What are the Differences between Presidential Decree and President Decision? 2 November 2018
President Decisions, which became a current issue with the Decision no.85 on amending the Decree no.32 on Protection the Value of Turkish Currency (“Decree no.32”)[1] delivered by the President of the Republic in 12 August 2018, are mixed up with the Presidential Decrees and there is a perception in the society that these two are similar terms. However, Presidential Decrees which are entered to the Turkish Legal System by transition from parliamentary system to presidential government system and President Decisions are completely different terms with regard to the legal characteristic; therefore these two terms are subject to two different control mechanisms.
In accordance with article 104/17 of Turkish Constitution, Presidential Decree, which entered our legal system with the amendments on constitution, is identified as “The President of the Republic may issue presidential decrees on the matters regarding executive power. The fundamental rights, individual rights and duties included in the first and second chapters and the political rights and duties listed in the fourth chapter of the second part of the Constitution shall not be regulated by a presidential decree. No presidential decree shall be issued on the matters which are stipulated in the Constitution to be regulated exclusively by law. No presidential decree shall be issued on the matters explicitly regulated by law. In the case of a discrepancy between provisions of the presidential decrees and the laws, the provisions of the laws shall prevail. A presidential decree shall become null and void if the Grand National Assembly of Turkey enacts a law on the same matter.”
According to Article 104/17 of Turkish Constitution:
- President’s authority to issue a Presidential Decree is limited to matters regarding executive power.
- Fundamental rights and individual rights and duties may not be regulated with Presidential Decree except social, economic rights and duties which are listed in third chapter of the second part of the Constitution.
- Presidential Decree may not be issued on the matters which are envisaged in the Constitution to be regulated exclusively by law and explicitly regulated by law.
- If the Grand National Assembly of Turkey enacts a law on same matter, Presidential Decree becomes invalid.
- If there is a difference between provision of law and Presidential Decree, provision of law shall be applied.
In addition to the aforementioned provision which gives a general definition on Presidential Decree, the constitutional provision includes special regulations on the same matter are as follows:
- Article 104/9 of the Constitution; (President of the Republic), “He/she shall appoint and dismiss the high ranking executives, and shall regulate the procedure and principles governing the appointment thereof by presidential decree.”
- Article 106/last clause of the Constitution; “The establishment, abolition, the duties and powers, the organizational structure of the ministries, and the establishment of their central and provincial organizations shall be regulated by the presidential decree.”
- Article 108/ last of the Constitution; “The functioning of the State Supervisory Council, the term of office of its members, and other personnel matters relating to their status shall be regulated by presidential decree.”
- Article 118/6 of the Constitution; “The organization and duties of the General Secretariat of the National Security Council shall be regulated by presidential decree.”
- Article 123/3 of the Constitution; “Public corporate bodies shall be established only by law, or by presidential decree.”
- Article 124/1 of the Constitution; “The President of the Republic, the ministries, and public corporate bodies may issue by-laws in order to ensure the implementation of laws and presidential decrees relating to their jurisdiction, as long as they are not contrary to these laws and decrees.”
As could be understood from abovementioned provisions, Presidential Decrees are regulations which are issued by President of the Republic on condition that it is not conflict with the provisions of law and be related to the executive authority. President of the Republic may issue Presidential Decree on any matter provided that such regulation shall comply with the restrictions stipulated in the Constitution. In addition, it is necessary to emphasize that Presidential Decrees are placed on a level above the law in the hierarchy of norms with the regulation stated that the provisions of law shall prevail if there is a discrepancy between provisions of the Presidential Decrees and the laws.
If a comparison is made between the Presidential Decrees which finds place in our legal system by the transition to the presidential government system and the regulations of the parliamentary system abrogated by the amendments; it is possible to say that the Presidential Decrees are placed on a level above the statutory decree and superior to the President Decisions in the terms of hierarchy of norms.
On the other hand, President Decision refers to the use of powers in the concrete case for the exercise of any power granted to the President of the Republic by law, including the election and appointment. The following decisions can be given as an example of these powers: decision on land expropriation, decision on implementation of tariff quota in imports and decision on continuation of day light saving time. A total number of 80 President Decisions have been issued by this time. President Decisions have the characteristic of administrative action.
Differences between Presidential Decrees and President Decisions in terms of legal character require different control mechanisms for both regulations. The constitutionality of Presidential Decrees in respect of both form and substance shall be examined by the Constitutional Court. Presidential Decrees can be the subject of both the claim of unconstitutionality before other courts and the annulment action. Except for the claim of unconstitutionality before other courts, possible annulment decisions delivered by the Constitutional Court shall not be retrospective in principle, in contradistinction to the annulment decision on administrative jurisdictions.[2] With regard to the claim of unconstitutionality before other courts, the prohibition of reapplication within ten years is not implemented for the rejected applications.
On the other hand, the judicial review of the Presidential Decisions is made by the Council of State as a court of first instance because of its characteristic of administrative action.[3] Under Article 151 of the Constitution; within sixty day after publication of decision in Official Gazette, annulment action may be filed since judicial review is available against all kinds of actions and transaction of the administration in compliance with Article 125 of the Constitution.
In conclusion; Presidential Decrees can be defined as regulations, which are subject to the judicial review of Constitutional Court; issued on the matters regarding executive power without the obligation of enactment on the basis of law and by using of essential regulatory authority of President of the Republic on condition that it is not conflict with the provisions of laws. In other respects, it could be said that President Decisions are the regulations which have characteristic of regulatory or individual proceedings, issued within the scope of powers granted to President of the Republic and subject to judicial review of the Council of the State. President Decisions which have taken place of Council of Ministers decisions of former Constitutional order, have to be enacted on the basis of law.
Türkçe Versiyonu İçin
