Press Release No: Plenary Assembly 19/21
Press Release concerning the Decision Annulling the Provision Allowing for Certain Regulations Related to the Positions of Faculty Members through Presidential Decrees
The Constitutional Court, at its session dated 29 April 2021, found unconstitutional and annulled Article 1 of Presidential Decree no. 65 which stipulated that the positions enumerated in the annexed List no. 1 be formed and added to the relevant sections of the Schedule no. III annexed to Presidential Decree no. 2 for being unconstitutional in so far as concerned the competence ratione materiae, and held that the said annulment be effective 9 months after its publication in the Official Gazette (file no. E.2020/71).
The contested provision stipulates that the positions enumerated in the annexed List no. 1 be formed and added to the relevant sections of the Schedule no. III annexed to the Presidential Decree no. 2 on General Positions and the Relevant Procedure.
Ground for the Request for Annulment
It was maintained in brief that the contested provision was unconstitutional since it went beyond the powers of presidential decrees, that it concerned the academicians who performed fundamental and permanent public services in the central organisations of universities in accordance with the general administrative principles, and that the provisions regarding the abolition or formation of such positions should have been regulated by law.
The Court’s Assessment
Pursuant to Article 104 § 17 (3) of the Constitution, no presidential decree shall be issued on the matters which are stipulated in the Constitution to be regulated exclusively by law. However, in exclusive cases specified in the Constitution, regulations may be made, through Presidential decrees, on issues explicitly permitted by constitutional provisions.
In Article 130 of the Constitution, university is defined as the institution where scientific studies are carried out and science is taught, and it is stated to have scientific and administrative autonomy and is characterised differently from other public institutions. It is also specified therein that universities shall be established by the State and by law. Pursuant to Article 130 § 9, the duties, titles, financial affairs and personal rights of faculty members shall be regulated by law.
Since the contested provision regulates the positions of faculty members, it apparently also affects the duties and powers of faculty members, especially their personal rights, thus making a regulation on an issue that should be regulated exclusively by law in accordance with Article 130 of the Constitution.
It is underlined in Article 130 of the Constitution that universities shall be established by law. Nor is the matter as regards the regulation of the positions of faculty members, set forth in the impugned provision, related to the issues that should be regulated exclusively by presidential decrees according to the Constitution. Therefore, the contested provision has been in breach of Article 104 § 17 (3) of the Constitution within the scope of Article 130 thereof.
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.