Tuesday, 21 March 2017 00:00

Ombudsman and Presidential Government System

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Haber Ajanda / Mart 2017 Haber Ajanda / Mart 2017 http://www.haberajanda.com.tr/contents/files/dergiler/sayi124/index.html#78

The first studies on ombudsman in Turkey were carried out by Professor Dr. Tahsin Bekir Balta in the 1970s. Ömer Baylan added the work on the ombudsman to the literature with the article titled “Citizen's Complaints About the State Administration and the Swedish Ombudsman Formula for Turkey” in 1978. In the political field, it came to the agenda for the first time after the 1980 revolution, and the first legal initiative regarding the ombudsman in Turkey was made in the preparations for the 1982 Constitution. However, it was not included in the Constitution. Although the Human Rights Investigation Commission Law No. 3686 enacted in 1990 does not fully meet the ombudsman, it can be considered as the beginning of the implementation.

A part of the "Public Administration Research" report, which was prepared by the Middle East Public Administration Institute (TODAIE) in 1991 and known as the "KAYA" report in the public, was reserved for the audit of the public administration, and in the recommendations it was stated that the State Supervisory Council should undertake functions such as ombudsman.

As a result of the studies carried out on harmonization with the European Union acquis, it was recommended to establish an ombudsman system under the heading "Short Term Priorities" of the Participation Partnership Document prepared by the European Union Council in 2006.

The law on the Ombudsman was prepared in 2006, but it was vetoed by the then President, then it was suspended by the Constitutional Court in 2006, and in 2008 the entire law was annulled unanimously.

It was not brought to the agenda until the referendum held on September 12, 2010. Its establishment was finalized with the constitutional amendment made as a result of the plebiscite, and it came to Turkey's agenda again with the draft law adopted by the Constitutional Commission of the Turkish Grand National Assembly on January 26, 2011.

The Law no. 6328 of the Ombudsman, which was published in the Official Gazette dated 29/6/2012 and numbered 28338, established the Private Budget Ombudsman's Office, which has the public legal entity of the Parliament, and as of 29/3/2013, complaints applications were started to be received.

The historical development of the Ombudsman institution in Turkey has been in this way. It is a constitutional institution within the Turkish administrative system. However, there are serious problems regarding the awareness of the institution by both ombudsman and managers and the applicability of its decisions. It is a fact that public employees are not aware of the existence and functions of the ombudsman institution, which was established as a solution mechanism for the public-sourced problems that arise in the relations of the ombudsman public institutions and organizations with the citizens before going to the judiciary, especially as they move away from the center. Of course, in the meantime, it is seen that there is not enough information and information about the institution for the citizens as they move away from the center.

The effectiveness of the institution's decisions is a separate issue. Although it is a mediating mechanism, it cannot be said that the decisions of such an institution are obeyed very effectively by the administrators in terms of the bureaucratic structure of the Turkish administrative system and democracy and administrative culture.

Q.2. Should a military ombudsman be established while the Turkish Armed Forces is being restructured after the July 15 coup attempt?  

The duty of the armed forces is to ensure the security of the country. For this, while it needs a superior weapon, ammunition and communication technology, it also needs manpower to use this technology.

Therefore, it has to prioritize the human factor in its organization process. Training and directing the human factor will enable the effective use of advanced technology systems. Directing the human factor effectively and getting the desired efficiency from it is directly proportionate to "job satisfaction". Job satisfaction is more common where there are fair practices.

In the first place, it is unthinkable that the solution of the discomforts arising from the disagreements between the armed forces personnel and their relations with the higher authorities is through the ombudsman in an organization such as the Turkish Armed Forces, which has a strict hierarchy and of which boundaries are clearly defined by both the military penal code and the internal service code. Disturbances that occur among the employees themselves are usually resolved by the supervisor to which the staff is affiliated. However, it may not be fair for the supervisor to resolve the complaint between the employees. If the person being complained is a supervisor, things can get more complicated.

Superiors do not want their own military unit to complain to their superiors. Because the unrest in the military unit is not considered a good point for the supervisor, but it can be a subject of criticism. Apart from this, every superior in the military hierarchy must have a superior, and it is aimed to resolve the complaint within the framework of discipline without going to higher authorities. It is possible to see in the article of the Internal Service Code, which regulates the duties of the subordinate, that the subordinates, or more precisely, the complaining subordinate, can always be the victim in the complaints that are requested to be resolved within the framework of discipline.

The complaint can be characterized as an act against “absolute obedience to the superior” and although it is seen as an indication that the discipline is weakened, thoughts and practices can be seen to punish the person who violates the discipline by acting on the basis of “All manifestations, words, writings and acts and actions that threaten the sense of obedience are punished”.

