From Editor-in-Chief
It is with great sadness that this issue of the Bulletin is prepared at an extraordinary time when a massive disaster hit the country. The series of earthquakes, the first of which occurred on February 6 in Kahramanmaraş and affected 10 provinces in total, turned the life upside down in this region of the country with the still-continuing aftershocks and caused great material and moral damage. After the search and rescue efforts and first interventions that have been going on for days in the region, the death toll has reached 41 thousand, and more than 110,000 people have survived with injuries.
Unfortunately, despite the fact that Turkey, which is located on two major fault lines, is known to be an “earthquake country”, and the fact that the country have been shaken by many earthquakes, such as the 1999 great Düzce earthquake and the 2020 Elazığ earthquake, and the endless warnings of scientists, it has been revealed once again that the administrative authorities did not take the necessary precautions against a possible earthquake and neglected to make preparations to reduce the devastating consequences. Regulations and inspections that will ensure earthquake-resistant construction of public buildings such as schools and hospitals, as well as residences and workplaces, have been unfortunately neglected by central and local governments. Worse, legal regulations such as “zoning amnesties”, which are used as a source of income, have served as invitation to disaster.
As a result of the same unpreparedness, the inadequacy of public institutions in terms of training, equipment and personnel has also prevented the fast, effective, and coordinated execution of search and rescue and first aid efforts after the earthquake. The partisan staffing of the AFAD -and the Red Crescent-without consideration of competence and merit seems to have been the main reason behind inadequate efforts of the state institutions to a large extent.
Meanwhile, the government has declared a “state of emergency” in the region due to the earthquake disaster. Although there is no mistake in principle in resorting to the emergency regime, which is a constitutional instrument, there is a widespread concern that we may face a similar situation due to the previous adverse experience we had under the current government. Indeed, the state of emergency that the AKP government declared after the coup attempt in 2016, which was unconstitutional, was utilized as a tool for suppressing the opposition and all kinds of critical voices in and out of parliament, filling the public administration and judicial bureaucracy with partisan cadres. In short, the state of emergency declared in 2016 was an effective instrument for a call to transition to authoritarian regime.
Another measure taken to mitigate the devastating effects of the earthquake was the President’s decision to switch to distance education at universities in the spring semester. However, it will be remembered that the similar measure applied for more than two years during the last COVID pandemic period alienated university students from education and deprived them of the human and pedagogical advantages of having face-to-face contact with both their teachers and friends in the school environment. In this case, the accuracy of this decision, which will once again expose the same generation of students across the country to such a serious disadvantage, is extremely doubtful. Perhaps a more appropriate solution in this regard would be to leave this decisions to university administrations according to their own special conditions, and should be limited to the earthquake zone, instead of suspending face-to-face education in all universities.
On the other hand, civil society has stood the test of time in the face of this disaster. As a matter of fact, beside the organized initiatives such as AHBAP, other non-organized civil initiatives that emerged spontaneously after the disaster acted with great enthusiasm for search and rescue and first aid efforts and psychological support to the disaster victims. Meanwhile, people all over the country mobilized to support the disaster victims with their own means, and provided in-kind and monetary aid to the people of the region as much as they could.
It is hoped that all of us, especially those who are politically and administratively responsible, will learn from this last bitter experience and show the prudence to take all kinds of measures to prevent new earthquakes that we will definitely encounter in the future.
We hope that we will meet you in the next Bulletin with better conditions and pleasing developments.
* Prof. Dr. Mustafa Erdoğan
Turkey Is Going Through Its Most Painful Days
On February 6, two earthquakes with a magnitude of 7.7 and 7.6 occurred in Kahramanmaraş. These two major earthquakes, which took place in close proximity and time, affected the lives of approximately 13 million citizens in 10 provinces. Many provinces, especially Hatay and Kahramanmaraş, were almost destroyed. Official data show that more than 40 thousand people lost their lives and more than 100 thousand people were removed from the wreckage with injuries, although the work on the wreckage has not yet been completed. In terms of the number of people who lost their lives and property damage, Turkey experienced the greatest natural disaster in its history.
It should be noted that the biggest responsible for such dramatic losses is the politicians and administrators who did not do what should be done before and after the earthquake. Geologists, especially after the Elazig earthquake, stated that the Eastern Anatolian Fault line woke up from sleep and that preparations should be made against the earthquake at every opportunity. They stated that the earthquake resistance tests of the buildings should be carried out and that the risky houses should be determined immediately. Suffice it to claim that the government has not taken the necessary steps in this regard. Moreover, with the law known as zoning amnesty in 2019, legal legitimacy was provided to hundreds of thousands of illegal houses and increased the barriers to the conversion of risky houses. We are once again experiencing the consequences of policies that appeal to the short-term interests of politicians, such as zoning amnesty and construction-oriented economic growth.
