Constitutionality Review

Ground for the Request for Annulment

In brief, it is maintained in the request for annulment that the disputed provisions have vested the Minister with a very broad power, scope of which is not defined and which is not based on any standard, in determining the institutions to be directly affiliated to the central organization of the Ministry of National Education (“the Institutions”) and in the appointment of teachers and the assignment of directors to the Institutions. Besides, the provision envisaging that the Civil Servants Law and the other legislation, insofar as they relate to exams and appointment, shall not apply to such appointments and assignments has resulted in higher uncertainty of the scope and limits of this power. Vesting such power in an executive organ without establishing basic principles and setting the limits violate the principles of certainty and inalienability of legislative power, and the principle that the appointments of civil servants and other matters related to their status shall be regulated by law, which is a prerequisite of the rule of law. It is accordingly alleged that these provisions are contrary to Articles 2, 7 and 128 of the Constitution.

A- Authorization of the Minister for Appointments and Assignments to the Institutions

The Contested Provision

This provision envisages that appointments of teachers and assignments of directors to the Institutions shall be made by the Minister.

The Constitutional Court’s Assessment

In brief, the Constitutional Court has made the following assessments:

Pursuant to the principle of inalienability of the legislative power and the principle of legality, the legislator must not authorize the executive or leave an unlimited and indefinite realm to the executive’s discretion, without establishing basic principles and setting the limits. However, if necessary, the legislator may leave regulation of certain issues to the administration on condition of setting the limits. Accordingly, in the economic, technical or similar fields, granting the administration with the power to regulate the details thereof after establishing basic rules may neither be regarded as a delegation of the legislative power nor would constitute a breach of the principle of legal regulation.

In the impugned provision, it is explicitly specified to which institutions and by which authority an appointment may be made and a director may be assigned. In this respect, there is no  unconstitutionality in vesting the power to appoint with the Minister, who is the top-level official within the Ministry and responsible, before the Prime Minister, for the practices of the Ministry and acts and actions of his subordinates, pursuant to Article 4 § 1 of the Decree Law no. 652.

Although the requisites for appointments and assignments are not specified in the provision, legal requirements for appointment of teachers or assignment of directors are set forth in Articles 48 and 88 of the Civil Servants Law and Article 43 of the Fundamental Law of National Education.

Unless otherwise specified, the requirements specified in the above-mentioned legislation shall also be applicable in appointments of teachers and assignments of directors to the Institutions. In this respect, it is obvious that limits of the power vested in the executive is definite and its basic principles are established by law.

Accordingly, as the provision has not been found unconstitutional, the request for its annulment has been rejected.

B- Non-applicability of the Legislative Provisions concerning Exams and Appointments in Appointments and Assignments of Academic Members and Teachers Serving in the Ministry to the Institutions

The Contested Provision

This provision envisages that provisions of the Decree Law no. 652, the Civil Servants Law and the other legislation, insofar as they relate to exams and appointment, shall not apply to appointment and assignment of academic members and teachers serving in the Ministry to the Institutions.

The Constitutional Court’s Assessment

In brief, the Constitutional Court has made the following assessments:

Pursuant to this provision, provisions of the Decree Law no. 652, the Civil Servants Law and the other legislation, insofar as they relate to exams and appointment, shall continue to be in full force in appointments of teachers and assignments of directors to the Institutions; however, these provisions shall not apply to appointments and assignments only of academic members and teachers serving in the Ministry. The scope of this exemption is limited to the provisions of all relevant legislation including the Decree Law no. 652 and the Law no. 657 insofar as they relate to exams and appointment. Relevant provisions concerning the matters other than exams and appointment shall remain in full force.

As there is no separate position available for directors within the Institutions, directors cannot be “appointed” but “assigned”. Therefore, the contested provision must be construed as follows: the legislative provisions concerning appointment shall not apply in cases when academic members and teachers serving in the Ministry are appointed to the Institutions, and the legislative provisions concerning exams shall not apply in cases when they are assigned as directors to the Institutions. In other words, scope of the provisions, which shall not apply, varies by the nature of the act to be performed, whether appointment as a teacher or assignment as a director.

The phrase “teachers serving in the Ministry…” covers all the teachers serving in the central and provincial organizations of the Ministry, as well as its organization abroad, who have been already appointed as teachers by fulfilling the appointment conditions set out in the Law no. 657, the Decree Law no. 652 and relevant provisions of the other legislation. Accordingly, it appears that the notion of “appointment” in this provision does not refer to appointment to civil service post for the first time but means appointment by way of relocation. 

As appointment of teachers serving in the Ministry to the Institutions is exempted from only the legislative conditions concerning appointment by way of relocation and such teachers have already fulfilled all conditions required for becoming a teacher, this provision does not lead to any uncertainty or arbitrariness. Nor is it contrary to the principles of inalienability of legislative power and legal regulation.

The notion of “academic members” specified in the provision refers to professors, associate professors and assistant professors who have appointed as an academic member by fulfilling the conditions set out in Articles 23-26 of the Higher Education Law. In this sense, stipulating that legislative provisions concerning appointment shall not apply in cases when academic members, who are performing education and training tasks like teachers, are appointed as teachers to the Institutions with a view to benefitting from their knowledge, skills, and experiences obtained at universities does not lead to any uncertainty or arbitrariness, as all conditions required for becoming a civil servant for the first time have been already fulfilled.

Provisions which shall not apply in assignments of academic members and teachers serving in the Ministry as directors to the Institutions are limited to the legislative provisions concerning exams. There is no legal obstacle for applying all of the remaining provisions in the legislation which are specified to be required for assignment as a director, other than those concerning exams, also in the assignment of teachers serving in the Ministry and academic members as a director to the Institution.

By the very nature of the service carried out by the legislator, it is within the legislator’s discretionary power to waive general conditions required for appointments and assignments to the Institutions, to determine different conditions and, accordingly, not to seek the legislative provisions concerning appointment and exams in terms of those who have certain qualifications. As which provisions and which institutions such an exemption shall apply to and who shall benefit from this exemption have been designated, it cannot be maintained that the scope and limits of the power to regulate, which has been vested in the executive, are uncertain and that its basic principles have not been established. It is possible, through the regulatory acts to be prepared by the executive, to prescribe special conditions in appointments and assignments of the teachers serving in the Ministry and academic members to the Institutions and to determine the details of the appointment and assignment process.

Accordingly, as the impugned provision has not been found unconstitutional, the request for its annulment has been rejected.