Protecting the Rule of Law through Constitutional Review of Presidential Decrees: The Case of Türkiye^*

Zühtü Arslan ^**

Honorable President of the Constitutional Court of Kosovo,
Distinguished Presidents and Justices,
Ladies and Gentlemen,

It is a great pleasure to be here and to address such eminent participants. I would like to thank the President Gresa Caka-Nimani for kindly inviting us to this well-organised international conference.

I would also like to congratulate the 14^th anniversary of the Constitutional Court of Kosovo.

In my brief speech I shall talk about the role of the Constitutional Court of Türkiye (the Court) in protecting and strengthening the value of the rule of law through its review of presidential decrees.

First of all, let me start by recalling a simple fact as to the nature of constitutions. They are the basic documents that aim to guarantee, among others, the principle of the rule of law. This constitutional principle is generally defined as “the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power”.¹

Article 2 of the Turkish Constitution clearly stipulates that the Republic of Türkiye is a democratic state governed by the rule of law. Therefore, it wouldn’t be wrong to say that the rule of law is the distinctive characteristic of the constitutional order.

In this regard, the Constitutional Court has frequently invoked the principle of the rule of law as a yardstick to control the constitutionality of laws and presidential decrees. The Court has regarded the rule of law as “a principle that is to be taken into consideration in the interpretation and application of all provisions of the Constitution”. ²

Distinguished Participants,

The Turkish Constitutional Court was established in 1962, and its powers were greatly expanded by the constitutional amendments of 2010 and 2017. The former amendment introduced the individual application, otherwise known as the constitutional complaint mechanism, while the latter amendment replaced the parliamentary system with the presidential government. The Constitutional amendment of 2017 granted the President of the Republic the authority to directly issue “presidential decrees” on certain matters related to the executive power.

It is safe to argue that the individual application system generated a paradigm shift in constitutional jurisdiction of Türkiye, which has clear implications for the task of norm review including the constitutionality review of presidential decrees.

With the introduction of the individual application mechanism, the Court has adopted a rights-based legal paradigm which attaches certain priorities to the protection of fundamental rights and freedoms vis-a-vis the other social and political interests.

In its several judgments, the Court has declared that the rights-based paradigm should prevail over constitutional jurisdiction. For the Court, the constitutional provisions “may fully and properly fulfil their functions only when they are interpreted through a rights-based approach.” Therefore, the public authorities can and indeed must “interpret constitutional provisions in favour of freedoms”.³

On the other hand, constitutional amendments enacted in 2017 granted the Constitutional Court the power to review presidential decrees. With this competence, the Court has become the “negative rule maker” in the field of executive in a similar vein to its role as “the negative legislator” with respect to the laws passed by the Parliament.

Over the past three years, the Constitutional Court has established the framework and the method for the judicial review of presidential decrees. Unlike the laws, the subject matters to be regulated through presidential decrees are delimited by the Constitution. These limitations, which are imposed on the competence ratione materiae, are laid down in the first four sentences of paragraph 17 of Article 104 of the Constitution.

Again, unlike the laws, presidential decrees are subject to review by the Court in two separate stages. At the first stage, the Court reviews the competence ratione materiae of the presidential decree in question. If the Court finds no violation of limitation clauses, it examines whether the content or substance of the presidential decree is compatible with the Constitution.⁴

Ladies and Gentlemen, 

Let me briefly address four constitutional limitations imposed on presidential decrees. First of all, the President may issue presidential decrees on the matters regarding executive power. In other words, the matters falling outside the realm of the executive power shall not be regulated by the President. The Court, for instance, annulled presidential decrees that amended the laws passed by the Parliament, simply because amendment of a statutory provision entailed the exercise of legislative power.⁵

Secondly, the Constitution creates a kind of “forbidden zone” for presidential decrees. Accordingly, the constitutional rights and liberties, such as the right to property, the right to privacy, and the protection of personal data, fall within the “forbidden zone” that cannot be regulated by presidential decrees. In this regard, the Court reviewed the constitutionality of a provision which granted the Financial Crimes Investigation Board (MASAK) “the power to request every kind of information and document”. The incumbent provision was declared unconstitutional on the grounds that it interfered with the right to protect personal data safeguarded by Article 20 of the Constitution.⁶

Thirdly, the President may not issue presidential decrees on the matters which are prescribed in the Constitution to be regulated exclusively by law. To illustrate, the Court annulled a number of presidential decrees concerning the appointment, qualifications and personal rights of the public officials, which must be regulated by law in accordance with Article 128 of the Constitution.⁷

