Emergency Decree Research Articles

Turkey's Recent Emergency Rule (2016-2018) and its Legality Under the European Convention on Human Rights and the International Covenant on Civil and Political Rights

States, like people, have an instinct to protect themselves when in a life-and-death struggle. The recognition of a state of emergency, or of siege, in the domestic legal order, dates back to at least Roman times. (David Kretzmer, State of Emergency, Max Planck Encyclopedia of Public International Law [MPEPIL] updated February, 2008) Primary international human rights treaties include a derogation clause for emergency situations. The 2016 coup attempt caused the declaration of a state of emergency in Turkey that lasted two years. Firstly, this thesis analyzes whether or not a coup attempt can justify the declaration of a state of emergency; secondly, measures adopted under Emergency Decrees are legal under Turkey’s Constitution, the European Convention on Human Rights, the International Covenant on Civil and Political Rights, based on the case law of the European Court of Human Rights, the General Comments of the UN Human Rights Committee, opinions, consideration, guidelines, recommendations adopted by International Organizations, academic publishing, and other sources. The thesis concludes that while the Turkish Government was correct in promulgating the state of emergency to deal with the danger caused by the coup attempt, it excessively used emergency powers and adopted measures to go beyond what is strictly required by the situation’s exigencies. It also notes that both national and international safeguards, devised to supervise the state of emergency, didn’t prevent the Turkish Government from breaching its obligations under national and international law.

Temel Hakların Durdurulması

<span style="color: rgb(0, 0, 0);">1. Problem. 2. Ordinary emergency. 3. Niccolo Macchiavelli: “Power must be maintained despite everything.” 4. Carl Schmitt: Sovereign is who decides on the exception 5. Nowadays valid old conception of emergency. 6. Rome: Constitutional dictatorship in time of emergency. 7. International emergency law standarts. 8. Some problems of incompatibility in Turkish emergency rules. 9. Anti-terrorism Legislation. 10. ECHR Case of Güler and Uğur vs. Turkey. 11. French Constitutional Council decision of Amadou. 12. Jurisdictional immunity of Emergency Decrees. 13. Emergency powers in normal time. 14. Could apply to ECHR or not? 15. Instead of conclusion, “what must be done”? 16. Constitutional Court’s comment on emergency. 17. Criticism of Constitutional Court. 18. Nurullah Efe and Halkın Kurtuluş Partisi Individual Application Decision (7.6.2017). 19. ECHR’s inadmissibility decision on Cumhuriyet Halk Partisi (CHP) application. 20. Penal tribunals’ Backlash against Constitutional Court’s decisions.</span>

A revolutionary state of exception: Munich, 1918/1919

The article examines the revolution in Munich in 1918/1919 and proposes a threefold model of interpreting it as a prolonged and self-reinforcing state of exception during the period of transition after World War I. At first, at the legal level, the revolutionary forces in Munich by no means abolished the extensive system of exceptional decrees, orders, and laws developed in the course of the war. Quite the contrary, the ad hoc jurisdiction was even intensified through the creation of People’s Courts and the later introduction of martial law. These measures, secondly, were connected to a broader discourse on the exceptionality of the revolutionary situation which was not limited to conservative and reactionary forces but found its advocates in all parts of the political spectrum. Thirdly, at a practical level, the experience of countless and yet inefficient emergency decrees, the impression of disorder, and the lack of trust in the institutions of the post-revolutionary state created the possibility of exceptional self-mobilizations. The article argues that the state of exception’s legal, discursive, and practical dimension cannot be understood separately. Instead, it is the interplay between these three dimensions that creates the specific dynamic of the state of exception.

Recent vaccine mandates in the United States, Europe and Australia: A comparative study

BackgroundIn response to recent outbreaks of vaccine-preventable diseases and concerns around vaccine refusal, several high-income countries have adopted or reformed vaccine mandate policies. While all make it more difficult for parents to refuse vaccines, the nature and scope of ‘mandatory vaccination’ is heterogeneous, and there has been no attempt to develop a detailed, comparative systematic account of the possible forms mandates can take. MethodsWe compare the construction, introduction/amendment, and operation of six new high profile vaccine mandates in Australia, France, Germany, Italy, California, and Washington. We rank these policies in order of their relative restrictiveness and analyze other differences between them. ResultsNew mandate instruments differ in their effects on behavior, and with regard to their structure, exemptions, target populations, consequences and enforcement. We identify diverse means by which vaccine mandates can restrict behaviors, various degrees of severity, and different gradations of intensity in enforcement. ConclusionWe suggest that politico-cultural context and vaccine policy history are centrally important factors for vaccine mandate policymakers to consider. It matters whether citizens trust their governments to limit individual freedom in the name of public health, and whether citizens have previously been subjected to vaccine mandates. Furthermore, political communities must consider the diverse mechanisms by which they may construct vaccine mandate policies; whether through emergency decrees or ordinary statutes, and how (or whether) to involve various stakeholder groups in developing and implementing new vaccine mandate policies.

