22/6/2021

Press Release No: Plenary Assembly 22/21

Press Release concerning the Decision Annulling Certain Provisions of the Opticianry Law

The Constitutional Court, at its session dated 29 April 2021, found unconstitutional and annulled the part of Additional Article 1 § 2 of the Opticianry Law no. 5193, which provided “A regulation shall be issued regarding the formation of the Chambers and the Union, their domestic and foreign activities, organs affiliated to them, duties of these organs, their meetings, decision-making procedures, revenues and expenses, election process, eligibility for election, procedures for holding an election, issues related to dissolution, liquidation and annulment, professional registry, determination of fees and dues, disciplinary sanctions and execution procedures, as well as other issues and transactions related to the Chambers and the Union …” and annulled the phrase included in the third sentence of Provisional Article 4 § 3 thereof, which provided “… disciplinary provisions …” (file no. E.2020/80).

A. Provision Envisaging the Issuance of a Regulation

Contested Provision

The contested provision envisages the issuance of a regulation regarding the formation of the Chambers and the Union, their activities, organs affiliated to them, duties of these organs, and other issues and transactions related to the Chambers and the Union.

Ground for the Request for Annulment

It was maintained in brief that the contested provision was unconstitutional on the ground that the arrangement as regards the organs, duties, powers and organisation of the Chambers and the Union, having the characteristics of a public institution by virtue of the relevant law, fell foul of the constitutional requirement of being established by law, and that the Union was empowered to introduce arrangements in this respect without a legal framework being set.

The Court’s Assessment

Article 7 of the Constitution provides “Legislative power is vested in the Grand National Assembly of Turkey on behalf of Turkish Nation. This power shall not be delegated.” As regards the issues which are not prescribed in the Constitution to be regulated by law, the executive may introduce exhaustive arrangements upon the general framework being set by law.

As regards derivative regulatory acts, as a rule, it is sufficient for the legislator to grant authorisation to the executive by establishing a general legal framework; however, authorising the executive, in general terms, to make arrangements in cases prescribed in the Constitution to be regulated by law may be in breach of the principle of inalienability of the legislative power. For this reason, basic rules, principles and framework regarding issues envisaged to be regulated exclusively by law, as set forth in the Constitution, should have been determined by the law.

The leaving, by legislature upon setting the basic rules, of the regulation of the issues related to expertise and administrative technique to the executive through its derivative acts  in cases explicitly prescribed in the Constitution to be regulated by law cannot be interpreted as the delegation of the legislative power.

Pursuant to Article 135 of the Constitution, establishment of the legal entity of professional organizations having the characteristics of public institutions and their higher bodies by law necessitates a statutory arrangement. As a matter of fact, additional Article 1 of Law no. 5193 stipulates that members of the profession, to whom this Law is applicable, shall constitute professional organizations having the characteristics of public institutions, namely the Chambers and the Union. However, the requirement that a public entity be established by law cannot be obviously confined to the stipulation that the given public entity be established by merely specifying its name. In other words, as regards the organisation of this legal entity, the general framework related to its bodies, how its bodies will be formed, the limits of its duties to be performed through these bodies, and therefore the limits of its capacity to have rights and to act, should also be determined by law.

However, it is envisaged in the contested provision that the relevant issues be regulated through a regulation without the legal framework and basic principles thereof are being defined. Although provisional Article 4 of the Law contains statutory arrangements on certain issues set forth in the contested provision, they are provisional in that they are intended to set the principles during the initial establishment of the Chambers and the Union.

Consequently, the contested provision has been found unconstitutional and therefore annulled.

B. Provision regarding the Application of Disciplinary Provisions

Contested Provision

The contested provision stipulates that the disciplinary provisions of Law no. 6643 concerning pharmacists shall be applicable, by analogy, to opticians.

Ground for the Request for Annulment

It was maintained in brief that the contested provision was unconstitutional since the application, by analogy, of disciplinary provisions concerning pharmacists to opticians led to uncertainty as these two professions had different characteristics, as well as the laws containing provisions regarding offences and punishments shall not be applied by analogy.

The Court’s Assessment

One of the basic elements of the rule of law is the principle of certainty. As required by this principle, statutory arrangements must be clear, precise, comprehensible, applicable and objective, without hesitation or doubt, for both individuals and the administration. They must also afford safeguards against the arbitrary practices of public authorities.

The principle of certainty is related to legal certainty and entails that the individual precisely deduce from the relevant law the legal sanction or consequence corresponding to a given act or action as well as the extend of the authority granted to the administration for interference. Only under these circumstances can the individual foresee the obligations incumbent on her/him and act accordingly. The principle of legal certainty necessitates that individuals have confidence in the state in terms of the latter’s all acts and actions, and that the state abstains from the methods damaging this sense of confidence in its statutory regulations.

Considering that opticianry and pharmacy are different professions and their members are affiliated to different professional organizations, the contested provision which stipulates the application of disciplinary provisions by analogy leads to uncertainty. The contested provision has not been formulated in a foreseeable manner in terms of the legal sanction or conclusion arising from a given act or action and the disciplinary procedure to be followed in this regard.

Consequently, the contested provision has been found unconstitutional and therefore annulled.

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