With the idea that such a situation would impair the motivation of the unit and affect the determination to fight by disrupting the discipline of the unit, it may be concluded that complaints should not be made and that the personnel who activated the complaint mechanism would not be considered kindly. The possibility that the personnel who complain about their superior continue to work with the same superior and that the supervisor may use his authority negatively on the complaining subordinate is a behavior that completely prevents the functioning of the complaint mechanism.

What kind of practice is it for those who do injustice to their subordinates, while disobeying laws and regulations and superiors is punishable. The manifestation of justice and compliance with the law actually take place at this point. In the event that the subordinate commits a crime, the rules of law are fully implemented, but in cases where the superior commits a crime, different interpretations of the legal rules or not applying them at all do not provide justice and are the beginning of behaviors that violate discipline. The most basic way to ensure discipline is to apply the rules of law to all personnel, including superiors, to the same extent, and to provide justice in accordance with the law by acting objectively to those who make mistakes. The widespread belief that justice is not distributed equally by subordinates or that the law is violated in various ways disrupts the discipline within the unit and makes the legitimacy of the superior questionable even if he is appointed to the post. The most dangerous thing for a military unit is the lack of unity and solidarity as a result of such a disrupted discipline. Because the soldier carries out a duty in unity and solidarity, taking the risk of death if necessary, with a word of his superior-commander.

One of the most important issues that the military personnel should contribute to the solution of the problem among themselves, the desire for the "unit to appear disciplined by the higher authorities" may cause the complaint mechanism within the unit to not work properly and the complaints not reach the higher authorities.

In the context of these explanations, the method of solving the problems experienced by the military in a closed environment may sometimes lead to insolvency, and it causes the development of victimization psychology on personnel who think that they have been wronged. The subject that is thought to have been solved is actually covered in a strict hierarchy order. The concern that he may face financial or moral sanctions causes the personnel to remain silent. This silence is the calm before the storm, and as soon as the personnel gets rid of the strict hierarchy (retirement or leaving), they can reflect the negativities they see and experience about the institution they work for, and may cause negative thoughts about the soldier on the society. This also causes the already legally present rank differences between military persons to occur emotionally. The soldiers, who are sent to duty with high morale and motivation, need to be committed to each other and believe and trust in his commander’s justice, especially beyond legal loyalty to his commanders. Otherwise, the feelings of love, respect and trust towards each other will weaken, and in difficult situations, there may be various disintegrations within the barracks.

The Ombudsman participates in the dispute or problem as a third party. The parties have the right to choose whether to accept or reject the option proposed by the ombudsman. Arbitration can have beneficial results in resolving problems or disputes that arise in the soldier's relationship with the citizen. However, in solving the problem within the military itself, it is likely that the superiors and higher authorities will resist the application. In mediation and arbitration, the ombudsman balances the power and status inequality between the parties in the military hierarchy and ensures that the problems of the subordinate personnel reach the higher authorities more easily. It prevents thoughts such as not being able to bring the problem to the authorized supervisor due to the fear of disruption of discipline, and the personnel can convey the issues that are not conveyed to the higher authorities within their own hierarchy or that they think cannot be resolved even though they are conveyed to the authorized places through the ombudsman.

There is also the question of who the military ombudsman will be. The military ombudsman should not be a military personnel. Military ombudsman should be chosen among civilians who have graduated from the fields of law, public administration, political and social sciences and who are familiar with both the functioning of the administration and legal issues. The first concern that comes to mind is that a civilian does not know the military rules and functioning, and that their practices will harm the military hierarchy and discipline. However, the drawbacks of selecting the military ombudsman among military personnel will be greater.

Q.3. What are the benefits of the ombudsman, especially in institutions that are in close contact with the public, such as the gendarmerie?

While the gendarmerie is performing its civil and judicial duties, it is also used as a preventive force against threats to the internal security of the country. The fact that the gendarmerie works independently in a large area does not always allow the control of the personnel. If the police commanders who are in direct contact with the citizens and who work away from the center and their nature are people who are not adequately trained and lack professional ethics, the powers given to them are likely to be abused.

Gendarmerie usually fights against crime and criminals due to its duty. While performing these duties, it is often claimed that they have made unfair practices against the citizens. There are complaints and allegations that universal rules are not followed and human rights violations are committed, especially during the period until the suspects are caught and transferred to the courthouse. There are many complaints about the ill-treatment of detainees or convicts while they are being taken from prisons to the hospital or trial. Of course, an administrative investigation is carried out in relation to these complaints. However, due to the strict regulations specified in the law regarding the trial of the officer, the desired result cannot be achieved in some cases from the administrative investigations.

Disputes arising as a result of the gendarmerie's relationship with the citizen can be resolved through the ombudsman without the matter being forwarded to the judiciary. Because the main problem of the citizen with the gendarmerie, if we exclude the violation of human rights (such as torture), is usually that the gendarmerie does not solve the citizen's problem in a timely manner, makes citizens wait or makes unauthorized actions.

