1 LEGAL AND INSTITUTIONAL INFRASTRUCTURE OF ETHICAL ADMINISTRATION IN TURKEY: ADEQUATE OR NOT?...

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LEGAL AND INSTITUTIONAL INFRASTRUCTURE LEGAL AND INSTITUTIONAL INFRASTRUCTURE OF ETHICAL ADMINISTRATION IN TURKEY: OF ETHICAL ADMINISTRATION IN TURKEY:

ADEQUATE OR NOT?ADEQUATE OR NOT?

Assoc. Prof. UĞUR ÖMÜRGÖNÜLŞENAssoc. Prof. UĞUR ÖMÜRGÖNÜLŞ[email protected]@hacettepe.edu.tr

Hacettepe UniversityHacettepe University

Department of Political Science and Public AdministrationDepartment of Political Science and Public Administration

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International Trend for Developing Ethical International Trend for Developing Ethical InfrastructureInfrastructure

In the face of serious erosion in citizens’ trust in In the face of serious erosion in citizens’ trust in government due to widespread corruption in many government due to widespread corruption in many countries, building an “countries, building an “infrastructureinfrastructure” (” (i.e. i.e. developing codes of conducts and establishing developing codes of conducts and establishing supervisory bodies) for an “supervisory bodies) for an “ethical public ethical public administrationadministration” has become an international trend.” has become an international trend.

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Ethical Public AdministrationEthical Public Administration

In this context, “In this context, “ethical public administrationethical public administration”, ”, equipped with such an legal and institutional equipped with such an legal and institutional infrastructure, simply means a “kind of infrastructure, simply means a “kind of administrative form and understanding, which is administrative form and understanding, which is based on ethical values and principles and takes based on ethical values and principles and takes such values and principles into consideration in its such values and principles into consideration in its daily operation”.daily operation”.

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Ethics Management in the Public SectorEthics Management in the Public Sector

All systematic and coherent actions of public All systematic and coherent actions of public administrators to produce an ethical awareness administrators to produce an ethical awareness which influence all aspects of works done in a public which influence all aspects of works done in a public agency is called as “agency is called as “ethics managementethics management””

There are two approaches in ethics management in There are two approaches in ethics management in

the public sector:the public sector:

compliance based ethics managementcompliance based ethics management integrity based ethics managementintegrity based ethics management

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Relations between Different Approaches of Relations between Different Approaches of Ethics Management and Public Administration Ethics Management and Public Administration

(1)(1)

Compliance based ethics managementCompliance based ethics management is based on a is based on a narrow definition of integrity and focuses on the narrow definition of integrity and focuses on the prevention of corruption through strict rules, procedures prevention of corruption through strict rules, procedures and punishments (i.e. and punishments (i.e. hard measureshard measures). The emphasis is ). The emphasis is placed on “external controls” on the behaviour of public placed on “external controls” on the behaviour of public servants. With these features, it is related to the servants. With these features, it is related to the ““traditional public administration modeltraditional public administration model”.”.

Integrity based (or values based) ethics managementIntegrity based (or values based) ethics management is is based on a broader definition of integrity and focuses on based on a broader definition of integrity and focuses on reinforcing the moral competence and culture of reinforcing the moral competence and culture of responsibility of public servants (i.e. responsibility of public servants (i.e. soft measuressoft measures). The ). The emphasis is placed on “internal self-control” of individual emphasis is placed on “internal self-control” of individual public servants. With these features, it is linked with the public servants. With these features, it is linked with the ““new public management approachnew public management approach” which emphasises ” which emphasises “right to discretion of public managers” and “right to discretion of public managers” and “measurement of individual performance of public “measurement of individual performance of public servants”servants”

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Relations between Different Approaches of Relations between Different Approaches of Ethics Management and Public Administration Ethics Management and Public Administration

(2)(2)

These two different approaches should be thought as These two different approaches should be thought as complementary approachescomplementary approaches since ethics management, since ethics management, in practice, is a sort of mixture of these two approaches in practice, is a sort of mixture of these two approaches in many countries.in many countries.

