Introduction to Law Dersi 4. Ünite Özet

Introduction

In this chapter basic principles of Republic of Turkey and her administration will be examined. While doing that, constitutional history of Republic of Turkey will be briefly laid down and components of her will be explained. Afterwards, legal framework of Turkish Administrative Law with its principles will be set forth.

Constitutional Law

The main subject of constitutional law is the form and main organs of the State, structure and functions of State organs and fundamental rights and freedoms. Constitution is, among other rules, at the heart of Constitutional Law.

Basic Principles of Administrative Law

Administrative Law has distinct nature than the other branches of law. The reason of such is that Administrative Law has not yet been codified to date. As a result, there are no rules in a single document systematically governing procedures that must be conducted in administration or the functioning of Administrative Law as a whole. There exist few exemptions such as Law of Planning, Law of Procurement, and Law of Expropriation. Thus, development of Administrative Law is provided mostly by jurisprudence. However, it is highly important for the principle of Rule of Law and for good administration to have set of rules as administration functions and exists for the pursuit of public interest, carrying out public services, respecting fundamental freedoms and rights of individuals by following equality and proportionality and acting transparently for the impartial application of the law.

The principle of Rule of Law established under the Constitution would give clues on the principles of the Administrative Law.

The principle of Rule of Law includes:

• Fundamental Rights and freedoms shall be guaranteed by the State,
• Separation of powers shall be granted,
• Judicial review of acts, actions and activities of State shall be granted, including the Parliament and the administration,
• Independency and impartiality of the courts shall be provided,
• The acts, actions and activities of the State shall be done within the framework of laws,
• Responsibility of the administration shall be granted,
• The principle of “no offence and penalty without law” shall be granted,
• Democracy shall be granted.

With a view of the Rule of Law on the Constitution, firstly, it has to be noted that fundamental rights and freedoms are guaranteed under the Constitution. The nature of fundamental rights and freedoms have been set out in article 12 of the Constitution as the rights that everyone possesses are inherent, inviolable and inalienable. Regarding the regime of fundamental rights and freedoms article 13 sets forth that they may be restricted only by law and in conformity with the reasons mentioned in the relevant articles of the Constitution without infringing upon their essence. In addition, it is added that these restrictions shall not be contrary to the letter and spirit of the Constitution and the requirements of the democratic order of the society and the secular republic and the principle of proportionality. Besides, abuse of fundamental rights and freedoms have been prohibited in article 14 of the Constitution by stating that “(n)one of the rights and freedoms embodied in the Constitution shall be exercised in the form of activities aiming to violate indivisible integrity of the State with its territory and nation, and to endanger the existence of the democratic and secular order of the Republic based on human rights. No provisions of this Constitution shall be interpreted in a manner that enables the State or individuals to destroy the fundamental rights and freedoms recognized by the Constitution or to stage an activity with the aim of restricting them more extensively than stated in the Constitution.”

As regards for judicial review, judicial power is vested to independent courts according to article 9 of the Constitution. The formation, powers and duties of the courts and their functioning and trial procedure shall be regulated by law according to article 142 of the Constitution. As stated above, independence of the courts is guaranteed under article 138 of the Constitution; thus judges shall give judgments according to the Constitution, laws and their personal conviction conforming with the law while they do not get any orders from any organ or any individual. Their judgments are binding upon legislative and executive organs and administration. Security of tenure of judges and public prosecutors are also guaranteed under article 139 of the Constitution as accordingly they shall not be dismissed (unless they request), retired before the age prescribed by the Constitution, deprived of their salaries or other rights, even in the case of abolition of a court.

Seperation of Powers: Separation of powers refers to the vesting of powers of State in different bodies as legislative, executive and judiciary. In that sense, Turkish Constitution while conferring various functions to separate bodies of the State underlines in its preamble that “The separation of powers, which does not imply an order of precedence among the organs of the State, but refers solely to the exercising of certain state powers and discharging of duties, and is limited to a civilized cooperation and division of functions; and the fact that only the Constitution and the laws have the supremacy.”

Judicial Review: As regards for judicial review, judicial power is vested to independent courts according to article 9 of the Constitution. The formation, powers and duties of the courts and their functioning and trial procedure shall be regulated by law according to article 142 of the Constitution. As stated above, independence of the courts is guaranteed under article 138 of the Constitution; thus judges shall give judgments according to the Constitution, laws and their personal conviction conforming with the law while they do not get any orders from any organ or any individual. Their judgments are binding upon legislative and executive organs and administration. Security of tenure of judges and public prosecutors are also guaranteed under article 139 of the Constitution as accordingly they shall not be dismissed (unless they request), retired before the age prescribed by the Constitution, deprived of their salaries or other rights, even in the case of abolition of a court.

The principle of legality and statutes under administrative law:

One of the key features of the principle of Rule of Law is, as mentioned above, obligation of the State to act within the framework of laws namely the principle of legality of administration. As “law” is considered as a tool to protect individuals’ fundamental rights and freedoms, legality works as the basis of both framework and functioning of an administration. The principle of legality covers establishment and functioning of administration. As acting under the law, the administration shall use powers conferred upon it and shall have competence to act, shall have legal reason to act, shall be hold responsible and accountable and shall be transparent. All of these components would amount to the principle of legality of administration.

