THE HOUSE OF REPRESENTATIVES v. THE TURKISH COMMUNAL CHAMBER AND/OR THE EXECUTIVE COMMITTEE OF THE TURKISH COMMUNAL CHAMBER (1963) 5 RSCC 123

[*123] 1963 April 25

(FORSTHOFF, P., TRIANTAFYLLIDES and MUNIR, JJ.)

(February 16, 20, March 1, 6, 8, 13, April 25, 1963)

In the Matter of Article 139 of the Constitution.

The House of Representatives,

And

The Turkish Communal Chamber and/or The Executive Committee of the Turkish Communal Chamber

(Case No. 12/63)

Art. 78.2—Requirement of separate simple majority necessary only for the making of certain laws—Not necessary for the taking of a decision to make a recourse.

House of Representatives—”Competence” in Art. 139 exists independently of Art. 78.2.

Art. 104.1—Laws of the Turkish Communal Chamber duly signed by the Vice- President must be published in the official Gazette—No organ or authority has any right to refuse such publication—Constitutionality thereof may be challenged subsequently.

Turkish Communal Chamber—Competence of to legislate regarding municipalities, confined solely to matters referred to in Art. 87.1(g) & (h) only to be exercised after the House of Representatives enacts general legislation concerning municipalities.

On the 29th December, 1962, the Turkish Communal Chamber passed a Law entitled “The Turkish Communal Chamber’s Turkish Municipal Corporation Law” which, having been signed by the Vice-President of the Republic on the 31st December, 1962, was forwarded to the Attorney-General of the Republic on the same day for publication in the official Gazette.

The Attorney-General advised the Vice-President on the same day, in writing, that the making of the Law did not fall within the competence of a Communal Chamber asking the Vice-President to reconsider the position in the light of the said advice. The Vice-President replied on the same day asking for the immediate publication of the Law stating, inter alia, that it was the right and responsibility of the Vice-President to publish in the official Gazette a law made by the Turkish Communal Chamber.

The Attorney-General forwarded the Law to the Director of the Printing Office on the 2nd January, 1963, stating that the Vice-President required its publication in the official Gazette, but that in his view the passing of the Law did not fall within the competence of a Communal Chamber.

Eventually the Law has not been published in the official Gazette, the Turkish Communal Chamber proceeding to publish the said Law in the “Resmi Gazette” No. 1 of the 3rd January, 1963. [*124]

The Relief sought by the Applicants as well as the Opposition filed by the Respondents are set out in the Judgment that follows:—

Held : (a) by majority (i) the provision in Art. 78.2 was only necessary for the making of certain “laws” and not for the taking of a decision to make a recourse, such as the present one, to this Court;

(ii) the competence, as such, of the House of Representatives, referred to in Art. 139, existed independently of the provisions in Art. 78.2 concerning the procedure for exercising such competence in regard to certain laws.

PER MUNIR, J., dissenting - The present recourse was not validly made because no valid decision of the House of Representatives to make it had been taken in accordance with Art. 78.2, though the matter could be rectified by an appropriate amendment of the description of the Applicants in the title of the case.

(b) unanimously (i) the Law of the Turkish Communal Chamber entitled “the Turkish Municipal Corporation Law” not having properly been published in accordance with the provisions of Art. 104.1, never came into operation and, therefore, no actual encroachment upon powers or competences of other organs had taken place;

(ii) pursuant to the provisions of Art. 104.1 the “Law”, after it was duly signed by the Vice-President, had to be published immediately in the official Gazette, there being no alternative means of publication, no organ of, or authority in, the Republic having any right to refuse such publication on any ground of unconstitutionality which might, however, be raised after such publiation by appropriate proceedings;

(iii) the legislative competence of the Turkish Communal Chamber relating to municipalities was solely confined to the matters referred to in Art. 87.1 (g) and (h) and could only be exercised after the House of Representatives enacted general legislation concerning municipalities;

(c) by majority: there being no general legislation of the House in force at the time of the making by the Turkish Communal Chamber of “the Turkish Municipal Corporation Law”, indeed not until the present time, the Turkish Communal Chamber could not exercise its competence to legislate in relation to municipalities under Art. 87.1 (g) and (h) (Majority Decision in Dr. Fuat Celaleddin & others and The Council of Ministers & others, p. 102 supra affirmed).