Plotters and Martyrs: The Justice and Development Party's (AKP) Constituting of Political Actors in the 15 July Coup Event

ABSTRACTIn 2016 an unexpected and ill-organized coup d’état occurred in Turkey. It failed within 24 hours, in part due to the bravery of thousands of citizens who in opposition to the soldiers and tanks occupied the squares and streets of Istanbul and Ankara. Designated in the political vernacular as the 15 July event, the AKP government has sought to compose its authorized version of the coup attempt through urban ritual and performance, even as it governs using repressive state of emergency decrees. This paper describes and assesses the reception of this symbolic and narrative work, which is intended to foster in citizens certain desired affective feelings and understandings about the coup attempt. It concludes that the government’s symbolic offensive has been a relative failure in modifying the perceptions of Istanbul’s inhabitants. This failure relates to citizens’ experiential knowledge of the government’s less-than-democratic previous acts in Istanbul, most significantly in its violent response to the mass Gezi Park protests in 2013. Equally importantly, it also reveals the importance of the temporal layering of experience for political perception, and thus of the significance of political subjects’ historical being.

THE IMPACTS OF THE SPECIAL REGIONAL POLICY TO THE LOCAL GOVERNMENT ENFORCEMENT IN SOUTHERN THAILAND (CASE STUDY AT THE REPEL DISTRICT, KRONGPINANG, THAILAND)

Special territory policy has been using in the Southern Thailand is a central government’s policy (Bangkok) in terms of giving absolute authority to the military, to resolve the conflicts in southern Thailand. The policy includes three matters: 1) Martial law of 2547 (the regulations in state of emergency in the 2004); 2) the Emergency Decree 2548 PO-Ro-Ko (Security rules in state of emergency); 3) Internal Security Act in the 2551 PO – RO – BO (the rule in terms of internal security implementation of 2008). This paper aimed to analyzing the impacts of special regional policies on local governance in southern Thailand (case study in Repel district, Krongpinang, Thailand. This research used descriptive qualitative methodology. based on research results, can be concluded that the impacts of the implementation of special regional policy; 1) the functional disappearance of local government; 2) local government was depressed by military system; 3) society harmonization to local government (village head) decreased.

Uso de técnicas alternativas para captação, infiltração e reuso de águas: estudo de caso em Cajazeiras (PB)

In recent years the reservoirs of several northeastern states have collapsed, resulting in water rationing and even the state of emergency decree. Even so, some buildings which have already been consolidated in the urban area do not use any form of rainwater for storage or subsequent reuse. Thus, this study proposes the use of alternative techniques for the storage and reuse of water in a building which has already been consolidated in the urban area of semi-arid regions, based upon the perception that certain functions of the compensatory techniques can be applied to areas with high rainfall indices, as well as opposite zones. In order to do so, we carried out a study on the natural aspects of the city and identified sites that enabled the installation of alternative techniques selected by TecAlt 1.0 software, a program used to assist decision making in storm water management. Regarding suggestions for implantation techniques,The results were positive, even for the semiarid conditions, which is the case of the study place . Researchers may carry out future studies on the topic with the purpose of assessing and budgeting the suggested techniques.

Gesetzgebungsbefugnisse der Exekutive im Verfassungsstaat. Notverordnungsrechte im Kaisertum Österreich von 1848 bis 1867

The following contribution deals with procedures which allow executive powers instead of the parliament to issue provisional laws in cases of a national emergency. The first such provisions were made during Austria’s first constitutional period (1848–1851). In the following neoabsolutistic period (1851–1860) – when there was no parliament – it was not necessary to provide for such instruments. With the first step back towards a parliamentary political system in 1861, executive powers were for the second time authorised to issue emergency decrees. Following the restauration of a constitutional political system in the shape of the Cisleithanian December Constitution in 1867, restrictions relating to formal prerequisites and substantial barriers in dealing with emergency decrees were created, following the models provided by the Austrian Constitution of 1849 as well as the Draft Constitution of the Imperial Diet at Kremsier in 1848.

