Council of State
I. COUNCIL OF STATE (ŞURA-YI DEVLET) DURING THE OTTOMAN EMPIRE
I.I. Foundation of the Council of State
Council of State was transformed from the "Supreme Council for Judicial Regulations (Meclis-i Vala-i Ahkam-ı Adliye)". The Supreme Council was established during the reign of Mahmut the Second, developed after the declaration of the "Noble Edict of the Rose Garden (Gülhane Hatt-ı Hümayunu – Tanzimat Fermanı)" but later divided, according to the duties conferred upon them, into two councils following the Crimean War. One of those councils was called the "Supreme Council of the Reforms (Meclis-i Ali-i Tanzimat)", while the other maintained the name of the "Supreme Council for Judicial Regulations". The former council was responsible for drafting legislation related to the clauses of the "Reform Orders (Islahat Fermanı)", while the latter was to be involved with those matters implied by its name.
Acting upon the unrest in the Ottoman Empire during the last year of the reign of Abdulmecit, the British Ambassador in İstanbul put pressure on the "Sublime Port (Bab-ı Âli)" with a memorandum about his recommendations on the application of the "Reform Orders". In the memorandum he was proposing the establishment of a new council having both advisory and executive duties as well as judicial functions but primarily responsible for the supervision of the implementation of reforms. This proposal was seriously taken into consideration by the Sublime Port, thus the two bodies were merged in 1861. Seven years later, it was split up again into two councils for the second time, the first council was called the "Council of State (Şura-yı Devlet)" and the second the "Board of Judicial Regulations".
I.II. Developments Leading to the Foundation of the Council of State
The circumstances leading to the foundation of the Council of State can be outlined as follows: 1. French Influence; 2. Activities of the Young Ottomans; 3. Observations of Ali Pasha during his duty at Crete.
Bab-ı Âli after 1861 acted parallel to the French approach during reforms. In 1867, France introduced a significant change in the political regime of the country. Napoleon the Third was frightened that the people would turn against him and that the opposition in the parliament would criticize him strongly so he transformed the authoritarian empire system into a liberal one. This transformation in France had a great and immediate effect on Bab-ı Âli. The French Ambassador in İstanbul, Monsieur Bourrée, was a close friend of Ali Pasha. He suggested to the Grand Vizier that the Ottoman administration should be strengthened with liberal organizations. He also recommended that a council like the Conseil d’Etat of France should be established to represent the Muslim and Christian in a common body.
At around the same period, a strong opposition, creating publicity especially in Europe had come into stage in the Ottoman Empire against the chaotic administration of Bab-ı Âli. This opposition was led by the Young Ottomans and drew attention to the weakness of the Ottoman administration. The reform measures recommended by Ziya Pasha of the Young Ottomans emphasised the establishment of a Council of State.
There is no doubt that such proposals and recommendations became quite impressive on the Grand Vizier Ali Pasha. While in Crete, trying to suppress the upheavals on the island, he decided that there should have been some vital changes in the Ottoman administration and later presented his views on the subject to İstanbul in a written statement.
In his statement Ali Pasha pointed out the history of all struggle for freedom since the French Revolution in Europe and mentioned the relations between the state and its subjects in view of rights and freedoms. He explained them as follows:
"The fundamental duty of a state or government is to secure the rights of everyone and to ensure the fulfilment of their duties as subjects in the best manner. The new ideas spread increasingly every day throughout the world can be summarized as follows: Everybody is equally free in each respect, everyone has the right to express their opinions regarding the interest of the society which they belong to, the form of government should be in conformity with the will of its subjects, everyone is equal as to religion and social status, there shall be no discrimination or privilege in anyway or in any level, all public services are open to everybody depending on merit and remuneration. These principles are observed by all the states in Europe nowadays. The terms such as ‘Catholic, Protestant, Jewish or Atheist’ are completely forgotten by the state, they are all equal regardless their religious beliefs and the public services are only for state and community interests."
At the end of his statement, Ali Pasha outlined the reforms which were prerequisite in the Ottoman Empire under the above-mentioned conditions:
"Reorganisation and extension of public schools as well as coeducation of Muslim and Christian students in the schools."
