Council of State claims share of executive arm with controversial rulings

The most recent ruling blocks a decision made by the Higher Education Board’s (YÖK) General Council to reduce the coefficient to 0.13 and 0.15 instead of the previous 0.3 and 0.8. With the ruling, the system will continue to make it more difficult for vocational school graduates to enroll in a university program of their choice. Some observers think that the Council of State has been stepping on the authority of the executive body with most of its decisions since the ruling Justice and Development Party (AK Party) came to power in 2002.

The Council of State has recently inflicted blows against government reforms and has reversed several amendments to national laws. The court, which is authorized to check whether an administrative action is in compliance with existing procedures, has allegedly overstepped its authority, reviewing its appropriateness in many cases. The council even occupies the jurisdiction of the Constitutional Court by checking whether administrative actions are compatible with the Constitution, which makes many think that the council has political motives in its decisions.

 “The judiciary is acting like a political body regarding solutions on political issues and makes decisions which exceed the boundaries of law,” says Professor Serap Yazızı from Bilgi University.

In fact, the Council of State’s coefficient ruling came in contradiction with one of its past verdicts. In August of last year, the council ruled that it could not interfere in YÖK’s domain, in the face of an appeal for the abolishment of the coefficient system. A lawyer applied to the council in May 2008 to have the coefficient system abolished. The council said, however, that it was up to YÖK to decide on the coefficient issue. The contradiction between this statement and later rulings has strengthened claims that the decision was politically biased.

Council of State acts against principle of division of powers

Honorary Supreme Court of Appeals President Ekrem Serim says there is “judicial tutelage” in Turkey, in particular when Council of State decisions are taken into consideration. “As far as I can see, the Council of State is constantly evaluating issues within the authority of administrative bodies. As such, two administrative authorities appear. It is carrying out an administrative check rather than a legal one. The court’s intervention in the decisions of the administration is at odds with the principle of division of powers. What we see now is that the sovereignty of the nation is in the hands of the Council of State and the Constitutional Court rather than Parliament,” he says.

Agreeing with Serim that the court is violating the principle of division of powers in most of its decisions, Jurists Union President Sinan Kılıçkaya says such decisions harm public trust in the judiciary. “The judiciary should make its decisions away from political and ideological approaches and be objective,” he says.

There have been several other recent controversial decisions by the Council of State. One controversial decision by the court was on İstanbul municipal authorities’ Metrobus fare price hike. The İstanbul Metropolitan Municipality Transportation Coordination Center (UKOME) raised Metrobus fares by 33 percent in November. However, the Council of State issued a stay of execution on the price hike, and prices have since returned to their previous levels. Although the decision was good news for İstanbulites, it still raised some concerns over the judiciary’s intervention even in Metrobus price hikes. “Wait a minute. If we put the judiciary in every field of daily life from bus fares to [municipal] building renovation projects, doesn’t this country turn into one that cannot be governed? As a matter of fact, don’t we witness chaos in every field of life because of that? You cannot see an incident similar to this one [the Council of State decision on Metrobus fares] anywhere else in the world. It is the municipalities who account for the decisions they made,” wrote Hürriyet daily columnist Mehmet Ali Birand in one of his recent columns to underline the court’s influence on issues within the domain of administrative bodies. Stating that it is the nation that should punish elected bodies, Birand says one can criticize the government but should not expect it to ask the judiciary about every step it plans to take and act in accordance with the decisions of the judiciary.