Administrative authorities must derive their authority from the legal framework to take administrative acts. These authorities are limited regarding person, subject, place and time. In principle, the order of administrative authority within the administration is determined by the Constitution and Codes in accordance with the principle of legality of the administration. Adhering to the doctrine of the legality of the administration, administrative acts are carried out by civil servants duly authorised by law. These individuals, known as administrative authorities, can delegate the authority vested in them for administrative acts based on the admissibility of such delegation. Following the 2017 Constitutional Amendment in Turkey, the introduction of Presidential Decrees as a novel category of public acts significantly sparked extensive debates within Turkish public law. Many of these decrees, emblematic of the primary regulatory authority of the executive, contain provisions permitting administrative authorities to delegate their powers. This study aims to scrutinise the competence element of the administrative act initially. Subsequently, it will evaluate traditional postulations concerning the delegation of authority in Turkish administrative law across four main domains: ‘conditions for validity,’ ‘legal implications of legitimate delegation of authority,’ ‘legal ramifications of illegitimate delegation of authority,’ and ‘cessation of delegated authority.’ This study posits that the legal framework governing the delegation of authority should be delineated through extant Codes and Presidential Decrees. Moreover, it contends that traditional doctrinal assumptions regarding the delegation of authority may not comprehensively elucidate the Turkish administrative law. In conclusion, it asserts that while administrative authorities may be empowered to take administrative acts through Presidential Decrees, the authorities stipulated in the Codes cannot be delegated solely based on Presidential Decrees. The provisions of the Presidential Decrees stating that the authorities stipulated in the Codes cannot be delegated by Presidential Decrees may prevent the unlawful delegation of the authority stipulated in the Codes.
administrative act competence element of administrative act delegation of authority presidential decree
Administrative authorities must derive their authority from the legal framework to take administrative acts. These authorities are limited regarding person, subject, place and time. In principle, the order of administrative authority within the administration is determined by the Constitution and Codes in accordance with the principle of legality of the administration. Adhering to the doctrine of legality within the administration, civil servants carry out administrative acts duly authorised by law. These individuals, known as administrative authorities, can delegate the authority vested in them for administrative acts based on the admissibility of such delegation. The concept of the delegation of authority refers to the potential for administrative authorities to transfer their authority for taking administrative acts to other authorities or civil servants. In administrative law doctrine and jurisprudence, delegation of authority is commonly defined as the transfer of authority from a superior entity to a subordinate within the same organisational unit. Nevertheless, in organisational structures featuring multiple organs, the transfer among these organs or between distinct administrative units is also conceptually encompassed within the delegation of authority.
The postulations of the concept of delegation of authority form the legal framework within administrative law doctrine and jurisprudence. This study’s primary focus of inquiry revolves around examining whether this framework adequately elucidates Turkish administrative law and, if so, to what extent. The postulations articulated as the legal framework can be categorised into four principal domains: the ‘conditions for validity,’ ‘legal implications of legitimate delegation of authority,’ ‘legal ramifications of illegitimate delegation of authority,’ and ‘cessation of delegated authority.’ Each category further delineates specific subheadings. While referencing one another, the conclusions drawn by doctrine and jurisprudence concerning the concept and its legal framework appear contentious in certain aspects. Moreover, an additional topic of debate has emerged within this context.
Following the 2017 Turkish Constitutional Amendment, Presidential Decrees were introduced as a novel form of public act, featuring numerous instances until 2024, encompassing provisions relating to the delegation of authority. Examining the overarching legal structure of these provisions could clarify the contentious aspects associated with the concept of delegation of authority to a certain extent. Consequently, the secondary research question pertains to the impact of the provisions outlined in Presidential Decrees regarding the delegation of authority on this concept. The assertion that Presidential Decrees uniformly establish normative standards governing the delegation of authority and effectively contribute to clarifying the legal framework of delegation of authority appears challenging to substantiate. Presidential Decrees, purportedly addressing facets associated with the delegation of authority, exhibit inconsistencies in their capacity to define and regulate this concept uniformly.
While Presidential Decrees may confer administrative authorities with the authority to take administrative acts, the constitutional limits of these decrees impose limitations compared to the Codes. The Constitution mandates many powers to be regulated through the Codes, raising a pertinent query. The question arises: Is it feasible to delegate authority envisaged in the Codes and grant them to the administrative authorities, based on the provisions governing delegation of authority in Presidential Decrees? Addressing this query necessitates exploring the legal relationship between Codes and Presidential Decrees. The hierarchical arrangement between these legislative instruments within the normative order remains contentious. In our assessment, Codes and Presidential Decrees do not hold equal normative standing, and a Presidential Decree must maintain the hierarchy of administrative authority established by Codes. Therefore, authorities envisioned within the Codes and conferred by them should not be delegated utilising the norms governing delegation of authority present in Presidential Decrees. The Council of State and administrative courts have yet to discuss this matter openly. However, based on their jurisprudence, administrative courts do not perceive any impediment in delegating authority based on the provisions for delegation of authority stipulated in Presidential Decrees. Nevertheless, clauses within Presidential Decrees specifying that the delegation of authority will be confined to the authorities outlined in the decrees may serve as a preventer to delegating authority envisaged within the Codes.
