Press Release No: Plenary Assembly 15/20
Press Release concerning the Decision on the Presidential Decree no. 46
The Constitutional Court, at its session dated 12 June 2020, dismissed the request for annulment of the contested provisions in the Presidential Decree no. 46 for not being unconstitutional (file no. E.2019/105).
A. Provision on the Establishment of the Overseas Organisation of the Ministry of Health and Empowering the Ministry to Establish Such Organisation
Amended Article 353 of the Presidential Decree no. 1 sets forth that the Ministry of Health (“the Ministry”) shall be formed of the central, provincial and overseas organisations, and the phrase “…and overseas…” included therein constitutes the first contested issue. The provision added to the Presidential Decree no. 1 by the Presidential Decree no. 46, whereby the Ministry is empowered to establish the overseas organisation of the Ministry, is the second contested issue.
Ground for the Request for Annulment
It is maintained that the contested provisions are unconstitutional as Article 106 § 11 of the Constitution allows for the establishment of merely the central and provincial organisations of the ministries through a presidential decree and does not introduce any arrangement as to the overseas organisation, which is thus evident that the power to establish an overseas organisation is not covered by this provision; and that Article 123 § 3 of the Constitution, which allows for the establishment of a public legal entity also through presidential decrees, cannot apply to the ministries.
The Court’s Assessment
1. As regards the Competence Ratione Materiae
Although it was maintained in the petition that the said provisions were in breach of Articles 106 and 123 of the Constitution in so far as concerned the competence ratione materiae, they were examined under Article 104 § 17 of the Constitution, where the rules as to the competence ratione materiae with respect to presidential decrees are laid down, for their being of relevance.
It is set forth in Article 104 § 17 of the Constitution that no presidential decree shall be issued on the matters which are explicitly regulated by law. In cases where the constitution-maker specifically requires a matter to be regulated by law, it means that this matter needs to be regulated exclusively by law. Therefore, if a matter is specified, in the Constitution, to be regulated by law, no presidential decree shall be issued on this matter. However, presidential decrees may be issued with respect to the matters which are clearly permitted by the constitutional provisions specifically prescribing the matters needed to be regulated by presidential decrees.
As set forth in Article 123 § 1 of the Constitution, “The administration is a whole with its formation and functions and shall be regulated by law”. In Article 106 § 11 of the Constitution, it is enshrined 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 decrees. Accordingly, the matters laid down in Article 106 § 11 are the issues which are specifically stipulated, in the Constitution, to be regulated through presidential decrees.
The notion “…organisational structure…”, specified in the same paragraph, points to the units -as a whole- operating under the same institution, which are of different levels and qualifications and established to ensure the fulfilment of the duties and powers undertaken by the public institutions and organisations founded to provide certain services and which play, directly or indirectly, a role in the performance of such services. In this regard, the overseas organisation of an institution, along with its central and provincial organisations of such nature, is also covered by the notion of the organisational structure.
In the contested provisions, it is envisaged that an overseas organisation be incorporated into the organisational structure of the Ministry, currently composed of the central and provincial organisations; in other words, it is set forth that the overseas organisation of the Ministry shall be established, and the Ministry shall be empowered to do so. Therefore, it appears that the contested provisions are related to the organisational structure of the ministries, which is one of the matters specifically stated, in Article 106 § 11 of the Constitution, to be regulated through a presidential decree.
In this sense, as the issue to which the contested provisions are of relevance is one of the matters to be regulated through a presidential decree, as clearly specified in Article 106 § 11 of the Constitution, making such a regulation not through a law is not, in any aspect, unconstitutional.
Article 104 § 17 of the Constitution sets forth that no presidential decree shall be issued with respect to the matters that are already and explicitly regulated by law. Undoubtedly, the arrangements introduced by the Grand National Assembly of Turkey (“the GNAT”) as law by virtue of its power to enact laws under Article 87 of the Constitution fall into this scope. However, it should be assessed whether the decree-laws issued under the repealed Article 91 of the Constitution could be considered under the same scope.
As specified in the former Article 87 of the Constitution of 1982, before being amended by Law no. 6771 in 2017, it is among the GNAT’s duties and powers to empower the Council of Ministers to issue decree-laws on certain matters.
