Constitutionality Review

Contested Provisions

The contested provisions envisage that the secretary general and deputy secretaries general of the exporters' associations and Turkish Exporters Assembly may be ex officio appointed by the Ministry of Trade (“the Ministry”) under certain conditions.

Ground for the Request for Annulment

It was maintained in brief that the contested provision was unconstitutional on the grounds that the Ministry was entitled to ex officio appoint anyone of its choosing by granting no approval for the appointment of such officials by the Board of Directors of these institutions, which would result in arbitrariness; that the qualifications of the person to be appointed were not indicated, and the ex officio appointment procedure lacked any clear, objective and concrete criteria prescribed by law, which led the exporter’s associations and  Turkish Exporters Assembly to be deprived of any legal safeguard; entrusting the central administration with the power of ex officio appointment was contrary to the administrative autonomy and exceeded the limits of the power of administrative and financial audit; that the candidates for secretary general and deputy secretaries general could be subject to discrimination; and that therefore the contested provision encroached upon the essence of the rights to elect and to stand for election.

The Court’s Assessment

Professional organisations and their higher bodies having the characteristics of public institutions are under the supervision and inspection of the State as they fall within the scope of service-based decentralized governmental organizations within the administrative organisation. Although it is generally acknowledged that the state supervision over these institutions is a kind of power of tutelage, this power to be exercised over these institutions differs from the one envisaged in Article 127 of the Constitution. Article 135 of the Constitution provides that the power of tutelage of the central administration over professional organisations having the characteristics of public institutions shall be prescribed by law and confined to the issues relating to administrative and financial audit. Although the discretion on this matter lies with the legislator acting in accordance with the constitutional principles, the legislator is bound by the principle of proportionality, as a requirement of the rule of law, in introducing regulations as to the power of administrative tutelage to limit the autonomy of professional organisations.

As any vacancy in the executive management positions of professional organisations may lead to setbacks in the provided services, the taking of preventative measures may be necessary to fill these vacancies. In this respect, the appointment of the secretary general and deputy secretaries general by the Ministry serves the purpose of preventing any disruption in the provision of public service in the case that the authorised bodies of the exporters' associations and Turkish Exporters Assembly fail to appoint the above-mentioned officials.

Nevertheless, the Ministry's direct appointment of the secretary general and deputy secretaries general by substituting itself for the exporters' associations and Turkish Exporters Assembly amounts to an exercise of tutelage power of a severe nature. It can be only possible in exceptional cases of absolute necessity for the central administration to issue executive decisions, as an instrument of the tutelage power, by substituting itself for a professional organisation. In this regard, the vacancies in the executive management positions of professional organisations would not suffice to create such a necessity that would require a severe exercise of tutelage power compelling the central administration to take executive decisions by acting as a substitute for the professional organisations. In addition, lenient instruments that would be less restrictive on autonomy such as appointing temporary officials to the aforementioned positions until the appointment is made by the professional organization are also available.

In this context, it has been concluded that the ex officio appointment by the Ministry of the secretary general and deputy secretaries general of the exporters' associations and Turkish Exporters Assembly constitutes disproportionate interference with the autonomy of professional organizations. Therefore, the impugned provisions fall contrary to Article 135 of the Constitution.

Consequently, the contested provisions have been found unconstitutional and therefore annulled.