The relationship between the law and administrative regulatory act in terms of judicial review of administrative acts

According to theory of hierarchy of norms (also stated in Turkish Constitution), it is clear that, in Turkish law, the statutes, regulations and the other unnamed regulatory acts, are under the law and for the same reason, those regulatory acts can not be contrary to the law. This hypothesis, which every jurist shall accept without hesitation, raises an impression that there isn't any problem about this issue and as a result it can be assumed that the relationship between law and administrative regulatory act is so simple and smooth. However if we consider the unique nature of administrative law, complexity of administrative legislation and special features of administrative justice, it can be seen that the relationship between law and administrative regulatory act, results many complex problems. This study ise about the mentioned relationship in the context of judicial review of administrative acts. In order to comprehend the nature of the relationship between law and administrative regulatory act, first of all, the constitutional basis of administrative regulation power should be analyzed well. At this point the main constitutional basis of administrative regulation power is the "executive function" which mentioned in article 8 of Turkish Constitution, rather than the specific provisions related to statutes (article 115) or regulations (article 124). Therefore it's understood that the administrative regulation power is not restricted as particular types (statutes, regulations) mentioned in Constitution, indeed it's a natural, general and immanent power in executive function. Another important element on the constitutional dimension of the relationship between law and administrative regulatory act, is the principle of "legality of administration" which is mentioned in article 123 of Constitution. In this study the concept of "legality of administration" has been used in its narrow meaning corresponding to the regulation of organization and functions of administration by law. Especially the regulation of the functions of administration by law, is important for the legal basis of administrative regulation power. Becuase, the main requirement of minimum legal basis of administrative regulation power is a regulation by law that gives a special function to administration about related subject. In other words, if a law regulates an issue as a function of related administration, this means there is a required legal basis and starting point for that administration to establish rules about the issue by administrative regulatory acts. Of course, the issues related to legality provisions in the Constitution, should be evaluated in different context. On the other hand, the administrative regulation power is not independent from law. At this point, it should be stated that, in ordinary periods (except the presidential decrees which mentioned particularly in the study) the administrative regulation power is not autonomus, original and primitive, indeed it's a derived power in view of law. For this reason, at least, there must be a "minimum legal basis" for the administrative regulation power. Nonetheless, various comprehensions and interpretations of the concept of "minimum legal basis" make the problem more difficult. Even though it's noted in decisions of Constitutional Court (decisions given according to inalienability of legislation power mentioned in article 7 of Turkish Constitution); before establishment of a rule by adminstrative regulatory act, the main principles, and fundamental provisions should be regulated by law, and then the details and technical issues can be subject to adminstrative regulatory acts. It's observed that, this jurisprudence of Constitutional Court loses its applicability because of inconsistent decisions of the Court and the presence of many decisions given by administrative justice clearly incompatible with this jurisprudence. This law-dependent character of administrative regulation power, should not mean that the administrative regulatory acts can only repeat, explain or interpret the rules regulated in law. It's naturally, the new rules can be laid down by regulatory acts, that are not noted in law. In this context it is necessary to pay attention to the distinction made by some jurists between the conditions "the compliance of regulatory act with the law" and "the contradiction of regulatory act to the law". This distinction is accompanied by debates about the scope of administrative regulation power in view of the law. However, it can't be said that, positive legal norms and judicial decisions have attached any importance to this distinction. Indeed, in Turkish law, a regulatory act which is not in compliance with law, at the same time, is contrary to law and if a regulatory act is not contrary to law, at the same time is in compliance with law. Of course, in a parenthesis, the exceptional status of presidential decrees -which is brought by 2017 Amendment of Turkish Constitution- should be evaluated in different context. Furthermore, for comprehension of administrative regulation power in its nature, firstly the different constitutional articles formulating that any subject shoult be regulated by law (in this study these formulas called as "legality provisions"), should be analyzed and classified well. We can classify these legality provisions, "simple legality provisions", "qualified legality provisions" and "exclusive/absolute legality provisions". According to their weights and importance degrees, these provisions should be distinguished from each other in context of legality principle. Consequently legal frame of the relationship between law and administrative regulatory act shall be established well. Also it should be determined that, in which legality provisions the jurisprudence of Constitutional Court shall be applied or not to be applied in different levels. On the issues, which are not regulated by constitutional legality provisions, -as a rule- there isn't necessity to look for the conditions that are stated in the above-mentioned jurisprudence of Constitutional Court. After this brief summary of constitutional framework, we can look over, the more technical and judicial aspects of the relationship between law and administrative regulatory act. At this point, a distinction has been made in the study, and the judicial review of regulatory acts and individual acts are examined seperately abut this issue. The technical aspects of the relationship between law and administrative regulatory act, arise from the examination of elements of administrative acts. At this point, the elements "reason" and "subject" are at the forefront rather than the other elements (aim, form, competence). Because, firstly the element "reason" in context of the relationship between law and administrative regulatory act, directly marks the