Constitutionality Review

The most significant feature of the presidential government system is, inter alia, to authorize the President to make arrangements through “presidential decrees”.

Article 148 of the Constitution sets forth that the presential decrees be subject to constitutionality review both in substance and in form and accordingly vests the Constitutional Court with the duty and power to make the judicial review of these decrees.

The President is authorized, by virtue of the Constitution, to issue presidential decrees; however, it is not an unlimited authority. Unlike the laws, the matters to be regulated through presidential decrees are delimited by the Constitution. The limitations, which are imposed on the competence ratione materiae, are laid down in Article 104 of the Constitution.

In Article 104 § 17 of the Constitution, it is set forth that the President may issue presidential decrees on the matters regarding executive power; and that the fundamental rights, individual rights and duties, and the political rights and duties shall not be regulated through a presidential decree. It is further envisaged therein that no presidential decree shall be issued on the matters which are stipulated in the Constitution to be regulated exclusively by law and which have been explicitly regulated by law.  

In cases where presidential decrees are not in compliance with the above-cited rules on competence ratione materiae, they cannot be said to be constitutional, even if they are not, by their contents, contrary to the Constitution. If no contradiction is found as to the competence ratione materiae, the presidential decrees, in their contents, must be subject to the constitutionality review.

A. Provision Stipulating that the Supreme Military Council (“the SMC”) Secretariat Services shall be Conducted by the Authority to be Designated by the President

Contested Provision

The contested provision sets forth that the SMC secretariat services shall be conducted by the authority to be designated by the President.

Ground for the Request for Annulment

It is maintained that empowering the President to assign the authority that would conduct the SMC secretariat services, without setting the basic principles on the performance of these services, is in breach of the Constitution.

The Court’s Assessment

1. As regards the Competence Ratione Materiae

The Law on the establishment and duties of the SMC was abolished by the Decree-Law no. 703, and the SMC has been re-organised through the Presidential Decree no. 8. Accordingly, the SMC secretariat services shall be conducted by the authority to be designated by the President.

It appears that the contested provision is intended for making an arrangement as to a matter regarding executive power and in no way regulates the fundamental rights, individual rights and duties as well as political rights and duties stipulated in the Constitution.

The contested provision does not allow for the establishment of an administrative structure or regulation of its duties and powers but vests the President with the power to designate the authority that would perform and conduct the SMC secretariat services. Nor is the provision concerning a matter needed to be regulated exclusively by law, pursuant to Article 123 of the Constitution which provides for “The administration is a whole with its formation and functions and shall be regulated by law”.

Besides, there is no statutory arrangement regarding the authority that would conduct the SMC secretariat services. In consideration of the fact that the Law no. 1612 on the establishment and duties of the SMC was abolished by the Decree-Law no. 703, there is no obstacle to the designation, through the presidential decree, of the authority to conduct the SMC secretariat services.

Therefore, the contested provision has been found constitutional insofar as it relates to the competence ratione materiae.

2. As regards the Content

The principle of clarity, one of the basic elements of the state of law, is also applicable to the presidential decrees which are in the form of principal regulatory acts of the executive organ. The presidential decrees are also required to be clear, precise, comprehensible, enforceable and objective to the extent that would cause no hesitation and doubt for both individuals and the administration. The authority to conduct the secretariat services of the SMC ensures the proper functioning of the internal affairs of the SMC, such as to organise meetings that are held by the SMC within the boundaries set by its duties and powers.

In the Presidential Decree in question, it is stipulated that the SMC shall convene at least once a year; and that when necessary, the President may convoke the SMC. It has been observed that it is therefore found unnecessary to form a permanent secretariat to conduct the secretariat services; and that the contested provision allows for the performance of these services by an authority to be designated by the President. In this sense, the contested provision involves no unclarity.

Consequently, the Court has found the contested provision constitutional by its content and accordingly dismissed the request for annulment.

B. Provision Allowing for an Advance Payment in Product and Service Procurements Abroad

Contested Provision

It is stipulated in the contested provision that in product and service procurements to be performed abroad for the promotion of Turkey, an advance payment up to the total amount of the contract may be made to the contractor, as an extra-budgetary advance, upon the approval of the Minister of Culture and Tourism if it is required by the market conditions prevailing at the country where the products and services will be procured and it offers price advantage to a significant extent; that it shall be further specified whether a security will be taken against this advance payment upon the Minister’s approval; and that the principles and procedures shall be determined through a directive to be issued by the Ministry.

Ground for the Request for Annulment

It is maintained that the contested provision is unconstitutional as it is intended for making an arrangement as to the matter which has been indeed regulated explicitly by law; and that the executive power has been exercised in breach of the principle of supremacy of the Constitution and the laws.

The Court’s Assessment

As laid down in Article 104 of the Constitution, no presidential decree shall be issued on the matters which are explicitly regulated by law. Accordingly, it must be primarily considered whether there is a law which has been previously enacted and may be taken as a basis for the comparison during the review, under the said constitutional provision, of these presidential decrees. It must be then assessed whether the contested provision regulates a matter which has been explicitly regulated by law.