Taming the Prince: Bringing Presidential Emergency Powers Under Law in Colombia

Can courts check presidential power exercised in a crisis — and should they? The case of Colombia, which recently turned on its head a history of presidential overreach and judicial rubber-stamping, provides an answer in the affirmative. As in much of Latin America, throughout Colombia’s post-independence history, bloodshed fueled authoritarian tendencies, with presidents exploiting the need for “order” to centralize power. One critical weapon in the presidential toolkit was the power to declare a state of emergency. During the twentieth century, these decrees became a routine pretext for the President to govern unilaterally, acquiesced to by the legislature and rarely challenged by the courts. That pattern has since come to an end. Since 1992, the Constitutional Court has proven an unexpectedly strong counterweight to presidential power, especially in its strict review of presidential emergency decrees. Under a model of substantive judicial review, the Constitutional Court has taken for itself the authority to review the factual basis giving rise to a crisis, and the adequacy of the President’s rationale for declaring it. Decrees that, as in the past, attempted to manufacture a crisis or which would exceed the President’s constitutional powers have been struck down. This paper discusses some of the Court’s successes in that ambit, and argues for the portability of this model to other national contexts.

Das Notverordnungsrecht des Bundespräsidenten

The Austrian constitution of 1920 concentrated all power in the parliament; provisions on a state of emergency were consciously renounced at that time. An amendment from 1929 strengthened the executive branch, introducing a power of the Federal President to issue emergency decrees. In the course of deliberations, however, the Social Democrats succeeded in making the adoption of such regulations subject of the approval of a permanent parliamentary subcommittee. This emergency authority has never been used to this day. However, the instrument of permanent subcommittees was taken up in other contexts in order to ensure parliament’s influence in situations where decisions need to be taken quickly

Observation of the Ankara 16th Penal Court hearing of case against former co-leader of People’s democratic party (HDP) Figen Yuksekdag 4 July 2017

In July 2017, The Human Rights Committee of the Norwegian Bar Association conducted a trial observation in the trial of Mrs. Yuksdekdag, former co-leader of the HDP party in Turkey. The observer was together with 14 other international observers denied entrance to both the courtroom and the press conference in Ankara, and has given a detailed written statement on these accounts. The observation report summarizes the current situation of the Rule of Law in Turkey and the increasing international concerns, exemplified by the case against Mrs. Yuksekdag. The Human Rights Committee of the Norwegian Bar Association express deep concern regarding the independence of the Turkish Judiciary, the extensive use of emergency decrees, the seemingly arbitrary dismissal of thousands of public servants, along with the Turkish government's criminal persecution of amongst others human rights defenders, journalists, politicians, lawyers, prosecutors and judges.

Is the State of Emergency Inquiry Commission, Established by Emergency Decree 685, an Effective Remedy?

Following the attempted coup of 15 July 2016, the government of Turkey declared a State of Emergency and has since then issued a series of emergency decrees either directly dismissing public officials as in the case of decrees No. 668, 669, 670, 672, 675, 677, 679, 683 and 686 or by decision of bodies authorized under the emergency decree No. 667. Tens of thousands of public officials have thus been dismissed and consequently subjected to a permanent restriction of their rights associated with public service. Furthermore, hundreds of unions, federations, confederations, private health institutions, private educational institutions, private institutions of higher education (foundation universities), private radio and television outlets, newspapers and magazines, news agencies, publishers and distributors were closed by emergency decrees. In addition 1500 associations and 123 foundations were dissolved. This article examines whether the State of Emergency Inquiry Commission established by Emergency Decree 685, will be able to offer effective remedy to those whose rights have been violated by previous decrees.

When Torture is a Duty: The Murder of Imam Yapa Kaseng and the Challenge of Accountability in Thailand

On 19 March 2008, Imam Yapa Kaseng was arrested in Narathiwat in southern Thailand and detained as a suspected insurgent by Special Task Force 39 under the provisions of martial law and the Emergency Decree on Public Administration in an Emergency Situation (hereafter Emergency Decree). Two days after his arrest, he died in the custody of the army. On 25 December 2008, the Narathiwat Provincial Court ruled that “the cause of death is that the deceased was physically assaulted by state officials … while he was in the custody of soldiers who were performing their civil service duties”. This ruling is paradoxical: Thai state officials are named as responsible for a death in custody, yet torture is categorised as a “duty”. Since the ruling, Imam Yapa’s family has pursued criminal, civil and internal state methods of redress, but the case has been stalled and the responsible state officials have not been held accountable. In response, I challenge this paradox by reading the inquest decision in light of both relevant national and international legal instruments and the testimonies given during the hearings. Drawing on the testimonies given during the inquest hearings, I construct an alternative narrative of suffering and state accountability.

