Constitutional Court's Annulments

With its decision published in the Official Gazette dated June 4, 2024¹ , the Constitutional Court has annulled many provisions of Decree-Law No. 703, which facilitated the transition to the Presidential Government System. As it will be remembered, Constitutional Amendment Law No. 6771, which was adopted by the April 16, 2017 referendum, completely changed the government system by making fundamental amendments to the Constitution, replacing the parliamentary government system with a new Presidential system. Paragraph (B) of Provisional Article 21, added to the Constitution by Article 17 of the Constitutional Amendment Law No. 6771, stipulates that the amendments to the Rules of Procedure of the Parliament and other necessary legal arrangements required by the system change shall be made by the Grand National Assembly of Turkey within six months from the publication date of the Law. However, the necessary legal amendments were not made by the Turkish Grand National Assembly within the period stipulated in the Constitution, and the Turkish Grand National Assembly decided to hold early elections in April 2018 and enacted the Authorization Law No. 7142 authorizing the Council of Ministers to issue decrees to make the legal amendments required by the system change after the early elections.

Following the elections held on June 24, 2018, the Council of Ministers adopted Decree-Law No. 703 on July 2, 2018, containing 233 main and 16 provisional articles, and this Decree-Law entered into force after being published in the Official Gazette on July 9, 2018, the day the President was sworn in. Decree-Law 703 also included provisions regulating many issues unrelated to the change in the government system. It should be noted that although this Decree-Law consists of 249 articles, it made a very comprehensive and cumulative change in the legal system as each article envisaged amendments to numerous articles of various laws.

In the annulment lawsuit filed by the Republican People’s Party group, a three-stage argument of unconstitutionality was presented. Firstly, the entire Decree Law, which was issued on the day the Council of Ministers’ term of office and the authorization law expired, is unconstitutional, and therefore, its annulment was requested on the grounds of unconstitutionality. Secondly, it was argued that many provisions of the Decree Law are contrary to the abrogated Article 91 of the Constitution on the grounds that they are not covered by the authorization law or that they regulate issues that the Constitution prohibits from being regulated by a Decree Law. In this context, the annulment of 87 articles of the Decree Law was requested. Thirdly, the annulment of 37 articles was requested on the grounds that they contain provisions substantively contrary to the Constitution.

The Constitutional Court separated the annulment requests regarding 31 different articles of the Decree Law and assigned them different substantive numbers. It examined the case for the other articles and rejected the annulment request for the entire Decree Law. The Court did not interpret Provisional Article 21 (B) of the Constitution as an exclusive authorization and accepted that it was possible to regulate by decree-law. The Court rejected the objections regarding the duration of the Decree Law by not mentioning the publication date of the Decree Law and instead analyzing it based on the date of adoption. However, the publication of the Decree Law is a constitutive element for its effectiveness, and the failure to discuss the scope of the authorization in this respect is a serious deficiency. The Constitutional Court’s rejection of the annulment request for the entire Decree Law is controversial for both reasons.

The Constitutional Court has annulled around 60 different articles of the Decree Law. The annulled provisions span many different laws. The grounds for annulment include the regulation not falling within the scope of the authorization law, regulating areas that cannot be controlled by a decree law, and being fundamentally unconstitutional. It should be noted that the Constitutional Court issued this decision nearly six years later. Nevertheless, the decision revealed that a significant part of the powers used in the new system are unconstitutional. However, this annulment decision did not resolve the problems of unconstitutionality and instead created a more chaotic situation.

The Constitutional Court postponed the entry into force of some annulment decisions on 42 different articles for 12 months. The annulment decisions on 26 different articles entered into force upon the publication of the decision. Some of these annulment provisions directly authorize the President, while others are provisions of the Law repealed by Executive Decree 703. Ordinarily, the TGNA should first make new regulations regarding the annulled provisions that have entered into force and then make the necessary regulations for the postponed provisions within the time limit. However, the TGNA still needs to make the necessary arrangements in response to the Constitutional Court’s annulment decisions. The TGNA’s failure to make the necessary arrangements will create severe gaps in the legal order.

Some of the issues annulled by the Constitutional Court have already been regulated by presidential decrees, and the President has been exercising these powers. However, it is observed that the presidential decrees were issued in place of the provisions of the Law repealed by Decree Law No. 703, even though the Constitutional Court annulled these provisions of Decree Law No. 703. Since the decisions of the Constitutional Court are not retroactive, the provisions repealed by the annulled decrees will not automatically enter into force. If the TGNA does not enact any law, the Constitutional Court’s annulment will have no tangible consequences, and the powers will continue to be exercised in violation of the Constitution. The new regime’s willingness to abide by the Constitution and the Law will be tested again with this decision.