Local and regional democracy in Turkey - CG (12) 25 Part II

Rapporteurs:
Anders KNAPE, Sweden,Chamber of Local Authorities, Political Group: EPP/CD
Hans-Ulrich STÖCKLING, Switzerland,Chamber of Regions, Political Group: ILDG

EXPLANATORY MEMORANDUM

1. INTRODUCTION

1.1 Under the terms of Resolution 31 (1996) of the Congress and, more recently, Statutory Resolution 1 (2000) of the Committee of Ministers, the Congress of Local and Regional Authorities of Europe has been conducting a systematic programme of monitoring reports on the state of local and regional democracy in member states of the Council of Europe. So far some 36 countries have been investigated. The normal procedure is for an investigation to be conducted by a team led by a rapporteur or rapporteurs appointed by the Institutional Committee of the Congress or of a Chamber. The report of the investigation is placed before a Plenary Session of a Chamber or a Chamber and a Recommendation is made. The investigation is conducted and the report and Recommendation are formulated in the light of the principles and standards established by the European Charter of Local Self-Government of 1985 and the spirit of the draft European Charter of Regional Self-Government drawn up by the Congress in 1997.

1.2 On 30 May 2001, the Bureau of the Congress appointed Mr Anders Knape (Sweden) as the Congress rapporteur to conduct an investigation and to prepare a report on local and regional democracy in Turkey. Subsequently, Mr Hans-Ulrich Stöckling (Switzerland) was appointed as a second rapporteur representing the Chamber of Regions. As explained below, the task at that stage was to prepare an interim information report rather than a full monitoring report. Mr Knape and Mr Stöckling were reappointed for the 2004-05 investigation.

2. THE TURKISH INVESTIGATION

2.1 This report on local and regional democracy in Turkey is the result of the second full investigation of the situation in the country. The first, conducted as rapporteur by Mr Halvdan Skard of Norway, led to Congress Recommendation 29 (1997). As mentioned above, this was followed by a more limited investigation conducted by the present rapporteurs resulting in an information report (CG/INST (8) 27) in 2001.

2.2 For the purposes of the 2004-05 investigation and report, the rapporteurs made two visits to Turkey, in each case accompanied by Professor Chris Himsworth (United Kingdom) as consultant and member of the Group of independent experts on the European Charter of Local Self-government. The first visit (22-24 November 2004) was to Ankara and Izmir and the second (21-23 March 2005) to Ankara and Trabzon. Details of the programmes of the visits are set out in the Appendix 1 and 2 to this report.

2.3 The rapporteurs and their team would like to thank the Turkish authorities in Ankara, Izmir, Trabzon and the Turkish delegation to the Congress and others for their valuable help during the preparation of this visit and contribution to this report.

3. THE GENERAL SITUATION IN TURKEY: RECOMMENDATION 29 (1997), THE INFORMATION REPORT OF 2001 AND SUBSEQUENT DEVELOPMENTS

3.1 The Republic of Turkey ratified the European Charter of Local Self-Government on 9 December 1992, with accession taking effect on 1 April 1993. Turkey declared herself bound by the following Articles of the Charter:
Article 2
Article 3, paragraphs 1 and 2
Article 4, paragraphs 1, 2, 3, 4 and 5
Article 5
Article 6, paragraph 2
Article 7, paragraphs 1 and 2
Article 8, paragraphs 1 and 2
Article 9, paragraphs 1, 2, 3, 5 and 8
Article 10, paragraph 1

3.2 In the course of 1996, arrangements were set in place for the report on local and regional democracy in Turkey with Mr Halvdan Skard (Norway) as the rapporteur. The visit of the monitoring group to Ankara took place during 4-8 December 1996 and their report was debated and the resulting Recommendation 29 adopted by the Congress on 3 June 1997.

3.3 Although it is apparent from the report that the monitoring group had received information about specific allegations about the treatment of the Kurdish population in the south-east of Turkey - in particular, allegations about the destruction of villages and cases of the harassment or dismissal of mayors and councillors, their investigation and report were, in fact, confined to more general matters, as these allegations were dealt with by other Council of Europe organs, and in particular, the European Court of Human Rights.