Although Although Continental EuropeanContinental European political-administrative political-administrative tradition prefers “tradition prefers “hard measureshard measures” for ethical problems ” for ethical problems rather than “rather than “soft measuressoft measures” favoured by ” favoured by Anglo-SaxonAnglo-Saxon tradition, international organisations like OECD tries to tradition, international organisations like OECD tries to develop a framework in which these develop a framework in which these two different two different approaches are integratedapproaches are integrated ..

However, it is quite obvious that the recent public However, it is quite obvious that the recent public sector reforms based on the sector reforms based on the new public management new public management approachapproach have have pushed ethics managementpushed ethics management in the public in the public sector sector towards integrity based modeltowards integrity based model but without but without totally excluding compliance model.totally excluding compliance model.

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FFundamental undamental EElements of lements of EEthical thical IInfrastucturenfrastucture

According to OECD, there are According to OECD, there are eight fundamental eight fundamental elementselements of ethical infrastucture: of ethical infrastucture:

Effective legal frameworkEffective legal frameworkPolitical will and determinancePolitical will and determinanceEffective accountability mechanismsEffective accountability mechanismsApplicable codes of conductsApplicable codes of conductsProfessional socialisation mechanismsProfessional socialisation mechanismsProper working conditions in public administrationProper working conditions in public administrationExistence of a coordinating institution in ethical Existence of a coordinating institution in ethical issuesissuesExistence of effective civil society controlling Existence of effective civil society controlling public servantspublic servants

Elements of ethical infrastructure are “Elements of ethical infrastructure are “ethical ethical measuresmeasures”; both hard and soft types ”; both hard and soft types

They can also be They can also be ““good checklistsgood checklists”” for reviewing and for reviewing and then to revise the Turkish infrastructure.then to revise the Turkish infrastructure.

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Initiatives of International and Regional Initiatives of International and Regional OOrganisations forganisations for r EsEstatablishing an Ethical blishing an Ethical

administration: administration: Guidelines For Turkey Convinced that corruption has devastating economic, Convinced that corruption has devastating economic, political and moral effects, both international and political and moral effects, both international and regional bodies such asregional bodies such as

The United Nations,The United Nations, The World Bank,The World Bank, The European Union,The European Union, The Council of EuropeThe Council of Europe The OECDThe OECD

have recently taken some measures to combat have recently taken some measures to combat

corruption through various corruption through various conventions, conventions, communications, recommendations and action plans communications, recommendations and action plans and programmesand programmes. They have also tried to impose the . They have also tried to impose the elements of such legal-instutional infrastucture to elements of such legal-instutional infrastucture to both developed and developing countries.both developed and developing countries.

Those codes, principles and measures can be Those codes, principles and measures can be considereconsideredd as as ““guidelinesguidelines”” for reviewing and then to for reviewing and then to revise the Turkish infrastructurerevise the Turkish infrastructure

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The Widespread Coruption in TurkeyThe Widespread Coruption in Turkey

Turkey has experienced serious and gradually expanded Turkey has experienced serious and gradually expanded ethical crisesethical crises since the second half of the 1970s. The since the second half of the 1970s. The Turkish public administration has been heavily infected Turkish public administration has been heavily infected with corruption as well. with corruption as well.

These crises are not only a part of global ethical crises in These crises are not only a part of global ethical crises in public administration, but also a result of a broad public administration, but also a result of a broad structural and operational structural and operational degeneration of political-degeneration of political-bureaucratic systembureaucratic system. The side effects of neo-liberal . The side effects of neo-liberal economic policies and new managerial techniques, economic policies and new managerial techniques, conducted since the early 1980s without questioning conducted since the early 1980s without questioning enough their philosophical essence and preparing their enough their philosophical essence and preparing their legal infrastructure, have contributed to the erosion of legal infrastructure, have contributed to the erosion of social values.social values.

Such corrupt social values have also influenced all Such corrupt social values have also influenced all activities of Turkish bureaucracy.activities of Turkish bureaucracy.

