Introduction

In the two-year period from July 20, 2016 when the State of Emergency was declared until July 18, 2018 when it ended, a total of 37 State of Emergency executive decrees were issued. These executive decrees introduced major amendments to thousands of articles in the legislation. These executive decrees introduced major amendments to thousands of articles in the legislation. Most of these amendments, which are in no way related to the reasons prompting the declaration of the State of Emergency, introduced changes in order to restructure state-society relations in such diverse areas as national defense, internal security, state personnel regime, economy and social security, administrative structure, education and health. The current report will analyze all the executive decrees issued until date under the State of Emergency with a view towards shedding light on the profound and dramatic changes that these are meant to bring about in the country’s political, social and economic structures and relations. Furthermore, the report takes up in an additional section the first 12 presidential executive decrees issued under the new “Presidential Government System”1, from July 9, 2018 when Recep Tayyip Erdoğan -elected president on the elections of June 24, 2018- was inaugurated, until July 19, 2018 when the State of Emergency was terminated.

In Turkey, there have always been heated debates when governments strive to run the country through executive decrees that by-pass the legislature, as such attempts raise concerns over compliance with constitutional law and democratic norms. Nonetheless, taking into consideration the huge scope and the aforementioned immense impact of the executive decrees issued under the State of Emergency, it can be suggested that the country is now facing a whole new situation that goes far beyond the debates around the executive decrees issued in the 1990s, for instance.

Moreover, considering that the Constitutional Court declared itself to be unauthorized to adjudicate on applications against the State of Emergency executive decrees, thus placing those executive decrees outside judiciary control, and that these very same executive decrees introduced numerous provisions revising the state’s structure in the presidential referendum of April 2017, Turkey can be said to be on the verge of a whole new era that radically diverges from the previous ones in political terms. The purpose of the current work is precisely to present a panorama of these legal changes that future studies and analyses on the nature of this new epoch would necessitate.

In addition to these critical amendments in legislation, over the course of the State of Emergency which was extended seven times, 129.612 public employees were dismissed from public duty for life without recourse to any judicial process. 3,799 of these dismissed public sector employees were later reinstated by subsequent executive decrees. The public employees thus expelled include over 33,500 teachers, over 31,500 police officers, over 6,000 academics, over 7,000 health professionals, 13,000 members of the armed forces and 39,000 other employees. Executive decrees issued in this two-year period also closed down a large number of foundations, associations, educational institutions, NGOs and media outlets, and banned them from operating. Executive decrees shut down 2271 private education institutions, 1431 associations, 145 foundations, 178 media outlets, 47 private health institutions, and 15 foundation-owned higher education institutions; special administrators were appointed to 99 municipalities. The closure decisions for 25 newspapers, magazines, publishing houses, distribution channels and private radios and TVs were later rescinded. The work licenses of 22,474 individuals employed by the closed private educational institutions were abrogated and they were banned from working in any educational institution.2

According to a report issued by the Securities Deposit Insurance Fund (TMSF), as of 13.11.2018, the powers of the special administrators placed at the head of a total of 1.008 were transferred to TMSF, or TMSF was directly appointed to these companies as special administrator. A total of 45,364 people were employed by the said companies. TMSF was also appointed as special administrator to control the stakes below 50% of 138 companies, and as personal administrator to the properties of 120 natural persons. Furthermore, TMSF sold off the properties and licenses of 99 closed media outlets, as well as 676 radio and TV transmitters.3

While the government blocked judicial appeal against measures introduced by State of Emergency executive decrees towards individuals or institutions, the State of Emergency Measures Review Commission has been set up on January 23, 2017, as the only legal organ that natural and legal persons can appeal to against measures affecting them.4 The commission was set up on May 22, 2017 and received a total of 125,000 applications. As of 9.11.2018, the commissioned resolved a total of 42,000 applications, rejecting 39,000 and approving 3,000 of these.5 Applications to administrative justice against State of Emergency measures were rejected by administrative courts and the Council of State on the grounds that the State of Emergency Laws are legislative actions with the force of law. Individual applications by persons and institutions to the Constitutional Court were found inadmissible on the grounds that domestic remedies have not been exhausted. The European Court of Human Rights likewise ruled inadmissibility in four applications against State of Emergency measures on the grounds of non-exhaustion of domestic remedies.6