3.4 As a background to their investigation, the 1996 group relied upon information in the CDLR Report on the "Structure and Operation of Local and Regional Democracy in Turkey" (1994) and also in a report on "Local Authorities in Turkey" (December 1996) prepared by the Turkish Ministry of the Interior which they appended to their own report. The group did not present their own detailed description of the current system of local and regional government. Importantly, the monitoring group noted "on the part of the Turkish authorities and most of its interlocutors, a genuine wish for dialogue concerning prospects for local government reform" (Report, para.7). The group also noted that it "shared the views of quite a number of Turkish discussion partners that genuine local and regional government reform would, even if applied in the same manner to the whole of the country, contribute to create conditions for better exercise of democratic rights, including the Kurdish-speaking population in the South-East of the country. Without establishing any direct link between such a reform of local and regional government and terrorism, the Working Group felt that the reforms might help to wipe out frustrations that in some cases could be used as a basis for terrorist action. On the other hand, it is obvious that the Group shared the view of the Turkish authorities that no democratic state can accept terrorist action on its territory and that such action is, in itself, a major threat to the functioning of democratic institutions in general but, in particular, at local level." (para.8). The monitoring group went on to note two principal factors which might make reform of local and regional government in Turkey more difficult. First, long-standing traditions and also the laws of local government went back to the days of the Ottoman Empire or the early days of the Turkish Republic. In particular, the tradition of a highly-centralised unitary state might stand in the way of reforms needed by the modern Turkish state and society (para. 9(i)). Secondly, the weakness of the political system in Turkey reflected in a succession of governmental crises might obstruct progress (para. 9(ii)).

3.5 Nevertheless, the monitoring group saw the opportunity for a future dialogue between the Congress and the Turkish authorities on reforms which might be undertaken. It was hoped that the views of the monitoring group on the reforms then being proposed by the Ministry of the Interior which were subsequently appended to Recommendation 29 (1997) together with other more general observations and recommendations would form the basis of that dialogue. The Appendix to the Recommendation contained a substantial series of proposals for the improvement of local and regional government in Turkey. Some were linked directly to proposals already being made by the Ministry of the Interior. Others ranged more widely. The list of proposals cannot be repeated in full here but they included inter alia much fuller provision for village government; increased funding for local government; the need to end the “trusteeship” principle contained in Art. 127 of the Constitution; new provision for staffing of local authorities; the need to transfer powers from governors to local authorities and democratic control of governors; the transfer of state land to local authorities; the lifting of voting restrictions imposed by Art. 67 of the Constitution and many other recommendations.

3.6 The formal response to Recommendation 29 came in a statement by Mr Muammer Türker (Director of Section in the General Directorate of Local Authorities, Turkish Ministry of the Interior) to a meeting of the Standing Committee of the Congress of 4 March 1999. Mr Türker's statement focused mainly on proposals for local government and other administrative reform contained in the text of a draft law then awaiting debate in a plenary session of the Grand National Assembly. The statement noted that amendments of the Constitution were not proposed "owing to the lacking political power to assure a qualified majority needed". A provision (Art. 127(4)) which undermined the realisation of the ideal of local self-government - ie the provision authorising the Ministry of the Interior temporarily to remove organs (or members) of local and regional authorities - would remain.

3.7 A subsequent development was the promulgation in 2000 of a draft Decree on the Modifications in Various Laws on Sharing Competences between Central Government and Local Authorities and the Principles concerning the Service Relationships. A draft of the Decree issued by the Turkish Council of Ministers was published by the Congress (CPL/INST(7)4) together with a legal opinion on the draft prepared by Professor Rusen Keles (CPL/INST (7)3) on 13 October 2000. As explained in that opinion, a decision to proceed by way of Decree rather than by way of a Law was taken to give the Government "a certain flexibility to realize its aims concerning local authorities more easily without being faced by the obstruction of the opposition parties in the Parliament" (Opinion,para.1). The draft Decree was intended to come into force on the date of its publication, with the exception of Art 26 (Amendment of Rules relating to the Revenue of Local Administration) which was to come into force on 1 January 2001.

The Decree would have made provision for the general "distribution of duties" including provision for the duties of the central administration, the principles of service relations ie between central and local administrations, and for the establishment of a Local Administration Joint Committee; a series of amendments to the Law of Municipalities (No 1580 of 3 April 1930); amendment of the Law of Large City Municipalities (to be renamed the Law of Metropolitan Municipalities) (No 3030 of 27 June 1984) and the Law of Special Provincial Administrations (No 3360 of 1987); and amendment to a number of laws relating to the revenue of local administrations.

In the event, however, the draft Decree was not issued but a successor draft law was later published and introduced into the Turkish Grand National Assembly in April and July 2001. That draft was a principal focus for the Information Report (CG/INST (8) 27) published by the Institutional Committee of the Congress on 22 November 2001.

3.8 That Information Report (based on a visit to Turkey (Ankara and Diyarbakir) during 3-7 October 2001) was divided into two parts. The first dealt generally with local democracy in Turkey whilst the second dealt with the more specific issue of the “suspension and dismissal of mayors”. That second part of the Report was a response to complaints lodged by the World Federation of United Cities about the suspension and dismissal of four mayors in south eastern Turkey. The Report contained a series of criticisms of the relevant constitutional and legislative provisions (on which, see further below) and a commentary on each of the four suspensions/dismissals. There was a recommendation that further information on these should be obtained and a more detailed legal opinion obtained. That legal opinion (CPL/INST (9) 14) was subsequently published by the Institutional Committee of the Chamber of Local Authorities on 29 November 2002.

