Constitutionality Review

By Empowering Law no. 7142 (“Law no. 7142”), the Council of Ministers is authorised to issue decree-laws for securing compliance with the constitutional amendments introduced through Law no. 6771. Pursuant to Article 1 § 1 of Law no. 7141, the power to issue decree-laws is confined to the issues concerning the establishment, organisation, duties and powers of public institutions and organisations; the change and revocation of particular expressions cited in the laws and decree-laws, namely statute, the Council of Ministers, the Cabinet Council, resolution of the Cabinet Council, decree of the Council of Ministers, regulation adopted by the Council of Ministers, government, prime minister, chief minister, prime ministry, government house, martial law, charter, parliamentary bill and etc., or re-formulation of the respective provisions in the laws and decree-laws accordingly; re-establishment of the affiliation and relation among the existing affiliated, related and associated organisations; abolishment of the laws and decree-laws that are no longer applicable; the indication of the principles and procedures concerning the establishment and abolishment of the ministries, public institutions and organisations cited in the laws and decree-laws, and their duties, powers, staff and organisational structure, the establishment of central and provincial organisations, as well as concerning the appointment and dismissal of high level public officials; and the introduction of the provisions on the executive power of the President and the amendment or annulment of the respective provisions.

In the legislative intent of Law no. 7142, it is indicated that as the parliamentary government system has been replaced by the Presidential government system through a constitutional amendment, the amendments introduced for the adoption of new government system necessarily has brought along certain amendments to the relevant legislation, and that a decree-law is to be issued for making the arrangements required by the Presidential government system. 

In this sense, the contested Decree-Law no. 703 (“the Decree-Law”) was issued for making the necessary amendments to certain laws and decree-laws so as to secure compliance with the constitutional amendments. 

Decree-laws and laws are not subject to the same constitutionality review procedure. Article 11 of the Constitution sets forth that “Laws shall not be contrary to the Constitution”.  Therefore, the constitutionality review of laws is intended merely for ascertaining whether they comply with the constitutional provisions. On the other hand, decree-laws are sought to conform both to the underlying empowering laws and the Constitution in terms of the subject, objective, scope and principles thereof.

The repealed Article 91 of the Constitution prohibits the regulation of particular issues by virtue of decree-laws. In the same vein, the repealed Article 163 thereof also provides for that the Council of Ministers shall not be empowered, by a decree-law, to make any budgetary change. Pursuant to these provisions, the Turkish Parliament may empower the Council of Ministers to issue decree-laws concerning the issues excluding the ones that cannot be regulated through a decree-law.

Accordingly, in case of any finding that any provision embodied in a given decree-law falls foul of the underlying empowering act in terms of its subject, objective, scope and principles or involves any arrangement concerning an issue that cannot be regulated through a decree-law, the said provision is to be annulled pursuant to the repealed Article 91 of the Constitution. The constitutionality review of a decree-law under the repealed Article 91 is not subject to any order of priority with respect to these four aspects. Any infringement in terms of any of these aspects will render unconstitutional the disputed provision of the decree-law.

However, the finding of a decree-law constitutional in terms of the aspects laid down in the repealed Article 91 does not suffice to conclude the constitutionality review process. In other words, a given decree-law, which has been found constitutional in terms of the aspects set forth in the repealed provision, is necessarily subject to review also as to its content.  

In its review conducted within the aforementioned framework, the Court annulled several provisions of Decree-Law no. 703 on various grounds that they did not fall into the scope of Law no. 7142 (see, among many other instances, Article 34 of Law no. 3289, along with its heading, which was amended by Article 12 (o) of the Decree-Law; and Article 7 of Law no. 4059, along with its heading, which was amended by Article 16 (b) of the Decree-Law), that they did not serve the aim sought to be achieved by Law no. 7142 (see, among many other instances, paragraphs (7), (8), (9), (10), (11), (12), (13) and (14) added after Article 26 § 6 of Law no. 6446 by Article 9 (e) of the Decree-Law), that some of them did neither fall into the scope of Law no. 7142, nor did they serve the aim sought to be achieved thereby (see, among many other instances, Additional Article 1 added to Law no. 5253 by Article 19 (b) of the Decree-Law; and the second and third sentences of Article 13 of Decree-Law no. 652 (save for the term “by the Ministry of National Education” in the former sentence, and the term “the Ministry …. this power” in the latter sentence), which was amended along with its heading by Article 22 (b) of the Decree-Law, and that they introduced arrangements concerning rights and freedoms that cannot be regulated through a decree-law (see, among many other instances, Article 8 of Law no. 6004 amended -along with its heading- by Article 6 (b) of the Decree-Law and Article 11 of Law no. 351 amended -along with its heading- by Article 11 (c) of the Decree-Law).

The Court also annulled particular provisions for being unconstitutional in their content (see, among many other instances, the change -by Article 200 (a) of the Decree-Law- of the phrase “Joint decree in consultation with the Council of State” in the second sentence of Article 4 § 5 of Law no. 5393 as “a Presidential decree”, as well as the phrase “By a joint decree upon the proposal of the Ministry of Interior” in Article 4 § 6 thereof as “by a Presidential decree”).