Turkey’s Struggle Against COVID-19 and the New Reign-by-Administrative-Act

Volkan Aslan

Istanbul University, Faculty of Law

Turkey announced its first confirmed case of COVID-19 on 11 March 2020. Thereafter, the government issued various administrative regulations and decrees, which it presented as vital for preventing the spread of the virus. However, the constitutional validity of these executive acts is questionable. What is particularly problematic, is that the government has issued these directives even though it has not declared a state of emergency, and also has not cited valid statutory authorization.

Article 119 of the Turkish Constitution empowers the President of the Republic to declare a state of emergency if a pandemic can lead to a breakdown in public order. President Erdoğan, however, has chosen not to rely on this provision but is relying instead, on his ordinary powers. Within this framework, the Presidency and the Interior Ministry have issued various regulations and decrees, all of which severely restrict fundamental rights. The directives provided for the closure of establishments such as restaurants, cafes, night clubs, public bathrooms, sports centers, and similar places. They also banned persons over the age of 65, with chronic disease or under the age of 20 from leaving their homes, as well as restricting inter-city travel and, on at least ten occasions, imposing general curfews, over weekends, in big cities.

The Interior Ministry has outlined and declared almost all of these restrictions in ministerial circulars, addressing provincial governors. Furthermore, the state purports to have grounded the limitations in Article 11/C of the Law on Provincial Administration and Articles 27 and 72 of the Law on General Protection of Public Health. None of these articles, however, provide adequate justification for these restrictions.

Potestas stricte interpretatur: Powers should be interpreted narrowly

According to article 11/C of the Law on Provincial Administration, provincial governors must, within their cities, preserve the peace and provide security as well as guarantee physical safety and public welfare. Governors are required to implement all measures necessary to achieve this, including conducting preventive police patrols. If there is a risk of deterioration of public order and safety, in such a way that ordinary life is threatened, governors may restrict access to the city of persons suspected of having the potential to disrupt the public order or security.

Article 27 of the Law on General Protection of Public Health, further stipulates that public health commissions must implement measures to improve the sanitary conditions of places under their jurisdiction used for public assembly. This provision places an onus on these officials to eliminate certain health-related defects in public spaces within their cities, towns and villages – including as part of a larger fight against a pandemic. Article 72 of the law, on the other hand, relates directly to epidemics and pandemics. However, the mechanisms provided for in this article only apply to infected citizens and animals, and existing ‘danger zones’, they do not provide for the implementation of preventive measures, or the limitation of the rights of noninfected persons. Thus, none of these sections supports the extensive restriction of rights and liberties we have witnessed in Turkey.

Although both pieces of legislation contain general provisions that relate to pandemics, these are ambiguous, and therefore subject, in terms of the potestas stricte interpretatur principle, to narrow interpretation. They, therefore, also do not legitimate the rights impediments caused by the executive ordinances.

Thus, neither the Law on Provincial Administration nor the Law on General Protection of Public Health authorizes the executive to impose general limitations on fundamental rights. Given that the laws the executive claims to rely on, do not permit limitations on the scale of the issued declarations and regulations, these measures seem contrary to the Turkish Constitution, which requires explicit statutory authorization for the restriction of fundamental rights and freedoms.

The government could rectify this situation by the declaration of a state of emergency. Article 15 of the Turkish Constitution enables the executive, in declared emergencies, to suspend fundamental rights and freedoms partially or entirely and to implement measures derogating the guarantees embodied in the Constitution. However, even if a state of emergency is declared, most legal action would still have to be in the form of emergency decrees, given the limited scope of the current Law on Emergency. The Act, for instance, only envisages the imposition of curfews in response to acts of violence, and not for dealing with epidemics or pandemics.

Unofficial emergency

Nevertheless, the government prefers not to declare a state of emergency, perhaps because of the previous emergency experience or due to political or economic considerations. Whatever the reasons for it, the failure to accurately identify legislative authority for the restrictions has created difficulties. For instance, since early March, administrative fines have been in place, for actions contrary to the COVID-19 measures, yet the basis for the imposition of penalties remains unclear. While some people have had fines issued in terms of the Law on General Protection of Public Health others have had fines imposed in terms of the Law on Misdemeanors. It seems, therefore, that even law-enforcement officials are not clear on which laws their competencies arise from during this time of reign-by-ministerial-circular.

As the vast majority of society approves of these measures, concerns regarding the legality seem to be of secondary importance, at least for now. Even though there is currently little opposition to it, however, it is doubtful this state of “unofficial emergency” can be maintained much longer.

Volkan Aslan is a Lecturer in Constitutional Law at Istanbul University, Faculty of Law.

Suggested citation: Volkan Aslan, “Turkey’s Struggle Against COVID-19 and the New Reign-by-Administrative-Act” IACL-IADC Blog (16 July 2020) https://blog-iacl-aidc.org/2020-posts/2020/7/16/turkeys-struggle-against-covid-19-and-the-new-reign-by-administrative-act