3.9 On the more general aspects of local democracy in Turkey, the Information Report of November 2001 took account of the developments already noted in the draft Decree of 1999 and the successor draft law (which covered the same subject matter) of 2001. The Report welcomed the “new spirit of reform” reflected in these developments and also in a package of constitutional reforms adopted by the Turkish Grand National Assembly in October 2001. Whilst these reforms did not relate directly to the local government provisions in the Constitution, it was clear that they were of significance for local government and for the wider operation of democracy in Turkey. Restrictions on political expression and the use of languages other than Turkish were to be lifted. In addition, Turkey had ratified the European Outline Convention on Transfrontier Cooperation between Territorial Communities or Authorities. On the other hand, however, the Information Report was much more cautious in its assessment of actual reforms on the ground. There were clear signs of an intention to reform local administration but nothing had yet been enacted nor, of course, implemented. There was no reason to depart from the criticisms contained in Recommendation 29 (1997) which emphasised the highly centralised nature of Turkish administration. The Report contained a long series of recommendations on constitutional and legislative reform, including recommendations on popular participation, the control/supervision of local authorities, the powers and financing of local authorities, the powers of governors, village administration and others.

3.10 The most important political development in Turkey since 2001 has been the formation of the new government (now led by Prime Minister Recep Tayyip Erdogan) in November 2002. Not only did the AKP government arrive with a strong commitment to administrative reform but it also had a strong majority position in the TGNA.

4 HONOURING OF INTERNATIONAL TREATY OBLIGATIONS BY TURKEY

4.1 From 1996, Turkey was subject to Council of Europe’s monitoring arrangements, undertaken by the Parliamentary Assembly, in relation to the honouring of obligations concerning pluralist democracy, the rule of law and human rights and Turkey’s commitments to constitutional and legislative reform. On 28 June 2001, the Parliamentary Assembly welcomed (by Resolution 1256) the progress made at that point and, following a report by co-rapporteurs Mrs Mady Delvaux-Stehres (Luxembourg) and Mr Luc Van den Brande (Belgium), the Assembly adopted a further Resolution (1380) in June 2004. The Resolution recorded the further substantial progress made by Turkey towards the strengthening of its democratic institutions and the protection of the rights of its citizens. Whilst acknowledging, however, the steps taken towards recognising the cultural rights of different ethnic groups, the Assembly expressed regret that Turkey had still not ratified the Framework Convention for the Protection of National Minorities or the European Charter for Regional or Minority Languages.

4.2 In the light of the overall progress made, the Resolution concluded with a decision to close the monitoring procedure whilst, at the same time, inviting further reforms including major further reform of the 1982 Constitution to bring it into line with current European standards and the reform of local and regional government to introduce decentralisation in accordance with the principles of the European Charter of Local Self-Government. As part of this reform, it should “give the relevant authorities the necessary institutional and human resources and arrange redistribution of resources to compensate for the underdevelopment of certain regions, particularly south-east Turkey, and move from a dialogue to a formal partnership with United Nations agencies to work for a return, in safety and dignity, of those internally displaced by the conflict in the 1990s”.

4.3 The report on which the Resolution was based had identified (paras 125-134) a number of weaknesses in Turkish local and regional democracy. The rapporteurs commented that “Turkey is a very centralised state where the state has significant powers to oversee local authorities, according to principles and procedures laid down in law. In many areas, state appointed officials clearly have much more power than locally elected representatives”. The rapporteurs had also investigated the removal or suspension of elected officials by the Ministry of the Interior and supported the Congress recommendation that there should be constitutional amendment.

5. ACCESSION TO THE EUROPEAN UNION

Of all the recent events affecting the development of modern Turkey, potentially the most important was the decision taken by the European Council (of Heads of Government) on 17 December 2004 formally to admit Turkey to negotiations for accession to the European Union. Our own experience of the significance of this decision, taken between our two visits to the country, was a reminder that so much of Turkish social and political debate is focused upon this central project of accession to the Union. Although it has seemed possible that the timetable might be affected by the outcome of the negative referendums in France and the Netherlands on the Constitution of the European Union, it seems clear, at the time of the preparation of this report, that accession talks will begin in October 2005.

6. THE BROADER CONSTITUTIONAL AND POLITICAL CONTEXT

6.1 Important though recent developments, including admission to the European Union accession negotiations, have been, it is essential that they be understood against the broader background of the history of the Turkish state since its foundation in its modern form by Kemal Atatürk in 1923. The origins of the state in the aftermath of the First World War and the 1921-22 War of Liberation and the political and military rejection of partition which led to the launch of the republic have stamped their impression on Turkish politics which endures in the twenty first century. The modernising influence of Atatürk coupled with the commitment to secularism and to the integrity of the Turkish state continued to inform the politics of Turkey through the turbulence of the latter part of the twentieth century which saw three military interventions - the last of which in 1980-82 creating the current (1982) Constitution of Turkey. The country’s modern democracy has been characterised by a high degree of political volatility (most recently represented by the sudden dominance of the AKP/Justice and Development Party after displacing the Ecevit government in November 2002) and, until recently, relatively precarious coalition governments.

