37 annulment rulings from the Constitutional Court: What will the government do? Legal experts evaluate for 12punto

Ercan KÜÇÜK - 12punto.com.tr

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, published on July 10, 2018; the Constitutional Court (AYM) issued 37 separate annulment rulings. The Constitutional Court's decision has been published in the Official Gazette. Legal experts evaluating the Constitutional Court's decision for 12punto emphasized that the President disregards the rule of law and that the Constitutional Court is fulfilling its duty.

The Constitutional Court (AYM) has signed off on 37 separate annulment rulings regarding Presidential Decree No. 1, which was the first regulation of the Presidential Government System and governs the organization of the Presidency and ministries. The reasoning behind the annulment rulings emphasized that the President does not have the authority to issue regulations concerning fundamental rights guaranteed by the Constitution, that decrees cannot be issued on these matters, and that such regulations can only be made through legislation.

"THE PRESIDENT DISREGARDS THE RULE OF LAW"

12punto columnist Atty. Ruşen Gültekin emphasized that the President wants to regulate by decree while disregarding the rule of law. Stating that the Constitutional Court found many provisions unconstitutional in terms of authority, Gültekin said:

“Presidential decrees No. 1 and 3 are being issued on matters that, according to the Constitution, must be regulated by law. Therefore, while legislation should actually be enacted, regulations are being made through Presidential Decrees on matters that clearly require regulation by law. The Constitutional Court has claimed that it found many provisions unconstitutional in terms of authority, meaning that the authorized body is the Grand National Assembly of Turkey. This means the following: We see this error in many of the Presidency's decrees. In fact, when the Presidential Directorate of Treaties was making its defense at the Council of State regarding the Istanbul Convention, its primary defense was: ‘Actions taken by the President alone are not subject to judicial review.’

The Council of State did not accept this. If it had accepted this, given that so many subjects are regulated by presidential decree, we would have to accept them as edicts if we said there is no judicial review. Therefore, this actually shows the Presidency's perspective. The Presidency actually wants to make regulations through unilateral action via presidential decree on many subjects that are regulated by law, by eliminating or ignoring the rule of law.

In other words, it wants neither the parliament nor any judicial review regarding this. This means the following;

It is an emphasis that our country, which cannot be a state of law, cannot even be a state of statutes. Because they will govern entirely through decrees. If the Council of State had accepted the Presidency's defense, it would have already denied its own existence. Because why does the Council of State exist? It exists to oversee administrative actions and proceedings. In the administration, the Presidency is the number one organ of the executive branch. If the unilateral actions it takes are not subject to review, then what happens? The matter is closed. We would have to completely abolish the Council of State and administrative courts. Therefore, from this point on, I think this decision by the Constitutional Court is correct, but at the same time, it is the most important indicator of how far the presidential government regime is from democracy and the rule of law, contrary to what is claimed.”

CONSTITUTIONAL COURT GRANTED TIME

Reminding that the Constitutional Court has granted time for the illegality to be corrected by bringing the annulled articles to parliament, Gültekin said:

“The Constitutional Court is granting time for these to be corrected from October 2019 to 2024. It completely rejected the Justice Academy regulation. What will happen? Are we going to say that all the judges and prosecutors who have been training for 4 years are not judges and prosecutors? Therefore, in the end, the goal was achieved. Since they were not annulled for 4 years, the country has already been governed unlawfully with these decrees since 2019. It has been certified. They need to bring all of these to parliament. Legislation needs to be enacted regarding these. According to the Constitution, it is written that presidential decrees cannot be issued regarding these. Therefore, there is a usurpation of authority here. It annulled them due to usurpation of authority. Since the authorized body is the TBMM (Grand National Assembly of Turkey), it must make regulations on these matters again.”

THE RULINGS ARE NOT NEW

Prof. Dr. Necmi Yüzbaşıoğlu emphasized that the rulings published in the Official Gazette are not new:

"There are 2 annulment rulings regarding the scope of presidential decrees, that is, regarding their decisions in the nature of regulatory acts. These had already been given before in December. They have just been published in the Official Gazette. Again, one was taken on 18.01.2024 and published in the Official Gazette today. One of these, with reasoning, is about the Justice Academy. And one is about the Directorate of Communications.

There is nothing new here. The Constitutional Court has long been saying that a presidential decree cannot be issued on every subject, under Article 104, paragraph 17 of the Constitution. The constitutional limits of presidential decrees have been specified. There is a rule here that ‘subjects regulated by law cannot be regulated by presidential decree.’ Fundamental rights and freedoms cannot be regulated by presidential decree. Presidential decrees cannot be issued on subjects that the Constitution says are regulated by law.”

4 RESTRICTIONS FROM THE CONSTITUTIONAL COURT

Yüzbaşıoğlu also stated that the Constitutional Court has restrictions on 4 issues:

“Regarding a presidential decree, first of all, it must be related to the executive field. That is a general framework, and within that general framework, there are 4 restrictions: it says you cannot regulate freedoms. You regulate subjects that the Constitution says are regulated by law with a law. If there is a matter that the law explicitly regulates, you cannot regulate it. The Constitutional Court has been using these restrictions since the very first step. This Justice Academy decision is also a regulation regarding its establishment, duties, and powers for the same reasons.

The other is about CİMER applications. An article has been added. It evaluates it within the framework of the right to petition, within the framework of the right to information regarding demands, requests, etc., towards public institutions. And it directly enters into fundamental rights and freedoms of the Constitution again. That is why it is annulling it.”

