Co.Co.A.
Comparing Constitutional Adjudication
A Summer School on Comparative Interpretation of European Constitutional
Jurisprudence
2nd Edition - 2007
Constitutional Rights of Local Government
Turkey
The Constitutional Protection of
Local Governments
Prepared by: Bahadir Kilinç
The Summer School on
Comparative Constitutional Adjudication
“THE CONSTITUTIONAL PROTECTION OF
LOCAL GOVERNMENTS”
by
BAHADIR KILINÇ
Rapporteur Judge of the Turkish Constitutional Court
TRENTO UNIVERSITY
TRENTO - ITALY
2007
I. BASIC PRINCIPLES OF THE TURKISH ADMINISTRATIVE SYSTEM
Before dealing with the essence of the subject, I would like to remind some major
principles, derived from the Constitution, prevailing in the Turkish administrative
system which may facilitate the perception of constitutional protection of local
governments.
The Turkish administrative system is based upon certain fundamental principles
stated in the Constitution of 1982. The fundamental legal and political cornerstones
of the Turkish State are set forth in Articles 1-17 of the Constitution. Due to time
constrains it is not possible to review all these principles in detail, but considering
them in our mind will help us to understand how the central and local administration
may function properly in Turkey. I assume that the first five principles are well known
by the constitutional jurists and I would like to comment briefly on the indivisibility of
administration and judicial review by administrative courts.
1. Constitutionality and legality of the acts and actions of administration
Article 8 of the Constitution reads “Executive power and function shall be exercised
and carried out by the President of the Republic and the Council of Ministers in
conformity with the Constitution and the law.” The principle of legality expressed in
Article 8 and other provisions of the Constitution means that “apart from directly
applicable provisions of the Constitution, the administration must be empowered by
law and cannot take upon itself a field of activity without legislative authorization.
Besides, Article 6 of the Constitution stipulates that no person or agency shall
exercise any state authority which does not emanate from the Constitution.
2. The rule of law
Art.2 of the Constitution describes the Turkish Republic as a State of Law, namely a
state obidient to the rule of law.This concept represents a common ideal for all free
democratic societies.Although its content may vary in different countries, we can say
that guarantee of human rights and freedoms, separation of powers and judicial
control of public administration are the most common denominators
3. The principle of Social State
Like rule of law, social state is also difficult to define, but we can define broadly that
the State which provides, at least, minimum standards or every citizen to lead a life in
dignity and develop his/her material and spiritual resources
4. Intervention of State in the economic field
The Turkish economic system is based on a combination of the freedom of private
enterprise and state intervention aimed at economic development
5. Secularism
Although there is a huge Turkish literature on the roots, meaning, practice of this
concept, we will just quote the bare and bold meaning of this principle in
administrative law.
This principle means, neutral position before any religious
denomination on the part of administration.
6. Indivisibility of Administration
The Turkish administration is built upon the principles of both centralization and
decentralization. Two separate branches of the same unit constitute a single piece,
the administration. According to Article 123 of the Constitution, the unitary character
of the Turkish state which means that in terms of organization and functions, the
central agencies and geographically and functionally decentralized agencies and
institutions form a whole. Unity and indivisibility of shall be secured through central
government and its power of review over the acts and organs of the decentralized
institutions.
I would like to remind by this occasion that federalism has never been a peculiarity of
Turkish administrative structure. Although different examples of autonomous
administration systems were experienced from the Central Asian period to the
Republic, Turkish state tradition has always guarded the unitary state principle
7. Judicial Review by Administrative Courts
The principle of rule of law requires judicial review of the activities of the
administration (Articles 125, 155 and 157). The conflicts between the administrative
institutions and individuals are, to the extent that are governed by administrative law,
shall be resolved by administrative courts specialized in administrative law
II. ADMINISTRATIVE ORGANISATION OF TURKEY
ADMINISTRATION
Central administration
Ministrries,agencies etc.
Decentralized administration
Provincial Branch of
Central Administration
Functionally decentralized administration
Provinces (81)
Geografically decentralized administration
(Local Administrations)
Subprovinces
Districts
As you see above, the administration in Turkey is composed of two main branches:
The central administration and the decentralized administration. As a result of being
unitary state, the central administration in Turkey is the core of the administrative
organization, both in structural and functional aspects. The decentralized
administration which functions under the administrative tutelage of the central
administration is divided into two parts: local administration and functionally
decentralized organizations.
The Government or the Council of Ministers appointed by the President and acting
with the confidence of the Parliament is at the head of the central administration. The
Prime Minister is the head of both the Council of Ministers and the Administration.
A. THE CENTRAL ADMINISTRATION
The Central administration is composed of central departments (ministries, National
Security Council, the Council of State, the State Planning Organization etc.) in
Ankara and provincial administration all over the country and overseas. Art 126 lays
down the essentials of the provincial branch of the Central administration as follows
“Turkey, on the basis of geographical situation, economic conditions and public
service requirements, is divided into provinces and provinces are further divided into
lower steps of administrative districts.”
B.THE DECENTRALIZED ADMINISTRATION
Although central administration has been and is the core of administrative structure,
however the principle of decentralization is being increasingly applied. This is mainly
due to the proliferation of public needs, increasing importance of specialization and
last but not the least, due to local autonomous administrative units meeting various
local public and common needs.
The decentralized administration is divided into local administrations and functionally
decentralized organizations.