In this assessment, it must be firstly ascertained whether the relevant law is enforceable in the field which is covered by the presidential decree and subsequently determined whether the statutory arrangement is clear. In this sense, it should be considered whether the relevant statutory arrangement would, in the absence of the provision embodied in the presidential degree, address the matter regulated by the presidential degree, which may be regarded as an indication to ascertain whether the presidential decree has been issued to address the matter which has been already regulated by law.     

The terms and conditions of making an extrabudgetary advance payment are in general laid down in Article 35 of Law no. 5018, titled “Advance Payment”, where it is set forth that the amount of extrabudgetary advance payment shall not exceed thirty percent of the total contract price and shall be provided only against security. This provision sets out the terms and conditions of extrabudgetary advance payments to be provided, both in the country and abroad, by all public institutions and organisations including the Ministry to which the contested provision relates.

Accordingly, it appears that in the absence of the contested provision embodied in the presidential decree, the said statutory provision would be applicable to the product and service procurements abroad, which relates to the promotion of Turkey. It has been therefore concluded that the contested provision on the matter which has been explicitly regulated by law introduces an arrangement in breach of the fourth sentence of Article 104 § 17 of the Constitution.

On the other hand, the second sentence of Article 35 § 2 of the Law provides for “The provisions on the extrabudgetary advance payments which are embodied in the relevant laws or the presidential decrees shall be reserved”. Given the constitutional provision that does not grant any authority to issue presidential decree on the matters explicitly regulated by, it is impossible for the law-maker to grant such an authority. Therefore, the statutory provision -whereby the provisions in the presidential decree are reserved- does not render the above-cited contradiction constitutional.

Consequently, the contested provision has been found unconstitutional insofar as it relates to the competence ratione materiae and therefore annulled.

C. Provisions Providing for the Appointment of Coordinator Head Doctor for the Joint Management of Hospitals

Contested Provisions

The contested provisions provide for that in case of the existence of several hospitals located within the same campus, a coordinator head doctor may be appointed for ensuring the joint management of these hospitals; that offices of head doctor may be founded in order to conduct medical services and training activities of each hospital, and these offices shall operate under the supervision of the coordinator head doctor; and that the administrative, financial, health-care and other support services of the hospitals shall be conducted, by the directorates affiliated to the coordinator head doctor, in collaboration with the office of head doctor of the relevant hospital.

Ground for the Request for Annulment

It is maintained that the provisions allowing for the appointment of a coordinator head doctor, in cases where there are several hospitals located within the same campus, for the joint management of these hospitals contain arrangements concerning a matter which is specified in Article 128 of the Constitution and which is to be regulated exclusively, and has been already regulated, by law. It is therefore alleged that the contested provisions are in breach of Articles 104 and 128 of the Constitution.

1. As regards the Competence Ratione Materiae

The Constitution embodies no provision to the effect that the matters specifically stipulated to be regulated by presidential decrees in ordinary period shall be exempted from the limitations on presidential decrees, which are laid down in Article 104 § 17 of the Constitution. These limitations are therefore applicable also to the matters specifically stipulated to be regulated through presidential decrees. However, the limitations are to be construed in conjunction with the other constitutional provisions regarding presidential decrees. 

Undoubtedly, the contested provisions do not regulate any matters regarding executive power; nor do they contain any arrangement as to the fundamental rights, individual rights and duties, and political rights and duties set forth in the Constitution.

Pursuant to the third sentence of Article 104 § 17 of the Constitution, the provisions embodied in the presidential decrees must not address the matters which are stipulated, in the Constitution, to be regulated exclusively by law. If the constitution-maker specifically requires a matter to be regulated by law, it means that this matter needs to be regulated exclusively by law. Therefore, if a matter is specified, in the Constitution, to be regulated by law, no presidential decree shall be issued on this matter. However, presidential decrees may be issued on the matters which are clearly permitted by the constitutional provisions where the matters needed to be regulated by presidential decrees are specifically stipulated.

As set forth in Article 123 § 1 of the Constitution, “The administration is a whole with its formation and functions and shall be regulated by law”. However, Article 106 § 11 of the Constitution, which provides for “The establishment, abolition, the duties and powers, the organizational structure of the ministries, and the establishment of their central and provincial organizations shall be regulated by the presidential decree”, explicitly permits to make arrangements, through the presidential decree, as to the establishment, abolition, the duties and powers, the organizational structure of the ministries, and the establishment of their central and provincial organizations.

In this sense, the matters specified in the said paragraph of Article 123 of the Constitution may be regulated through presidential decree on condition of being limited to the matters on the establishment, abolition, the duties and powers, the organizational structure of the ministries, and the establishment of their central and provincial organizations, which are specifically stipulated, in the Constitution, to be regulated by presidential decree.

As it has been observed that the contested provisions are related to the organizational structure of the ministries, one of the matters specifically envisaged, in Article 106 § 11 of the Constitution, to be regulated by presidential decree, they are not, in any aspect, contrary to the third sentence of Article 104 § 17 of the Constitution in conjunction with Article 123 thereof.