PER MUNIR, J., dissenting, being of the opinion for the reasons given by him in Dr. Fuat Celaleddin & others and The Council of Ministers & others, ibid, that the Municipalities Laws (Continuation) Law, No. 10 of 1961, still continued in force, did not agree with the second paragraph of the Order made in this Case.

(a) Unanimously - The “Turkish Municipal Corporations Law” of the 29th December, 1962, declared ab initio void;

(b) By majority - The making of the said Law was not within the power or competence of the Turkish Communal Chamber.

G. Chryssafinis with G. Polyviou for the House of Representatives. [*125]

R. R. Denktash and H. Ali Riza for the Turkish Communal Chamber.

Cur. adv. vult.

April, 25. The Decision of the Court was read by :

FORSTHOFF, P. : The Court declares:—

†unanimously, (1) - The Turkish Municipal Corporations Law, passed by the Turkish Communal Chamber on the 29th December, 1962, which was signed by the Vice-President on the 31st December, 1962, and published in the “Resmi Gaze- te” No. 1 of the Turkish Communal Chamber of the 3rd January, 1963, is void ab initio and without any legal effect whatsoever;

by majority, (2) - The making of the said Law was not within the power or competence of the Turkish Communal Chamber ;

This Order shall also be notified to the President and the Vice-President of the Republic.

On the 29th December, 1962, the Turkish Communal Chamber passed a Law entitled “The Turkish Communal Chamber’s Turkish Municipal Corporations Law” (hereinafter referred to as “the Law”). This Law was signed by the Vice-President of the Republic on the 31st December, 1962, and forwarded to the Attorney-General of the Republic on the same day for publication in the official Gazette of the Republic. The Attorney-General on the same day wrote to the Vice-President advising him that the making of the Law did not fall within the competence of a Communal Chamber, and asking the Vice-President to “reconsider the position in the light of this advice”. Thereupon, again on the same day, the Vice-President, wrote back to the Attorney- General asking “for its immediate publication”, and setting out, inter alia, his opinion, viz. that it was the right and responsibility of the Vice-President to publish in the official Gazette of the Republic a law made by the Turkish Communal Chamber. Thereupon the Attorney-General, by his letter dated the 2nd January, 1963, forwarded to the Government Printer the Law stating in such letter that the Vice-President required the publication of the Law in the official Gazette of the Republic, and that in the view of the Attorney-General the passing of the Law did not fall within the comtence of a Communal Chamber.

The Law has not, however, been published in the official Gazette of the Republic and for this reason, the Turkish Communal Chamber proceeded to publish the Law in the “Resmi Gazete” No. 1 of the 3rd January, 1963. [*126]

†The Application, which was filed on the 31st January, 1963, seeks -

“1. A declaration that the House of Representatives is the only organ of the Republic which in exercise of its legislative power has competence to make a law relating to the municipalities.

2. A declaration that the Turkish Communal Chamber has no power or competence to make a law and/or to put into force a law relating to municipalities.

3. A declaration that the so called ‘Turkish Municipal Corporations Law’ purported to be passed by the Turkish Communal Chamber, signed by the Vice-President of the Republic and published in a so called document entitled ‘Official Gazette of the Turkish Communal Chamber’ is against the basic structure and the express provisions of the Constitution and is a nullity and of no effect whatsoever”.

The Opposition, which was filed on the 21st February, 1963, alleges, inter alia, that the Court has no jurisdiction to entertain the recourse and that it was within the competence of the Turkish Communal Chamber to make the Law.

On the 16th February, 1963, the President of the Court directed, in the interests of the proper discharge of the functions of the Court in this Case and in the light of the course of events since the institution thereof, that the Court should consider on the 20th February, 1963, whether or not the Court should order, under paragraph 7 of Article 139 of the Constitution, that the operation of the subject-matter of this recourse should be suspended until the determination of the recourse, and it was decided to hear by, and on behalf of, the parties arguments in relation to the said matter.

In the light of statements made on the 20th February, 1963, by counsel appearing for the parties the Court was satisfied that it was not necessary for it to exercise, at that stage, its powers under paragraph 7 of Article 139, and it felt that the fixing of an early date for hearing would sufficiently meet the situation.

The Court accordingly fixed a date for the hearing of the Case which was heard on the 1st, 6th, 8th and 13th March, 1963.

