Consolidating Legislative Immunity and Eliminating Unlawful Actual Immunities – Our Request and Suggestions

“As stated in Article 10 of the Constitution, in a state of law everyone is equal before and under the law, and no one is superior to the law. However, as is clearly seen in the examples given above, the restrictions and conditions imposed on the proper functioning of the law are so heavy and so bound by certain personal decisions and discretion that the law is rendered incapable of functioning unencumbered, and the top echelons of public administrations are protected by actual immunities and exemptions. Unless effective accountability is established in public administrations, it is entirely in vain to expect the judicial and other state forces and organs to be used democratically and in full compliance with the law. Accountability for the public administration through the supremacy of law is the primary step required to be taken so as to become an advanced democracy.

It is obvious that to make the investigation of personal or job-related offences and crimes of public servants subject to the prior consent or permission of their own institutions or hierarchical superiors is contrary to the fundamental provisions of the Constitution, the Republic, the principles of state of law, the rule (supremacy) of law and equality, and human rights. Article 129(5) of the Constitution is only one of the special provisions contradictory to said fundamental provisions of the Constitution. In the simplest terms, this provision contradicts Article 9 and Article 138 of the Constitution, relating to the independence of the courts. Thus, laws issued in reliance upon this contradictory special provision, and which even partially exceed the scope of the provision, also contain certain contradictions with fundamental principles of the Constitution. Both these contradictory provisions should be separated, special provisions should be made compliant with the fundamental principles of the Constitution and the contradictions of certain laws with said fundamental principles should be eliminated.

A legal measure that first comes to mind in order to solve this problem is to issue and enact a General Administrative Procedures Code to set down how public servants and the executive organ will perform and fulfil their managerial duties and, thus, strengthen the decision-making and accountability of public servants and officers. Through such a law, not only will public servants be facilitated to make decisions compliant with the law but the instructions of the executive organ may also be assured to be in compliance with laws. If bureaucrats are strong in terms of compliance with the law they will also hold strong against political executives, and this may in turn further develop compliance with the law in state governance as a whole.

Within the framework of the General Administrative Procedures Code, the processes of performance of public services, each stage of the process, and the duties and obligations assigned to the related parties and public servants at each of these stages, should be clearly and fully set forth, and public servants should be accountable for the performance of their job duties and functions, as required.

For instance, in what time frame and how a public servant will perform and complete their job duties should be determined, and the public servant should be accountable for the performance of these duties and functions to both their institution and the related parties affected thereby. At present, the law provision stipulating that if an application by a related person is not answered within 60 days the demand will be deemed to have been refused does not fulfil the needs of our day. As for public servants, these periods of time should be limited to a reasonable time as needed for the relevant work, while the term of litigation concerning the related person should be kept as long as possible. For instance, a petition to fill in a pothole in a street should be satisfied and fulfilled within three days, and the complainant should be entitled to exercise his legal rights and remedies after three days. “

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Türkiye Cumhuriyeti Kamuoyuna

31 Ağustos 2022

2022-2023 Adli Yılı Başlangıcı Vesilesiyle Basın Bildirisi