Presidential Decrees Within the Framework of the Constitutional Amend-ments of 2017
With the Constitutional amendments of 2017, the president has been authorized to issue decrees on the subject about executive powers. Unlike the other regulations of the executive, the presidential decrees do not have to be based on the law. With this decrees, a field that was not a subject of law before can be regulated initially. The President does not need to obtain authorization from the TBMM in order to be able to issue a decree, nor does (s)he need to present the decree to the TBMM for approval. Moreover, it is forbidden to enact laws in some fields and it is envisaged that these fields should be regulated exclusively by the presidential decree.
2017 Anayasa Değişiklikleri Çerçevesinde Cumhurbaşkanlığı Kararnameleri
2017 Anayasa değişiklikleri ile Cumhurbaşkanı’na yürütme yetkisine ilişkin konularda kararname çıkarma yetkisi verilmiştir. Cumhurbaşkanlığı kararnameleri, yürütmenin diğer düzenleyici işlemlerinin aksine, kanuna dayanmak zorunda değildir. Bu kararnamelerle daha önce kanuna konu olmamış bir alan, ilk elden düzenlenebilecektir. Cumhurbaşkanı’nın kararname çıkarabilmek için TBMM’den yetki almasına gerek olmadığı gibi, çıkarılan kararnamelerin onay için TBMM’ye sunulması da gerekmez. Ayrıca bazı alanlarda kanun çıkarılması yasaklanmış ve bu alanların münhasıran Cumhurbaşkanlığı kararnameleri ile düzenlenmesi öngörülmüştür.
The constitutional amendments of 2017 include significant innovations in the field of the executive function and the regulatory authority of the executive, as well as the radical change in the field of government system. The tendency, which started with the constitutional amendments of 1971-1973 in Turkish constitutional system, to strengthen the executive and to expand the regulatory power of executive, reached its peak with the constitutional amendments of 2017. In the new government system, all the powers and duties related to the executive field are gathered in the person of the President and the executive branch are equipped with autonomous regulatory power by means of presidential decrees. Unlike the other regulations of the executive, the presidential decrees are the type of primary regulation. The presidential decrees do not have to be based on the law. With this decrees, a field that was not a subject of law before can be regulated initially. The President does not need to obtain authorization from the Grand National Assembly of Turkey in order to be able to issue a decree, nor does (s)he need to present the decree to the Grand National Assembly of Turkey for approval. The presidential decree is made by the President on his own. With the 2017 amendments, the counter-signature rule, which is an institution specific to the parliamentary system, has been abolished. Consequently, the presidential decrees do not have to be signed by the vice-president or the ministers. The only signature in the presidential decrees is the signature of the President. In the some articles of the constitution (art. 104/9, art. 106/11, art. 108/4, art. 118/6), it is decided that certain issues would be regulated by the Presidential decrees, and the Grand National Assembly of Turkey is prohibited to enact laws on these is-sues. These provisions, which narrowed the principle of the generality of the legislative power, which is a principle established in Turkish public law, create a reserved regulating area for the executive branch. However, if the Grand National Assembly of Turkey enact a law which issues prohibited by the constitution, this law is applied primarily according to the presidential decrees until the annulment or abolition. Because laws are superior to presidential decrees within the hierarchy of norms, and administrative or judicial authorities have no authority to neglect a law that is unconstitutional. A general regulation authority has not been given to the executive branch by the presidential decrees. There are subject restrictions at president’s decree power in provision of 104/7. First of all, with the provision of “the president may in its exercise of executive authority issue presidential decrees”, it is forbidden to issue a presidential decree on legislative prerogative and jurisdiction. Secondly, it is decided that individual rights and freedoms and political rights and duties cannot be regulated by the presidential decrees. In this respect, social and economic rights and duties may be subject to presidential decrees. However, all restrictions on fundamental rights and freedoms should be carried out by law in accordance with article 13 of the constitution. Thirdly, it is stated that presidential decrees cannot be enacted on the matters that are envisaged to be regulated exclusively by law. Finally, it is prohibited to issue a presidential decree on issues that are explicitly regulated by law. Presidential decrees are inferior to laws within the hierarchy of norms. This is natural result of the provision of article 104 of the constitution: “In case of conflict between the provisions of laws and presidential decrees, the provisions of laws shall be applied. If the Grand National Assembly of Turkey legislates on the same issue, the presidential decree shall become null and void”. In this respect, the presidential decree cannot repeal the law, amend the provisions of the law or introduce regulations cont-rary to the provisions of the law. Presidential decrees are superior to regulations within the hierarchy of norms. Because, in article 124 of the constitution, it is stated that the regulations should be based on the law or the presidential decree and could not be contrary to them. There is no hierarchical relationship between statutes and presidential decrees. These two norms are at the same level within the hierarchy of norms. There is no provision in the constitution about that statutes cannot be contrary to presidential decrees. The task of judicial review of the presidential decrees is given to the Constitutional Court, not to the Council of State, although it is a norm of executive branch. The Constitutional Court shall carry out the constitutional review of presidential decrees by means of abstract norm control and concrete norm control. It is possible to control the constitutionality of presidential decrees in both form and substance. On the other hand, it can be appealed to the Constitutional Court only for the claim of unconstitutionality of presidential decrees. Contrariety to law of the presidential decrees are not a reason for annulment. The conflict between the laws and the presidential decrees is eliminated by neglect, not by annulment. If the court hearing a case considers that the presidential decree is contrariety to law, it will not be able to resort to concrete norm control; it will resolve the dispute by neglecting the provision in the presidential decree and by applying the provisions of the law directly. Because according to provision of 104/17, in case of conflict between the provisions of laws and presidential decrees, the provisions of laws shall be applied.