Politics of Emergency

The politics of emergency is on the rise, whereby the lines between emergency and normalcy start to fade, argues Alper Kaliber, associate professor and Jean Monnet Chair in the Department of International Relations at Altinbas University. Ahead of publishing a new paper on the Global Rise of Modular Emergency Regimes in Türkiye and beyond, a panel was held at İstanbul Policy Center held on October 14.

A seemingly new order is flourishing. One whereby the line between "the state of normal" and "the state of emergency" (SoE) is blurring. Although a state of emergency is often associated with authoritarian states, its use or name-dropping is also increasing in Western liberal democracies. Between 2020-2022 182 SoEs were declared, mainly COVID (56 cases) or natural disaster (42 cases) related. Recently, young climate activist Greta Thunberg called on the United Nations in 2021 to declare a state of emergency on climate change to mobilize a comprehensive UN response.[1][2] Antonio Guterres, the UN secretary general, stated something similar in December 2020 when he called for a "state of climate emergency" until carbon neutrality was reached.[3]

As the name implies, the state of emergency brings an exceptional mobilization of power which is deemed necessary in imminent and severe situations. The idea of a suspension of 'normalcy' originates in the French revolution, with the codification of "a state of siege" in 1791. This later developed into what is now known as the state of emergency; the government gives itself extraordinary powers to put through normally impossible policies. This can entail the partial or complete suspension of the constitution, rights and freedoms and often occurs in the wake of civil unrest, armed conflict or natural disasters. But what if the state of normal and the state of emergency get intertwined with each other? This is what Alper Kaliber calls: modular emergency regimes, whereby governments use ordinary and extraordinary power and legislation interchangeably.

Türkiye fits this narrative of becoming a modular emergency regime, or perhaps it has always been one since its conception. During the country's lifetime, states of emergency, states of exception or martial law, have been basically the rule rather than the exception. As a result of successful and failed coups and military intervention in 1960, 1971, 1980, 1997, and 2016, the country has been under the rule of state of emergency and martial law procedures for around 43 years during the 99-year existence of the republic.[4] Between 1923-1987 the country was under martial law for 26 years. Between 1987-2002 there was a 15-year-long state emergency. The most recent state of emergency lasted from 2016 to 2018, after a failed putsch.

All these emergency periods came with new and/or amendments to laws and legislation. For example, 669 laws were introduced between 1980 and 1983.[5] More significantly, substantial modifications to the constitution followed during these times and/or new ones were put in place. Modern Türkiye has seen four different constitutions, the constitution of 1921, 1924, 1961, and the current 1982 constitution, developed and ratified by popular referendum in the aftermath of the 1980 coup.

The most recent SoE regime was announced after the failed coup on July 15, 2016. Following Article 120 of the constitution and Article 3 (Law No. 2935) on the state of emergency, the government established a 3-month nationwide SoE. After the first three months, the SoE was extended seven times and ended on July 18, 2018. Here, too, in a short period, many legal reforms occurred. Between July 23 2016 and December 24, 2017, 30 state of emergency executive decrees were issued. From these no more than 4 were discussed in the parliament. The others came into effect without the control of the parliament or constitutional court. This meant that political and judicial oversight of these decrees was bypassed while impacting society immensely. Hundreds of thousands of public employees were dismissed, and schools, universities, foundations, trade unions, hospitals, businesses and newspapers closed down.[6]

To this day, the impact of these SoE measures is still felt. In the aftermath of the most recent SoE, the emergency powers started to comingle with and became part of the norm, according to Alper Kaliber.[7] The emergency and exceptional powers became normalized and routinized in the juridical and political order. For example, with Law No. 7145 coming into effect on July 25, 2018, the SoE became endless, according to İHD (Human Rights Association).[8] It made all amendments and law articles enacted through emergency decrees virtually permanent.[9] İHD referred to Law No 7145 as propelling Türkiye into a condition of "constitutionlessness", due to the restriction of rights and freedoms and the limitless expansion of the government's powers.

During the 2016-2018 SoE, conceivably, the most fundamental change in the constitution happened when Türkiye moved from a parliamentary system into a presidential one. A tight majority of 51.4 to 48.6 percent voted in favor in the 2017 referendum. At the time, President Erdogan argued that previous constitutions failed to represent "the nation's values," as they were imported from the West, instead of "grown on this soil." [10] The opposition intends to completely overhaul the current executive presidential system back to the parliamentary system if it wins the 2023 election.[11]

This transformation into an executive presidential system is one of the indicators of Türkiye's shift into a modular emergency regime Alper Kaliber argues. The constitutional changes granted substantial executive and legislative power to the President. In particular, the presidential decree became a vital rulemaking instrument, as it gives the authority to issue rules directly. The German Institute for International and Security Affairs is of a similar opinion, claiming that the hollowing out of the legislative monopoly of the Grand National Assembly, started with emergency decrees in 2016 and continued with presidential decrees.[12] Data from Türkiye's main opposition party indicates that since the new system, the President wrote and approved 2.229 sections of legislation between 2018-2020. In contrast, the parliament was only able to discuss 1.429 sections.[13]

These developments indicate that emergency and exceptional powers are increasingly getting centralized. However, Kaliber noted that, as the use of emergency power gets more normalized and blurred, there is also the decentralization of this type of rule, with district governors increasingly using emergency powers. Nonetheless, the normalization of emergency is an emerging worldwide phenomenon with possible significant anti-democratic effects and already changed Türkiye profoundly. Human Right Watch in 2018, perhaps captured this when it criticized Law No 7145: "The state of emergency may have ended but so has the rule of law."[14] (WM/VK)

[1] https://www.nytimes.com/2021/11/10/world/greta-thunberg-cop26-state-emergency.html#:~:text=Greta%20Thunberg%20and%20other%20young,as%20a%20blueprint%20for%20action.

[2] https://www.hausfeld.com/media/1roftlln/petition-to-the-unsg-to-declare-a-climate-emergency-november-10-2021.pdf

[3] https://www.un.org/sg/en/content/sg/statement/2020-12-12/secretary-generals-remarks-the-climate-ambition-summit-bilingual-delivered-scroll-down-for-all-english-version

[4] https://ihd.org.tr/en/new-ihd-report-emergency-decree-laws-and-their-impact-on-human-rights-in-turkey/

[5] https://ihd.org.tr/en/article-state-of-emergency-dismissals-are-a-legacy-of-september-12/

[6] https://tr.boell.org/sites/default/files/ohal_rapor_ing.final_version.pdf

[7] https://ecpr.eu/Events/Event/PaperDetails/59446

[8] https://ihd.org.tr/en/regarding-law-no-7145-regulating-permanent-state-of-emergency/

[9] https://bianet.org/english/society/199405-hrw-state-of-emergency-being-normalized-in-turkey

[10] https://www.swp-berlin.org/en/publication/turkeys-presidential-system-after-two-and-a-half-years

[11] https://www.aljazeera.com/news/2022/2/28/turkish-opposition-join-powers-to-return-to-parliamentary-system

[12] https://www.swp-berlin.org/en/publication/turkeys-presidential-system-after-two-and-a-half-years

[13] https://www.al-monitor.com/originals/2020/06/turkey-executive-presidency-proved-to-be-fail-in-two-years.html

[14] https://bianet.org/english/society/199405-hrw-state-of-emergency-being-normalized-in-turkey