Constitutional brake on the presidential government system

Following the transition to the Presidential Government system, regulations contrary to the Constitution and laws were enacted through Presidential Decree No. 1, published in the Official Gazette dated July 10, 2018, numbered 30474.

A cancellation lawsuit was filed by the CHP at the Constitutional Court regarding certain articles of this decree, and an objection application was also submitted by the Council of State Board of Administrative Litigation Chambers.

The Constitutional Court, with its decision dated October 26, 2023, numbered E=2018/118, K=2023/180, published in the Official Gazette dated February 27, 2024, numbered 32473, finalized these applications, annulled 37 articles of Presidential Decree No. 1, and granted the government a nine-month period to make arrangements through legislation. 

In the decision, which serves as a lesson in Constitutional Law, it was specifically emphasized that "the President is required to make regulations regarding fundamental rights guaranteed by the Constitution, and that regulations were made via presidential decree by exceeding authority in many areas that should be regulated by law." 

Paragraph 17 of Article 104 of the Constitution, which defines the powers of the President, states: "The President may issue presidential decrees on matters related to executive power. Fundamental rights, individual rights and duties included in the first and second chapters of the second part of the Constitution, and political rights and duties included in the fourth chapter cannot be regulated by presidential decree. Presidential decrees cannot be issued on matters that are exclusively stipulated by law in the Constitution. Presidential decrees cannot be issued on matters clearly regulated by law. In case of conflicting provisions between a presidential decree and laws, the provisions of the law shall apply. If the Grand National Assembly of Turkey enacts a law on the same subject, the presidential decree becomes null and void."

Despite this extremely clear Constitutional provision, the legislative body was effectively sidelined in matters that should be regulated by law, as if the law-making authority of the Grand National Assembly of Turkey had been usurped, and regulations were instead made via presidential decree.

The primary examples of these regulations made by exceeding authority include "the appointment of personnel to the Presidency; the regulation of their salaries, the assignment of judges and prosecutors to the Presidency, the collection of information about high-level administrators, and the transfer of powers belonging to municipalities to the Ministry of Environment and Urbanization," and these regulations were annulled by the Constitutional Court.

Although Article 128 of the Constitution states that the appointments, salaries, allowances, and other personnel matters of civil servants and other public officials shall be regulated by law, the appointment, qualifications, and salary regulations of personnel to be employed at the Presidency were carried out by decree.

This situation eliminated the transparency regarding the appointment, qualifications, and financial rights of Presidential personnel, and questions asked have remained unanswered. 

Article 140 of the Constitution states that the appointments and other personnel matters of judges and prosecutors shall be regulated by law based on the principles of the independence of courts and the security of tenure for judges, and that judges and prosecutors cannot take any official or private duties other than those specified by law; Article 159 grants the authority for the appointment, duties, and powers of prosecutors and judges to the Council of Judges and Prosecutors. 

However, the decree granted the President the authority to assign judges and prosecutors to the Presidency. Assigning judges and prosecutors to the Presidency like any other administrative official is incompatible with the independence and impartiality of judges and prosecutors; this regulation was also annulled by the Constitutional Court.

Another decree regulation annulled by the Constitutional Court is the collection of information about high-level administrators.

Although Article 13 of the Constitution states that fundamental rights and freedoms can only be restricted by law for reasons specified in the relevant articles of the Constitution without touching their essence, the right to "privacy of private life" was restricted by presidential decree, and the protection of personal data regarding high-level administrators themselves was eliminated.

Another important decree regulation that was annulled is the transfer of powers belonging to municipalities to the Ministry of Environment and Urbanization.

The Constitutional Court also did not find it in accordance with the Constitution for the authority to regulate studies, maps, environmental plans of all types and scales, master and implementation zoning plans, parceling plans, building permits, occupancy permits, and business opening and operating licenses regarding the environment, zoning, and construction to be taken from municipalities and given to the Ministry of Environment and Urbanization.

The "administrative guardianship authority" regulated in the fifth paragraph of Article 127 of the Constitution constitutes an exception to the autonomy granted to and guaranteed for local governments, and it is an exceptional authority that must be used within the framework of the law. 

Accordingly, the authority to determine the scope and limits of this power, provided that it remains within the purpose and framework specified in the Constitution, belongs to the legislator. 

Regulations made by decree that would eliminate the purpose of meeting the autonomy of municipalities and local needs as a result of the abuse of administrative guardianship authority were also found to be contrary to the Constitution. 

In its annulment decision, the Constitutional Court specifically emphasized that matters regulating the relations between local administrations and the central administration, which would eliminate the autonomy granted to local governments and guaranteed by the Constitution, should be regulated by law, not by decree.

Presidential Decree No. 1 is the most typical example of the steps taken to restrict the powers of the legislature and the judiciary and to concentrate all powers in the President following the transition to the presidential government system.

The annulment decision given by the Constitutional Court is of a nature that will delay the realization of this goal.

Unfortunately, the annulment of the Presidential Decree, which was prepared by the Constitutional Court without taking the Constitution and laws into account, is not being sufficiently discussed in the public sphere.

This situation will further encourage the government not to comply with the decisions of the Constitutional Court.