6.2 At the same time, Turkey has been confronting the problems of a large country (814, 578 sq kms and a rapidly growing population currently estimated at about 70 m) at an early stage of economic development by general European standards. The GNP/GDP were stated to be 179.480.078 TL and 181.408.563 TL in 2001. In addition, Turkey is a country which is relatively highly economically and socially divided. Whilst the urban middle class of the major cities lives in conditions of high economic development, there are substantial numbers of much poorer Turks in both urban and rural areas - the cause and the result of a rapid process of urbanisation which is still strongly underway. Another feature of the Turkish economy in recent years has been successive periods of stressful inflation and devaluation of the lira, although since 2002 a certain stability has been achieved. From 1 January 2005, Turkey has converted to a “new lira” (equals 1m lira in the old currency).

6.3 Another important feature which has conditioned Turkish politics in the period from 1984 has been the unrest, including political violence and terrorism, in the strongly Kurdish areas in the south-east of the country. Successive Kurdish political parties were banned and emergency laws promulgated across much of the south-east, the last states of emergency being lifted in November 2002. The issue of Kurdish autonomy (whether reflected in claims to language rights or political organisation) is not new. It has been a feature of the republic since its inception. But, in a country with such a high ideological commitment to the integrity of the state, the recent tensions have had an undoubted impact. The rapporteurs acknowledge that the Constitutional changes and a reform package introduced between 2001 and 2002 helped to improve the situation on this front. As highlighted in the report tabled by the Parliamentary Assembly in 2004 (“Honouring of obligations and commitments by Turkey”-Doc. 10111-17 March 2004), in 2001 and 2002 Turkey has made an effort to lift many restrictions to freedom of expression, association and religion and to grant certain cultural rights. It was noted however that time was needed for reform to become a reality.

7. THE STRUCTURE OF LOCAL AND REGIONAL DEMOCRACY - AN OUTLINE

7.1 Regional and local administration in Turkey is organised at three distinct levels. There are 81 provinces, each with a “Special Provincial Administration” (SPA); there are 3225 municipalities; and, outside the areas of the municipalities, some 35175 villages. In the SPAs, the state-appointed governor (there are also sub-governors in the administrative districts into which the provinces are divided) is joined by a directly elected provincial council whose executive committee the governor currently chairs. In the municipalities, mayors are directly elected for a five-year term, as are the municipal councils. The mayor heads the municipal executive committee which includes both elected members and appointed staff. The elected members may not exceed half the number of appointed members and may be no fewer than two. In 16 metropolitan areas consisting of several urban municipalities, there is a metropolitan municipality headed by a (lord) mayor. The metropolitan council consists of the mayor, the mayors of the constituent municipalities and one fifth of the councillors from those municipalities. In the villages, an elected headman (mukhtar) chairs a (mainly elected) executive committee.

7.2 Functions of the SPAs are formally spread across responsibilities for hospitals and other health services, environmental health, public hygiene, roads, bridges, ports, the provision of natural gas and water, primary and secondary schools, model farms, and some economic development functions.

7.3 Municipalities have a similarly wide range of (formal) functions within their areas.

7.4 Metropolitan municipalities have strategic, planning and co-ordination functions. It is understood that, hitherto the practical distribution of functions (and their financing between metropolitan municipalities and their component municipalities) has been very troublesome.

7.5 Villages have “compulsory” functions (including health roads, water and schools) and “discretionary” functions (including public baths and laundries).

7.6 The financing of the different categories of authorities is based on a combination of revenues from local sources, revenue sharing and centrally provided transfers. In the villages (about 20-22% of the total population of the country) and in the 80% of municipalities with populations of under 10,000 (about 10% of the total population), local, “own” resources are insignificant. In the larger municipalities (including metropolitan municipalities) up to about 50% of revenue is from local taxes (including a property tax, advertisement tax, entertainment tax and cleansing tax) and charges, some, of which (including income from municipal property) are substantial. SPAs are almost entirely dependant on central funds. It is understood that, although formal statutory provision is made, there is no effective system of grant equalisation across municipalities.

8. LOCAL (AND REGIONAL) DEMOCRACY - A PRELIMINARY ASSESSMENT

8.1 Up to this point in the report, much emphasis has been placed on the changing social and political context within which the reform of local and regional democracy has to be considered, the commitment to reform of the present Turkish government, and the programme of legislative reform already introduced into the TGNA. This emphasis on change (actual and potential) is, we believe, entirely justified. There are indeed clear signs of a commitment to and delivery of substantial institutional change. Reforms currently being undertaken will doubtless be built on further to produce a very different picture. If we were undertaking this review a few years hence, there is little doubt that we would be reporting on a substantially changed landscape of local and regional self-government.

