Limits of Delegation of Authority in Administrative Procedures: The Distinction Between Broad Authority and Usurpation of Authority

ENTRANCE

In accordance with the principle that "lack of authority is a matter of public order," one of the most fundamental rules in administrative law, every administrative act must be performed only by the competent authority. In this context, the element of authority is considered one of the main factors determining the legality of administrative acts.

However, in modern public administration, the practice of delegating responsibilities from central government to provincial levels, and from high-level managers to lower-level officials, has increased; this expanded authority and usurpation of authority to the forefront.

This article will analyze the concept of delegation of authority in administrative procedures; the difference between delegation of authority and the extent of authority, the consequences of usurpation of authority, and the decisions of the Council of State and the Regional Administrative Courts.

1. THE ELEMENT OF AUTHORITY AND THE SOURCE OF AUTHORITY

1.1. Legal Nature of the Authority

Authority refers to the power granted to the administration by law to exercise public authority. This authority is determined by constitutional or legal regulations. No administration beyond its authority . Articles 2 and 125 of the Constitution of the Republic of Turkey No. 2709 constitute the constitutional basis of this principle.

1.2. Basic Criteria for Delegation of Authority

Delegation of authority (transfer of duties) is when one administrative authority allows another authority to perform an action within its jurisdiction. However, this is subject to certain constitutional and legal limitations. In particular, the delegation of discretionary powers is restricted.

2. DELEGATION OF AUTHORITY, TRANSFER OF AUTHORITY, AND SCOPE OF AUTHORITY

2.1. The Difference Between Granting and Delegating Authority

• In delegation of authority, a higher-level authority explicitly assigns a task to another authority in writing. This is usually done through regulations or circulars.

• In delegation of authority, the process is carried out directly by the primary competent authority, but the implementation is taken over by another authority. For example, the decision is made by the governor, but the signature is affixed by the district governor.

2.2. Scope of Authority

"Expansion of authority" is primarily a concept used in Türkiye regarding governors and district governors. According to Articles 9 and 27 of Law No. 5442 on Provincial Administration, governors, as representatives of the central government in the provinces, can in some cases directly exercise the authority of ministries. However, this expansion of authority is not unlimited.

🔹 Council of State, 1st Chamber, Case No. 2019/872, Decision No. 2021/2331:

“It is possible for the governor to directly carry out certain actions as a representative of the central government. However, this authority does not imply the assumption of a primary and absolute administrative function.”

3. Usurpation of Authority: Defined, Consequences, and Assessment as a Ground for Annulment

3.1. What is Usurpation of Authority?

Usurpation of authority occurs when an administrative act is performed by an authority that does not have legal jurisdiction. In this case, the act is flawed in terms of authority and is annulled by the administrative courts.

🔺 For example: A municipal council approving a zoning plan.

3.2. Result of the Process

An action taken by an unauthorized authority is null and void or may be annulled. In lawsuits filed regarding such actions, judicial authorities first examine the element of authority. An action lacking authority is annulled without examining other elements.

🔹 Council of State, 6th Chamber, Case No. 2020/2183, Decision No. 2021/4472:

"It has been determined that the zoning plan amendment should be made by the authorized council, not by the acting mayor; therefore, there has been an abuse of authority."

4. AUTHORITY ISSUES IN PRACTICE

4.1. Non-transferability in Discretionary Transactions

Some administrative actions, due to their discretionary nature, cannot be delegated. In particular, actions such as disciplinary actions, dismissals of public officials, and appointments of civil servants require individual assessment cannot be carried out through delegation of authority.

🔹 Council of State, 12th Chamber, Case No. 2018/3432, Decision No. 2020/3782:

"The authority to impose disciplinary penalties belongs solely to the legally authorized body. This authority cannot be delegated to any other authority."

4.2. Use of Chain of Authority

In some procedures, the administration assigns a task to one authority, which then delegates it to a subordinate authority. This chain of authority can lead to illegality.

5. APPROACH TO JURISDICTIONAL ISSUES IN JUDICIAL DECISIONS

5.1. Council of State Decisions

The Council of State is highly sensitive to abuse of authority and annuls actions taken by authorities not authorized to do so. However, in cases of excessive authority, particularly in provincial organizations, limited tolerance is shown in order to protect the public interest.

5.2. Regional Administrative Court Decisions

Regional Administrative Courts, particularly in matters such as the cancellation of zoning plans, licenses, and tender processes, thoroughly evaluate objections regarding lack of jurisdiction and may issue reversal decisions on procedural grounds.

🔹 Istanbul BİM 3rd Administrative Court, Case No. 2022/2744 E., Decision No. 2023/1987 K.:

"The fact that the tender commission's decision was made by the mayoral unit instead of the municipal council is a clear usurpation of authority."

6. THE CONNECTION BETWEEN THE CONSTITUTION AND THE RULE OF LAW

Article 2 of the Constitution regulates the principle of the "rule of law." This principle obliges all actions of the administration to be based on law. Usurpation of authority is a clear violation of this principle and therefore constitutes a violation not only of the individual but also of public order.

In its rulings on individual applications, the Constitutional Court has found violations of fundamental rights due to unauthorized actions

🔹 Constitutional Court, Case No: 2014/18734, Decision Date: 24.05.2017:

"The administrative act, being taken without legal authority, has resulted in a violation of the right to a fair trial and the principle of the rule of law."

CONCLUSION

Delegation of authority in administrative procedures is a legitimate tool that enables the administration to effectively utilize its functions. However, there are limits to the use of this authority

• The authority can only by bodies defined by legal regulation .

• Delegation of authority is not permitted in matters requiring discretionary power.

• Expanding authority is only possible with a clear legal basis and under exceptional circumstances.

• In cases of abuse of authority, the action is null and void or subject to cancellation and is contrary to public order.

Therefore, administrative law experts and public officials must pay utmost attention to the issue of authority when carrying out transactions. Otherwise, the annulment of the transactions and the resulting public harm will be inevitable.