The state of emergency and the charter

The excessiveness of arrangements and discharges conducted with state of emergency decrees is drawing more criticism. The government was granted this opportunity by Constitutional Court decision number 2016/159. 

The Constitutional Court rejected a demand for the decrees’ annulment filed by the main opposition Republican People’s Party (CHP) for such decrees on the grounds that the court had no jurisdiction over them.

 Thus, there was no means of constitutional control over the decrees. We are suffering the consequences of this situation.   

Most recently, the government even made a change in the election law with a state of emergency statutory decree – naturally with the referendum in mind. 

What does this have to do with terrorism and the July 2016 coup attempt? 

The Constitutional Court bases its verdict on the 148th Article of the Constitution: “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.” 

Yes, there is such an article, but the state of emergency arrangements should be considered together with the constitution. For instance, these decrees should be about the matters that prompted the state of emergency. 

Is eliminating university rector elections a matter concerning the state of emergency? 

The Constitutional Court decision is for the sake of being able to take urgent measures and decisions, when conditions force this. These are correct constitutional decisions, but what will happen if the executive body, in order to escape parliamentary or judicial oversight, includes non-urgent matters in decrees as well? 

For instance, the payment for members of a foundation is now regulated by decree. Is that an urgent matter concerning terrorism and the coup? 

Many other changes have been made in forensic medicine, banking law, student study centers, regional courts, rector elections and the sovereign wealth fund; they were all changed with decrees. 

None of these matters have anything to do with a state of emergency. 

In the same decision, the Constitutional Court also emphasized that its decision did not mean a green light to an unlawful and arbitrary administration. But what will happen when non-urgent matters such as rector elections, election programming on television and executive boards of foundations are arranged with statutory decrees? 

When one of the basic principles of law, “moderation,” is neglected and academics and public workers who have nothing to do with terror and the coup attempt are discharged with decrees, what will happen?  

The government has also noticed this issue and has formed a commission. Well, wasn’t judiciary control necessary from the beginning? 

The Constitutional Court had ruled about a quarter of a century ago that emergency decrees cannot cover matters that are not related to the state of emergency situations (Decision number 1991/1). The high court also stated that permanent laws cannot be changed with such decrees. 

The limits of the constitutional article “decrees cannot be overturned” have been determined like this. It has an axis of “justice.” 

Nevertheless, in its latest decision, the Constitutional Court has ruled that no matter what the content covers, none of the decrees can be taken to court. 

I find it wrong to completely exempt the state of emergency from constitutional oversight.