The state of emergency in France

Foreign Minister Mevlüt Çavuşoğlu and French Foreign Minister Jean-Marc Ayrault had a short and mildly toned discussion on the “state of emergency,” known as OHAL in Turkey.

There are very important constitutional differences between the OHAL here and in France. The French minister mentioned three main aspects: In France, the power of legislation is not transferred to the executive, in other words, they do not issue statutory decrees. In France, only the police are given additional powers. Justice is independent and OHAL decisions can be taken to court. 

In the French constitution, Article 16 covers states of emergency. There are certain differences in the declaration of this state; but the actual significant difference is, as Ayrault said, the executive power in France cannot issue statutory decrees that replace laws. In Turkey, the executive power can issue decrees that have the power of law. 

Moreover, in Turkey, according to Article 148 of the constitution, one cannot take these decree laws to the Constitutional Court. In 1991, the Constitutional Court, in an interpretation with a “rights-based axis,” reviewed these decrees and annulled them. Today’s Constitutional Court, with a decision based on the “authority axis,” rejected them on the grounds that it was outside its jurisdiction. In this context, it has closed the door to judicial review. 

In France, on the other hand, when the state of emergency expires after the first 30 days, the speaker of parliament, senate or 60 parliamentarians can take it to the Constitutional Court and ask for the review of the circumstances that caused the declaration of this extraordinary state. In France, all administrative procedures during the state of emergency are open to judicial review.

This difference between the states of emergency of France and Turkey is a typical example demonstrating at what stage the two republics are in their legal evolution. 

In France, the judicial order continues its usual conduct, and only the police are granted additional powers. In Turkey, though, the judiciary is deactivated in the monitoring of OHAL.  

It is also a separate issue as to what extent the judiciary is independent in these two countries. According to the French Constitution, the president was the head of the Supreme Council of Judges and Prosecutors (HSYK) and the justice minister was the deputy head of the council. That changed in 2008, and they removed the president and the justice minister from the supreme council. 

The independence of justice is at the level in developed countries. In these countries, a writer such as Aslı Erdoğan or any professional journalist, even if there is a state of emergency, cannot be arrested. 

In our country, though, the HSYK has never been independent and impartial during any period. 

The coup and terror issues Turkey is exposed to are more serious than the Islamic State of Iraq and the Levant (ISIL) terror in France; it is an understandable factor that our practice should be broader. Turkey’s security issues are too serious and complicated to be easily understood by Europe’s peaceful countries. 

However, if the practice in 1991 and current arrangements in the constitution had been obeyed and if the mechanisms for an impartial judicial review were in place, then social tension would not have built up to this extent and the international criticism would not be as intense. 

Forget about the constitutions of advanced democracies, Article 15 of our constitution states that even in war, “offences and penalties may not be made retroactive,” but now even being a member of a legally founded trade union is considered a crime. 

In fact, the way to ensure security in a country is not only through police and court practices but also through a functioning, trustworthy legal system… 

In order to “gain friends” in the fight against terror and in foreign policy, it is equally imperative that this country is respected as a state of law in the world of democracy. 

Indeed, the real issue is the advancement of legal awareness in society. For this to happen, the importance of rule of law should be highlighted and it should be explained that law is superior to politics and ideologies.