Measures implemented by State of Emergency executive decrees that severely restrict and violate the fundamental rights and freedoms have been examined in detail in various dimensions by the reports of various human rights organizations.7 For this reason, the present study has been limited to the legislative amendments and additions brought about by the State of Emergency executive decrees in the form of omnibus laws.

The study analyzes 37 State of Emergency executive decrees issued until date, classifying the amendments to legislation under specic categories, and listing the changes / additions / eliminations introduced by these orders. Furthermore, an additional section has been dedicated to the first 12 presidential executive decrees issued in the ten-day period from the initiation of the Presidential Government System until the end of the State of Emergency. In order to make sure that the content of these amendments are fully understood, technical details that may confound the reader have been left out; comments were added to clarify the true nature of these changes and the judiciary / political / institutional transformations that they introduce. The commentary and analysis have nevertheless been restricted since the main objective of the study is to present a comprehensive and inclusive documentation of legal amendments and innovations brought about by these executive decrees.

This study aims to conduct an analysis of the structural change that the State of Emergency executive decrees are meant to bring about in Turkey’s administrative structure and legal regime, and thereby facilitate the understanding of how the government deploys state of emergency methods to restructure the political, legal and social institutions.

1 Following the constitutional amendments of the April 16, 2017 referendum, Turkey transitioned to a type of presidential regime called “Presidential Government System”. On June 24, 2018, early parliamentary elections and presidential elections were held concomitantly. Recep Tayyip Erdoğan was elected the first President of this new system and took office with the inauguration ceremony of July 9, 2018. The State of Emergency, which was declared on July 20, 2016 and then extended in 3-monthly intervals to last a total of 729 days, ended on July 19, 2018. In this ten-day interval, Presidential decrees were issued on the basis of the authorities granted by the new system and the State of Emergency continued as well.
2 For the number of dismissed public officials, please see Amnesty International Turkey, “Dönüşü Olmayan İhraçlar”, p. 12 https://www.amnesty.org/download/Documents/EUR4492102018TURKISH.PDF
3 See. “TMSF Üç Aylık Faaliyet Raporu Temmuz-Eylül 2018”, https://www.tmsf.org.tr/tr/Rapor/UcAylikRapor
4 See. Executive Decree 685: http://www.resmigazete.gov.tr/eskiler/2017/01/20170123-4.htm
5 See. https://ohalkomisyonu.tccb.gov.tr/
6 See. Mercan/Turkey, Application No: 56511/2016; Zihni/Turkey, Application No: 59061/2016; Çatal/Turkey, Application No: 2873/17; 68 Köksal/Turkey, Application No: 70478/16.
7 See for example. Amnesty International, “Dönüşü Olmayan İhraçlar? Türkiye’de Kamudan İhraç Edilenler İçin Etkin Çözüm Yok”, 2018; “Gelecek Karanlık: Türkiye’de İhraç Edilen Kamu Çalışanlarına Yönelik Sonu Gelmeyen Baskılar”, May 22, 2017; İHOP, “21 Temmuz 2016 - 20 Mart 2018 OHAL Uygulamaları: Güncellenmiş Durum Raporu”, April 17, 2018; Article 19, “The Expression Agenda Report 2017/2018: The State of Freedom of Expression Around the World”, 2018; Eğitim-sen Yüksek Öğretim Bürosu, “OHAL Sonrası Türkiye’de Üniversiteler Raporu”, 2018; İnsan Hakları Derneği, “2017 İnsan Hakları İhlalleri Raporu: OHAL Altında Geçen Bir Yıl”, 2017; Demokrasi İçin Birlik, “OHAL’in Birinci Yılında Demokrasi Enkaz Altında”, 2017.