issue of "legal basis". Under the circumstances, the types of contradiction to law in respect of element "reason" in regulatory acts are; the absence of legal basis, annulment of legal basis (by Constitutional Court) and the repealment of legal basis (law) by legislation organ. The compliance of regulatory act with law in view of the element "subject" corresponds the compliance of the rule (established by regulatory act) with the law in respect of its contents, provisions and conclusions. The most important technical dimension on the relationship between law and regulatory act, appears directy on element "subject". The types of contradiction to law relevant to element "subject" of regulatory acts should be examined seperately in each case, but also we can make some classifications. At this point it should be stated that, one-dimensional approaches such as "the rules unregulated by law, can not be regulated by regulatory acts" are not very accurate, because the establishment new rules/norms by regulatory acts (that are not regulated in law), is in the nature of administrative regulation in many situations. In addition, the relationship between law and administrative regulatory act is not a mechanic relation, the function of regulatory act is not only repetition or interpretation of law. In this context the issue should be evaluated in respects of laws and the functions of administration specifically rather than the general judgments. On the other hand the relationship between law and administrative regulatory act in context of legality provisions, has various facts as briefly mentioned above. For example one of the problematic area in this subject is the issue of legality principle about the limitation of basic rights and freedoms. Even though many jurists assert that the legality provision about basic rights and freedoms, is an "exclusive/absolute" legality provision, in different areas of administrative law, it's possible to limit basic rights and freedoms by regulatory acts -naturally on a clear legal base- and various regulations in this context are evaluated in compliance with law by Council of State. In our view the legality provision regulated in article 13 of Constitution, isn't an absolute legality provision, it's a "qualified legality provision". At this point, if circumstances and required conditions exist, -naturally on al legal base- it's possible that some of basic rights and freedoms can be limited by administrative regulatory acts. Another issue about the principle of "legality of crime and punishment" is an "exclusive/absolute legality provision" in the judicial punishments, but that principle is more elastic in administrative sanctions according to decisions of Constitutional Court and Council of State. However there is a diversity between Constitutional Court and Council of State in the context of disciplinary sanctions whether they are in the scope of "exclusive/absolute legality provision" which is regulated in article 38 of Constitution. On the other hand despite the presence of legality provision in Constitution (article 128), administrations use regulation power widely and intensively on the issues about public officials. Because public officials are directly work in the administrative area, and it's so normal for administration to exercise more authority in these officials rather than the people out of the administrative mechanism. Judicial issues are at the forefront of sensitive areas in the relationship between law and administrative regulatory act. Although it has been stated in some of the decisions of the Council of State that administrations can not establish rules in this area by regulatory acts as a rule, the judicial activity corresponds to a complex process which also contains administrative elements, so that it is possible to regulate some administrative issues related to the trial procedure with administrative regulatory acts. The preliminary important element to draw border between law and regulatory act is the area of ​​"jurisdiction". Administration can't interfere in this area with regulatory acts. The second factor to be examined for judicial review is about the judicial review process of individual administrative acts in context of relationship between law and regulatory act. Here, the regulatory act is not the subject of a lawsuit, but the judge evaluates this regulatory act as a legal norm which constitutes a legal basis for individual act in the case. At this point, some problems arise such as whether the judge can evaluate or how can evaluate the compliance of regulatory act with law or whether it's a binding norm for the judge. In the face of these problems, it should be noted that there are different approaches and considerations between the judges of the administrative courts and the tax courts, and also the judges in the civil and criminal courts. At this point it can be argued that every judge can evaluate the compliance of regulatory act with law and if judge determines that the regulatory act is contrary to law, the regulatory act can be neglected and not be exercised in that case, but in our opinion the evaluation degrees of administrative judges and civil judges on this issue can not be at the same level. Howsoever the "interpretation lawsuit" is repealed by law, the judicial separation regime continues in our legal system. According to this regime, the "neglection" of regulatory act by civil judges can be exercised in restrictred conditions such as the explicit and discordant contradictions of regulatory acts to the law. In this context, it can be said that, the legal norms applied by administrative judges and civil judges may vary and regulatory acts are exercised more in administrative justice rather than civil courts, because there are several fundamental codes in civil and criminal law, but administrative law is not well-codified yet, so that administrative regulatory acts intensively applied in administrative lawsuits and this situation makes administrative justice to evaluate the relationship between law and regulatory act, more well-balanced. Ultimately, it should be noted that the strict/limited view over the relationship between the law and regulatory act, is not directly valid for the Turkish administrative judiciary, although there are various inconsistent decisions, the administrative regulation power is evaluated in elastic and broad contexts in accordance with general reasons such as public interest or public order by Council of State, and for this reason great contradictions arise between theory (and also Constitutional Court) and administrative judiciary practice, about the comprehension of administrative regulation power. So it should be appropriate that, the Constitutional Court and Council of State should revaluate the scope and nature of relationship between law and regulatory act, advance new approaches about the issue by new jurisprudences in a guiding manner for practice in this sense.