public law general introduction. public law governs the political authority of the state and...

Public Law

General introduction

Public Law

Governs the political authority of the state and regulates functions and structures of legislative, executive and judiciary.

It governs relationship between state&citizen; state organ&state organ; state& other states.

Sub-branches of Public Law:– Constitutional Law– Administrative Law– Criminal Law– Public International Law

Important Concepts/Principles of Public Law

1- State 2- Rule of Law State:

– Permanent population (size not important&nationality is enough)– Defined territory

Land territory Territory under water Air space

– Sovereignty Supreme authority Limitations because of int law---independence External and internal sovereignty

– Capacity to enter into relations with other states

Rule of Law (supremacy of law)(Hukukun Üstünlüğü)

Copenhagen criteria in EU membership (political criteria)

Political authority or the government in a country has powers to rule that country---these powers should be limited by law otherwise the protection of fundamental rights and freedoms of individuals will not be possible.

A political regime where there is a stable rule of law is called as “state of law” (Hukuk Devleti)

Rule of Law (supremacy of law)

There are some important elements which make rule of law applicable (possible) in a country (components of rule of law):– 1- Controling the state power

Judicial control of legality of administrative acts Other types of control

– 2- Judicial control of constitutionality of legislation

– 3- Independence of judiciary

Controlling the State Power

Judicial control of legality of administrative acts:– Judicial control of legality---”judicial review”– Each and every act of the administration in a

country should be subjet to judicial review Exp: expropriation and administrative courts Exp: Rejection of an application

– Arbitrary acts– Legality of the administration– Essential for the protection of human rights


Other Types of Control:– Checks and balances: legislative, executive and judiciary

exercises different and pre-determined powers of the state– This is generally defined by the Constitution. Each branch

of the government should be independent from each other (separation of powers). Moreover each of these organs must control the other and balance the possible excessive exercise of power of the other----this is checks and balances

– Legislative controls/balances by making laws, judiciary controls/balances by decisions (annulment/laws constitutional court) and executive by other ways (President---sending back a draft law for reconsideration)


– 2- Judicial control of constitutionality of legislation

See the chapter on “Constitutional Law”

– 3- Independence of judiciary Without such a qualification mere existence of

judiciary is nonsense

Some General Principles of Public Law

“Public interest” Right to property in ECHR and exceptions (see the next page) Private interests of the citizens may be sacrificed for the sake

of public interests. This is not the denial of private interest (you don’t deny the

right) “Public service”: “To make public services more appropriate---some rules which

apply to the activities of private domain do not apply to public activities---because “public interest prevails”

Right to strike for employees----but not for police and fireman (see the next page)

Europen Convention on Human Rights

Article 1 . Protection of property Every natural or legal person is entitled to the

peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

Europen Convention on Human Rights

Article 11 . Freedom of assembly and association 1. Everyone has the right to freedom of peaceful assembly and

to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.

Some General Principles of Public Law

“Public sovereignty”: State exercises its sovereignty through its organs-----powers are

exercised sovereignly by them Sometimes public organs have the chance to determine unilaterally

conditions of the relationship with citizens Citizens do not have the right to choose provisions and terms of

their relation with the state:– Exp: Public contract to build a new hospital---state determines the terms

beforehand and a firm can either accept and be part of the public procurement or not----but cannot bargain with the state

– Exp: A soldier cannot bargain the conditions he would live in when he joins the army

Food Color of the uniforms The Region that he will perform his duty

Constitutional Law

Determines:– Model of the state----Republic, federation, confederation, monarchy– Type of government-----Presidential + Parliamentary + Semi—

Presidential– Functions and structures of legislative, executive and judiciary– Basic rights and freedoms

Generally drafted by “constituent assembly” and put into effect through popular “referendum” (referendums or referenda)

– Exp: Transitional clause 1 (Azerbaijan Const-1995): Constitution of the Azerbaijan Republic comes into force after it has been accepted by referendum, from the day of its official publication. Constitution (Main Law) of the Azerbaijan Republic accepted on 21 April, 1978 becomes null and void from the day when the present Constitution came into force

– Exp: TRNC constitution (1983-1985)----Constituent Assembly

General Principles in Constitutions

In all constitutions there are some general/fundamental principles of that state (generally in the first part)

Nationalism:– Art.2 “Republic of Turkey is....a state....loyal to nationalism of Atatürk”– Art. 3 “The Turkish State, is an indivisible whole with its territory and

nation” Clear provision against “secession” based on ethnicity French Const: Art 2/1: “France is an indivisible, secular, democratic,

and social Republic” Nigerian Const:2/1 “Nigeria is one indivisible and indissoluble

sovereign state to be known by the name of the Federal Republic of Nigeria.

