Home > 5.3 Validity of the question > TÜRKIYE - Opinion on the Amendments to the Constituion Adopted by the Grand National Assembly on 21 January 2017 and to be Submitted to a National Referendum on 16 April 2017
 
 
 
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Paragraph 79
 

The principle that legislation prevails over presidential decrees is to be welcomed, as it represents a check on the President’s legislative power. It will, however, have to be interpreted in conjunction with the provisions on which areas are to be regulated by law and which areas are to be regulated by presidential decree. In the – very important – areas to be regulated by decree only, it will not be possible for the TGNA to legislate and presidential decrees will prevail. Moreover, the draft amendments do not specify which organ would be competent to declare the presidential decree null and void. The Turkish authorities have explained that “according to the envisaged regulation, it will be possible that the presidential decrees will be subject to judicial review by three different means. The first one is that, if the Presidential decree is considered to be unlawful, the decree should be reviewed by the Constitutional Court upon the demand of two political parties with the highest number of members in the TGNA, or at least 1/5 of total number of members. Again, pursuant to Article 152 of the Constitution, courts will be able to demand the Presidential decree to be reviewed by the Constitutional Court through concrete norm review. Finally, in case it is considered that decrees contradicting to laws have been implemented by the administration, those interested may demand judicial review of the administrative action. Moreover, if the courts decide that the law and Presidential decree contradicts in the resolution of a dispute, the enforcement of the provision of law is the governing law. This governing law also applies to anyone who will implement the laws and the presidential decrees, notably the administration.”