- The most significant feature of the presidential government system is, inter alia, to authorize the President to make arrangements through the “presidential decrees”.
- The President is authorized, by virtue of the Constitution, to issue presidential decrees; however, it is not an unlimited authority.
- Article 148 of the Constitution sets forth that the presidential decrees be subject to constitutionality review both in substance and in form.
- 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 specified 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.
A. Provision stipulating that the Supreme Military Council (“the SMC”) secretariat services shall be conducted by the authority to be designated by the President.
- It is argued 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 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. Accordingly, it has been found constitutional insofar as it relates to the competence ratione materiae.
- 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.
- As the contested provision, allowing for the performance of these services by an authority to be designated by the President, involves no unclarity, it has been found constitutional by its content.
B. Provision allowing for an advance payment in product and service procurements abroad.
- 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.
- In the review of the contested provision, it was firstly ascertained whether the relevant law was enforceable in the field covered by the presidential decree and subsequently determined whether the statutory arrangement was clear.
- The terms and conditions of making an extra budgetary advance payment are in general laid down in Article 35 of Law no. 5018, which sets out the terms and conditions of extra budgetary advance payments.
- . 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 relevant provision of the Constitution. Accordingly, it has been found unconstitutional insofar as they relate to the competence ratione materiae.
C. Provisions providing for the appointment of coordinator head doctor for the joint management of hospitals
- 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.
- Article 106 § 11 of the Constitution 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”, thereby explicitly permitting to make arrangements, through the presidential decree, concerning the organizational structure of the ministries and the establishment of their central and provincial organizations. Accordingly, the contested provisions have been found constitutional insofar as they to the competence ratione materiae.
- 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. Accordingly, they have been found constitutional by their contents.
D. Provisions Stipulating that the members of the High Advisory Board of the Presidency and payments likely to be made to the members shall be designated by the President
- It is argued that the contested provisions are unconstitutional on the grounds, inter alia, that there is no clarity as to the qualifications, number and expertise of the Board members; and that the financial rights of the Board members should have been designated by law.
- Duty performed by the Board members is not in the form of a principal and permanent 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 relevant payments cannot be considered as a matter needed to be regulated exclusively by law.
- Accordingly, the contested provisions have been found constitutional insofar as they relate to the competence ratione meteriae.
- The qualifications of the Board members are set forth in Article 4/A of the Presidential Decree.
- In consideration of the advisory nature of the Board, the number of the Board members having the necessary 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.
- 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.
- Accordingly, the contested provisions have been found constitutional by their contents.