– Different type of nationalism Based on citizenship not on ethnicity “How glad to say I am Turk”, not “how glad to be...” Rejection of racism and irredentism


Democratic state:– You can find reference to “democratic state” in every constitution– In Turkish Const---there are two essential features of democratic

system in Const: Principle of free and competitive elections

– Requires judicial control of electoral process (done by Supreme Board of Election)

Existence of more than one freely organized political party– No party shall be formed with the aim of establishing

sovereignty of a particular class, group or dictatorship of any kind

– If a political party fails to comply with—can be permanently closed by the Constitutional Court

– Similar cases in Germany


Generally all constitutions refer to human rights in first chapter– Freedom of speech, press, religion, association, assembly, travel,

communication– Freedom from arbitrary arrest, right to property

Most of the restrictions/limitations on such rights and freedoms are reflected in Constitution and laws

– Exp: General restrictions:” Article : 13---Fundamental rights and freedoms may be restricted by law, in conformity with the letter and spirit of the Constitution, with the aim of safeguarding the indivisible integrity of the State with its territory and nation, national sovereignty, the Republic, national security, public order, general peace, the public interest, public morals and public health, and also for specific reasons set forth in the relevant Articles of the Constitution...”

– Specific exception: Art 22 “Everyone has the right to freedom of communication. Secrecy of communication is fundamental. Communication shall not be impeded nor its secrecy be violated, unless there exists a decision duly passed by a judge in cases explicitly defined by law ...”


Restrictions in cases of abnormal situations:– Art 15: “In times of war, mobilization, martial law, or state of

emergency, the exercise of fundamental rights and freedoms can be partially or entirely suspended, or measures may be taken, to the extent required by the exigencies of the situation, which derogate the guarantees embodied in the Constitution, provided that obligations under international law are not violated.”

– Inviolability of some very important rights: “Even under the circumstances indicated in the first paragraph, the individual’s right to life, and the integrity of his/her material and spiritual entity shall be inviolable except where death occurs through lawful act of warfare and execution of death sentences; no one may be compelled to reveal his/her religion, conscience, thought or opinion, nor be accused on account of them; offences and penalties may not be made retroactive, nor may anyone be held guilty until so proven by a court judgment


Secularism (Laiklik):– In the West----secularism means complete separation of

religious affairs from state affairs (reference in French Constitution: “France is an indivisible, secular, democratic, and social Republic”)

– Kemalist concept of secularism---there is a degree of state control over religion

– Because “total non-interference would result in interference of religion in governmental affairs”

due to the historical experience in Turkey Islam is not only a system of faith—a system of law & social

and political ideology==”total way of life”


Secularism:– Therefore, Turkish Constitution includes provisions on the

following matters for the protection of secular character of the state:

A- It recognizes freedom of religion B- Directorate of Religious Affairs established as part of

administration (state) C- Includes special protection for Principal Reforms Law (Devrim

Kanunları)– Secular education + alphabet + closing Dervish Covents +

abolishing certain title D- Ban on the use of religion or religious feelings for the purpose

of personal or political benefit E- Prohibition of even partial establishment of social, political,

economic or legal order of state upon religious principles


Rule of Law in Turkey under Constitution:– Judicial control of administrative acts is performed by

administrative courts, not by general courts.– Art 125: “All acts and actions of the administration are

subject to judicial review” BUT: (two excluded from such review)

Acts of the President which do not require the counter signature of the primeminister or ministers—recent case of pardon applied by President Gül to Güler Zere (illegal organization-DHKPC)