8.2 It is, however, our primary obligation to report on how things stand at present rather on how they might be in the near future. The timing, bearing in mind the reforms currently proposed, may be unfortunate but the truth is that, measured by reference to legislation actually passed and implemented, very little has happened so far to reform the system of local government in Turkey which has been described in the Congress reports of recent years. Three reforming measures (the Law on Metropolitan Municipalities, the Law on Municipalities and the Law on the Special Provincial Administration) have reached the statute book and others await further legislative process. A description of the new legal measures follows in section 9. Even if it were the case that the entire legislative programme had been completed (including the supplementation of the primary legislation with the necessary and extensive secondary regulations), we have to remember that our task is to report on the state of local and regional democracy not primarily by reference to enacted laws, whether older or more recent, but to the actual practice of decentralised government on the ground. We can look forward to and speculate about the final content of the reforming legislative programme and its eventual impact on the practice of the government - on this our view is optimistic - but, in the meantime, we have to make judgments, against the standards set by the European Charter, based on current law and practice.

8.3 Drawing on the conclusions reached in recent Congress reports (and, in particular, Recommendation 29 (1997) together with our own judgment of the situation, our views, taking in order the principal demands of the European Charter, are:

1. Concept of local self government (Art 3)

Although it is clear that some metropolitan municipalities and some of the larger municipalities are approaching a situation where they ‘regulate and manage a substantial share of public affairs’ the continuing dominance of the Provincial Governors, the restricted functions of the smaller municipalities and the weakness of village administrations leave the general pattern of local self-government in Turkey as very unsatisfactory. Although there is limited use of powers to coordinate the work of smaller authorities by the formation of unions (about 100) such coordination needs to be greatly expanded under new laws. There are, at present, no legislative proposals to do this.

2. Scope of local self-government (Art 4)

The formal scope of the powers of municipalities (though not of the villages), as described in the law, is extensive but it would be impossible, given the degree of central supervision, to describe them as ‘full and exclusive’. The extent of functions (other than those provided ad hoc as separately funded project developments) is not large. One feature is that many functions which might reasonably be expected to be exercisable by local authorities are, in practice, being privatised.

3. Appropriate administrative structures and resources (Art 6).

Again a mixed picture but, in our view, the general position is one in which resources are insufficient to ensure “effective management” locally. In particular, there is no guarantee of the conditions to “permit the recruitment of high quality staff on the basis of merit and competence”.

4. Conditions under which responsibilities exercised (Art 7)

Our understanding is that conditions of office of local elected representatives do not currently allow (except in some very large municipalities) for appropriate financial compensation for expenses or for loss of earnings or remuneration. One improvement in practice which does, however, have to be noted is that, after a period in the 1990s when many mayors were suspended or dismissed from office, the record over the years 2002 (total 16 suspended), 2003 (12) and 2004 (4) appears to be much improved. Thus far, however, the constitutional and legislative provisions which have attracted criticism in earlier reports remain in place.

5. Administrative supervision of local authorities (Art 8)

It cannot yet be said that the long-standing weight of central supervision and control of local authorities has been lifted. Art 127 of the Turkish Constitution provides that “the central administration has the power of administrative tutelage/trusteeship over local authorities within the framework of principles and procedures set forth by law with the objective of ensuring the functioning of local services in conformity with the principle of the integral unity of the administration, securing uniform public service and meeting local needs in an appropriate manner”.

6. Financial resources of local authorities (Art 9)

a. This remains a very substantial problem for local autonomy in Turkey and, despite the institutional changes foreshadowed in the first tranche of legislative amendment introduced in 2004, there is not yet published a draft law on local finance. This is a major gap.

b. In the meantime, it cannot be said that local authorities have adequate financial resources (commensurate with their responsibilities) of which they may dispose freely. There is a very heavy dependence upon central government grants (many of which are specific and project-related) rather than locally determined taxes and charges. Figures for the years 1995-2001, however, do show a small (but growing) share of GNP (2.42% to 3.18%) and GDP (2.6% to 3.15%) allocated to municipalities.

7. Local authorities’ right to associate (Art 10)

As noted above, there are currently arrangements under which local authorities can cooperate by means of consortia but these should be greatly expanded.

Local authorities (municipalities) join the Turkish Municipal Association. As to the international activities and subject to the decision of the municipal council, municipalities may be founding members or members of international organisations or bodies concerned with matters relating to the municipality’s areas of responsibility (Art. 74 of the Law on Municipalities (No 5272 of 24 December 2004)). Municipalities are allowed by Law to carry out joint activity or service projects with such organisations and bodies and with foreign local authorities, or may establish town twinnings.

However, it should be put on record that these activities can only be conducted in a manner consistent with Turkey’s foreign policy and with international treaties and they are subject to the prior authorisation of the Ministry of the Interior.

