Constitutionality Review

25/3/2022
Press Release No: Constitutionality Review 19/22
Press Release concerning the Decision Acknowledging that Holding a Public Office Falls under the scope of the Right to Acquire a Public Office
The Constitutional Court, at its session dated 11 November 2021, found constitutional and dismissed the request for annulment of Additional Article 30 of Law no. 2547 on Higher Education (file no. E. 2021/104). |
Contested Provision
It is stipulated in the contested provision that the status held by those who have been appointed as a research assistant pursuant to Article 33 of Law no. 2547 through the Program for Training Lecturers (“Program”) shall be transformed into the research assistant status, which is set forth in Article 50 of the same Law, without any further action being taken.
Ground for the Request for Annulment
It was maintained in brief that the contested provision, whereby the status of those appointed as a research assistant under the Program pursuant to Article 33 (a) of Law no. 2547 was transformed -without any justified ground being relied on- into the status regulated in Article 50 § 1 (d) of the same Law, which was offering less assurance, was unconstitutional as it resulted in the setting-aside of the acquired rights of those concerned through the statutory provisions having retrospective aspect.
The Court’s Assessment
Determination of the Scope of the Right
In its decision in this case, the Court has re-constructed the right to acquire a public office enshrined in Article 70 of the Constitution and adopted an approach that has broadened the scope of the right. The Court’s assessment in this respect is as follows:
In Part Two, Chapter Four of the Constitution, Article 70 titled “IV. Right to acquire a public office” lays down that “Every Turk has the right to acquire a public office”. It thus enshrines the right to hold a public office. Given the wording of the provision, it may be said that the right enshrined therein is limited merely to the initial acquisition of a public office. However, in order for the full and proper determination of the scope of that right, the relevant paragraph should be interpreted in consideration not only of its wording but also of the relevant legislation embodying it as a whole. The relevant part and chapter under which the given right is laid down and its relation with other provisions should also be taken into consideration. Its aim should be clarified, and it should be interpreted in line with this aim. Besides, how the relevant right was formulated in the former constitutions should be considered in the interpretation of the relevant paragraph.
The facts that the notion “employment” was used instead of “acquisition” of a public office in the Constitutions prior to the 1961 Constitution and that the declaration of assets laid down in Article 71 of the 1982 Constitution is necessitated not only during the initial acquisition of a public service but also during holding the public office point out that the holding/the continued exercise of a public office also falls under the scope of the right to acquire a public office.
As a matter of fact, it is explicitly set forth in certain international conventions that the right to acquire a public office also covers the holding/continued exercise of the public office. In this sense, in the United Nation conventions, the right to acquire a public office is enumerated among the political rights (right to political participation) consisting of the right to elect and stand for elections as well as the right to participate in the management of public affairs of the country. It cannot be considered that the right to acquire a public office, afforded to citizens as a political right under the scope of the right to participate in the management of public affairs of the country, excludes the involvement in the performance of public services. It is a requisite stemming from the very nature of the right. The interpretation that the right to hold a public office merely includes the initial acquisition of the public office but does not cover the continued exercise of public office makes this right no longer a political right that is the right to political participation. That is why a given right which merely assures the initial acquisition but not the continued exercise cannot secure the involvement in the management of public affairs. The right to political participation requires continuity at least for a certain period, thus the continued holding of the given status. Therefore, also in consideration of the way how it was formulated in 1924 and 1964 Constitutions and through the methods of systematic and teleological interpretation, it has been concluded that the right to acquire a public office safeguarded by Article 70 of the Convention also covers the continued exercise of the public office.
Review of the Contested Provision within the context of Article 70
In that case, it appears that the transfer of the research assistants employed through the Program from their initial status set forth in Article 33 to the status regulated in Article 50 and their subsequent dismissal from office after having served in the latter status -to which they had been transferred- for one year or a few years impose a restriction on the justified expectation that they have for having initially acquired the status set forth in Article 33, thus limiting the right to acquire a public office.