Constitutional Jurisprudence and the Rule of Law: Revisiting the Courts in Yusin Korea (1972-1980)

Since Korea’s democratization in the late 1980s there has been powerful momentum to reexamine the past authoritarian rule. This article aims to contribute to the growing literature in the rule of law in authoritarian regimes by discussing the judiciary of Korea during the so-called Yusin era (1972–1980). The courts in the 1970s have been placed at the center of controversy in the wake of transitional justice, as a number of judicial decisions were reopened and original verdicts overturned. Most notable were the cases involving the so-called Emergency Decrees which served as a major instrument for the regime to suppress political opposition. In December 2010 and March 2013, the Supreme Court of Korea and the Constitutional Court of Korea each ruled that the Emergency Decrees were unconstitutional and that the courts in the 1970s were wrong in declining to exercise their judicial review power. The evolving jurisprudence through the authoritarian and subsequently democratic periods has significant implications for the rule of law in modern Korea. Constitutional jurisprudence in the post-democratization years in particular brings to the fore the thorny issue of negotiating between mounting democratic aspirations and the exigency of legal stability.

When the barking stopped: Censorship, self-censorship and spin in Fiji

After four military coups in 20 years, Fiji is poised to return to democracy in elections promised for 2014. An emergency decree placing censors in newsrooms was lifted in January 2012, but with domestic media gagged by lawsuits and Fiji Television threatened with closure for covering opposition figures, a pervasive climate of self-censorship imposed by government decrees is enforced by a government-appointed judiciary. As elections draw closer, the illusion of press freedom is framed by highly paid American ‘spin doctors’ from a prominent Washington DC public relations and lobbying firm. Paralysis in the newsroom is reflected at Fiji’s premier University of the South Pacific, once a leader in journalism education. The author taught television journalism at the university and trained reporters for Fiji TV in the 1990s, but returned to find Fiji’s media and higher education in a crisis reflecting the decline of Western influence in the Pacific. Student grievances over harassment and expulsion in retaliation for independent reporting echo the deceit and dysfunction unfolding on the national stage. As traditional allies Australia, New Zealand, United Kingdom and the United States anguish over sanctions, unprecedented visits to the Fijian government by Russian Foreign Minister Sergei Lavrov and incoming Chinese Premier Xi Jinping portend diplomatic rivalry and raise the stakes for a fragile Pacific nation.

Die Wirtschaftskrise von 1931 als Wendepunkt? Deutschlands Weg vom organisierten zum regulierten Kapitalismus

Abstract The law is meant to intervene where markets are failing. Hence, during a financial crisis, the legislator often develops new regulations - or reforms the existing legal system - in order to induce the actors involved to behave in a certain way. During the 1931 financial crisis, the German government introduced not only general supervision of the banking sector, but also attempted to abolish the major flaws in German Corporate Law. The Emergency Decree of 19th September 1931 installed mandatory and independent audits. It also forbade share buybacks. A first glance at the Emergency Decree may give the impression that the German government’s immediate reaction to the financial crisis was to shift away from the concept of economic self-control to more active state intervention and control. Yet, was it really the 1931 financial crisis that initiated this conceptual shift? In this article, I show that the perception of the economy and its political meaning had already begun to change in the decades preceding the 1931 crisis. After all, the majority of the new regulations had long been common practice or established at least in some of the economic sectors; in some cases, they were even formally enacted laws - albeit laws that were deliberately ignored. No single event changed the underlying values governing economic policies; rather, it was a case of constant “drip of water” that - over time - wears away any stone. Thus, the crisis was less a reason than an occasion.

‘Counts’ in the Italian ‘nomad camps’: an incautious ethnic census of Roma

While in France the possibility of collecting ethnic data led to long-lasting debates, in Italy the government enacted an emergency decree to carry out a census of so-called ‘nomad camps’ populated mainly by Roma. Starting from this case, this article examines the question of ethnic data collection in Italy. The contribution highlights that in Italy legislative provisions have established a ‘promotional framework’ for minorities. In contrast with France and its official colour-blindness, the Italian approach also allows for ethnic data collection whenever this is needed for policies in favour of minorities. However, the recent emergency measures applied to the ‘nomad camps’ in Italy, including a census, were not framed in the context of such positive measures and are thus not easily compatible with anti-discrimination and privacy law. Hence, the Nomad Emergency Decree opened the way for Italy's first experiences of civil rights litigation based on the ‘discrimination frame’.