Functionally decentralized organizations are functionally separated and independent
from the central organization and most of these organizations offer countrywide
public services and have large budgets. Public services carried out by functionally
decentralized organizations expand to various fields and the structures of these
bodies also vary. Their activities may be social, economic, commercial cultural or
scientific in nature. This variation is also seen as regards their autonomy, their
supervision their budgetary system and legal regime. For example; universities
(Art.130), General Directorate of Foundations, General Directorate of Highways,
Radio Television Administration (Art.133) are accepted as functionally decentralized
organizations and they differ from each other on the points mentioned above.
As regards the local administration, as you see, Article 127 of the Constitution has
foreseen 3 kinds of local administration: provinces, municipalities and villages.
III. LOCAL ADMINISTRATIONS AND THEIR CONSTITUTIONALLY PROTECTED
RIGHTS
As regards the local administrations, the Constitution outlines the basic principles and
rules governing local administrations in Article 127 of the Constitution:
1. Local administrative bodies are public corporate entities established to meet
the common local needs of the inhabitants of provinces, municipal districts and
villages.
2. Their establishment and structure are determined by law.
3. Decision-making organs of local administrations are elected (by free elections,
secret ballot, universal suffrage) as described in law.
4. The formation, duties and powers of the local administrations shall be
regulated by law in accordance with the principle of local administration.
5. The elections for local administrations shall be held every five years in
accordance with the principles set forth in Article 67.
6. Special administrative arrangements may be introduced by law for larger
urban centers (Metropolitan Municipalities)
7. The procedures dealing with objections to the acquisition by elected organs of
local government or their status as an organ, and their loss of such status,
shall be resolved by the judiciary.
8. The formation of local administrative bodies into a union with the permission of
the Council of Ministers for the purpose of performing specific public services;
and the functions, powers, financial and security arrangements of these
unions, and their reciprocal ties and relations with the central administration,
shall be regulated by law.
9. Local administrations shall be allocated financial resources in proportion to
their functions.
IV. SELECTED JUDGMENTS OF THE CONSTITUTIONAL COURT
Before reflecting the judgments of the Constitutional Court, I would like to put an
important point under consideration of the participants of the summer school. In
2004-2005 the Government introduced 3 laws on duties, powers and incomes of the
local administrations. The aim of the Government was better realizing the principle of
subsidiarity, thus, leaving some public services and revenues into competence of
local administration. The main opposition party brought these laws before the
Constitutional Court requesting annulment. The Court approved most of the
provisions and annulled some provisions two months ago. The judgments are not
published yet.
1. Judgment of 28-03-2002, Registry No:2001/5, Judgment No:2002/42
(published in the Official Gazette on 5.9.2002, No:24867)
Although our main focus at the summer school is the protection of the rights of the
local administrations, in this first case, there is a conflict between a fundamental right
and a right of a local municipality, namely collecting participation fees.
The Ninth Chamber of the Council of State (the High Administrative Court) applied to
the Constitutional Court claiming that the last paragraph of Article 89.a of the Law on
Municipal Revenues was contrary to the Constitution. The challenged provision
provides: "In order to bring an action against municipal participation fees, it is
compulsory to pay half of the fees".
The challenged provision requires taxpayers to pay half of the imposed participation
fees to the municipality in question before bringing an action. It is understood that the
reasoning of the challenged legal provision is that municipalities must be able to
collect the fees as soon as possible in order to accomplish their projects without
delay, to minimize the number of cases and to alleviate the burden on the courts.
However, according to Article 13 of the Constitution, fundamental rights and
freedoms may be restricted only by law and for the reasons mentioned in the relevant
article without infringing upon their essence.
The Constitutional Court concludes that requirement to pay half of the municipal
participation fees before bringing an action against a municipality is unconstitutional
in so far as it restricts the freedom to protect fundamental rights. In Article 36 of the
Constitution, the freedom to claim rights is regulated but no reasons of restriction are
mentioned in that article. For these reasons, the last paragraph of Article 89.a of the
Law on Municipal Revenues is contrary to Constitution. The aforementioned
provision was struck down.
2. Judgment of 28.01.2004, Registry No:2003/86, Judgment No:2003/86
(published in the Official Gazette on 6.11.2004, No:25635)
A group of deputies brought an action before the Constitutional Court alleging that
some provisions of Articles 6, 7 and 10 of Law no. 4969 were contrary to the
Constitution.
Article 6 of the amended Law no. 2389 governs the allocation of the general budget
tax revenues to local administrative bodies. According to Article 6, the current rate of
allocation of the general budget revenues to local administrations (6%) shall be
applied as 5% until the end of 2003. Article 7 amended the Law on Metropolitan
Municipalities and provided that the allocation of the general budget tax revenues to
the metropolitan municipalities shall be applied as 3.5% (currently 4.1%) until the end
of the year 2003. Under the last sentence of the last paragraph of Article 127 of the
Constitution, local administrative bodies shall be allocated financial resources in
proportion to their functions.
The Constitutional Court noted that, in order to remove the negative effects of the
reduced allocation rate to the local administrative bodies, "additional property tax" (a
kind of municipality tax) was introduced and some other precautions were taken by
Laws 4837, 4958 and 4811.
The Court considered that the determination of the rate of allocation of revenues to
local administrations from the general budget tax revenues is within the discretionary
power of the Parliament. The determination of the allocation rate of tax revenues to
local administrative bodies is therefore not contrary to the Constitution.