Source: US Global Legal Monitor
In June 2021, three decisions of Turkey’s Constitutional Court striking down certain provisions of presidential decrees on constitutional grounds were published in the Official Gazette. In addition, a Council of State (High Administrative Court of Turkey) decision dismissing a constitutional claim against a presidential decree was made public on June 29, 2021. The decisions are significant because the scope and limits of presidential decrees is a developing area of the law closely followed by scholarship.
Overview of Presidential Decrees and Their Scope and Limits
The 2017 amendments to the Constitution of Turkey that were adopted by a popular referendum granted the president of the republic the power to issue “presidential decrees.” The presidential decree is unprecedented in Turkish republican constitutional history (apart from the limited authority that the president had in organizing his or her own secretariat by decree before the amendments) in that it is a type of legislation that is issued by the executive without needing a prior delegation of power from the legislature or the legislature’s subsequent approval, and it need not be limited to the application of a legislative act as ordinary regulations issued by executive organs must be. Thus, the power to issue presidential decrees is a direct regulatory authority granted to the executive that had previously been reserved only for the legislature.
The Constitution provides the scope and limits of this new power. According to the first clause of article 104/17, the president may issue presidential decrees in subject matters that are “related to the executive power.” Presidential decrees that are not related solely to the executive power but infringe on legislative or judicial power are unconstitutional. For subject matters that are not explicitly allotted to the legislature or the judiciary, this formulation requires a case-by-case determination by the Constitutional Court when a presidential decree is challenged on the grounds that it is not related to executive power but to the powers granted to the other branches of the government.
Significantly, article 104/17 provides for five additional limits on the power to issue presidential decrees:
1. The fundamental rights, individual rights, and duties included in the first and second chapters and the political rights and duties listed in the fourth chapter of the second part of the Constitution cannot be regulated by a presidential decree.
2. Presidential decrees cannot be issued on matters that the Constitution requires to be regulated exclusively by law (that is, by legislation enacted by the legislature).
3. Presidential decrees cannot be issued on matters explicitly regulated by law, regardless of whether the Constitution requires that such matters be regulated by law.
4. If there is a discrepancy between the provisions of a presidential decree and a law, the provisions of the law prevail.
5. Duly issued presidential decrees become null and void if the Grand National Assembly of Turkey enacts a law on the same matter.
Constitutional Court Decisions on Presidential Decrees
In AYM, E.2020/71, K.2021/33 (Apr. 29, 2021, published in Official Gazette No. 31513, June 16, 2021) the Constitutional Court struck down article 1 of Presidential Decree No. 65, which created new vacancies for teaching staff in universities, including professorships, associate and assistant professorships, and researcher positions. The court found that establishing new vacancies in universities is a subject matter that is foreclosed to regulation by presidential decree under article 104/17 of the Constitution, because article 130/9 of the Constitution provides that, among other things, the duties, titles, appointments, promotions, and retirements of teaching staff in higher education must be regulated by law. The court rested its finding on the precedent it had issued holding that the establishment of new vacancies in state agencies necessarily implicates the regulation of the duties and privileges of public servants. (AYM, E.2020/71, K.2021/33 § 19.)
In another decision published in the same Official Gazette (AYM, E.2018/134, K.2021/13 (Apr. 29, 2021)), the court invalidated a provision of Presidential Decree No. 14 on the Organization of the Presidency of Communication. The provision authorized the president of the republic to determine the contract terms, salaries, and all other remuneration of contracted personnel (that is, personnel who are not subject to the general rules and salary schedule of public servants under Law No. 657) hired by the Presidency of Communication, which is an agency organized under the Presidency of the Republic. The court found that the matter of salaries of contracted personnel hired by administrative agencies was already regulated by Decree with the Force of Law No. 375, whereby the president was authorized to determine the salaries of contracted personnel in accordance with a predetermined benchmark. The Decree with the Force of Law (DWFL) is a now obsolete type of legislation that the Council of Ministers was able to issue before the 2017 constitutional amendments. DWFLs were in many respects equal in the hierarchy of norms to laws enacted by the legislature. Pointing to the fact that DWFLs were equal to laws, the court held that the provision of Presidential Decree No. 14 at issue violated the constitutional prohibition on issuing presidential decrees on matters that are explicitly regulated by law. (AYM, E.2018/134, K.2021/13 § 51.)
In AYM, E.2020/58, K.2021/19 (Mar. 18, 2021, published in Official Gazette No. 31519, June 22, 2021) the court invalidated a provision of Presidential Decree No. 62 that allowed university faculty members to simultaneously hold the position of member of the Board of the Central Bank of Turkey. The court again grounded its opinion on article 130/9 of the Constitution, finding that allowing higher education teaching staff to hold another position with the associated duties and privileges violates the constitutional rule requiring the duties and privileges of such persons to be determined by law. (AYM, E.2020/58, K.2021/19 § 19.)