Constitutionality Review

Contested Provision

The contested provision stipulates that those who will be employed in public service on a contractual basis shall be required not to have been sentenced to imprisonment for a period longer than 6 months.

Ground for the Request for Annulment

It was maintained in brief that while it is required pursuant to the Civil Servants Law that in order for an individual to be employed as a civil servant, he/she must not have been sentenced to imprisonment for one year or more, the impugned imprisonment period is prescribed as being longer than six months with regard to the personnel to be employed in public service on a contractual basis under the Decree Law. In this regard, the impugned provision was claimed to be unconstitutional for being in breach of the principle of equality.

The Court’s Assessment

In the constitutionality review of the contested provision, it is discussed at the outset whether the repealed Article 91 of the Constitution, which regulated the legal regime of Decree-Laws, can be relied on as the binding rule; whether, upon  the rejection decision rendered by the Constitutional Court as a result of the review made in accordance with Article 91, the same provision can be reviewed again in accordance with the same article; and whether the ten-year period prescribed in Article 152 § 4 of the Constitution to elapse for filing a further claim of unconstitutionality is also applicable to the reviews to be made under the repealed Article 91 of the Constitution.

Article 91 of the Constitution, which provided that the Turkish Grand National Assembly might empower the Council of Ministers in the previous government system to issue decree laws and which regulated the legal regime of decree laws, was repealed by Article 16, which entered into force on 9 July 2018, of the Act no. 6771 on the Amendment to the Constitution of the Republic of Turkey, whereby the chance of issuing decree-laws has been removed constitutionally.

On the other hand, pursuant to the first sentence of provisional Article 21 of the Constitution, which is added by Act no. 6771, it is prescribed that the decree-laws issued until the repeal date of Article 91 of the Constitution and are still in force shall continue to be in force. While the said provision envisages the continuation of the power vested to review the decree laws, it contains no provision as to whether the repealed articles can be relied on as the binding rule during the said review. This issue should be resolved through interpretation by the Constitutional Court, and to this end, the nature of the repealed rules should be taken into consideration.

In the Constitutional jurisdiction, in terms of the constitutionality review of a rule, the rules applicable on the date of review are relied on in accordance with the supremacy and binding nature of the Constitution. However, since any rule that is subject to the constitutionality review has emerged on the basis of the empowering provisions applicable at the material time, a review of such a rule should be made on the basis of the provisions applicable at the material time even if they are currently repealed. As a matter of fact, even if repealed, Article 91 of the Constitution underlies the constitutional competence relating to the issuance of the decree laws that are still in force and subject to the constitutionality review in terms of competence.

Accordingly, it should be examined whether the relevant decree laws, and hence the contested provision, comply with the repealed Article 91 of the Constitution.

As a result of the review made by the Constitutional Court upon the alleged no-compliance with the repealed Article 91 of the Constitution of the contested provision through an action for annulment brought previously, it was concluded that the contested provision was not contrary to the relevant Article, on the grounds that it relied on an empowering act, that it fell within the scope of the empowering act and that it included no regulation relating to a prohibited issue. In the same decision, the content of the provision was also examined and was not found unconstitutional (see the Court’s decision no. E.1990/12, K.1991/7, 4 April 1991).

It is obvious that the review of whether the decree-laws comply with the repealed Article 91 of the Constitution cannot be limited to once. Otherwise, such a limitation would mean that subsequent to its first review, the decree law shall be untouchable in the face of the said article of the Constitution. This, above all, does not comply with the intended purpose of the constitutional justice, the main purpose of which is to make the constitutionality review of the rules as well as to remove the unconstitutional ones from the legal system.

Therefore, the fact that the contested provision was previously reviewed under the repealed Article 91 of the Constitution does not prevent its review under the same article anew.

Article 152 § 4 of the Constitution provides that no claim of unconstitutionality shall be made with regard to the same legal provision until ten years have elapsed after publication in the Official Gazette of the decision of the Constitutional Court dismissing the application on its merits. The said provision prescribes a ten-year ban for the constitutionality review of a previously challenged provision. It is understood that the aim of the relevant ban is to ensure stability in court decisions.

In this context, with a view to ensuring the legal stability, it is necessary that the ten-year ban be applicable also to the reviews under the repealed Article 91 of the Constitution. The question of under which article of the Constitution a review is made does not matter in terms of the application of the ban intended to ensure legal stability. On the other hand, there is no reason for separating the repealed Article 91 of the Constitution from the other articles thereof in terms of the said review ban. Accordingly, no claim of unconstitutionality under the repealed Article 91 of the Constitution shall be made with regard to the same legal provision until ten years have elapsed after publication in the Official Gazette of the decision of the Constitutional Court dismissing the application concerning a decree-law provision on its merits.

In the present case, as more than ten years have elapsed since the publication of the Constitutional Court’s decision dismissing the application concerning the contested provision in the Official Gazette on 13 August 1991, the previous decision does not hinder the review of the provision under the repealed Article 91 of the Constitution.

Law no. 3479 underlying Decree-Law no. 399 was annulled by the Constitutional Court's decision no. K.1990/2, and the relevant decision was published in the Official Gazette dated 21 April 1990. Accordingly, the Decree-Law embodying the contested provision does not meet the requirement of relying on an empowering act which is a precondition for its applicability, since Act no. 3479 on which it is based has been annulled.

In addition, it is specified in the repealed Article 91 § 1 of the Constitution that the fundamental rights, individual rights and duties included in the First and Second Chapter of the Second Part of the Constitution and the political rights and duties listed in the Fourth Chapter cannot be regulated by decree-laws except during periods of martial law and states of emergency.

Right to enter public service safeguarded by Article 70 of the Constitution -in the Fourth Chapter titled “Political Rights and Duties” in the Second Part thereof- cannot be regulated by decree-laws. However, the contested provision concerns the qualifications required for employment on a contractual basis under Decree-Law no. 399, which is one of the ways of employment as a public official in the performance of public services; therefore, it is a regulation concerning the exercise of the right to enter public service and remains within the prohibited area which cannot be regulated by decree-laws pursuant to the repealed Article 91 of the Constitution.

Consequently, the contested provision has been found in breach of the repealed Article 91 of the Constitution and therefore annulled.