"Translation of the Civil Code in order to ensure the uniform application of law to the cases in various courts."
"Embracing all subjects regardless of their religion and sects as well as the removal of all hate and quarrel between them is the only suitable remedy for eliminating the dangers confronted".
Ali Pasha does not make any clear explanations about the Council of State in his statement. His explicit views, however, indicate that he could be in favour of the establishment of such a council. In fact, it is for this reason that the establishment of the Council of State became possible upon his return from Crete.
The Council of State was authorised to:
1. Draft and report all kinds of acts and regulations;
2. Decide within the scope of its competence on all kinds of territorial affairs;
3. Designate a body having jurisdiction in disputes between judicial and territorial authorities;
4. Reply the correspondence of government institutions on the existing laws and regulations by expressing its opinions;
5. Give authorisation to initiate proceedings for criminal offences allegedly committed by civil servants upon an order of the Sultan or in line with the laws of the state;
6. Express opinions on all matters referred to it by the Sultan or the ministers.
The Council also had the competence to review and approve the official reports of the provincial assemblies on the implementation of the reforms. Another Council composed of presidents of division and a member from each division was set up to convene in a special annual session in order to review the income and expenditure items of the general budget. Such issues were to be brought to the Council of State by the Office of the Grand Vizier and the reports pertaining to the decisions of the Council of State to be presented duly back to the Office of the Grand Vizier.
The Council of State was headed by the First President; the Secretary General was in charge to help the President in administrative affairs. Every division had separate presidents. Each division is composed of five to ten members. The President of the Council of State, the presidents of divisions and the Secretary General are all appointed by an order of the Sultan. Decisions are taken by secret vote in both the Plenary Assembly and the division meetings.
The Council was divided into five divisions which were in charge to carry out the various works referred to them according to their scope of competence specified below.
Division of Territorial and Military Affairs
Establishes and reviews the principles of application of those acts and regulations prepared by the institutions on territorial affairs and military (land, sea and police force) issues.
Division of Treasury and Foundations
Examines all issues regarding tax collection and state revenues and deals with matters related to general management of foundations.
Division of Act
Draft the Civil Code, Commercial Act and the Penal Code, as well as the regulations for the courts with regard to the application of acts. Reconciles the disputes between the territorial and judicial authorities.
Division of Reconstruction, Commerce and Agriculture
Discusses the issues related to these services and duly reviews any contracts and conditions under which concessions are granted.
Division of Education
Reviews the issues related to the educational institutions of the state.
A modification was made to the structure of the Council of State on 6 May 1869. According to this the Division of Territorial and Military Affairs and the Division of Education were merged in one called the Division of Territory and Education. In addition, a new division was established as the Division of Judgments to be the body for all judgments pertaining to the Council of State administratively. With a Decree published on 15 February 1872, the number of divisions in the Council of State was decreased to three: The Division of Judgments, the Division of Reforms and the Division of Internal Affairs.
The Council of State was inaugurated with a big ceremony on 10 May 1869. Sultan Abdulaziz was present at the ceremony and expressed the importance of the Council of State in the following statement:
"Respect for each act can only be possible if it is appropriate for the overall public interest. In the past there were a lot of acts enacted for the interest of the country, but in our times it is not possible to benefit from the same acts any more. In fact, we would have been able to follow the ongoing improvements if our legislation had met the needs of our people, then we would have been among the most civilized and well-administered states of Europe.
The new organisation is based on the principle of separation of executive, judicial and legislative powers. The members of the Council of State should regard the Ottoman Empire as a council that is responsible for assuring unity within the society, ensuring the welfare of the people and the development of the educational system which are the most significant duties to be fulfiled.
No matter which sect or religion they have, everybody is equal before law, as the citizens of the same country. Conflicts of sects should not separate the Ottoman citizens. Everyone is free in religious beliefs and convictions.
I hereby declare that it is my utmost duty to announce the main principles governing the rights of everyone and guiding my opinions and objectives and befitting the existing requirements."
I.VI. The First President and Members
The first President assigned to the Council of State was Mithat Pasha. He was honest, straightforward and free-minded. He was sincerely devoted to the idea of reforms. A total of 41 members were assigned to the Council of State in one year as of its establishment. Out of the total, 28 were Muslims, while 13 belonged to other religions or sects – like 4 Greeks, 1 Bulgarian and 8 Armenians – from various communities.
