Press Release No: Constitutionality Review 21/21

Press Release concerning the Decision Annulling the Provision Allowing for Holding Office Concurrently as a Faculty Member of a Public University and as a Councillor at the Central Bank of the Republic of Turkey

The Constitutional Court, at its session dated 18 March 2021, found unconstitutional and annulled Article 1 of the Presidential Decree no. 62 on Councillorship of the Central Bank of the Republic of Turkey, insofar as it related to the competence ratione materiae (file no. E.2020/58).

Contested Provision

The contested provision stipulates that the positions of faculty membership of public universities, under Law no. 2914 on Higher Education Personnel, and of councillorship of the Central Bank of the Republic of Turkey (“the Bank”) may be conducted by the same individual concurrently.

Ground for the Request for Annulment

It was maintained in brief that the contested provision was unconstitutional since the regulations concerning the faculty members who would hold office at the Assembly of the Bank should have been made by law, that the issuance of Presidential decrees as regards the matters which were to be regulated exclusively by law resulted in the delegation of the legislative authority, and that thus the constitutional framework set for Presidential decrees was exceeded.

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.

It is laid down in Article 130 § 9 of the Constitution that the relations of faculty members with public institutions and other organisations as well as their personal rights shall be regulated by law.

The faculty members at the public universities were enabled, through the contested provision, to concurrently hold two separate offices in case of their election as a councillor at the Bank. Thus, faculty members were able to establish relations with an institution by assuming a position there, besides the university they were holding office, as well as they could be entitled to personal rights by taking advantage of all rights and interests inherent in the said position assumed concurrently. It accordingly appears that the contested provision introduced an arrangement as regards the relations of faculty members with other institutions as well as their personal rights, which fell under Article 130 § 9 of the Constitution.

The contested provision concerning an issue that should have been regulated exclusively by law within the scope of Article 130 of the Constitution, and not relating to the issues expressly permitted by the constitutional provisions, has been in breach of Article 104 § 17 of the Constitution.

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.