8.4. Regional democracy - a preliminary assessment

Earlier Congress reports have focused exclusively on the “local” level of democracy and, historically, it has been the case that government at the regional level in Turkey has had few democratic characteristics. The provinces are, according to Art 126 of the Constitution, part of the “central administrative structure” and, despite the existence of the Special Provincial Administrations (described as “local authorities” in the official publication Local Authorities in Turkey (1999)) with their provincial councillors who are represented in the Regional Chamber of the Congress, they have been highly centralised organisations. The centrally-appointed Governor has been the “head and highest authority” of the SPA.

9. THE NEW LAWS OF 2004-05

9.1 The Turkish government has embarked upon a substantial reforming programme of legislative change. The programme is still in the course of implementation and a full assessment of its effect cannot yet be made. A provisional assessment of the legislation already enacted, however, is made below but the content of the programme should first be listed briefly.

A first tranche of four laws was introduced into the Parliament/TGNA and passed by the Parliament. These were:

1. A Law on Metropolitan Municipalities
2. A Law on Municipalities
3. A Law on the Special Provincial Administration and
4. A Law on Public Administration.

9.2 Of these, the first three have reached the statute book, although the Law on Municipalities and the Law on the Special Provincial Administration were initially vetoed by the President of the Republic and required further parliamentary procedure before they could be finally enacted. [The content of the three enacted laws is briefly discussed below.] Meanwhile, however, arrangements for further parliamentary progress on the Law on Public Administration, which was also initially vetoed by the President, were, at the time this report was prepared, uncertain.

It should be noted that devolution reform is not unanimously received in all political circles in Turkey. Some argue, and the President of the Republic voiced these views in his vetoes, that devolution may have the potential of distorting the unity and the integrity of the State as well as consistency and complementarity of public services.

(a) As regards the draft law on Public Administration the arguments put forward by the President can be summed up in the following way :

- local authorities can be viewed and indeed considered as “principal” public entities whereas the central State as “secondary” (subsidiary) entity, which would cause a weakening of the State itself;

- the draft law unnecessarily interferes into the constitutional provisions on fundamental rights and freedoms of individuals;

- some of the provisions may lead to privatisation of local public services which is contrary, according to the President, to Article 128 of the Constitution;

- delegation of auditing powers to private and independent agencies would contradict Articles 127 and 160 of the Constitution;

(b) The draft Law on Municipalities also brought about criticism from the President of the Republic who vetoed its first version on the grounds that a massive transfer of powers by the State to the municipalities was inconsistent with the Constitution. He further requested that all duties discharged by local authorities should be clearly and individually spelt out in the law and not in a general manner.

(c) The draft Law on the Special Provincial Administration was vetoed initially too on the almost similar grounds that the drafts mentioned above. According to the President, changing the present system of public administration would be incompatible with such constitutional principles as unity of the State, integral unity of administration, administrative tutelage and public interest.

It is also understood that currently further legislative proposals are also under consideration by the government. These may include a new law on associations/unions of municipalities ¹, a law on village administration, a law on municipal revenues and a law on the public service. This list is important because it is widely appreciated that local government reform in Turkey will be fully effective only if a broad package of measures, including these proposed laws, can be enacted. In addition, it is also understood that a further programme of constitutional amendment is contemplated which would be important for the longer term readjustment of governmental relationships within the country and of ministerial powers to suspend mayors.

9.3 The Law on Metropolitan Municipalities (Law No 5216 of 10 July 2004) ²

This Law replaces Law No 3030 of 1984 and, in so doing, incorporates a number of changes:

(a) For the establishment of a new metropolitan municipality, there must be at least three (district) municipalities in the area. Other surrounding smaller municipalities and villages can, by decision of the Council of Ministers, be annexed to a metropolitan municipality where town-planning arrangements and basic infrastructure services so require. In the two cities of Istanbul and Izmit/Kocaeli the metropolitan municipality boundaries are brought into line with the boundaries of the respective provinces.

(b) In terms of competences, metropolitan municipalities acquire new powers in relation to the making of a strategic/master plan for their areas - for implementation at the district level. In addition, there is a substantial relisting of all the competences of the metropolitan municipalities and of the district/first-tier municipalities within them.

(c) The composition of the executive committee of metropolitan municipalities is changed to reduce the number of appointed officials to five ie equal to the number elected by the council from its own membership. During their terms of office, Metropolitan mayors and mayors of the district and first-tier municipalities are formally prohibited from holding office on the executive or supervisory bodies of political parties - a rule already applicable to mayors of non-metropolitan municipalities.

(d) Whilst no new financial provision has yet been made in relation to municipalities at large, the Law on Metropolitan Municipalities does provide for the allocation to them of a share of the national budget plus a 5% share of all taxes collected within their boundaries as their main financial resources, in addition to a list of taxes and changes as “own resource” income. Governors are no longer to have a power of approval of the budgets of metropolitan municipalities.