I.VII. Reactions Against the Foundation of the Council of State
If analyses its duties, organisation and significance as mentioned in the inauguration speech of Sultan Abdulaziz, one can find out that the Council of State displays more or less the characteristic of a national council. In fact, it was the first time that such an institution has existed in the Ottoman administrative system.
The establishment of the Council of State was welcomed by the Ottoman citizens. The spiritual leaders of the Christian communities visited the palace and expressed their gratitude to the Sultan. In a speech performed in the presence of the Sultan, the Sheikhulislam indicated that the Sultan displayed an extraordinary wisdom in establishing the Council of State, thus gained appreciation of the communities and this elevated him to a much higher rank than all the previous Sultans of the Empire. There were other demonstrations in Pera (Beyoğlu), İstanbul and at various locations within the Empire.
On the other hand, there were some negative reactions as well as the positive ones mentioned. Extremist Muslims condemned the inclusion of the Christians in state affairs. Some of the Young Turks in Europe did not approve this development. Ziya Pasha openly criticised the presence of Christian members in the Council of State. As a matter of fact, the ambassadors of some European countries in İstanbul complained that there were not adequate numbers of Christian members in the Council. Indeed, they requested that a couple of European experts be assigned to the Council of State at least in the initial stage.
Ironically, even the Grand Vizier Ali Pasha who had worked so hard to establish the Council of State, began to think that the Council is an obstacle to his activities, particularly when he could not convince Mithat Pasha, the President of the Council of State, that the railway privileges should have been given to foreigners in the Empire. It was after this controversy that, on the advice of his good friend Monsieur Bourrée, the French Ambassador, Ali Pasha dismissed Mithat Pasha from the Presidency of the Council of State. From then on, special care was taken in assigning the president and members to the Council of State among persons who would implement the orders of the Grand Vizier. For this reason, the Council of State was not being of any value in its early years. It was even called the "Council of Yes", due to its obedient attitude.
All of these positive and negative reactions to the establishment of the Council of State stemmed from official bodies or representatives. The Council of State, like any other new institution, was bound to be in line with the principles of evolution when establishing its traditions and gaining its personality. Undoubtedly, however, this was a matter of time.
II. COUNCIL OF STATE (DANIŞTAY) DURING THE REPUBLIC
II.I. Period of the 1924 Constitution
The Council of State which had developed into, to a large extent, an advisory and examining body during the Ottoman Empire, was duly abolished like all other organisations of that era on 4 October 1922.
During the Independence War and following the first years of independence the duties undertaken by the Council of State by various laws were carried out by a special committee within the Grand National Assembly. Ultimately, need for a Council of State so strongly was felt that Article 51 of the 1924 Constitution ordered the establishment of the Council of State once again.
The Council of State was reestablished by Act No.699 enacted on 23 October 1925. The President and the members of the Council of State were not elected until 23 June 1927, which meant that the Council of State could not actually start working until 6 July 1927. At this time the Council of State was composed of four divisions, one being judicial division and the other three being administrative divisions (the Division of Reforms, the Division of Territorial Affairs and the Division of Finance and Public Affairs).
Later on, variety of actions filed before the Council of State necessitated an increase on the numbers of divisions. Accordingly, with Act No.1859, enacted on 27 July 1931 by the Grand National Assembly, a second judicial division was duly established.
Even the amendments in Act Nos. 669 and 1859 did not meet the requirements which became clear by time. Consequently, the new act for the Council of State, Act No. 3546, was enacted on 30 December 1938, which also modified the name of "Şura-yı Devlet" to "Devlet Şurası". In addition, the names of the divisions responsible for administrative affairs (Divisions of Reforms, Territorial Affairs and Finance and Public Affairs) were repealed. The five divisions of the Council of State with both administrative and judicial responsibilities were then named by numbers respectively.
The number of administrative actions was only 1500 in July 1927, but this figure increased to 7000 by 1935; moreover 41.300 suits were filed during the eight year period following the enactment of Act No. 3546. Unavoidably, the number of judicial divisions was increased to three and the total number of divisions to six with the enactment of Act No. 4904 on 27 May 1946.
