Constitutionality Review

Grounds for the requests for annulment

In the petition, it is maintained in brief: that according to the Constitution of 1982 which has adopted a parliamentary system, the duty and power to rule is conferred upon the Council of Ministers along with political responsibility; that establishment and analysis of the State’s intelligence and authorization granted for covert operations fall into the scope of the Government’s general policy; that the determination of the procedures and principles concerning the use of this covert appropriation by a decree law issued by the Presidency do not comply with the requirements of the parliamentary democracy considering that covert appropriation is supposed to be used for confidential intelligence and defence services, national security and high interests of the State, the requirements of the State’s prestige and the needs of the State and the Government for political, social and cultural purposes and extraordinary services; that although such activities of the Government may be supervised by the members of the Grand National Assembly of Turkey, the supervision of the President’s such activities is impossible; and that by the allocation of covert appropriation, the President has been vested with a power not set forth in the Constitution. In this respect, it is argued that the rule in question is incompatible with Articles 6, 8, 98, 99, 100, 105 and 112 of the Constitution.

A- Allocation of covert appropriation to the budget of the Presidency

Provision requested to be annulled

The impugned provision provides the allocation of covert appropriation to the budgetary of the Presidency.

The Court’s Assessment

Assessments of the Constitutional Court regarding these allegations are briefly as follows:

The Constitution contains no provision concerning covert appropriation, nor is there a Constitutional rule that prevents the legislator from making an arrangement in this respect. Therefore, the legislator has discretion in making arrangements allowing the allocation of covert appropriation to some institutions and organizations. The discretion of the legislator also covers the determination of the institutions and persons to whom the covert appropriation will be allocated.

The duties and powers of the President who constitutes the other wing of the executive organ are set forth in Article 104 of the Constitution.  In the first paragraph of Article 104, it is stated that the President of the Republic is the head of the State, and in this capacity, he/she shall represent the Republic of Turkey and the unity of the Turkish Nation; and that he/she shall ensure the implementation of the Constitution, and the regular and harmonious functioning of the State organs. In the second paragraph of Article 104, the duties and powers of the President are listed under three headings, which are related to legislation, execution and judiciary respectively. In the last paragraph of Article 104, it is stated that the President of the Republic shall also exercise powers of election and appointment, and perform  other duties conferred on him/her by the Constitution and laws, meaning that the President may be assigned with other duties by the laws.

It is provided in the Constitution that the powers conferred upon the President by the Constitution and the relevant laws and not requiring the signatures of the Prime Minister and the Minister concerned shall be exercised by the President representing the Republic of Turkey and the unity of the Turkish Nation, who shall ensure the regular and harmonious functioning of the State organs and shall have no political responsibility.

As a matter of course, the covert appropriation sought to be included in the budget of the Presidency by the challenged provision may be used within the scope of the duties and powers granted to the President by the Constitution and the relevant laws. Allocation of covert appropriation to the Presidency does not extend the personal powers of the President. Nor does it require a change in the duties and powers of the President. The powers that can be exercised by the President alone continue to exist in the same manner. Allocation of covert appropriation to the budget of the Presidency in order to be used within the scope of the duties and powers granted to the President exclusively does not mean that the area in which he can carry out acts without any responsibility has been expanded.

The covert appropriation planned to be included in the budget of the Presidency in accordance with the impugned provision may be used in the activities where the President exercises powers alone.  The fact that the covert appropriation spent for such activities cannot be subject to the parliamentary inquiry, general debate, interpellation and the parliamentary investigation is a natural consequence of the fact that in the Constitution, the mechanisms in question are regarded as the means that are only used for the supervision of the Government.

Furthermore, it is at the discretion of the legislator to decide whether an allocation of covert appropriation is required with respect to the duties and powers entrusted to the President, and this issue cannot be subject to the constitutionality review.

In this case, since there is no constitutional provision that prevents the inclusion of covert appropriation in the budget of the Presidency, the legislator’s making an arrangement in this respect by using his discretion in accordance with the principle of the generality of the legislative power is not in breach of the Constitution.

Consequently, the Court dismissed the annulment request as it found no violation of the Constitution.

B- Determination of the procedures and principles concerning the use of the covert appropriation included in the budget of the Presidency by a decree law issued by the Presidency

Provision requested to be annulled

The impugned provision provides that the issues such as the place where the covert appropriation included in the budget of the Presidency will be used, the person who will make the expenditures, the method to be used in keeping and closing the accounts, the documents to be handed over to a new official in case of a change in the person making expenditures, and the principles to be applied in making expenditures by using the covert appropriation shall be determined by a decree law issued by the Presidency.

The Court’s Assessment

Assessments of the Constitutional Court regarding these allegations are briefly as follows:

The fact that the legislative organ, after determining the basic rules, defers the issues requiring expertise to the executive cannot be construed as the delegation of the legislative power.

As there is no provision in the Constitution which provides that the covert appropriation shall be regulated by law, it is possible to leave the power to regulate the covert appropriation to the administration. In this respect, it is at the discretion of the legislator to delegate the authority to regulate covert appropriations to the concerned Minister such as Prime Minister or Minister of Finance. Similarly, it is at the discretion of the legislator to delegate the authority to regulate the rules and procedures concerning the covert appropriation of the Presidency to the President. Granting power to the Presidency, by virtue the impugned provision, to regulate these issues cannot be regarded as delegation of the legislative power.

Article 107 of the Constitution provides that the establishment, the principles of organization and functioning, and the personnel appointment proceedings of the General Secretariat of the Presidency shall be regulated by presidential degrees.

Unlike the legislative power, the administration’s power to regulate is not principal, but derivative. Accordingly, the executive organ must be authorized by the legislative organ in order to be able to make an arrangement on a matter. However, there is an exception to this rule in Article 107 of the Constitution regarding presidential decrees, which provides that the establishment, the principles of organization and functioning, and the personnel appointment proceedings of the General Secretariat of the Presidency shall be regulated by presidential degrees, without a need for authorization by the legislative organ.

Although the power to regulate regarding the issues set forth in Article 107 of the Constitution is granted to the Presidency as a principal power, this provision does not mean that the Grand National Assembly of Turkey cannot vest the President with a power to regulate within the scope of the duties granted to the President by the Constitution and the relevant laws. The fact that the legislator entrusts the President with the power to regulate in terms of the matters falling into the scope the President’s duties cannot be considered in breach of Article 107 of the Constitution.

Consequently, the Court dismissed the annulment request as it found no violation of the Constitution.