BACKGROUND

Amidst a global pandemic, many democracies found it necessary to test the boundaries set forth by their constitutions to fight an invisible enemy. The Turkish Republic of Northern Cyprus (T.R.N.C. hereinafter) being one of them, had its first case of SARS-CoV-2 on 10.03.20201. Since then,the Council of Ministers have taken certain measures to ensure the general health of the public and counter the spread of the virus.A disputable curfew2 was among the measures taken in the combat against the pandemic. It consisted of a partial restriction that barred people from going out between 21:00 PM to 09:00 AM.The primary purpose of this piece is to give my peers and fellow constitutionalists an insight to the legal culture of a de facto state which often suffers from blind eyes. I also hope that it may serve as a reference point for comparative constitutional studies concerning the Covid-19 measures. I should also note that I am not intended to discuss the propriety of the decree but merely its legality.

1. The Legal Dilemma

A curfew is a restriction which partially or entirely suspends the exercise of many fundamental rights and freedoms with right to residence and movement (Art. 22) being the most affected out of all. The Article 11 of the Constitution (The Essence and Restriction of Fundamental Rights and Liberties) foresees that

“fundamental rights and liberties can only be restricted by law, without affecting their essence, for reasons such as public interest, public order, public morals, social justice, national security, public health and for ensuring the security of life and property of persons.”

Now, Article 11 is the lex generali (general norm). If two norms at the same level in the hierarchy of norms are overlapping, lex specialisderogatlegigenerali rule is applied. In this case, Article 22 of the Constitution which ensures the freedom of movement and residence is lex specialis(general norm). Thus, any restrictions to the freedom of movement must be in conformity with the conditions set forth by Art. 22.

According to the paragraph 1 of Art. 22:

“Every citizen has the right to freedom of movement; this freedom can only be restricted by law for the purposes of providing national security and the prevention of epidemics.”

Now, the Constitution only allows the restriction of freedom of movement for the purposes of providing national security and prevention of epidemics. The second reason is open and clear. Let us go back to Art. 11; fundamental rights and liberties can only be restricted by law .” The Constitution requires a restriction to be made by a law. Thus, any restriction decrees rendered by the executive body must have a basis in a specific law. The Council of Ministers based its decree on the Article 2 of Curfew Law (Sokağa Çıkma Yasağı Yasası) which envisages that:

“The Council of Ministers may, if it deems it expedient so to do in the maintenance of public safety and public order, at any time by Order direct that no person in any area specified in the Order shall be out of doors between such hours as may be prescribed by the Order except under the authority of a written permit granted by such person as may be specified in the Order.”

It is not certain what to understand from the “expedient” and “public safety and public order.” The wording of this clause is too vague and too broad and contradicts the liberal legal theory and the rule of law which our constitution is based on.Fundamental rights and freedoms arethe principle and their restriction is the exception. If there is a doubt whether a clause restricts a fundamental right or a freedom, we must interpret it narrowly and favor liberty (in dubio pro libertate). The Curfew Law does not foresee “preventing epidemics” or “preventing the spread of a virus” as legitimate grounds to interfere with a constitutional right.Some scholars may argue that maintenance of public safety and public order can serve as the legitimate grounds for the curfew to be put into effect but I disagree; these notionsare vague and may have different meanings in different times. They are also widely used as justifications to interference with constitutional rights. Thus,including prevention of a disease in public safety and public order notions may create a precedent which could be abused in time and create a practice totally contradicting the principles our legal system founded upon.

On the other hand, it is not necessary to make a wide interpretation of these notions; the State of Emergency Law (Olağanüstü Durum Yasası) explicitly foresees a full or partial curfew may be put into effect to prevent the spread of a dangerous disease (Art. 3/1-a). What is more, the State of Emergency Law is a special norm; the Curfew Law stipulates that the Council of Ministers may order a curfew if it deems it expedient so to maintain public safety and public order. The State of Emergency Law on the other hand, gives authorization to the Council of Ministers to render a curfew decree to prevent the spread of a dangerous disease. It is clear that the latter is a special norm compared to the former. Thus, per the lex specialis derogatlegigeneralirule, the legal basis of a curfew to prevent the spread of disease must be the State of Emergency Law. The curfew decree in the case of the T.R.N.C is unconstitutional because it has no legal basis in the frame of Article 11 of the Constitution.

CONCLUSION

The Covid-19 not only tested our preparedness to combat a new generation disease but also tested our willingness to sacrifice our fundamental rights and freedoms to combat the invisible enemy. The measures Council of Ministers employed to prevent the spread of the Covid-19 have proven to be effective with largely thanks to the willingness of the people to obey these rules. However, most of these measures interfere with fundamental rights and freedoms. Therefore, they must go through the public scrutiny to ensure we uphold rule of law and democracy. The health of the public is the supreme law or salus populi suprema lex. But, does this have to mean we need to allow the state to cross beyond the boundaries set by the social contract we have signed? And how far are we willing to sacrifice our constitutional rights and freedoms?

Research Assistant Tuan Işık
Near East University