In consideration of the nature of decree-laws as indicated in the repealed provisions of the Constitution, the aim underlying their issuance, the Constitutional Court’s jurisprudence and the practice in respect thereof, it is evident that the decree-laws have the force of law. Accordingly, no presidential decree may be issued also with respect to the matters which have been explicitly regulated by a decree-law, pursuant to Article 104 § 17 of the Constitution. In this sense, it must be primarily considered whether there is a law which has been previously enacted and may be taken as a basis for the comparison during the review. If there is such a law, it must be then assessed whether the contested provision regulates a matter which has been explicitly regulated by this law. In this assessment, it must be firstly ascertained whether the relevant law is enforceable in the field which is regulated by the presidential decree and subsequently determined whether the statutory arrangement is clear. In this sense, it should be considered whether the relevant statutory arrangement would, in the absence of the provision embodied in the presidential decree, address the matter regulated by the latter, which may be regarded as an indication to ascertain whether the presidential decree has been issued to address the matter that has been already regulated by law.
In Article 51 § 1, titled “Overseas health-care service units” of the Decree-Law no. 663, it is set forth that the Ministry and its affiliated institutions may establish and operate provisional health-care service units abroad for humanitarian and technical aid or have them established and operated, and paragraph (3) states that the Ministry may establish and operate health-care service units abroad with a view to providing such services. However, the contested provisions of the Presidential Decree embody regulations not as to the health-care service units of the Ministry, but rather its overseas organisation. Accordingly, it appears that in the absence of the contested provisions embodied in the presidential decree, the said provisions of the Decree-Law are not applicable to the same matter. As a matter of fact, the contested provisions are generally arranging an administrative organisation, whereas the provisions of the Decree-Law introduce regulations concerning the health-care units for the provision of health-care services. Therefore, it has been observed that the provisions of the Decree-Law and the contested provisions are not enforceable in the same field; in other words, do not regulate the same matter.
2. As regards the Content
As specified in Article 106 § 11 of the Constitution, it is within the President’s discretion to decide whether there is any need for a ministry to form an overseas organisation also in view of the nature and characteristics of the services provided by that ministry. Therefore, the formation of an overseas organisation for the Ministry by the President, exercising the discretionary power afforded to him by the Constitution, under the first contested provision is not, in any aspect, in breach of any provisions of the Constitution.
The power to found an overseas organisation under the organisational structure of the ministries is entrusted, by virtue of Article 106 of the Constitution, to the presidential decrees. This primary power cannot be delegated to, and thereby enforced by, any other administrative act. However, the executive does not necessarily designate every kind of details concerning the matter which can be regulated through presidential decrees and by itself take the necessary actions required by these arrangements. By determining the primary principles and drawing the general framework through a presidential decree, the executive may designate the issues falling under the scope of this framework through other regulatory actions and leave the performance of necessary acts and actions under these regulations to the relevant administration.
In the second contested provision, it is set forth that the Ministry is entitled to establish its overseas organisation. It appears that taken in conjunction with the other provisions of the Presidential Decree no. 1 on the organisation of the Ministries, the phrase “establishment of the overseas organisation” included therein means that the necessary administrative acts for ensuring the de facto functioning of the overseas organisation would be performed by the Ministry.
Accordingly, the Presidential Decree no. 1, which embodies also the contested provision, does not leave it to the Ministry to decide on the basic principles such as the nature of the overseas organisation, the place where it shall be established, its duties and its field of operation but entrusts the power to make such regulations to the presidential decree by virtue of Article 510/B laid down under the Common Provisions in the Presidential Decree no. 1. The question whether the power to make arrangements on these matters may be constitutionality left to the presidential decision through a presidential decree is not the subject-matter of this case. Besides, this provision demonstrates that the power to directly introduce regulations with respect to these matters is not entrusted to the Ministry. Therefore, the power specified in the contested provision cannot be said to also cover the establishment or arrangement of an overseas organisation without basic principles and general framework being set. In this sense, the second contested provision, which does not empower the Ministry to make direct arrangements concerning its overseas organisation established through a presidential decree under Article 106 § 11 of the Constitution, is not in any aspect in breach of the said paragraph.
Consequently, the Court has found the contested provisions constitutional in so far as they related to the competence ratione materiae and by their contents and accordingly dismissed the request for annulment.
B. Provision Envisaging the Award of Scholarship by the Health Institutes of Turkey (“TÜSEB”)
The contested issue in the relevant provision is the phrase “… and scholarships…” added by the Presidential Decree no. 46 to the relevant paragraph of Article 666 of the Presidential Decree no. 4. It is envisaged therein that TÜSEB is entrusted with the tasks, inter alia, of providing facilities for the raising and training of scientists and researchers, granting awards and scholarships to that end, pursuing the distinguished ones with outstanding success during and after the training process and assisting them in their training and improvement.
Ground for the Request for Annulment
It is maintained that the contested provision is unconstitutional on the ground that it relates to the budgetary right; that as enshrined in the Constitution, the public expenditures must be made in line with the budget; and that an expenditure, which is not covered by the budgetary law, is regulated through a presidential decree without a legal basis.