The Court will first consider the submission made by Respondent that the present recourse has not validly been made because no valid decision of the House of Representatives to make such a recourse had been taken. [*127]

This submission is based on the view that the present recourse, owing to its subject-matter being a law relating to municipalities, could only have been made on the basis of a decision of the House of Representatives voted upon by separate simple majorities of the Representatives elected by the Greek and the Turkish Communities respectively taking part in the vote, as is provided by paragraph 2 of Article 78 of the Constitution and that such a decision has not been duly taken.

In the opinion of the majority of the Court for the making of such a recourse, as the present, the separate majorities provided for in paragraph 2 of Article 78 are not required. It is set out in the said paragraph 2, that the majorities specified therein are required for the making of certain “laws”. It follows clearly, therefore, that such majorities are not required for the taking of a decision to make such a recourse to this Court. This view is also supported by the fact that the competence, as such, of the House of Representatives, to be protected under Article 139, exists independently of the provisions concerning the procedure for exercising such competence. The above submission of Respondent, therefore, fails. MUNIR J., however, is of the dissenting opinion that the said submission of Respondent should have been upheld, but that the matter could have been rectified by an appropriate amendment of the description of Applicant in the title of the Case.

It is common ground that the subject-matter of the present recourse constitutes a conflict or contest of power or competence, in the sense of Article 139 in which the House of Representatives is involved. The Court therefore has the duty to entertain the present recourse.

Coming now to the merits of the Case and dealing first with motion for relief No. 3 in the Application, the Court is of the opinion that, in a recourse under Article 139, it has, in any case, also to consider the formal validity of the law, decision or act which is the subject-matter of such a recourse.

The Court is of the opinion, that the Law has never come into operation because it is lacking proper publication. It must first be stated, in this connection, that the Law, once it had been duly signed by the Vice-President of the Republic, it had to be published immediately in the official Gazette of the Republic, as provided in paragraph 1 of Article 104. No organ or authority in the Republic has the right to refuse or to deny such publication on any ground of unconstitutionality, which may, however, be raised subsequently by appropriate proceedings.

The fact remains, however, that the Law has not been published in the official Gazette of the Republic. Under [*128] paragraph 2 of Article 104, a communal law comes into operation only if published in the official Gazette of the Republic. As the above-mentioned “Resmi Gazete” is not the official Gazette of the Republic, the Law has not, therefore, as already stated, come into operation, a fact conceded also by counsel for Respondent.

The Court did not find it necessary, in this connection, to deal with the possible legal remedies which may be resorted to in case of an omission to effect publication, as provided by the Constitution, because, in any case, no method of publication other than by publicaton in the official Gazette of the Republic, can be regarded as remedying the absence of a proper publication. The publication in the official Gazette of the Republic could not, therefore, have been validly substituted by the printing and distributing of the Law in question as part of the “Resmi Gazete” mentioned above.

As it has been found, according to the foregoing, that the Law has not legally come into operation at all, and that, therefore, no actual encroachment upon powers or competences of other organs can have taken place by means of such Law, the alleged “conflict” of power or competence is thus disposed of.

There remains, however, to examine the “contest” of power or competence, raised by the Applicant, concerning the Turkish Communal Chamber purporting to be empowered to make such a Law.

In the opinion of the Court, the legislative competence of the Turkish Communal Chamber in relation to municipalities is only confined to sub-paragraphs (g) and (h) of paragraph 1 of Article 87* and can only be exercised after general legislation of the House of Representatives concerning the municipalties, referred to in the said provisions, has been made. The Law could only have been validly made to the extent of the competence under the said sub-paragraphs.

As it has been set out in detail in the Reasons given by the majority of the Court in the Decision in Case No. 11/63, † at the time of the purported making of the Law no such legislation of the House of Representatives was in force nor is it in force to-day. The Turkish Communal Chamber could not, therefore, and cannot at present, exercise its competence to legislate in relation to municipalities under subparagraphs (g) and (h) of paragraph 1 of Article 87. MUNIR J., however, dissents from this opinion of the majority of the Court because of the conclusion reached by him in his Dissenting Opinion in Case No. 11/63, †to the effect that the Municipalities [*129] Laws (Continuation) Law, 1961 (Law 10/61) still continues to be in force and consequently disagrees also with the second paragraph of The Order in the present Case.

The Court has not found it necessary to deal specifically with motions for relief Nos. 1 and 2 of the Application because, in its view, they are covered by motion for relief No. 3 and do not warrant, therefore, the granting of any other relief in The Order.