Press Release No: Plenary Assembly 16/18
24.10.2018

PRESS RELEASE CONCERNING THE DECISION ANNULLING CERTAIN PROVISIONS OF THE LAW ON THE ESTABLISHMENT OF THE TURKISH-JAPANESE SCIENCE AND TECHNOLOGY UNIVERSITY

The Constitutional Court at its meeting dated 5 July 2018 dismissed the request (case-file no. E.2017/144) for annulment of Article 6 of the Law on the Establishment of the Turkish-Japanese Science and Technology University, which is numbered 7034 and dated 18 June 2017; but annulled the phrase “…including also those classified as forests..” in Article 7 and Provisional Article 1 § 2 of the Law.

The Agreement on the Establishment of the Turkish-Japanese Science and Technology University in the Republic of Turkey was signed by and between the Turkish Government and the Japanese Government on 30 June 2016. The Agreement was ratified by the Grand National Assembly of Turkey by Law no. 6742 and dated 19 August 2016.

In addition to the Agreement on the Establishment of the University and Law no. 6742 ratifying the Agreement, the issues concerning the establishment of the University and the Foundation are regulated by Law no. 7034.

Therefore, there is no obstacle before the judicial review of the impugned provisions which were enacted independently of the Agreement and the Law ratifying the Agreement.   

A. Article 6 of Law no. 7034

Contested Provision

In the impugned provision, it is set forth that the Travel Expense Law, the Press Announcement Agency Law, the Vehicle Law, the State Procurement Law, the Public Procurement Law, the Public Procurement Contracts Law, the Public Housing Law, the Public Finance Management and Control Law, the Law on the Court of Accounts as well as the Decree-Law no. 631 whereby financial and social rights of public officials are regulated shall not apply to the University and the companies founded by the University as well as subsidiaries and affiliates that are affiliated to them for directly or indirectly holding shares therein.   

Grounds for the Requests for Annulment

In the petition, it is maintained that although Article 130 of the Constitution explicitly sets out that universities and their attached units are under the supervision and inspection of the State, the Turkish-Japanese Science and Technology University (University) and its affiliates are exempted from the State’s inspection; that the University is thereby given independence, which is beyond autonomy; and that this has caused inequality between the University and the other State universities. It is accordingly claimed that the provision is in breach of Articles 10 and 130 of the Constitution.  

The Constitutional Court’s Assessment

In brief, the Constitutional Court made the following assessments:

In Article 1 of the Agreement on the Establishment of the Turkish-Japanese Science and Technology University, it is set forth that the University shall be established as a State university. Accordingly, the said University is subject to regulations that are concerning institutions of higher education and prescribed in Article 130 of the Constitution. In this sense, the State has supervision and inspection authority over the University, as it is over the other universities.

There is no constitutional provision which necessitates implementation of the laws specified in the impugned provision in exercising of this authority by the State. Nor is there any constitutional exigency which requires the Court of Account to have the task of supervising the lawful use of the public funds transferred to the University.

The University is exempted from the laws specified in Article 6 of the Law for being established on the basis of an international agreement. Such exemption is within the legislator’s discretionary power, and therefore, no aspect of the disputed provision is found unconstitutional.

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

B. Article 7 of Law no. 7034

Contested Provision

In the impugned provision, it is set forth that budget of the University and other issues as to financial management shall be regulated by the University.

Grounds for the Requests for Annulment

In the petition, it is maintained that the disputed provision is in breach of Articles 10 and 130 of the Constitution for the same grounds raised as regards Article 6 of the Law.

The Constitutional Court’s Assessment

In brief, the Constitutional Court made the following assessments:

Although it is possible to exempt the University from certain laws for being established on the basis of an international agreement, basic rules are to be regulated by law in order for the State to perform its task to inspect and supervise the University, as a requirement of Article 130 of the Constitution.

By virtue of the Agreement, the University is exempted from all applicable legislation on higher education and the University Council is entitled to make all internal regulations with respect to academic, financial and administrative issues of the University. It is exempted from the State’s inspection and supervision in terms of financial issues including the budgetary approval and control process.

Establishment of the university by virtue of an international agreement does not eliminate the requirement that the provisions of its law must comply with the constitutional provisions regulating the institutions of higher education and superior bodies of these institutions.

Accordingly, the impugned provision has caused deviation from the system prescribed in the Constitution for university budgets and exempted the University from the State’s supervision and inspection, which is incompatible with the provisions concerning the institutions of higher education and enshrined in Article 130 of the Constitution.

Therefore, the Court found the contested provision unconstitutional and annulled it. 

C. Provisional Article 1 § 2 of the Law

Contested Provision

In the impugned provision, it is set forth that immovables registered in the name of the Treasury −including those classified as forests− are deemed to have been allocated, free of charge, to the University without the need for any further action.

Grounds for the Requests for Annulment

In the petition, it is maintained that allocation of forest land to the University by virtue of the provision, without designating the terms of use and prescribing any guarantee for the protection of the forest land, will cause deforestation on forest lands that are under the State’s protection; and that there is no exigency requiring the allocation of the forest land to the University. It is accordingly alleged that the contested provision is in breach of Articles 2 and 169 of the Constitution.

The Constitutional Court’s Assessment

In brief, the Constitutional Court made the following assessments:

In principle, Forest Law no. 6831 prohibits any construction on forest lands. Pursuant to Article 169 of the Constitution, buildings and facilities that are subject to easement may be constructed on public forests only on condition that allocation of these forest lands to such services is necessitated by public interest. It is clear that there is a public interest in allocation of the forest land to the University for educational purposes. However, the existence of public interest is not per se sufficient for the use of forest lands for another purpose. In this regard, the public interest in construction of buildings and facilities belonging to the University on public forests must also necessitate the allocation of the forests to these services.

The impugned provision does not include any exigency in this respect but only prescribes allocation of immovables of the Treasury, which are classified as forests, to the University. Accordingly, the University may use the forest land either by preserving its original form as a forest or for another purpose without any exigency. Therefore, use of the allocated forest land for another purpose is completely left to the discretion of the University.

Allocation, to the University, of the forest lands belonging to the Treasury without setting any exigency criterion is incompatible with the State’s liability to protect and extend forests that is enshrined in Article 169 of the Constitution.

For the reasons explained above, the Court found the contested provision unconstitutional and 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