(e) Other important parts of the Law deal with the coordination of relations between the metropolitan municipalities and the district and first-tier municipalities - in respect of budgets and the harmonisation of service provision. The metropolitan councils have a central role here and much will depend in practice on how relations between the tiers of local government are managed.

9.4 The Law on Municipalities (No 5393 of 07 July 2005)

This Law replaces Law N° 5272 of 24 December 2004 to accommodate the effect of a decision of the Constitutional Court, which was originally passed by the Parliament on 9 July 2004 as Law N° 5215 but was returned to the Parliament for revision following an initial veto by the President of the Republic. All these series of laws replace Law N° 1580 of 1930.

The provisions of the law are mainly the same as the Law N° 5272 of 24 December 2004, but there are some small adjustments to the provisions on the merger of municipalities and the responsibilities of municipalities.

Law N° 5393 introduces:

(a) A raising of the minimum level of population required for municipality status from 2000 to 5000. There is further provision for the creation of municipalities by the combination of villages and the finalisation of boundaries; and for the terminal of the personality of municipalities.

(b) A restatement of the functions and responsibilities of municipalities (s 14) to be discharged by the provision or contracting out of a range of listed services. The Law provides that “the order of priority in the provision of services shall be determined in the light of the municipality’s financial situation and the urgency of the service” - a stipulation which may be difficult to square with Charter requirements.

(c) A redefinition of the composition of standing/executive committees to raise the maximum proportion of elected members from half of the appointed members to half of the membership of the committee overall.

(d) The introduction of new strategic and performance plans.

(e) New rules on the suspension of mayors for non-performance of duties, requiring reconsideration every two months and a lifting of the suspension if not justifiable in the public interest.

(f) New freedom for municipalities to organise their internal administrative structures in accordance with norms established by the Municipal Council. In each municipality there would be standard service units for secretarial services, financial affairs, public works etc.

(g) A variety of other provisions concerning the new powers and privileges of municipalities, arrangements for council meetings, the finalisation of decisions, the formation of specialist committees, and allowances for the members of executive committees.

9.5 The Law on the Special Provincial Local Administration (No 5302, 22 February 2005)³

This Law was originally passed by the Parliament on 24 June 2004 as Law No 5197 but was returned to the Parliament following a veto by the President.

This Law replaces the Law of 13 March 1329 (1913) and produces the following principal structural changes:

(a) The (centrally appointed) governor ceases to be the president of the provincial general council. Instead, the general council is presided over by a person elected by the council from its own membership.

(b) The provincial executive committee, which continues to be chaired by the governor, would be enlarged to include two additional appointed officials - the head of the finance department and another official to be selected by the governor.

In addition, a number of adjustments are made to the functions, powers and privileges of the provincial authorities. It is difficult to assess what will be the effect in practice of the various changes made.

10. CONCLUSIONS

10.1 From what has been said in the preceding sections of this report, it will be apparent that an overall assessment of local and regional democracy in Turkey falls into two parts.

10.2 On the one hand, the view of the rapporteurs is that, in the light of the historically highly centralised tradition of the Turkish state and despite the succession of unrealised reforming measures described in section 3 of this report, the present condition of local and regional democracy retains the flaws described in section 8.

10.3 On the other hand, it is evident that once the three new Laws described in section 9 have been fully implemented and the necessary secondary regulations have been promulgated, much progress will have been made. It is, however, our understanding that one or more of the new Laws may be the subject of challenge in the Constitutional Court and it is, in any event, our view that it is essential that these Laws are joined by the remainder of the overall reforming package (including, above all, the financial reforms) before one can be confident of the prospect of real governmental change on the ground. The dimensions of the changes required should never be underestimated.

Appendix 1
CONGRESS RAPPORTEURS’ VISIT TO TURKEY
22-24 November 2004
Programme
22 November

Ministry of the Interior

Working meetings with :
Mr. Abdulkadir AKSU, Minister of the Interior
Mr. Şahabettin HARPUT, Undersecretary of the Ministry of the Interior
Mr. Kayhan KAVAS, Director General of Local Authorities, Ministry of the Interior
Mr. Mevlüt ATBAŞ, Deputy Director General of Local Authorities
Mr. Dr. Hasan Huseyin CAN, Deputy Director General of Local Authorities
Mr.Necip ÇAKMAK, Deputy Director General of Local Authorities,
Mr. Ahmet Sait KURNAZ, Secretary to the Turkish delegation to the CLRAE, Head of Department
Mr. Ahmet Hikmet SAHİN, Head of Department
Mr. Yavuz Selim KÖŞGER, Head of Department
Ms. Tulay Levent PUSATLIOGLU, Head of Department

Turkish delegation to the Congress

Working meetings with :
Mr. Yavuz MILDON, Head of the Turkish delegation to the Congress (AK Party-Justice and Development Party)
Mr. Ates ÜNAL ERZEN, member of the Turkish delegation (CHP-Republican People Party)
Mrs. Ömür AYBAR, member of the Turkish delegation (AK Party-Justice and Development Party)

