24 Şubat 2023 07:30

State of Emergency Declared Due to Earthquake

Tens of thousands of people lost their lives and tens of thousands of buildings were either destroyed or severely damaged due to two major earthquakes that occurred on February 6, 2023, affecting ten provinces. While there were great disruptions and disorganization in response from the first hours of the earthquake, the President declared a state of emergency for three months in the region covering ten provinces affected by the earthquake on February 8, 2023. The Turkish Grand National Assembly also approved this decision at its meeting on 9 February.

The Freedom Observer

According to Article 119 of the Constitution, it is possible to declare a state of emergency due to a natural disaster. In this case, money, property, and work obligations may be imposed on citizens. According to Article 119/5 of the Constitution, these obligations are regulated by law. As a matter of fact, Law No. 2935 on the State of Emergency regulates the obligations and measures to be taken in the event of a state of emergency declared due to a natural disaster between articles 5 and 9. In addition, Article 119/6 of the Constitution authorizes the President to issue a Presidential decree on matters necessitated by the state of emergency, without being subject to the limitations in the second sentence of the seventeenth paragraph of Article 107 of the Constitution. These decrees are the equivalent of the old Statutory Decrees and are subject to parliamentary control. For this reason, they must be submitted to the Parliament for approval on the day they are published. It is regulated that if the parliament does not approve these decrees within three months, they will automatically be abolished.

After a major earthquake disaster affecting the lives of millions of people, it may be necessary for public authorities to exercise some extraordinary powers to return life to normalcy as quickly as possible. However, these powers must be exercised under the Constitution and laws, in matters required by the state of emergency, and to the extent required by the state of emergency.

The earlier implementations of the state of emergency, which was declared after the 15 July coup attempt in 2016 and said to be implemented for 45 days, and yet carried out for two years, raised concerns that the public officials would abuse the state of emergency this time. As a matter of fact, the President's statement to the press that the state of emergency was declared to interfere with the security problems[1] alleged to have occurred in the earthquake zone showed that these concerns were not unfounded. Because the measures that can be taken in cases of emergency declared due to disasters and epidemics are listed in Article 9 of the State of Emergency Law and there is no specific measure that can be taken in matters related to security such as looting.

In addition, the presidential decrees and the decisions taken to show that the "requirements of the state of emergency" will be interpreted and applied very broadly. In this context, the President issued the first decree on 11 February under the state of emergency.[2] In the meantime, with Article 5 of Presidential Decree No. 120 regarding the measures taken in the jurisdiction within the scope of the state of emergency, the detention period was extended to four days for crimes of robbery and looting in places where a state of emergency was declared, and the prosecutor's office was given the authority to extend it for three days.

However, there is no rule regarding detention periods in Article 9 of the State of Emergency Law. In addition, Article 119/6 of the Constitution does not recognize such an authority. This is because the fifth paragraph states that in cases of emergency, restrictions on fundamental rights can only be made by law. In the sixth paragraph, the exception of the emergency decrees from the second sentence of the seventeenth paragraph of Article 104 does not mean that fundamental rights can be limited by these decrees. Because the provision in question refers to "regulation", not "limitation". In other words, with these decrees, only the implementation of the restrictions envisaged in the State of Emergency Law can be regulated, and the decrees cannot impose restrictive provisions on their own. However, the supervision of such regulations by the Constitutional Court does not seem possible in line with the case law of the Constitutional Court in 2016.

On the other hand, the President announced on February 12, 2023, that all universities will conduct their second-semester education remotely, and earthquake victims will be placed in KYK dormitories.[3] Although the authority to suspend education in public and private schools of all degrees is granted in paragraph (b) of Article 9 of the State of Emergency Law, it is not possible to say that it is necessary and proportionate to use this authority for regions not covered by the state of emergency.

The powers of the state of emergency declared due to the earthquake should not be used in matters unrelated to the earthquake and interfered with individual rights by using them disproportionately.

[1]https://www.youtube.com/watch?v=dPvX1KF3tXk

[2]https://www.resmigazete.gov.tr/eskiler/2023/02/20230211M1-1.pdf

[3]https://www.aksam.com.tr/trend/universiteler-online-mi-olacak-universiteler-2-donem-yuz-yuze-olmayacak-cumhurbaskani-acikladi/haber-1342948

[4]https://www.resmigazete.gov.tr/eskiler/2023/02/20230211M1-1.pdf

[5] https://www.aksam.com.tr/trend/universiteler-online-mi-olacak-universiteler-2-donem-yuz-yuze-olmayacak-cumhurbaskani-acikladi/haber-1342948

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