Decisions of the Supreme Militray Council-


Some further safeguards to rule of law in Turkish Constitution:– 1- Non-retroactivity of criminal laws– 2- “Principle of Legal Judicial Process”(kanuni

hakim güvencesi)=No one can be put to trial before a court other than the one previously determined by law (Nurenberg Court)

– 3- “Denial of Justice is Prohibited”No court of law shall refuse to deal with a case within its jurisdiction

Functions of the State regulated in the Constitution

Legislature (Turkish Grand National Assembly)– Legislative authority is vested to the TGNA

cannot be delegated---exception Statutory decrees

– Unicameral system----Not a bi-cameral one– Members of the Parliament enjoy classical

parliamentary privileges: Freedom of speech Freedom from arrest


Freedom of Speech (legislative irresponsibility) Members of the parliament shall not be held responsible for votes cast + speeches made and opinions expressed in the course of legislative activities.

– Exp: German Const. (Art 46): “At no time may a Member be subjected to court proceedings or disciplinary action or otherwise called to account outside the Bundestag for a vote cast or for any speech or debate in the Bundestag or in any of its committees. This provision shall not apply to defamatory insults”


Freedom from Arrest (Legislative immunity)No member of the Parliament can be detained + questioned + arrested + tried without prior consent of the Parliament

– Exceptions: risk of loosing evidence + traffic alcohol Functions and Powers of the Parliament

– Making + amending + repealing laws– Laws passed are promulgated in the official gazette by the

president in 15 days; But the President may refer back to Parliament for

reconsideration If Parliament insists President has to promulgate the

law----No special majority is required in Parliament Different situation in TRNC (absolute majority)----why?


Functions and Powers of the Parliament– There is legislative control over the executive

Parliamentary system of government Cabinet can stay in office so long as it enjoys the confidence of the

legislative”political responsibility of the government/Cabinet”

– Tools-means of Parliament in controlling the Council of Ministers:

Questions (soru) Oral questions with debate (genel görüşme) Parliamentary investigation (Meclis araştırması) Parliamentary inquiry (Meclis soruşturması) Interpellation (Gensoru)

Means of Parliament to control the government

Question: – can be put to the Prime minister or to any minister– No need to hold a session

Oral question with debate:– A session, questions and answers– No vote is taken at the end & no threat to the life

of the cabinet


Interpellation:– Most effective way– Parliament can vote the entire cabinet or an individual

minister out of office– Only political party groups or at least 20 deputies may start

the process– At the end of the debate;

Members may put forward “motions of no-confidence” (güvensizlik önergesi)

But, not easy absolute majority of the total number of members of the Parliament is required


Parliamentary Inquiry:– It is used to determine criminal responsibility of prime

minister or ministers in matters connected to their office– A committee in the Parliament does it– Ultimately the Assembly decides whether or not to impeach

the minister concerned– If a minister is impeached----he/she is tried by the

Constitutional Court sitting as the Supreme Criminal Court (Yüce Divan)

Other Functions of the Parliament

To approve the budget To ratify international treaties To declare war To empower the Council of Ministers to issue

statutory decrees To send Turkish Armed Forces to foreign

countries and to allow foreign armed forces to be stationed in Turkey

Constitutional Law

Executive:– President– Council of Ministers

No need to examine these two in detail

Judiciary:– Courts and in general administration of judicial system

is regulated within the constitution– Here we will analyze only “judicial review of

constitutionality”

Judicial Review of Constitutionality

In USA---exercising judicial control over constitutionality of laws is granted to general courts– This is also the case for some European

countries Denmark & Sweeden & Finland– In Turkey---this function is exercised by a special

court (Constitutional court)

Ways of Accession to Constitutional Courts

1- Principal Proceedings:– Specific persons (in Turkey President or Parliamentary groups or

1/5 of the full membership of the TGNA) can initiate this– Must be initiated within a specific time period (in Turkey 60 days

following its promulgation) 2- Incidental Proceedings:

– Can be initiated by individuals during a case before any court– There are two conditions:

A need of a pending case Access must be justified judge must be convinced

3- Constitutional Complaint:– No such method in Turkeyin Germany + Spain + Austria– By individuals directly to the constitutional courts + on fundamental

rights and freedoms

public law general introduction. public law governs the political authority of the state and...

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