Constitutional Court statement on Decree-Law: Certain provisions of Decree-Law No. 703 annulled

The Constitutional Court has issued its ruling regarding the Decree-Laws (KHK) implemented alongside the Presidential Government System.

On December 7, 2023, CHP Chairman Özgür Özel, Engin Özkoç, Engin Altay, and 135 deputies had filed an application for the annulment of the "entirety" of the provisions of the Decree-Law.

The following statements were included in the Constitutional Court's press release titled "Annulment of Certain Provisions of Decree-Law No. 703":

ANNULMENT DECISION FOR MANY ARTICLES

"The constitutional review of Decree-Laws differs from the review of laws. Article 11 of the Constitution states that 'Laws cannot be contrary to the Constitution.' Therefore, in the review of laws, it is only determined whether they comply with constitutional rules. Decree-Laws, however, must comply with both the authorizing law they are based on and the Constitution in terms of their subject, purpose, scope, and principles.

The repealed Article 91 of the Constitution prohibited the regulation of certain matters by Decree-Laws. Similarly, the repealed Article 163 of the Constitution stated that the Council of Ministers could not be authorized to make changes to the budget via Decree-Law. In accordance with these rules, the Grand National Assembly of Turkey could only authorize the Council of Ministers to issue Decree-Laws on matters that do not fall within the prohibited areas.

In this regard, when conducting a constitutional review, if it is determined that a Decree-Law provision does not comply with the authorizing law in terms of its subject, purpose, scope, and principles, or that it regulates a matter in a prohibited area, the annulment of the Decree-Law provision will be required in accordance with the repealed Article 91 of the Constitution. There is no priority relationship between the specified issues when reviewing a Decree-Law provision under the repealed Article 91 of the Constitution. Determining a violation in any of the specified aspects will render the Decree-Law provision unconstitutional.

On the other hand, in judicial review, finding a Decree-Law compliant with the Constitution in terms of the criteria in the repealed Article 91 is not sufficient to complete its constitutionality review. In other words, it must also be determined whether Decree-Laws found compliant with the criteria in the repealed Article 91 are also compliant with the Constitution in terms of their content in the same review.

In the examination conducted within the framework mentioned above, the Constitutional Court annulled certain provisions of Decree-Law No. 703 on the grounds that they were not within the scope of Law No. 7142 (among many examples, see Article 34 of Law No. 3289, as amended along with its title by clause (o) of Article 12 of the Decree-Law; Article 7 of Law No. 4059, as amended along with its title by clause (b) of Article 16 of the Decree-Law), some because they were incompatible with the purpose of Law No. 7142 (among many examples, see paragraphs (7), (8), (9), (10), (11), (12), (13), and (14) added after paragraph (6) of Article 26 of Law No. 6446 by clause (e) of Article 9 of the Decree-Law), some because they neither fell within the scope of Law No. 7142 nor were compatible with its purpose (among many examples, see the additional Article 1 added to Law No. 5253 by clause (b) of Article 19 of the Decree-Law; the part of the second sentence of Article 13 of Decree-Law No. 652, as amended along with its title by clause (b) of Article 22 of the Decree-Law, excluding the phrase 'by the Ministry of National Education' and the phrase 'the Ministry may use this authority' in the third sentence), and some because they contained regulations regarding rights and freedoms that are prohibited from being regulated by Decree-Law (among many examples, see Article 8 of Law No. 6004, as amended along with its title by clause (b) of Article 6 of the Decree-Law; Article 11 of Law No. 351, as amended along with its title by clause (c) of Article 11 of the Decree-Law).

The Constitutional Court also annulled some provisions by finding them unconstitutional in terms of their content (among many examples, see the change of the phrase 'joint decree by taking the opinion of the Council of State' in the second sentence of the fifth paragraph of Article 4 of Law No. 5393 to 'Presidential decision' and the phrase 'by joint decree upon the proposal of the Ministry of Interior' in the sixth paragraph to 'by Presidential decision' via clause (a) of Article 200 of the Decree-Law).

News Source: 12punto