Press Release No: Plenary Assembly 5/21
Press Release concerning the Decision Annulling Certain Provisions of the Presidential Decree on the Organisation of the Directorate of Communications
The Constitutional Court, at its session dated 30 December 2020, found unconstitutional by their content and accordingly annulled the first sentence of the amended Article 14 of the Presidential Decree no. 14 on the Organisation of the Directorate of Communications insofar as it related to the phrases “… activities, …” and “… organisation and human resources management …”, as well as the second and third sentences thereof (file no. E.2019/71).
Amended Article 14 of the Presidential Decree no. 14
The contested provision stipulates that the Directorate of Communications (“the Directorate”) has the authority to supervise the activities, budget, organisation and human resources management of Anadolu Ajansı Türk Anonim Şirketi (“the Anadolu Agency” or “Agency”), and the principles and procedures of the said supervision shall be determined by the Directorate; and that the contract to be signed by and between the Directorate and the Anadolu Agency shall set forth the procedures as to the appointment of the executives of the Agency.
Ground for the Request for Annulment
It was maintained in brief that the contested provision was unconstitutional as there were already statutory provisions regarding the supervision of the Anadolu Agency, which was a private company; and that the supervisory authority afforded to the Directorate by virtue of the contested provision was in breach of the Agency’s autonomous and impartial nature.
The Court’s Assessment
1. As regards the Competence Ratione Materiae
The contested provision regulates the relationship between the Agency and the State. It thereby designates the unit operating under the executive branch, which is authorised to conclude a contract with the Agency, as well as points to the effects and consequences of such authorisation.
The provision regulates a matter regarding executive power. As laid down in Article 104 § 17 of the Constitution, no presidential decree shall be issued on the matters which are specified in the Constitution to be exclusively regulated by law. However, presidential decrees may be issued on the matters that are clearly permitted by the constitutional provisions, where the matters to be regulated by presidential decrees are specifically stipulated.
In this sense, the matters specified in Article 123 of the Constitution may be regulated through a presidential decree, on condition of being limited to those which are specifically envisaged in the Constitution to be regulated through presidential decrees.
In Article 106 of the Constitution, it is set forth that 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 presidential decree. It nevertheless embodies any further provision with respect to neither the central organisation of the Presidency nor its affiliated institutions and organisations.
In the legislative intention of the constitutional amendment made by Law no. 6771, it is set out that the objective of vesting the President with the authority to issue presidential decrees at first-hand is to ensure him, in the new governmental system, to introduce arrangements regarding the matters which he deems necessary for the conduct of general political affairs.
In this sense, it is evident that the President authorised to introduce arrangements regarding the establishment, abolition, the duties and powers, the organizational structure of the ministries through presidential decrees is also entitled to make arrangements, through presidential decrees, concerning the same issues with respect to the Presidency, as well as its affiliated institutions and organisations.
The State-run news agencies also including the Anadolu Agency are regulated in Article 133 § 3 of the Constitution where there is no provision stipulating that the matters related to such agencies shall be regulated exclusively by law. Therefore, it is not in any respect unconstitutional to designate the unit operating under the executive branch, which shall be authorised to conclude contracts with the Agency, as well as regulate the effects and consequences of these authorisation through a presidential decree.
The Anadolu Agency operating as a joint-stock company, a corporate body governed by private law, since 1925 does not directly receive a share from the State budget, owing to its organisation. However, as specified in Article 133 § 3 of the Constitution, it is a news agency receiving aid from public corporate bodies. Accordingly, the payments to be made to the Agency are allocated in the central administration budget as an allowance under the Agency-related institutional budget. Therefore, the contested provision is not related to Article 161 of the Constitution and accordingly to the matters required to be regulated exclusively by law.
In the Law no. 57 on the Properties and Personnel of the Anadolu Agency, it is laid down that the properties owned by the Agency are categorised as State property; and that in cases where the criminal legislation is applicable, its personnel shall be considered as a public officer. Law no. 57 also embodies certain arrangements concerning the acquisition, pledge and public offering of the Agency’s shares, as well as the usufruct right of these shares. It is thus evident that the matter, which is regulated through the contested provision, is a matter already laid down in neither this Law nor any other legislation. It has been therefore concluded that the contested provision does not address any issue which has been explicitly regulated by law.
Accordingly, the contested provision has been found constitutional insofar as it relates to the competence ratione materiae.
