37 articles in Presidential Decree annulled: A highly anticipated ruling from the Constitutional Court

The Constitutional Court has issued an annulment ruling for 37 regulations contained in the first decree of the Presidential Government System.

The CHP and the Council of State's Board of Administrative Litigation Chambers had filed a lawsuit requesting the annulment of certain articles of Presidential Decree No. 1 on the Presidential Organization, which was published on July 10, 2018.

Among the regulations that were annulled—with the government granted a nine-month period to address them—were powers such as the appointment of personnel to the Presidency, the regulation of salaries, the assignment of judges and prosecutors by the Presidency, the collection of information on high-level officials, and the granting of municipal powers to the Ministry of Environment and Urbanization.

According to the report by Alican Uludağ from DW Turkish, the CHP and the Council of State's Board of Administrative Litigation Chambers had filed a lawsuit requesting the annulment of certain articles of Presidential Decree No. 1 on the Presidential Organization, which was published on July 10, 2018.

ANNULMENT OF 'EXCEPTIONAL' POWER

The justification for the annulment ruling was published in the Official Gazette today.

Accordingly, the phrase "collecting information" in the duty of the General Directorate of Presidential Personnel and Principles to "collect information about high-level officials tasked with the administration and management of the state, and to keep their service summaries and biographies" was annulled.

The justification for the annulment ruling stated that the right to request the protection of personal data is under constitutional guarantee and that this is among the subjects that cannot be regulated by a Presidential Decree.

A similar annulment ruling concerned the authority granted to presidential policy boards to request "information necessary for their duties" from public institutions and organizations.

The decree had granted the Head of Administrative Affairs of the Presidency the authority to appoint personnel to the Presidency. The Constitutional Court annulled this authority on the grounds that it is "a subject that must be regulated by law, not by decree." Furthermore, the provision allowing the employment of contract personnel in the Directorate of Administrative Affairs without being bound by the provisions of the Civil Servants Law No. 657 was also found to be unconstitutional.

The Presidential Decree stipulated that those receiving retirement or old-age pensions from any social security institution could not be appointed as permanent staff in the Presidency.

However, an exception was introduced to these appointments in the form of "excluding those appointed by the President..."

Thus, it was not an obstacle for the head of administrative affairs, the chief of the presidential cabinet, chief advisors, advisors, and general managers, who would serve as permanent staff in the central organization of the Presidency and be appointed by the President, to receive retirement and old-age pensions from any social security institution.

The Constitutional Court found this exceptional regulation brought for those to be appointed by the President to be unconstitutional and annulled it. The court also decided to annul the provision stating that the pensions of those appointed by the President from social security institutions could not be terminated.

"ASSIGNMENTS MUST BE MADE BY LAW"

Under the decree, judges and prosecutors serving in judicial and administrative courts could also be assigned to the Presidency for a period of three years upon the request of the Head of Administrative Affairs.

The High Court also found the decree provision regarding this to be unconstitutional. In the justification for the annulment, it was stated, "The official and private duties, appointments, rights and obligations, professional advancement, temporary or permanent changes of duties and duty locations, and other personnel matters of judicial and administrative members—even if the duties they perform are administrative in nature—must be regulated by law."

The Constitutional Court also ruled for the annulment of the decree article regulating the payments to be made to the members of the policy boards affiliated with the Presidency. The ruling emphasized that the rule regulating the additional payment to be made to board members each month and the procedures and principles related to it constitutes a regulation regarding property rights, and that this cannot be regulated by decree.

The article in the decree stating that the duties, powers, and responsibilities of the Inspection Board and inspectors affiliated with the Ministry of Justice, as well as their working procedures, would be regulated by regulation, was also found to be unconstitutional. The decree provision regarding payments made to judges and prosecutors appointed to overseas positions by the Ministry was also annulled.

ENVIRONMENT MINISTRY'S MUNICIPAL POWERS ANNULLED

The duties of the Ministry of Environment, Urbanization and Climate Change were also regulated in the decree.

In this context, the ministry was granted powers regarding zoning and construction. Among these were some powers that belong to municipalities, such as "determining the procedures and principles to be followed by administrations in improvement, renewal, and transformation applications to be made in urban and rural areas and settlements, including shanty towns, coastal areas and facilities, and areas removed from forest and pasture status due to the deterioration of their quality."

The Constitutional Court signed the annulment ruling by stating that a regulation regarding the property right guaranteed in the Constitution cannot be made by decree. The ruling warned, "The work and transactions to be carried out in these areas are of a nature that may constitute an interference with the right to property, such as partially or completely changing, rearranging, or terminating the forms of use and disposal of the land, plots, and structures owned by individuals."

The authority granted to the Ministry of Environment regarding studies, maps, environmental plans of all types and scales, master and implementation zoning plans, parceling plans, building permits, occupancy permits, and workplace opening and operating permits regarding the environment, zoning, and construction was also decided to be annulled.

In addition, the decree regulating the local administrations and their relations with the central administration was also annulled. The ruling, which stated that the autonomy granted to local governments is guaranteed by the Constitution, indicated that the regulation regarding this must also be made by law. Some powers granted to the General Directorate of Spatial Planning affiliated with the Ministry were also annulled.

Among the annulled powers were the authority to perform, have performed, and approve all types and scales of studies, maps, plans, parceling plans, expropriation, land and plot arrangements for the purpose of re-functionalizing and developing public-owned registered lands, unregistered lands, and lands belonging to private individuals or organizations, provided that their consent is obtained, within the scope of projects determined by the President. It was requested that a law be enacted on this matter.

ANNULLED POWERS OF THE INTERIOR MINISTRY

With the decree, the duty and authority to prepare legislation regarding architectural and engineering professional organizations and to audit architectural and engineering professional organizations regarding the mentioned subjects had been granted to the Ministry of Environment, Urbanization and Climate Change. In the annulment ruling, which pointed to the autonomous structure of professional organizations, it was stated that the regulation regarding this could only be issued by law.

The duty granted to the Ministry of Interior, whose organizational structure was established in the decree, to "regulate the division of the country into administrative units and the general administration of provinces and districts" was annulled on the grounds that it was not issued by law.

The provision that the duties, powers, and responsibilities of civil inspectors affiliated with the Ministry of Interior and their working procedures would be regulated by regulation was also found to be unconstitutional.

It was emphasized that it is also unconstitutional for the Ministry of Health to process the personal data provided by patients applying to hospitals, and for the exams regarding career officers and consular and specialized officers in the Ministry of Foreign Affairs to be regulated by decree.

The Constitutional Court ruled that the annulment decisions would enter into force nine months after their publication in the Official Gazette. Until this period expires, the government will need to enact laws regarding the provisions annulled in the decree articles.