Finally, the fourth sentence of the paragraph 17 provides that no presidential decree may be issued concerning the matters which have been explicitly regulated by law. This entails that the Constitutional Court shall declare any provision of a presidential decree as unconstitutional, if its subject matter is already regulated by an act of Parliament. ⁸

The second stage is for the Constitutional Court to review the constitutionality of the contents of presidential decrees. In its substantial judicial review, the Court has predominantly invoked Article 2 of the Constitution and referred to its well-established definition of the rule of law. According to the Court, the rule of law requires a state that respects human rights, ensures the supremacy of the law on all state organs, deems itself bound by the Constitution and the laws and is subject to judicial review.⁹

The Court has underlined two important elements of the rule, namely the principles of legal certainty and of the legal security. The principle of legal certainty requires that the legal regulations must be absolutely clear, comprehensible and applicable to both individuals and public authorities. This clarity is necessary to avoid arbitrary state actions.¹⁰

Likewise, the principle of legal security requires public authorities to act in a foreseeable manner. It prevents the state from enacting inconsistent and contradictory legal provisions. The Constitutional Court annulled the presidential decrees that were contrary to the principles of legal certainty and security.¹¹

To sum up, the Constitutional Court upholds the rule of law through constitutional review of presidential decrees. The Court primarily controls the limitations imposed on the competence of the President to issue decrees, and then substantially examines whether they are in compliance with the requirements of the rule of law.

Dear Participants,

In concluding my remarks, I must note that by upholding the rule of law the Constitutional Court has significantly contributed to furthering the public confidence towards law and judiciary as well as strengthening the legitimacy of public institutions.

These are, in fact, the main functions that are expected from the constitutional courts. Indeed, the “Bali Declaration” adopted last year at the 5^th Congress of the World Conference on Constitutional Justice made it clear that “by guaranteeing the respect for the rule of law, the constitutional court furthers the trust individuals place in the virtues of the law and the courts”. It also emphasised that by “ensuring that state actors respect the Constitution, the constitutional court helps to strengthen the legitimacy of institutions”.¹²

We all know that a well-ordered constitutional democracy is inconceivable without public confidence in law and courts as well as a strong legitimacy of the state institutions. Therefore, the constitutional courts, with their task of maintaining the rule of law, have become almost indispensable for today’s constitutional democracies.

Let me end my speech by wishing that our courts will continue to effectively protect the basic constitutional values, most notably human rights, democracy and the rule of law.

Thank you for your attention.

^* The speech delivered at the International Conference on “The contribution of Constitutional Courts in Protecting and Strengthening Fundamental Values of Democracy, Human rights and Rule of law”, Pristina, Kosovo, 23 October 2023.

^** The President of the Constitutional Court of Türkiye.

¹ A.V.Dicey, Introduction to the Study of the Law of the Constitution (1885), (Indianapolis: Liberty Fund, 1982), p. 120.

² Mehmet Güçlü and Ramazan Erdem, no. 2015/7942, 28 May 2019, § 50; Cihangir Akyol [Plenary], no. 2021/33759, 23 February 2023, § 46).

³ Ömer Faruk Gergerlioğlu [Plenary], no. 2019/10634, 1 July 2021, § 50; and Ali Kuş [Plenary], no. 2017/27822, 10 February 2022, § 50

⁴ See the Court’s decision, no. E. 2019/31, K.2020/5, 23 January 2020, §§ 8-13.

⁵ See the Court’s decision, no. E.2018/155, K.2020/27, 11 June 2020, § 23.

⁶ See the Court’s decision, no. E.2019/96, K. 2022/17, 24 February 2022, § 74.

⁷ See the Court’s decision, no. E.2022/36, K.2023/84, 4 May 2023, § 28

⁸ See the Court’s decision, no. E.2021/99, K.2022/119, 13 October 2022, §§ 21-22; no. E.2020/89, K.2023/85, 4 May 2023, §§ 13-14.

⁹ See the Court’s decision, no.E.2019/31, K.2020/5, 23 January 2020, § 37; and also, no. E.2022/113, K.2023/112, 22 June 2023, § 27.

¹⁰ See the Court’s decision, E.2022/113, K.2023/112, 22 June 2023, § 28; and also, no. E.2020/29, K.2022/155, 13 December 2022, § 38.

¹¹ See, for instance, the Court’s decision, no. E.2019/111, K.2023/63, 05 April 2023, § 151.

¹² For the text of “Bali Declaration” see 2022_10_06_WCCJ5_Bali_Communique-E.pdf (mkri.id). Retrieved on 18th October 2023.