The Court’s Assessment
1. As regards the Competence Ratione Materiae
TÜSEB is a public legal entity founded through a presidential decree. Pursuant to Article 123 § 3 of the Constitution, the duties and powers of this institution, founded through a presidential decree, may be regulated also through a presidential decree.
Article 161 §§ 1 and 2 of the Constitution respectively sets forth that the expenditure of the public legal entities other than the state economic enterprises shall be determined and made by annual budgets; and that the preparation, implementation and control of the central government budget and the special periods and procedures for investments as well as works and services expected to last more than one year shall be regulated by law.
It appears that TÜSEB, which is an affiliated institution of the Ministry and a public legal entity with scientific and administrative autonomy and a special budget, is included in the List II of Law no. 5018, where special budgeted administrations are listed; and that TÜSEB is accordingly covered by the central administration budget.
The budgetary right means that the legislature shall vest the executive with the power, with pre-determined limits, with respect to the collection and spending of public revenues on behalf of the public and monitor the consequences thereof.
The budget generally indicates the forecasts of revenues and expenditures of a certain period and regulates the principles as to the implementation. State is entitled to make expenditures and collect revenues within the period of one year on condition of being specified in the budgetary law.
It has been observed that the matters envisaged, in Article 161 of the Constitution, to be prescribed by law is limited to the issues as to the exercise of the budgetary right (the preparation, implementation and control of the central government budget and the special periods and procedures for investments as well as works and services expected to last more than one year); and that Article 161 does not embody a provision to the effect that the arrangements which would by their very nature give rise to a public expenditure shall be made exclusively by law.
In this regard, it has been considered that the contested provision is a budgetary issue for embodying an arrangement of the nature that would ultimately lead to a public expenditure but is not indeed associated with the budgetary right of the legislature. As the contested provision contains no element as to the legislature’s rights and powers concerning the preparation, implementation and control of budget, it has been concluded that it is not related to a matter prescribed to be regulated exclusively by law.
Given the general legislative intention of Law no. 5102, it appears that the students likely to be granted scholarship by the Higher Education Credit and Hostels Institution are the university students who are studying within the country and who are successful and in need of such scholarship. In the second paragraph of the said provision, it is set forth that the other public institutions and organisations cannot make any payment under the name of scholarship, loan and financial aid to such students. The issue sought to be achieved through this prohibitive provision is to prevent the making of any payment to the students of the specified nature, for being in need thereof, by the public institutions and organisations other than the Higher Education Loans and Hostels Institution. By ensuring the payment of this scholarship only by an institution, it is intended to preclude the making of several payments to the same person with the same motivation, which ultimately ensures the granting of financial aid to a higher number of students.
The scholarship prescribed to be granted through the contested provision is not given to the person concerned for being in need thereof pursuant to Law no. 5102 or for having outstanding success pursuant to Law no. 278, but for the purpose of ensuring training and progress of scientists and researchers in the healthcare field that is the TÜSEB’s field of activity.
Besides, the scholarships envisaged to be granted under Laws no. 5102 and 278 are non-refundable for not being paid in return for a de facto performance of work. However, it appears that the scholarship envisaged to be granted by TÜSEB is a project-based scholarship given to the students with B.A., M.A. and PhD degrees, who are actively taking role in projects deemed appropriate by the TÜSEB. Accordingly, this scholarship is refundable, unlike the scholarships granted under Laws no. 5102 and 278. In this sense, it cannot be said that in the absence of the contested provisions embodied in the presidential decree, the said provisions of law, taken as a basis for the comparison, would apply to the same matter.
In this regard, it has been observed that neither the provisions of law, meaning and scope of which are explained above, nor the other provisions of law specified in the petition are enforceable in the field same with that of the contested provisions. It has been therefore concluded that the contested provision is not related to a matter, which has been explicitly regulated by law.
2. As regards the Content
As a requisite of a state of law, the laws and presidential decrees must be in pursuance of the public interest, must embody general, objective and fair provisions and observe the fairness criteria. Therefore, the legislature and the executive must exercise the discretionary power, afforded to them through statutory arrangements, within the constitutional limits and in pursuance of the justice, fairness and public interest.
The contested provision envisages the award of scholarships by TÜSEB for the training and progress of scientists and researchers. The favourable effects of the raising of scientists and researchers in the health-care field on the public health by contributing to the scientific progress and improvement in the same field cannot be disregarded. It has been therefore concluded that the contested provision is in pursuance of public interest and is compatible, in every aspect, with the principles of justice and fairness.
Consequently, the Court has found the contested provision constitutional in so far as it related to the competence ratione materiae and by its content and accordingly dismissed the request for annulment.
This press release prepared by the General Secretariat intends to inform the public and has no binding effect.