Turkish Municipal Association

Working meetings with :
Mr Aytaç DURAK, President of the Turkish Municipal Association
Mr. Naif ALİBEYOĞLU, Member of Executive Committee, Mayor of Kars Municipality
Mr. Osman GÜRÜN, Member of Executive Committee, Mayor of Muğla Municipality
Mr. Yılmaz EREL, Member of Executive Committee, Mayor of 19 Mayıs Municipality, district of Samsun
Mr. Asım GÜZELBEY, Vice-Chairman of Union of Municipalities in Turkey, Mayor of Gaziantep Metropolitan Municipality
Mr. Hasan AKGÜN, Vice-Chairman of Union of Municipalities in Turkey, Mayor of Büyükçekmece Municipality, district of İstanbul
Mr. İsmet ÇETİNKAYA, Vice-Chairman of Union of Municipalities in Turkey, Mayor of Akıncılar Municipality, district of Adıyaman
Mr.Osman N.EYÖVGE, Governor, General Secretary of Union of Municipalities in Turkey

23 November

Turkish Grand National Assembly

Working meeting with :
Mr. Ziyaeddin AKBULUT, Chairman of the Interior Affairs Committee

Independent experts

Working meeting with :
Prof. Dr Rusen KELES, member of the Group of independent experts on the European Charter of Local Self-government
Prof.Dr. Can HAMAMCI, Faculty of Political Science, University of Ankara

Travel to Izmir

24 November

Travel from Izmir to village Yeniköy
Visit of the village

City and province of Izmir

Working meetings with :
Mr. Yusuf Ziya GÖKSU, Governor of Izmir province
Mr. Aziz KOCAOĞLU, Mayor of Izmir.
Leaders of political groups of the Provincial Council
Mr. İsmail YILMAZ, (AK Parti-Justice and Development Party)
Mr. Hakkı BELKCI, (CHP-Republican People Party)
Mr. Senol KARATEPE, (DYP-Truepath Party)

With the participation of the members of the Provincial council

Appendix 2
CONGRESS RAPPORTEURS’ VISIT TO TURKEY
21-23 March 2005
Programme
21 March

Ministry of the Interior

Working meetings with :
Mr. Şahabettin HARPUT, Undersecretary of the Ministry of the Interior
Mr. Kayhan KAVAS, Director General of Local Authorities, Ministry of the Interior
Mr. Mevlüt ATBAŞ, Deputy Director General of Local Authorities
Mr. Dr. Hasan Huseyin CAN, Deputy Director General of Local Authorities
Mr.Necip ÇAKMAK, Deputy Director General of Local Authorities,
Mr. Ahmet Sait KURNAZ, Secretary to the Turkish delegation to the Congress of the Council of Europe, Head of Department
Mr. Ahmet Hikmet SAHİN, Head of Department
Mr. Yavuz Selim KÖŞGER, Head of Department
Ms. Tulay Levent PUSATLIOGLU, Head of Department
Mr. Okay MEMİŞ, Acting Head of Department
Mr. Mustafa YARDIMCI, Acting Head of Department
Mr. Süleyman ELBAN

Turkish delegation to the Congress

Working meetings with :
Mr. Yavuz MILDON, Head of Turkish Delegation to the Congress (AK Party-Justice and Development Party)
Mr. Nihat ZEYBEKCI, member of the Turkish delegation (AK Party-Justice and Development Party)

Turkish Municipal Association

Working meeting with the members of the Executive Board

Delegation of the European Commission to Turkey

Working meeting with :
Mr. Michael VÖGELE, Enlargement Directorate General
Mrs. Teresa REEVES, Regional Policy and Cross Border Co-operation Section

22 March

Independent experts

Working meetings with :
Prof. Dr Rusen KELES, member of the Group of independent experts on the European Charter of Local Self-government

Turkish Grand National Assembly

Working meetings with :
Mr. Ziyaeddin AKBULUT, Chairman the Interior Affairs Committee

Departure of the delegation to Trabzon

23 March

Province and City of Trabzon

Working meetings with :
Mr. Hüseyin YAVUZDEMIR Governor of Trabzon Province
Mr. Volkan CANALIOGLU, Mayor of Trabzon
Leaders of political groups of the Provincial Council
Mr. Hasan CEBI, AK Parti (Justice and Development Party)
Mr. Sedat GOZACAN, CHP (Republican People Party)

Appendix 3

Appendix 4

Appendix 5

Appendix 6

¹ Since the draft of this report was prepared, a Law on Unions of Local Administrations (No 5355) has been passed.

² Again, since this report was prepared, this Law has been amended in small ways to adjust inter alia the responsibilities of metropolitan municipalities.

³ This Law has since been amended in small ways eg to improve the daily allowance of the head of the provincial council.