Pretending Article 104 does not exist

Çiğdem Toker

Yayınlanma: 15.07.2018 - 08:16
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Sweeping changes and transformations are taking place at the foundations of the state. Some of these invite suspicion as to their constitutional compliance.

However, nobody cares, either. Those who should care act as if what is happening to the state were no concern of theirs. If you ask why, there are three possibilities:

-Either they have more important business than change to the state’s organisational structure,

-Or they are perfectly satisfied with their current situations,

-Or they think that, even if they are members of parliament, the efforts they expend will be fruitless. Each of the three possibilities is sadder and more disturbing than the other.

 Were you to inquire, “What is this unlawfulness taking place at the foundations of the state, these situations whose constitutional compliance invites suspicion?” let me start by recalling Article 104 of the Constitution.

 Is Article 104 not in force?

Why is Article 104 critical? Because it specifies the President’s duties and powers.

It is known that in the new order called the presidential system of governance there is no prime minister or cabinet. Erdoğan, who represents the executive organ in full, can substitute for the government and issue presidential decrees on any matter he wishes.

And it is precisely Article 104 that imposes boundaries on the President in issuing decrees.

There are three clear boundaries. According to the Constitution that is in force, the President cannot issue decrees in the following three matters:

-Fundamental rights, personal rights and duties, political rights and duties,

-Matters that the Constitution says are restricted, that is “You will regulate this by statute,” and

-Matters where this is expressly stipulated in statute.

This is not the end. If there are different provisions in presidential decrees and statutes, the provisions of statute, not the President’s, will be applied.

 Decree Number One

Let us move on to Presidential Decree Number One that was issued three days ago.

The organisation of the state changes in full under this decree. The Presidency is reformulating and reconstructing the administrative and financial structure. It is amalgamating institutions. It is detaching and attaching and assigning new staff, bodies and fees. It is determining domestic policy and foreign policy.

Well, is it stated in this decree which article of the constitution it is based on?

No, it is not. However, given that a presidential decree does not come down through divine inspiration, it must derive its source from somewhere.

-This most probably(!) must be the Constitution. And, from within the Constitution, there is a strong likelihood of this being Article 104.

-Another possibility, though, is that this decree has been issued in accordance with Article 119 that provides for the state of emergency regime.

And it is stated there that the President may issue decrees having the force of law on matters necessitated by the state of emergency. (We do not see the power to repeal statutes in this article.)

However, we encounter no information as to which constitutional article Presidential Decree Number One that was promulgated in the Official Gazette is based. This is a problem that impacts on the very existence of this decree.

But, in essence, Decree Number One has dealt with ministries, bodies and offices that it has set up and amalgamated chapter by chapter and thus with a matter that must be regulated by statute. In this respect, this calls its compliance with Article 104 into question.

Given that Article 104 of the Constitution is in force, it is not naive to expect that the matter of being able to set up offices and bodies be arranged on an institutional and legal footing. It would greatly accord with the reasons for their existence if the members of the Turkish Grand National Assembly, even if its powers have been cut back, and bar associations were to voice an opinion on this fundamental matter.

 Madde 104 yokmuş gibi davranmak

 


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