Constitutionality Review

Provisions requested to be annulled

The request seeks the annulment and stay of execution of certain provisions of the decree laws no. 668 and 669, dated 25.7.2016, issued during the state of emergency.

Grounds for the requests for annulment

In the petition, it is maintained in brief that the actions prescribed by decree laws issued during the state of emergency must be in the function of a “measure”; that a measure must be temporary in terms of its nature; that although the reason and aim of the declared state of emergency is to efficiently and rapidly restore the public order disturbed by the coup attempt, the impugned provisions go beyond this aim by stipulating regulations concerning the organization of some institutions and organizations and make changes in the ordinary laws that would continue to remain in effect after the termination of the state of emergency; that therefore, the impugned provisions cannot be regarded as decree laws issued in respect of matters necessitated by the state of emergency and should be subject to judicial review. It is accordingly maintained in the petition that the mentioned provisions are in breach of the preamble part of and Articles 2, 6, 7, 8, 11, 91 and 121 of the Constitution.

The Court’s Assessment

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

As Article 148 of the Constitution, which sets out the duties and powers of the Constitutional Court, explicitly states that decree laws issued during a state of emergency shall not be brought before the Constitutional Court alleging their unconstitutionality as to form or substance, it is obvious that the Constitution confers no power on the Constitutional Court to exercise any kind of judicial review on emergency decree laws.

There is no doubt that the Constitutional Court has the discretion to qualify the legal characterization of a rule brought before it. Within this scope, the qualification can be made under either material criterion based on the content of an act or formal-organic criterion based on the organ establishing the act and procedures followed. Irrespective of the criterion to be taken as the basis, the qualification made must not result in going beyond the framework drawn by the Constitution; in other words, in making the Decree Laws subject to constitutionality review in terms of form or substance.

Building its analysis upon the material criterion, the Constitutional Court in the precedent examined decree laws issued under state of emergencies in terms of time, place and subject for determining whether they were indeed Decree Laws within the meaning of Article 121 of the Constitution. The Court noted in its precedent decision rendered by a majority vote on 10/1/1991 and numbered E.1990/25, K.1991/1, and later affirmed in the decisions numbered E.1991/6, K.1991/20, E.1992/30, K.1992/36 and E.2003/28, K.2003/42, that it is upon the Court to determine whether regulations made under the title of “decree laws issued under the state of emergency” are indeed in the nature of emergency decree laws as specified in the Constitution and exempted from constitutionality review and, consequently, to examine the constitutionality of those regulations that are not considered to be of such nature. The Court accordingly set out the criteria of place, time and subject-matter for examining a decree law issued under a state of emergency. Within the scope of these criteria, the Constitutional Court did not qualify the regulations that did not concern the matters necessitated by the state of emergency or that extended to territory or period of time not related to the state of emergency as emergency decree laws and therefore reviewed their constitutionality on the basis that they were in substance ordinary decree laws.

The Constitutional Court’s analysis on the basis of the criterion of place, time and subject-matter in order to determine whether the regulations in the form of emergency decree laws are indeed of this nature requires an examination of the content of decree laws. Such an examination, however, necessarily results in constitutionality review of decree laws on substantive basis. As a matter of fact, in 2003 the Court addressed the issue whether Article 7 of (emergency) Decree Law no. 285 dated 10.07.1987, reading as “no actions for annulment of the administrative actions related to the authorities vested in regional governors with this Decree Law can be filed,” complied with Article 125 of the Constitution. Contrary to its holding in the decision numbered K.1991/1 dismissing the request seeking annulment of an emergency decree law provision with the exact same content on the ground that the provision was indeed in the nature of emergency decree law and therefore was not subject to constitutional review, the Court in 2003 in the decision numbered K.2003/42 reached the conclusion by majority that the same provision was in contradiction with Article 125 of the Constitution and therefore could not be regarded as an emergency decree law and was subject to constitutional review. Consequently, the Court in 2003 annulled the aforementioned provision on the ground that it did not follow the procedure prescribed for ordinary decree laws and therefore breached Article 91 of the Constitution. It must be stated, however, this approach renders the prohibition of constitutional review of emergency decree laws as to form and substance set out in Article 148 of the Constitution completely meaningless. This is particularly so because if the Constitution authorized constitutional review of emergency decree laws, the Constitutional Court would have conducted the same review and annulled the provision finding it in breach of Article 125 of the Constitution. By adopting such an approach, any provision of an emergency decree law could be taken out of its scope and subjected to constitutional review.

A mere allegation that decree laws issued under a state of emergency include unconstitutional provisions does not suffice to make them subject to constitutionality review. In order for the Constitutional Court to review such decree laws, constitutional authority in respect thereof must be recognized clearly. Having regard to the wording of Article 148 of the Constitution, the purpose of constitution-maker and the relevant legislation documents, it is clear that decree laws issued under a state of emergency cannot, under any name, be subject to constitutionality review. Constitutional overview of emergency decree laws despite the aforementioned article would not be compatible with Article 11 of the Constitution where the binding nature and superiority of the Constitution is enshrined, and with Article 6 of the Constitution where it is set out that no person or organ can exercise any state authority that does not emanate from the Constitution.

Upon the declaration of the state of emergency and its subsequent ratification by the Turkish Grand National Assembly (TGNA), the Council of Ministers convened under the chairmanship of the President of the Republic and issued the decree laws no. 668 and 669 on 25.7.2016 to be implemented throughout the country. These decree-laws were published in the Official Gazettes dated 27.7.2016 and no. 29783 (2nd Duplicate) and dated 31.7.2016 and no. 29787 and were submitted to the TGNA for approval on the day of their publication. Therefore, the decree laws that include the impugned provisions are decree laws issued under the state of emergency through invocation of Article 121 of the Constitution.

It is not possible to proceed on to the examination as to the substance of the impugned provisions included in the decree laws that were issued according to Article 121 of the Constitution and to make them subject to judicial review due to the provision “…decree laws issued during a state of emergency, martial law or in time of war cannot be brought before the Constitutional Court alleging their unconstitutionality as to form or substance…”enshrined in the third sentence of Article 148 § 1 of the Constitution.

For the reasons mentioned above, the Constitutional Court has decided to dismiss the request for the annulment of the impugned provisions for lack of jurisdiction.