State of emergency with no control

The main opposition Republican People’s Party (CHP) took the statutory decrees (KHK) that were issued during the state of emergency to court, but the Constitutional Court rejected the case. I was waiting for the justified decision to be printed to criticize the decision. 

The high court stated that the KHK decrees issued during the state of emergency can never be taken to the Constitutional Court to be annulled. Its justification is based on this clause in the constitution: “However, no action shall be brought before the Constitutional Court alleging unconstitutionality as to the form or substance of decrees having force of law issued during a state of emergency, martial law or in time of war,” (Article 148).

As a matter of fact, in decisions a quarter of a century ago in 1991, the Constitutional Court ruled that under certain circumstances, annulment cases could be opened against these KHKs. There were three rulings on this front. 

The new decision of the high court is a retreat in terms of “constitutional judicial control.” It has granted the executive the means to issue state of emergency decrees without any judicial restriction and control.  

In 1991, the high court ruled that in two situations, cases could be opened against state of emergency KHK decrees. In very simple terms, one was that permanent changes cannot be made in laws with state of emergency decrees because it would mean that state of emergency regulations would become permanent laws, such as the case of restricting the right of defense…

The other case is when regulations that have nothing to do with situations that necessitated the declaration of a state of emergency are implemented with KHK decrees.

For instance, university rector elections have nothing to do with the incidents that led to the declaration of a state of emergency, but they have been abrogated. These kinds of KHK arrangements would have been annulled according to the former practice. But with the new line of the Constitutional Court, even in such situations, a case cannot be opened at the high court. 

The high court is explaining why the former liberal practice has been changed. It criticizes the 1991 ruling that “a case may be opened,” saying: “This approach makes the ban on judicial control in respect to both form and substance as in Article 148 totally meaningless and dysfunctional.”

As a matter of fact, with its latter decision, the Constitutional Court has made the ban on judicial control “unlimited.” The legal restrictions for a state of emergency in the constitution and universal law have become “completely meaningless and dysfunctional.” 

It also drew my attention that there was no reference to any European Court of Human Rights (ECHR) practices in the Constitutional Court’s decision because ECHR decisions, even the conditions to declare a state of emergency, are open to judicial control. 

The high court itself restricts the powers of a state of emergency: State of emergency decrees should not be against international legal commitments. They should be in proportion with what the situation requires. They should not violate the rights and freedoms stated in Article 15 (the integrity of life, the presumption of innocence, freedom of religion and conscience and the non-retroactivity of laws).

That’s absolutely correct, but who will monitor any KHK that violates these three outright rules? Who will monitor the KHK decrees that cover unrelated matters under the state of emergency order? The Constitutional Court answers these questions, saying “only the parliament.” 

Thus, it is making the high constitutional principles of “rights-centered interpretation, moderation and the fact that the state of emergency is also a restricted legal regime” totally “meaningless and dysfunctional.” 
It was understood that in 1991 the liberal practice of the high court had averted the inconveniences of leaving state of emergency and martial law decrees outside judicial control to a certain extent. 

But now, with our Constitutional Court unconditionally leaving state of emergency decrees outside judicial control, it has reinforced the drawbacks of a lack of judicial control.