Presidential decrees and the principle of legality under Turkish law

Author:Yusuf Sertaç Serter
Position:School of Law, Anadolu University, Turkey, ysserter@anadolu.edu.tr.
Pages:171-180
SUMMARY

As of July 9, 2018, Turkey abandoned the parliamentary system and has adopted a sui generis kind of presidential system of government. The said new governmental system provides the President, the Executive Organ of the Turkish State, with the authority to issue presidential decrees on matters relating to executive function, and such authority that is conferred directly by the Constitution “is... (see full summary)

 
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Presidential decrees and the principle of legality
under Turkish law
Assistant professor Yusuf Sertaç SERTER1
Abstract
As of July 9, 2018, Turkey aban doned the parliamentar y system and has a dopted a
sui gener is kind of pr esidential system of govern ment. The sa id new governmental system
provides the Pr esident, the Executive Orga n of the Turkish State, with the author ity to issue
presidentia l decrees on matter s rela ting to executive function, and such authority that is
conferred directly by the Constitution “is neither dependent on a prior parliamentary
mandate nor subject to any subsequent approval”2. On the other hand, the principle of
legality3, an important constitutional principle relating to “the rule of law” states that the
Legislative power is “original/primary”, and that, as a rule, the Executive Organ p ossesses
a secundum legem a uthority. As such, the pr ospective effects of the presidentia l decrees on
the constitutional principle of legality will be reviewed in this study ba sed on var ious
discussions made by Turkish public law academics.
Keywords: Presiden tial decree, principle of legality, secundum legem a uthority of
administration, “original/primary” powers.
JEL Classification: K23
1. Introduction
As of July 9, 2018 Turkey abandoned the parliamentary system of
government and Turkey is now being governed by a sui generis4 presidential
system. Accordingly, as of the aforementioned date, “one may safely claim that the
executive organ of the Turkish State in now identified with the President”5 since
Article 104/1 and Article 8 of the Constitution of the Turkish Republic as recently
amended set forth respectively that “The President of the Republic is the head of
the State. The executive power shall be vested in the President of the Republic”,
and that “Executive power and function shall be exercised and carried out by the
President of the Republic in conformity with the Constitution and laws.
1 Yusuf Sertaç Serter School of Law, Anadolu University, Turkey, ysserter@anadolu.edu.tr.
2 See Bülent Sözer, State Orga ns and Their Rule Making P owers Under the New Constitution of the
Republic of Turkey, Vedat Publishing, 2018, p. 49.
3 Principle of legality is used for the Turkish legal term “kanun i idare” in this essay. A word-for-word
translation of “kanuni idare” can be carried out as “lawful administration” but “principle of legality”
is p referred in this essay since the latter is believed to correspond b etter to secundum legem and
intra legem authorities of administration.
4 There are material d ifferences between the US and Turkish presidential systems of government. On
the other hand, considering the limits of this academic paper, such differences should constitute the
subject-matter of another academic paper.
5 See Bülent Sözer, op. cit, 2018, p. 49.

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