"Caesarism without Caesars": Representation, Autonomy and the Democratization of the Law in the Late Habsburg Empire

In The Question of Nationalities and Social Democracy (1907), Otto Bauer sought to reconcile nationalism and socialism while anticipating the introduction of universal suffrage in Austria. To this end, he referred to Friedrich Naumann’s suggestion that imperial sovereignty could be wedded to the power of the people through the concept of “Caesarism.” Caesarism, a fairly well-known idea by the early twentieth century, has been most simply defined as imperial monarchical authoritarianism or as a military dictatorship. However, Caesarism also possessed debatable democratic qualities. Scholars and theorists ranging from Theodor Mommsen to Oswald Spengler to Max Weber defined and redefined Caesarism. Weber particularly associated Bismarck’s role in German politics with classic characteristics of Caesarism. The latter included: a charismatic leader; a broadening of suffrage and growth of mass politics; plebiscitary elections paradoxically combined with a weak parliament and courts; legislation passed by emergency decree; and daily governance managed by a bureaucracy, concealed behind the legitimacy of the imperial leader or monarch. Following Naumann, Bauer defined Caesarism as “the alliance of the old imperial power resting on the force of arms with the force of ... universal suffrage and national freedom.” ... this article explores connections Austria-Hungary’s Cisleithanian bureaucrats and parliamentarians drew between suffrage reform and federalism. With reference to their studies and proposals, I argue here that democratization via broadened representation in fact sparked a two-tiered decentralization and centralization of the state along lines respectively determined by national and ‘sub-national’ aspects of citizens’ identities. To locate the causal connections between democratic representation and federalism, I define representation as a legal association between identity and state power.

Law No. 100 of 1985 Amending Certain Provisions of Egypt's Personal Status Laws

LDURING THE first half of the twentieth century, Egyptian supporters of legal reform in the area of personal status engaged in various activities that contributed to the promulgation of a number of statutory laws, the most important of which were Law No. 25 of 1920 and Law No. 25 of 1929 (marriage and divorce), Law No. 77 of 1943 (inheritance) and Law No. 71 of 1946 (testamentary bequests). By selecting elements from the legal doctrines of the four Sunni law schools, the framers of these laws sought to adapt elements of Islamic family law to the needs of modem times and to improve the legal status of women vis-d-vis their husbands and paternal relatives. The rise to power of the Free Officers Regime in 1952 interrupted the momentum of the movement for legal reform. Pressure for additional changes in the area of Islamic family law encountered little or no success until the accession of Sadat to the Presidency in 1971, at which time the discussions were renewed, initially without much success. Although several proposals and draft laws were debated in parliamentary committees, none was made into law. In 1979 President Sadat decided to speed up the political process by issuing an emergency decree, subsequently approved by the new Parliament, making one of the proposals law. Law no. 44 of 1979 amended the personal status laws to include many of the demands made over the course of half a century by Egyptian feminists. The new law was controversial, both for its content and because of the methods used by the Sadat regime in securing its approval. The President's wife, Jihan Sadat, alternatively was credited with, or blamed for, the passage of the law, commonly known as Jihan's Law. Critics observed that the Egyptian parliament had little choice but to ratify the Presidential Decree that preceded the proposal's enactment into law. However, in Case No. 29 of 1980 (Personal Status), the Badari Court of Summary Justice for Guardianship of the Person (Mahkama Juz'iyya li'l-Wildya

The Politics of Financial Control and Reform in Korea

Government control over finance has been a persistent feature of the politco-economic structure of Korea. This paper first seeks to explain the process in which the government's control over finance had intensified by the late 1970s. with a focus on particular episodes such as the dramatic interest rate reform in 1965, Emergency Decree in August 1972, and several recurring "restructuring (in effect, bail-outs)" attempts, and in relation to the changing industrialization strategy and the consequent relationship between the government and chaebol. And then it will review critically the financial liberalization policies in the 1980s: the privatization of commercial banks, the conflict between the banks and the non-bankfinancial intermediaries (NBFI's) in the process of the restructuring the financial industry, and the freeing of interest rate and to "policy funds." The central argument of this paper is that a considerable progress of financial liberalization notwithstanding, the financial system of Korea still serves as the fulcrum of Korean industrial policy and as a fundamental tool with which Korean policymakers can induce business cooperation and compliance.