Yüzbaşıoğlu reminded that the Constitutional Court's annulment rulings will have legal consequences after 1 year:

“It was published in the Official Gazette, but it will have legal consequences after one year. That is, it will be repealed after one year. So that a legal vacuum does not occur, the TBMM must regulate this by law within one year. If it does not regulate it, then there will be no legal basis left.”

CONSTITUTIONAL COURT ACTED TIMIDLY

Pointing out that the Constitutional Court's main function is to oversee the political power and laws, Yüzbaşıoğlu said that the Constitutional Court acted timidly. Yüzbaşıoğlu said:

“It seems to act a little more courageously in individual applications under the guise of ‘I am protecting freedoms.’ A little bit to say ‘I exist too.’ Whereas the Constitutional Court needs to act much more courageously in terms of protecting the implementation of the constitution, weeding out unconstitutionality, and fulfilling its function.”

“BAHÇELİ STEPPED IN”

“When the 2017 constitutional amendment was made, there was a provision in the provisional 21st article that the appropriate regulations regarding the new government system would be made by law. That the parliament would make labor changes. Now they did not do this by law. Yes, why didn't they? Because normally the transition to the new system was going to be in 2019. Devlet Bahçeli stepped in, they took it early. When they took the elections early, there was no time left to make the harmonization regulations by law. They issued an enabling act. They did the things that this provisional 21st article says are regulated by law with decree-laws.

Based on that enabling act, actually, the regulations providing the harmonization of the presidential government system, many laws were repealed. Thus, a ground was prepared for presidential decrees. The CHP filed a lawsuit in 2018 regarding the unconstitutionality of both the enabling act and the 700-numbered Decree-Law (KHK) with which these harmonization regulations were made based on it. The Constitutional Court decided that the enabling act was not unconstitutional. Actually, it was unconstitutional. Because in a new system, there is no such thing as a Decree-Law; it was abolished. Such a regulation cannot be made with a legal act that has been repealed. Moreover, it is envisaged in that provisional 21st article that these be done by law.

Now it did not find that enabling act unconstitutional. But based on this enabling act, it repealed a large number of laws. It prepared the legal ground for the presidential government system. It is a very comprehensive Decree-Law. It still has not made a decision about it. It has been holding it for 6 years. If it gives an annulment, there would be complete chaos regarding it.

Because the legal need for presidential decrees would disappear. Their legal ground would slip away, it is holding it, it could not find the courage, whereas it should have.”

ANNULLED ARTICLES ARE THE CORNERSTONES OF THE SYSTEM

12punto columnist Former Council of State Chamber President Ahmet Hamdi Ünlü emphasized that the 37 articles annulled by the Constitutional Court are the cornerstones of the Presidential Government System. Stating that the annulment rulings will anger the government, Ünlü said:

“These rulings will anger the government very much. Here it said, ‘The President does not have the authority to make regulations by decree-law on fundamental rights and freedoms determined in the Constitution.’ It determined the absence of authority. In this context, there are personnel appointments. There is a security investigation regarding personnel. There is a regulation that takes some authority from the municipality and gives it to the Ministry of Environment and Urbanization. There is the assignment of judges and prosecutors to the palace. Judges and prosecutors cannot be assigned even if it is the President. It is a decision in the form that the situation to assign this is determined in the Constitution.”

"THEY WAIT UNTIL THE LAST DAY"

Pointing out that the government already does not like the Constitutional Court's rulings, Ünlü also said that it will accelerate its work for a new regulation:

"The government has to make a new legal regulation within the given time. Actually, it has to make that legal regulation immediately. But they usually wait until the last day of that given time. Now, of course, this government already did not like the Constitutional Court's rulings. It will accelerate its work to make a new regulation regarding the Constitutional Court.

Article 153 of the Constitution is clear. Constitutional Court rulings are rulings that bind the administration, courts, citizens, everyone. That is, these rulings can neither be discussed nor anything else. But as in the example of Hatay deputy Can Atalay, they do not recognize the Constitutional Court. They may not implement it. Court rulings are not taken into account much lately. They may say I do not comply.”

6-YEAR DELAYED RULING

Constitutional Law Expert Former CHP Deputy Prof. Dr. İbrahim Kaboğlu made the following statements on his social media account regarding the Constitutional Court's annulment rulings:

“The Constitutional Court (AYM) gave its partial annulment ruling regarding CBK-1 with a 6-year delay; it decided that some annulment provisions would enter into force after 9 months. With the 2017 Constitutional amendment, the government, the council of ministers, political decision mechanisms, and the political responsibility rule were abolished.

The first regulation of the President, who gathers the executive power in his own person alone, was made on July 10, 2018, with the very comprehensive CBK-1 consisting of 536 articles.

Applications were made to the Constitutional Court with numerous annulment requests against CBK-1, which liquidated the institutions, rules, and values formed in the Tanzimat-Constitutional-Republican line.

The Constitutional Court made its first examination on October 17, 2018, and decided to conduct a substantive examination as there were no deficiencies.

In the 27th Legislative term, a total of 147 CBKs consisting of 2908 articles—86 of which were in omnibus style—were issued. Applications were made to the Constitutional Court against numerous CBKs, all of which were without reasoning. 10 more CBKs were issued in the 28th Legislative term. The Constitutional Court, on the other hand, issued annulment rulings on CBKs, albeit delayed and limited.

The partial annulment ruling given on October 26, 2023, regarding CBK-1 was published in the Official Gazette on February 27, 2024; requests for a stay of execution were rejected. The fact that the annulment ruling has far exceeded the reasonable time creates the absurdity that nearly half of the members who have signatures on the ruling were appointed after the CBK-1 application.

If priority had been given to CBK-1 and a ruling in the nature of a principle had been given on CBKs, the unconstitutionality of subsequent CBK regulations could have been minimized.”