Besides, the contested provisions are designed to regulate the establishment of the office of coordinator head doctor, the affiliated offices of head doctor and the affiliated directorates, as well as their duties and powers. Therefore, the provisions do not introduce any arrangement as to the matters stipulated, in the first sentence of Article 128 § 2 of the Constitution, to be regulated by law.

Nor is there any statutory arrangement which may be taken as a basis for the comparison with respect to the office of coordinator head doctor.

In this sense, it has been concluded that the contested provisions have not been found unconstitutional insofar as they relate to the competence ratione materiae.

2. As regards the Content

Pursuant to the principle of the state governed by rule of law, presidential decrees shall be issued in the public interest. As indicated in the Constitutional Court’s decisions, the public interest generally amounts to the social interest which is distinct from, and superior to, the individual benefits. A provision embodied in presidential decree may be considered constitutional in terms of the aim pursued only when it is issued solely for the public interest and not for any other reason. If it is explicit that the provision is intended for any purpose other than public interest, it is then considered in breach of the Constitution in terms of the aim pursued.

Given the objective meaning of, and the aim pursued by, the contested provisions, it has been observed that they are designed to ensure the proper fulfilment of the duties and responsibilities concerning the management of the hospitals and thereby the effective performance of health-care services. Therefore, the contested provisions involve no aspect that would require the Court to conclude that they are intended for any purpose other than public interest.

Consequently, the Court has found the contested provisions constitutional by their contents and accordingly dismissed the request for annulment.

D. Provisions Stipulating that the Members of the High Advisory Board of the Presidency and the Payments likely to be Made to the Members shall be Designated by the President

Contested Provisions

In the contested provisions, it is envisaged that the members of the High Advisory Board of the Presidency (“Board”) and the payments likely to be made to these members shall be designated by the President.

Ground for the Request for Annulment

It is maintained that the contested provisions are unconstitutional on the grounds that there is no clarity as to the qualifications, number and expertise of the Board members; that the executive organ has exercised its principal executive power, which is indeed exceptional, in breach of the Constitution; and that the financial rights of the Board members should have been designated by law.

The Court’s Assessment

1. As regards the Competence Ratione Materiae

It appears that the contested provisions regulate a matter regarding executive power but contain, in no aspect, any arrangement as to the fundamental rights, individual rights and duties, and political rights and duties specified in the Constitution. 

According to the general administrative principles, personnel cadres and positions are essential in principal and permanent public services. Civil servants and other public officers conducting these services are granted status peculiar to them. They are subject to the status inherent in public services and maintain to hold their official capacity and powers also outside the profession. However, the Board is merely an advisory unit established under the Presidency, which has no power to take enforceable decisions and to have these decisions enforced.

It has been observed that the members serve only as a board and does not render any service alone; that they temporarily and extrinsically involve in the public services and do not exercise the State’s imperative power in the performance of their duties; that no cadre and position are assigned for the members to sit in the Board, and no status-related link has been established between these members and the central administration; and that these members can also continue to hold any other office and profession along with their membership. In this sense, the duty performed by the Board members is not in the form of a principal and permanent duty inherent in the public service which is to be conducted in accordance with the general administrative principles within the meaning of Article 128 of the Constitution. Therefore, the designation of the Board members and the payments likely to be made to these members cannot be considered as a matter needed to be regulated exclusively by law.  

Besides, the contested provisions do not introduce any regulation as to the matters which have been explicitly regulated by law. Accordingly, these provisions have not been found unconstitutional insofar as they relate to the competence ratione materiae.

2. As regards the Content

The principle of legal security, which is one of the elements of the principle of the State governed by rule of law within the scope of Article 2 of the Constitution, aims to ensure the legal security of individuals, whereas the principle of clarity requires the presidential decrees along with the laws to be clear, precise, comprehensible and enforceable to the extent that would cause no hesitation and doubt for individuals and the administration. The latter principle also means that presidential decrees must involve preventive measures against the arbitrary practices of the public authorities.

The qualifications of the Board members are set forth in the first sentence of Article 4/A of the Presidential Decree according to which the members are to be appointed among those who have served for the nation and the State and have the necessary knowledge and experience. In consideration of the advisory nature of the Board, the number of the Board members having the said qualifications may vary by time and situation. It has been considered that the non-designation of the number of the Board members would not lead the individuals to foresee the relevant consequences of the contested provisions and render the provisions unclear, incomprehensible and unenforceable for the administration.

On the other hand, although the duty undertaken by the Board members is not a principal and permanent duty needed to be conducted according to the general administrative principles, it is a public service of an advisory nature, which is conducted as a Board under the Presidency. The members are naturally provided with payments, when necessary, by the administration for which the service is performed by them.

It has been considered that the payments to be made to the members are envisaged to be determined by the President in order to ensure flexibility which would enable the qualifications of the members, characteristics of the relevant work, the scope of the service, and the improving conditions and needs to be taken into consideration. It has been concluded that the contested provisions, taken together with the other provisions on the purpose of the Board’s establishment, qualifications of the members and their assignment procedure, do not lead to any unclarity; and that they are not therefore contrary to Article 2 of the Constitution.

Consequently, the Court has found the contested provisions constitutional by their contents and accordingly dismissed the request for annulment.

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.