It should be noted that the government did not perform well in terms of preparedness for natural disasters. Although the earthquake affected a wide area, the lack of logistics plans against such a devastating scenario caused many wrecks to be inaccessible in the first days or even the first week, and many people lost their lives. On the other hand, it is seen as a serious mistake that the Turkish Armed Military Forces (TSK), as a disciplined, durable, and sizeable manpower organized in almost every district, was not sent to the field in the first few days for rescue efforts and to maintain safety and security of the community. Obviously, the AKP government’s civilization policies of the disaster management and the AFAD’s inability to bring its resources to the level of preparedness for major natural disasters is one of the main reasons for the destruction we are experiencing. It could have been estimated that the number of personnel of AFAD, including volunteers, was only 10 thousand, which would be insufficient for search and rescue efforts in a disaster where thousands of buildings were destroyed. On the other hand, it should be noted that the relevant institutions of the government had a serious coordination problem and this caused many people to lose their lives in the race against time.
* Ömer Faruk Şen – Ph.D. – Missouri University
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.[1] The Turkish Grand National Assembly also approved this decision at its meeting on 9 February.[2]
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, the 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 in accordance with 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 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, raise concerns that the public officials would abuse state of emergency this time. As a matter of fact, the President’s statement to the press that the state of emergency was declared in order to interfere with the security problems[3] 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 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.[4] In the meantime, with Article 5 of the 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.[5] 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.
* Ali Rıza Çoban – Constitutional Lawyer
Earthquake and Public Donations (!)
Turkey was shaken by a great earthquake in the morning of 6 February. Before one realized what this earthquake was, the country was shaken yet another earthquake at noon on the same day. We are trying to get rid of the consequences of all these shocks, thanks to the solidarity of people. Many charities, non-governmental organizations, and public institutions set up to serve the public tried to rescue civilians from the ruins. The failure of the coordinative institutions in this process cost many lives. In this section, we discuss the strange donation campaign by the public institutions.
While all this was going on, there were some strange developments. As a matter of fact, a donation program called “Turkey: One Heart” was held on February 15, 9 days after the earthquake, with the organization of the Radio and Television Supreme Council (RTÜK) and the Presidency of Communications. A donation of 115 billion Turkish Liras, or 6 billion dollars, was collected in the program. It was said that these donations will be directed to the Disaster and Emergency Presidency (AFAD) and the Turkish Red Crescent, which work as the coordination board in times of natural disasters. As this is the case, individuals generally donate through programs according to their own economic power. A slightly different and economically confusing thing happened in the broadcast of “Turkey: One Heart”. When we look at the sequential size of the donations made to the donation program, we can easily understand what the problem is.
In this program;
– The Central Bank of the Republic of Turkey (CBRT) 30 Billion TL, i.e. 1.6 billion dollars
– Ziraat Bank 20 billion TL, that is, 1.05 billion dollars
– Vakıfbank 12 billion TL, 635 million dollars
– Halkbank 7 billion TL, 370 million dollars
– Savings Deposit Insurance Fund (TMSF) 2 billion TL, 106 million dollars
– Borsa Istanbul 2 billion dollars, 106 million dollars
– Turkey Insurance and Turkey Hayat Emeklilik 2 billion TL, i.e. 106 million dollars
Emlak Participation (a state bank engaged in Islamic banking) 2 billion TL, 106 million dollars
– Ziraat Participation (Islamic banking subsidiary of Ziraat Bank) 1 billion TL or 53 million dollars
The abovementioned institutions donated such amounts of money. Although all of the above-listed companies are joint stock companies, they are financial and insurance institutions controlled by the state. In addition, institutions such as Turkcell, Türk Telekom and Turkish Airlines, which are open to the public but under the direct control of the government, also donated 7.5 billion TL, or 400 million dollars. In fact, institutions such as the Presidency of Religious Affairs, RTÜK, Istanbul Police Department, Defense Industry Presidency, ASELSAN, which are also directly public institutions and under the control of the government, also announced large donations. Thus, about 80 percent of the total amount collected in the donation campaign came directly from public institutions or institutions controlled by the government.
The point that draws attention here is that almost all of these institutions are affiliated with the central budget; When they make a profit, they transfer to the Treasury, and when they make a loss, they receive support from the Treasury. In fact, at the beginning of the year, a total of 60 billion TL was transferred from the central budget to the abovementioned three public banks (Ziraat, Vakıfbank, Halkbank). Now these banks have transferred more than half of this amount back to AFAD and Kızılay. We will learn about the nature of the donation made by the Central Bank only when it is recorded on the balance sheet. As it is known, Central Banks declare high profits due to transactions such as increasing the monetary base and lending to the public in difficult economic times, and this is, indeed, an undesirable situation. All these things brought the donation program to discussion. The donation statements of these central budget-dependent institutions are actually equivalent to the contributions made from the central budget. However, since the changes made in the central budget should be made and supervised by the decisions taken in the Turkish Grand National Assembly, there are doubts that the government has organized this donation program with the aim of avoiding parliamentary control.
* Enes Özkan – Economist, Istanbul University
[1]https://www.resmigazete.gov.tr/eskiler/2023/02/20230208-1.pdf
[2]https://www.resmigazete.gov.tr/eskiler/2023/02/20230210-1.pdf
[3]https://www.youtube.com/watch?v=dPvX1KF3tXk
[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