The restriction was introduced through the Decree-Law no. 674 adopted under the state of emergency, and the contested provision was enacted by Law no. 6758. As the provision is intended for the elimination of threats or dangers underlying the declaration of state of emergency, was applied and bore consequences during the state of emergency and is related to the right to acquire a public office, it is evidently an arrangement introduced under the state of emergency.
The provisions of such nature should be assessed primarily under Article 13 of the Constitution which lays down the regime as to the restriction of, and the safeguards to be offered with respect to, the fundamental rights and freedoms in ordinary times. In this sense, it has been observed that the contested provision has been introduced so as to maintain national security and public order by means of preventing the continued performance of the acts and actions underlying the state of emergency and the related dangers. The impugned restriction, namely the change made in the status of the research assistants employed under the Program with a view to maintaining national security and public order by eliminating the threats and dangers resulting from the coup attempt and the subsequent events, was found to be suitable for achieving the aim pursued. However, it has been concluded that the requirement of necessity for the impugned restriction was not fulfilled due to the implementation of the status change not on an individual but on a collective basis in a way that would also hinder the right of litigation, in the absence of any legal or actual necessity in an ordinary period where there is no system change.
In this regard, the contested provision imposing a restriction on the right to acquire a public office, in an ordinary period, to the extent going beyond the safeguards enshrined in the Constitution was examined under Article 15 of the Constitution whereby the fundamental rights and freedoms may be suspended or restricted in times of emergency.
The right to hold a public office is not among the core rights that cannot be suspended or derogated even in times of emergency. Accordingly, the proportionality assessment under Article 15 of the Constitution must be made in terms of the requirements of necessity and commensurateness.
In view of the capability and struggle of the Fetullahist Terrorist Organisation and/or Parallel State Structure to infiltrate into universities, as is the case for all public institutions and organisations, the public authorities’ preference to take a step on a collective basis, without ensuring individualisation, in order to swiftly apply the necessary measures for the elimination of the danger underlying the declaration of the state of emergency without any delay was considered necessary for achieving the aims of maintaining democratic constitutional order, national security and public order. In other words, the recourse to such measure under the conditions of state of emergency cannot be said, in terms of the requirement of necessity, to go beyond the extent strictly required by the exigencies of the situation.
Although the provision restricts the right to hold a public office by means of transferring the research assistants employed under the Program to a status offering less assurance, the research assistants are provided with the opportunity to be entitled to reinstatement to their former status, save for certain exceptions, pursuant to Provisional Article 78 § 5 added to Law no. 2547 by Article 15 of Law no. 7143. It is thus evident that a statutory arrangement has been introduced for the redress of the consequences resulting from the contested provision. Thereby, as those whose status was changed not on an individual basis have been reinstated to their former status and ensured to re-acquire their rights and as the compelling and unexpected conditions that may give rise to the implementation of such exceptional methods in extraordinary times must be also taken into consideration, the Court has concluded that the restriction imposed on these persons due to the contested provision was commensurate and thus proportionate.
It has been also observed that by virtue of the said provision, the research assistants dismissed from their office for being unsuccessful, failing to complete postgraduate education or having relation or link with the terrorist organisations were not reinstated to their former position or status. There is no obstacle before those whose requests for reinstatement have been dismissed to have recourse to the respective administrative and judicial remedies. Accordingly, although the contested provision has given rise to the change of the relevant officers’ positions not on an individual basis, these officers have been indeed enabled, through the subsequent statutory arrangement, to have recourse to effective administrative and judicial remedies against the denial of their reinstatement. It has been therefore observed that the contested provision has imposed a disproportionate restriction under the state of emergency neither in respect of these officers. That is because in circumstances where the impugned measure must be assessed as a whole as is the case here, the individualisation requirement may be considered to have been fulfilled by subsequently setting up effective administrative and judicial remedies against such measures, also in view of the compelling and unexpected conditions likely to give rise to the application of such exceptional methods in times of emergency.
Consequently, the Court has found the contested provision constitutional and accordingly dismissed the request for its annulment.
This press release prepared by the General Secretariat intends to inform the public and has no binding effect. |