2. As regards the Content
a. First Sentence of the Contested Provision
In the first sentence of the contested provision, it is envisaged that the Directorate shall be authorised to conclude a contract with the Anadolu Agency for a maximum period of 5 years on condition of not exceeding the allowance specified in the Directorate’s own budget allocated to the Agency; and that it shall have the authority to supervise the activities, budget, organisation and human resources management of the Agency.
It has been observed that the main aim of excluding the Agency from the central administration in 1925 and transforming it to a joint-stock company, thereby to a corporate body governed by private law, is to ensure its autonomy and impartiality as safeguarded by Article 133 of the Constitution. The shares owned by the State Treasury in the Agency has never been over 50% so as to preserve the autonomous nature of the Agency.
Despite being a corporate body governed by private law, the Agency’s revenues are mainly comprised of the agency allowance in the Directorate’s budget. Pursuant to the contested provision, one of the issues in respect of which the Directorate has supervisory power over the Agency is the budget.
In consideration of the Agency’s sources of income, it appears that the conduct of the budgetary supervision of the Agency by the central administration is intended for achieving public interest. Such a budgetary supervision by the central administration does not, in any aspect, have an adverse impact on the Agency’s own power to take decision regarding, and put into practice, its own acts and activities; that is to say, on its autonomy and impartiality. Accordingly, the supervision of the Agency’s budget by the Directorate does not fall foul of Article 133 § 3 of the Constitution.
As envisaged in the first sentence of the provision, the central administration’s supervision is not confined only to the Agency’s budget, but rather covers its activities, organisation and human resources management. The main objective of the Agency, in its capacity as a company, is to report and convey information, news, photos, images and multimedia contents, which it has collected regarding the incidents within the country or abroad by adopting an accurate, swift, impartial and contemporary approach, to the media outlets. In this sense, the supervision of the Agency’s acts and activities by the Directorate, an executive unit operating under the Presidency, is both incompatible with the autonomous nature of the Agency and also likely to prejudice the impartiality of its broadcasts.
On the other hand, the Directorate’s authorisation to supervise the Agency’s organisation and human resources management contradicts with the principle requiring the news agencies receiving aid from the public corporate bodies to be autonomous as such authorisation precludes the Agency from freely taking decisions regarding its own acts and activities and putting them into practice.
Consequently, the Court has found the first sentence of the contested provision unconstitutional by its content and annulled it insofar as it relates to the phrases “… activities…” and “….organisation and human resources management…”, whereas found constitutional the remaining part of the first sentence and accordingly dismissed the request for annulment.
b. Second Sentence of the Contested Provision
The primary power attributed by the constitution-maker to presidential decrees cannot be delegated to, and thereby enforced through, any other administrative act. Any practice to the contrary would be in breach of the guarantee envisaging that the respective matters may be regulated through presidential decrees.
The President should not hand over his power regarding the matters which are to be regulated through presidential decrees. However, the executive branch does not necessarily designate every kind of details concerning the matter which can be regulated through presidential decrees and take, by itself, the necessary actions required by these arrangements. By pointing to the primary principles and drawing the general framework through a presidential decree, the executive branch may designate the issues falling within this framework through other regulatory actions and leave the performance of necessary acts and actions pursuant to these regulations to the relevant administration.
Vesting the Directorate with a regulatory authority with no definite boundaries, as to the supervision of the Anadolu Agency, without the basic principles and general framework being set has led to the delegation of the regulatory power, which is conferred by the Constitution on the President, to the administration.
Consequently, the second sentence of the contested provision has been found unconstitutional by its content and therefore annulled.
c. Third Sentence of the Contested Provision
In the third sentence, it is set forth that the appointment procedures of the Agency executives shall be designated by the contract to be concluded by and between the Directorate and the Agency.
Although the freedom of contract also embodies the freedom to conclude a contract or not, and to choose the other contracting party, it appears that the Directorate is in a more advantageous position vis-à-vis the Agency in respect of the contract they have concluded. It cannot be therefore said that the relevant contract satisfies the necessary requirements inherent in the freedom of contract.
The autonomous nature of the news agencies, enshrined in Article 133 of the Constitution, secures that the Agency has been vested with the necessary powers to take and implement decisions regarding its management and organisation; and that it is protected against all external influences. In this sense, the designation of the appointment procedures of the Agency executives through a contract renewed every year renders meaningless the autonomous nature of the Agency that it has pursuant to the said constitutional provision.
Consequently, the third sentence of the contested provision has been found unconstitutional by its content and therefore annulled.
This press release prepared by the General Secretariat intends to inform the public and has no binding effect.