Press Release No: Plenary Assembly 18/18
26.11.2018

PRESS RELEASE CONCERNING THE DECISION ANNULLING THE SENTENCE ADDED TO THE LAW ON OPTICIANRY

The Constitutional Court at its meeting dated 5 July 2018 dismissed the request (case-file no. E.2018/15) for annulment of the phrase “… upon the convocation of the Ministry of Health…” in Provisional Article 4 § 2 added to Law on Opticianry, which is dated 22 June 2004 and numbered 5193, by Article 7 of Law no. 7063 on Amending Certain Laws, dated 6 December 2017, but annulled the second sentence in its third paragraph.

A. Phrase in Provisional Article 4 § 2 of the Law

Contested Provision

The provision including the contested phrase sets forth that the first general assembly meeting of the Opticians Association of Turkey (Association) shall convene, upon the convocation of the Ministry of Health, within four months following entry into force of this provision. 

Grounds for the Requests for Annulment

In the petition, it is maintained that rendering the first general assembly meeting of the Association subject to the convocation of the Ministry of Health amounts to exceeding of power of tutelage enshrined in the Constitution; and that the provision is therefore in breach of the Constitution. 

The Constitutional Court’s Assessment

In order for the Association to be regarded as a legal entity, the first general assembly meeting must be held and the relevant bodies must be constituted during this meeting.

The power and duty assigned to the Ministry of Health for convocation does not include any supervisory process as to the acts and actions performed by the Association. Within the scope of the power of tutelage granted, pursuant to the principle of administrative integrity, to the central administration over the local service institutions, the Ministry of Health may be assigned with the power and task to convoke the general assembly of the Association for the first meeting. Besides, the legislator is undoubtedly entitled to enact a law on any particular issue, on condition of not being unconstitutional, pursuant to the principle of generality of the legislative power. Therefore, vesting the Ministry of Health −as the relevant authority− with the task to convoke the first general assembly meeting with a view to ensuring formation and activation of the bodies of the Association is not unconstitutional.

For the reasons explained above, the Court found that the contested provision was not contrary to Article 135 of the Constitution and dismissed the request for its annulment.

B. Second Sentence of Provisional Article 4 § 3 of the Law 

Contested Provision

In the first sentence of Provisional Article 4 § 3 of the Law, it is set forth that the Central Board of Directors of the Association shall convene and issue regulations within one month following the election. In the contested second sentence, it is set out that these regulations shall be promulgated in the Official Gazette and thereby put into force, upon the approval of the Ministry of Health, within two months following the election.

Grounds for the Requests for Annulment

In the petition, it is maintained that making entry into force of the regulations issued by the Central Board of Directors of the Association subject to approval of the Ministry of Health has caused the limits of power of tutelage to become vague, and that there has been an interference with the autonomy afforded to the Association. It is accordingly claimed that the contested provision is in breach of the Constitution.

The Constitutional Court’s Assessment

By Article 135 of the Constitution, it is set forth that the power of tutelage exercised by the central administration over the professional organizations in the capacity of public institutions shall be prescribed by law, and that such power shall be limited to issues that fall under administrative and financial supervision. The discretionary power on this issue is exercised by the legislator on condition of not falling foul of the constitutional principles.

By granting autonomy to the professional organizations in the capacity of public institutions, it is guaranteed that these organizations will perform their activities in compliance with requirements of the service as well as with public interest. As an autonomous institution, the professional organizations are entitled, independently of the central administration, to appoint their decision-making and executive bodies, to take and implement decisions binding on their members and organs as being limited to the relevant professional activities, to determine principles and rules to be followed by members of the professions and to impose disciplinary sanctions on their members.

However, these professional organizations do not have an unlimited autonomy and are subject to administrative and financial supervision of the State. Nevertheless, such power of tutelage does not allow for regulations that would render ineffective the autonomy afforded to these organizations. In reviewing a provision of law concerning the power of administrative tutelage, the Court must undoubtedly determine the extent to which this provision affects the administrative autonomy of these professional organizations and whether it renders this autonomy ineffective.

In the contested Provisional Article 4 § 3, it is set forth that the regulations to be issued by the Central Board of Directors of the Association may be promulgated in the Official Gazette and may take effect only upon the approval of the Ministry of Health. Unless approved by the Ministry of Health, these regulations cannot be promulgated in the Official Gazette and thereby cannot take effect. Accordingly, such an approval procedure is in the form of an authority to confirm vested in the administration.

The contested provision, in this sense, vests the Ministry with an “approval” authority in regulations concerning almost all acts and actions of the Association. Such a broad power of administrative tutelage cannot be said to be compatible with the autonomy of the professional organizations in the capacity of public institutions. Therefore, this provision renders ineffective the administrative autonomy afforded to the Association by virtue of the Constitution.

For the reasons explained above, the Court found the contested provision in breach of Article 135 of the Constitution and therefore annulled it.  

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.

The Constitutional Court of the Republic of Turkey © 2019