These issues are actually issues that can be resolved through a mediator. The important thing is to have a reliable and impartial person who can bring the parties together. The person who can do this in the best way is the ombudsman. Even though violations of human rights are a situation that should be directly referred to the judiciary, the personnel who committed the violation may not be brought to justice by the supervisor due to in-house preventive psychology. In this case, the ombudsman can intervene in the incident and warn the superiors who do not take the necessary action against the violating personnel and can take them into action.

Q.4. What changes need to be made in the administrative organization for the party leader-presidential system?  

Regarding the party leader president, there is no need for any change in the administrative organization. The administrative organization functions as an extension of the political organs. The administrative organization, which is the area of implementation of the decisions taken by the political mechanism, has nothing to do with whether the president is a party member or not. The current structure is Constitutional. Article 101 of the 1982 Constitution includes the provision that “The president-elect is dismissed from his party, if any, and his membership in the Grand National Assembly of Turkey ends”. With the abolition of the relevant article, it will be implemented.

The party leader president exists in our political history. Until the 1961 Constitution, presidents were party leaders. Mustafa Kemal Atatürk, İsmet İnönü and Celal Bayar were the party leader presidents. In fact, there was an irony. The decisions taken at the First Congress of the Democrat Party on January 10, 1947 were published as the Freedom Pact (Hürriyet Misakı). Among these decisions was “separation of the presidency from the party leadership”. The political tradition that did not reconcile the presidency and party leadership in 1947 supports this view today. Also, we can infer the opposite. The political tradition that supported the party president at that time does not make it today. Again, there is a different situation. Despite being included in the Freedom Pact, Democrat Party executives did not make any arrangements to correct this issue when they came to power. Just like today's electoral threshold problem. As you know, opposition parties always complain about the high electoral threshold. However, after coming into power, no political party has taken steps to solve this problem. Because it also benefits from the regulation in question. It should also be noted that. Celal Bayar left the party leadership after he was elected President, but his party membership continued. The first regulation regarding this issue was made in the 1961 Constitution.

Q.5. What are your views on the Law No. 6771 Amending the Constitution of the Republic of Turkey?

Now, everyone in the public has expressed their opinion on this law or, in other words, on the constitutional amendment. There were news programs. Academics, politicians, lawyers, researchers, journalists expressed their views. In general, the majority concentrated on the powers of the president. I want to make a different point. Article 4 of Law No. 6771 regulates the election period of the Turkish Grand National Assembly and the President. According to this article, the President and the Assembly elections are held on the same date. This is something dangerous. As you know, in this system, both organs are elected by the people. Both bodies are not changed until the next elections unless there is a very important issue. The parliament's decision to renew the elections envisages a qualified majority of three-fifths. The discharge of the president is dependent on an investigation, which requires a three-fifths majority. Therefore, it is difficult to intervene in both institutions for five years. Let us suppose that both the president and the majority in parliament are from the same party. Such a situation can be difficult as well as facilitating the making and execution of decisions.

For those who oppose the practices of either institution, a chance for change can be given. The President elected by the people can be ensured to work with two Parliaments during his term. This will also mean that a Parliament will work with two Presidents. This allows the party leader president and his party to change the potential problems if they dominate parliament by democratic means before five years.

Quoted from: http://www.haberajanda.com.tr/contents/files/dergiler/sayi124/index.html#78


Read 1310 times Last modified on Wednesday, 07 July 2021 09:19
Ali Fuat GÖKÇE

Yrd. Doç. Dr. Ali Fuat GÖKÇE

22.02.1967 Van doğumlu. 1985 yılında Kuleli Askeri Lisesinden mezun oldu, 1989 yılında Kara Harp Okulundan Jandarma Teğmen olarak mezun oldu. 2008 yılına kadar Silahlı Kuvvetlerde çeşitli kademelerde çalıştıktan sonra Binbaşı rütbesinden emekli oldu. 2006 yılında Selçuk Üniversitesi Kamu Yönetimi Bölümünde yüksek lisansını tamamladı.

2011 yılında Malatya İnönü Üniversitesi Kamu Yönetimi Bölümünde doktorasını tamamladı. 2011 yılı TBMM genel seçimlerinde Gaziantep’ten Adalet ve Kalkınma Partisi milletvekili aday adayı oldu. 2012 yılında Gaziantep Üniversitesinde Yrd. Doç. Dr. unvanı ile göreve başladı. Siyasi Partilerde Lider ve Yönetim Değişimi isimli kitabı mevcuttur. Uluslararası ve ulusal dergilerde siyaset ve kamu yönetimi üzerine makaleleri bulunmaktadır. Evli ve iki çocuk sahibidir. Silahlı Kuvvetler Üstün Cesaret ve Feragat Altın Madalya sahibidir.

Kişisel Web Site: www.alifuatgokce.com

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