend the exercise of all constitutional rights and freedoms without consideration of the constitutional limitations, and to repeal the basic principles of the rule of law, and the democratic and secular state which are unamendable characteristics of the Constitution (Art 2)  or to abolish all democratic institutions with emergency-decree laws. To put it in another way, recent rulings of the CC regarding the emergency decree-laws disregard a right-based approach and allow the executive almost limitless discretionary power in times of emergency. It is probable that the Court’s approach may put all constitutional guarantees, the existence of the democratic institutions, including the CC itself, and even the Constitution  as a whole in jeopardy.

Professor Selin Esen is Professor of Constitutional Law in the Faculty of Law at Ankara University, Turkey. Professor Esen is also a member of the IACL executive committee.