North Africa, West Asia

The curious case of a Turkish judiciary in a state of emergency

There is strong evidence to conclude that Turkey has gone beyond what is necessary or proportionate.

Emre Turkut
16 November 2016
Cagdas Erdogan/Press Association Images. All rights reserved.

civilian, left, and a security officer beat a protester as riot police use water cannons to disperse people protesting the detentions of 12 lawmakers from pro-Kurdish Peoples' Democratic Party, or HDP, in Istanbul, 5 Nov. 2016. Cagdas Erdogan/Press Association Images. All rights reserved.

Yet again, another state of emergency is eating away at the already fragile foundations of a country’s rule of law. Not surprisingly, that country is Turkey.

Since the bloody and violent attempted military coup on 15 July 2016, Turkish state authorities have taken unprecedented measures, purportedly to restore normalcy in the country. In many ways, however, those measures could almost be characterized as a counter-coup, a purge bordering on crimes against humanity.

Historically, when a state has imposed a state of emergency it has often led to harrowing consequences: a derogation of human rights and the rule of law. A look at state practices from the 1970s on, demonstrates that, even though declaring a state of emergency may be necessary and legally permissible in some cases, states often misuse their emergency regimes as a cover to legitimize and justify egregious human rights abuses and the most pernicious forms of arbitrariness.

This practice is patently evident in the case of Turkey’s recently extended state of emergency.

It is no surprise that states with authoritarian tendencies are especially strongly motivated to use the framework of a state of emergency as a legal means to justify their restrictive measures. From the outset, state authorities are generally fully cognizant of the profound implications of their action in declaring a state of emergency on behalf of the people.

In the recent Turkish case, President Erdoğan was acutely aware of the fact that the decision held far-reaching implications going way beyond immediate security concerns. As born out by subsequent actions, he clearly knew that he was responding not only to a security threat. Calling the failed coup a rare “gift from God”, he clearly recognized an opportunity to implement his personal ambitions and vision for the country’s future prospects.

In the context of that vision, the post-coup measures in Turkey have reached an unprecedented extent. Almost every political and social group over a wide cross section of Turkish society has been targeted, as has a broad swathe of civil, cultural, political, social and economic rights, by conducting massive personnel removals and detentions, broad shutdowns of business and educational enterprises, and minority suppression measures.

In such state of emergency cases, a compliant judiciary becomes a vital element and important tool of the state. For those in the judiciary who are loyal servants of the state’s arbitrary rule, the task is to validate the so-called ‘national security’ purposes of the state: either by providing affirmative legal ‘cover’ to legitimize the repressive measures or, at the very least, by total abdication of its judicial duty to perform a meaningful legal review to assess whether the enacted emergency measures are proportionate and directly related to actual security needs. For dissenters, however, it can often lead to mass removals and detentions.

The recent Turkish case is no exception. Immediately after the failed coup attempt, beginning in late July more than 3,000 judges and prosecutors, including 2 members of the Turkish Constitutional Court (TCC), 140 members of the Court of Cassation of Turkey, and 48 members of the Council of State were suspended “with the charges of being an accomplice in the attempt of overthrowing the government and the legislative organ, attempting to abolish the Constitution, fomenting an armed insurrection and establishing an armed organization.”

The loyalists who remain, however, are busy dressing up in legal garble that is, in fact, nothing more than on-going arbitrary rule or, at best, withholding opinions and/or declining to rule on the state of emergency. The recent decision of the TCC is a case in point.

The main opposition party, the Republican People’s Party (CHP) appealed to the Turkish Constitutional Court (TCC) seeking annulment of different provisions of eight emergency decrees issued by the government in the aftermath of the 15 July failed coup.  The grounds for the appeal were that those provisions violated the Turkish Constitution.

On 12 October, the TCC has rejected the appeals (here and here both in Turkish) stating that it lacked jurisdiction to review whether or not the decrees were proportionate (i.e. strictly required by the exigencies of the situation), which is the generally accepted standard in international law.  The TCC rendered this decision even though there is clear legal precedent to the contrary. 

In 1991, the TCC ruled on a similar case. The Court’s decision in that case stated that the state of emergency regime is an institution of rule of law which, although it carries the potential to limit human rights to a certain extent and to accord broad discretionary powers for the disposal of the executive organ, eventually it must aim at safeguarding human rights and liberties from regression in situations of crisis and must protect the Turkish constitutional order.

Regrettably the bitter reality is that there is extreme judicial deference by international courts that succumbs to the inherent contradictions of a derogations regime. Most recently, in A & Others v. United Kingdom, the European Court of Human Rights applied a very deferential standard to UK national authorities and accorded wide latitude by providing a weak and lower threshold in defining what constitutes an emergency.

In sum, there is strong evidence to conclude that Turkey has gone beyond what is necessary or proportionate. And after the TCC’s recent decision, in which it declined to rule on state of emergency decrees, there is also no avenue of appeal to Turkish courts to assess whether the state of emergency deviations are lawful derogations or whether they are in violation of international law.

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