Organization of Administration in Turkey

The central administration and the decentralized administration are the main components of the Turkish Administration. Article 123/2 of the Constitution states that “(t)he organization and functions of the administration are based on the principles of centralization and decentralization.” Under that scheme, central administration consists of central departments and provincial departments, where decentralized administration consists of local administrations and functionally decentralized administrations. The basic principle governing administration in Turkey would be “integrity”. This means central administration and decentralized administration together considered to be one single unit. Article 123/1 of the Constitution underlines this character of administration as follows: “The administration forms a whole, with regard to its constitution and functions, and shall be regulated by law” Integrity shall be guaranteed by hierarchy within the same public legal personality, such as within a Ministry; and by administrative tutelage between central public legal personality and other public legal personalities, such as between ministries and municipalities. Hierarchy is administration means a system of officials ranked one above another in which the official above supervises the below by controlling acts and organs; while administrative tutelage is considered to be the control of the central administration over the acts and organs of the public legal persons. Under that scheme, it has to be mentioned that in the organization of administration public personnel is the core element in functioning of the State. Public personnel means persons employed by the State to fulfill public duties and exercise public power. Article 128 of the Constitution states as regards to public personnel that “The fundamental and permanent functions required by the public services that the State, state economic enterprises and other public corporate bodies assigned to perform in accordance with principles of general administration, shall be carried out by public servants and other public employees.”

Central administration of Turkey can be examined in two sections: central departments and provincial departments. Central departments are ministries and they are located in the capital city of Turkey, Ankara. The prime minister is the head of all ministries and prime minister is also located in Ankara. In every province, there is a governor who runs all the ministries’ work in his area.

Decentralized administration of Turkey: Centralized administration itself is not sufficient to provide the needs of individuals as the concept of public service (depending on public needs) has been evolving, especially when taking into account the local needs.

Judicial Review of Administration

The main function and raison d’être of the State is to pursue public interest on the basis of law by providing public services. As defined by the Constitutional Court, public service, in broadest sense, is the constant and regular activities aiming public interest and provided by administration itself or by private legal persons under the supervision of the administration in order to meet general and common needs of the society. It also covers law enforcement activities that is based on the notion of creating, maintaining and restoring public order, in sum entire rules directed to the order of the society in almost every field. Accordingly, the power, administration is entrusted with in order to satisfy common needs, is determined by law. While acting under the principle of legality to serve in public interest, administration is not free to act, rather it is bound by rules confining its power. Thus, administration is on the one hand restricted -by the principle of legality- and on the other hand exercises public power – having different nature and source than individuals’ subjective rights and which gives.

Administration is not free to act on its self-interest, rather it is entrusted with powers in order to realize public interest. According to the Constitutional Court, public interest aims at the “common interest distinct from and superior to and other than individual interest”. Therefore, administrative function as a whole has to observe public interest. While acting under public interest, the administration issues both general and abstract acts and individual acts. As regards to the general and abstract acts, the administration is exercising its rule-making power conferred to it especially by articles 115 and 124 of the Constitution. In that sense, for the implementation of laws, the Council of Ministers may issue regulations while the Prime Ministry, the ministers and public legal personalities may issue by-laws in order to ensure the implementation of laws and regulations. Other than that, the administration may issue general orders, circulars and other similar general and abstract acts in practice. As for the implementation of these general and abstract rules, the administration also issues individual and concrete acts, such as permits, licenses, etc. where it creates/changes/ abolishes statues in accordance with the law.

Judicial remedies: Law on the Procedure of Administrative Justice Introduces two types of remedies for disputes arising under Administrative Law; one being “action for annulment” and other being “full remedy action”. Article 2/1 articulates judicial remedies as follows:

• Action for annulment concerning administrative acts brought by persons whose interests is adversely effected by an administrative act alleged to be unlawful as regards to its components of competence, form, reason, subject and intention.
• Full remedy actions concerning administrative acts and actions brought by persons whose personal rights have been directly affected.
• Disputes arising out of contracts to carry out public services, except for the concession contracts for public services in which arbitration is decided.

Action for Annulment: In order for a person to sue administration under action for annulment he/she has to prove a link between him/herself and the administrative act that amount to an adverse effect on him/ her. Requirements of standing has been set out by jurisprudence as “personal”, “actual” and “legitimate”. In order for an administrative act to be subject to action for annulment such act both has to have executory nature and be final and be unlawful as regards to one or more of its components. Applicant of action for annulment would seek to annul the allegedly unlawful act and such annulment by administrative court would have retroactive effect.

Full Remedy Action: In order for a person to sue administration under full remedy action he/she has to prove that he/she is directly affected and incurred loss as a result of administrative act, action or contract. Full remedy action covers the liability issues of administration. In that sense, liability with fault (service fault) and liability without fault would be the bases of full remedy action.