During the 50’s the workload of the judicial divisions increased enormously because: (1) new legislation relating the municipalities, reconstruction, resettlement and land distribution to farmers were introduced and under the tax reforms new tax acts were passed; (2) the responsibility of assigning and promoting teachers were given to the Council of State with new provisions inserted in the existing acts; (3) issues regarding personal rights of military staff were transferred from the jurisdiction of Military Court of Appeals to the Council of State; (4) modifications in acts necessitated new regulations for their implementation, (5) statutes of associations were to be ratified by the Council of State, (6) the number of municipalities in the country increased rapidly, and the obligations assumed by the public administration multiplied. Consequently by the end of the 50’s, the Council of State was no longer able to cope with all this heavy burden of work. A further enlargement was necessary; thus Act No. 7354 was enacted on 22 June 1959 to ensure the enhancement of the organisation and the improvement of its efficiency, by increasing the number of judicial divisions to a total of five and the administrative divisions to four.
II.II. Period of the 1961 Constitution
The 1961 Constitution is based on the principle of separation of powers and abolished the monopoly of the legislature in exercising the right of sovereignty on behalf of the Nation. With this new Constitution, the Council of State (Danıştay) which renders judgments on behalf of the "Turkish Nation", was empowered with jurisdiction peculiar to itself as one of the constitutional institutions that are entrusted with the right of exercising national sovereignty. The 1961 Constitution states that the act governing the Council of State, as one of the supreme courts, must be in conformity with the principles of autonomy of the courts and independency of the judges. Act No. 521 was passed in accordance with the Constitutional principles and came into force on 31 December 1964.
The new act on the Council of State brought on a significant development in the field of judicial review of administration. The related articles of the Constitution and the Council of State Act No. 521, paved the way for judicial review over all kinds of acts and actions of the administration. It can be regarded as one of the cornerstones of the establishment of a state governed by the rule of law. Act No. 521 created enormous changes in the organisational structure of the Council of State; and, on the other hand, it increased the number of judicial divisions (12) to clean the accumulated work and to avoid further clogging in the divisions.
Act No. 1740, enacted on 18 June 1973, amended the Act No. 521 according to the modifications made in Article 140 of the 1961 Constitution in 1971.
Act No.2324 on the Constitutional Order that was enacted on 27 October 1980 and became retroactively effective as of 12 September 1980, imposed some limitations on the scope of the administrative justice. Section 4 of the said act lays down the rule that the decisions adopted by the National Security Council and/or the Council of Ministers and joint decrees (a special decree signed by the minister concerned, the Prime Minister and the President) enacted after 12 September 1980 or to be enacted in the future, may not be challenged before the courts, neither their stay of execution be ordered.
Section 5 of the said act also stated that: "There cannot be any recourse to annul and/or delay the execution of the decisions and proceedings applied on civil servants by a minister or authorised representatives of the ministers after 12 September 1980".
II.III. Period of the 1982 Constitution
The present organisation of the administrative judicial system is based on two acts passed in 1982: Council of State Act No. 2575, and Act No. 2576 on the Constitution and Functions of the District Administrative Courts, Administrative Courts and Tax Courts. The reform was completed; however, by a third act on procedure of administrative justice that has binding effect on the whole administrative actions and that became effective on the same day 20 January 1982. This was the Act No. 2577 on Procedure of Administrative Justice. These three acts were then amended by various acts.
Following this reform, the jurisdiction of the Council of State as the court of first instance was transferred to the lower level courts. However, the Council of State maintained its power as a trial court for those limited number of cases specified in Act No. 2575.
The new system was inserted in the 1982 Constitution that became effective ten months later than the said acts.
According to Article 125 of the Constitution, all acts and actions of the administration, except the acts of the President in his own competence, the decisions of the Supreme Council of Judges and Public Prosecutors and the Supreme Military Council, shall be subject to judicial review.
Prepared by Namık Kemal Ergani
This part is a quotation from the book called “Osmanlı Tarihi (The Ottoman History)”, Vol. VII titled as <Islahat Fremanı Dönemi (Reform Orders Period)>, 1861-1876, by Prof. Dr. Enver Ziya Karal