Basel 2018, Presentation #1

The Permanency of the State of Emergency in Turkey. The Rise of a Constituent Power or Only a New Quality of the State? 

Ece Göztepe, Bilkent University, Ankara

Working on the state of emergency/exception requires inevitably an idea of normality. For the first time the Roman law came up with the idea of ruling the state of exception before the exceptional conditions emerge and the Romans decided to locate the exceptional power beside the normal system. Even the terms and the content of the exceptional powers of the Roman dictators have been changed over time, the separation of their extra-legal powers from the regular system and the system-intern control of these powers stayed the core of the regulations. On the other hand most of the modern constitutional states have preferred to locate the exceptional, mostly executive powers, within the system and guaranteed a parliamentary and judicial control over the use of these constitution-based powers. So, the normative rules on the state of exception in modern constitutional states is still a dependent variable.

Despite the constitutional restriction in Article 148 par. 1 that forbids the constitutionality control by the Constitutional Court the Turkish Constitution of 1982 could have also been subordinated to the system of modern constitutional states. My paperwill put the emergency regime typologies briefly in a context to give an overview on the constitutional and legal foundations of emergency regimes in Turkey and then summarize the interpretation of these norms by the Turkish Constitutional Court in the 1990’s. In the second part I will analyse the content of the thirty-one state of emergency decrees as of the attempted Coup d’Etat in July 15th, 2016 and will show the shift from the state of exception regime under the rule of law to the non-revolutionary constituent power without any legal restrictions. The main subject of this analysis will be the TCC decisions after October 2016 which have abandoned its former concept of the constitutional limits of the emergency regimes and in fact give up its own functional existence and legitimacy within the constitutional system.

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