This This widespread corruption also triggered economic criseswidespread corruption also triggered economic crises in the late 1990s and the early 2000s in Turkey. in the late 1990s and the early 2000s in Turkey. CCorruption orruption is regarded by the Turkish public opinion as the main cause is regarded by the Turkish public opinion as the main cause of economic-financial crisesof economic-financial crises..

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The Effetcs of Global Financial Actors and the The Effetcs of Global Financial Actors and the EU Accession Process on Turkeys’s Recent EU Accession Process on Turkeys’s Recent

Efforts in Developing Ethical Infrastucture for Efforts in Developing Ethical Infrastucture for an Establishing Ethical Administration in an Establishing Ethical Administration in

TurkeyTurkey

Turkish governments are strongly asked to take some Turkish governments are strongly asked to take some institutional and legal-administrative measures for institutional and legal-administrative measures for anti-corruption in order to get financial aid from anti-corruption in order to get financial aid from international financial institutions such as the international financial institutions such as the IMFIMF and and the the WorldWorld Bank in the process of “ Bank in the process of “economic recovering economic recovering and stabilisationand stabilisation”.”.

Turkish governments are required to adjust Turkish Turkish governments are required to adjust Turkish national anti-corruption legislation to that of the EU in national anti-corruption legislation to that of the EU in the the process of accession to the EUprocess of accession to the EU. Developing ethical . Developing ethical legal-institutional infrastructure is seen one of the legal-institutional infrastructure is seen one of the significant criteria for enhancing the “significant criteria for enhancing the “administrative administrative capacitycapacity” of Turkish public administration.” of Turkish public administration.

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Significant Steps taken by the Turkish Significant Steps taken by the Turkish Governments in the 2000s to Combat Governments in the 2000s to Combat

Corruption and Develop an Ethical Corruption and Develop an Ethical InfrastructureInfrastructure (1) (1)

Some serious measures have been taken by the Some serious measures have been taken by the Turkish governments in the 2000s to combat Turkish governments in the 2000s to combat corruption and develop an ethical infrastructure in corruption and develop an ethical infrastructure in Turkey by taking internal and external demands into Turkey by taking internal and external demands into consideration . consideration .

The Turkish Governments (particularly the JDP The Turkish Governments (particularly the JDP Governments):Governments):

enacted several enacted several laws laws and prepared some and prepared some draft draft billsbills;;

adopted several adopted several international anti-corruption international anti-corruption conventionsconventions developed by the Council of Europe, developed by the Council of Europe, the OECD and the United Nationsthe OECD and the United Nations..

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Significant Steps taken by the Turkish Significant Steps taken by the Turkish Governments in the 2000s to Combat Governments in the 2000s to Combat

Corruption and Develop an Ethical Corruption and Develop an Ethical InfrastructureInfrastructure (2) (2)

Whether or not the attempts of the JDP GovernmentWhether or not the attempts of the JDP Government produce produce intended results in practiceintended results in practice in near future, without any doubt, in near future, without any doubt, depends on the strength of political will of the JDP Government in depends on the strength of political will of the JDP Government in this issue. this issue.

In spite of developments in recovering the loss occurred for In spite of developments in recovering the loss occurred for government because of some bankrupt banks and firms, some government because of some bankrupt banks and firms, some irregularities are still seen in some national and local privatisation irregularities are still seen in some national and local privatisation and public contract bids. and public contract bids.

There is no progress can be reported either concerning the issue of There is no progress can be reported either concerning the issue of changes to the extent of parliamentary immunity. This is, of course, changes to the extent of parliamentary immunity. This is, of course, not a good record for the Government. not a good record for the Government.

Furthermore, the control function of public administration has been Furthermore, the control function of public administration has been reorganised on the basis of performance auditing rather than reorganised on the basis of performance auditing rather than traditional legal expediency in the “Public Financial Management and traditional legal expediency in the “Public Financial Management and Control Law” Control Law” ((Kamu Mali Yönetimi ve Kontrol KanunuKamu Mali Yönetimi ve Kontrol Kanunu)) dated 2003 and dated 2003 and numbered 5018 and the “Law concerning the Fundamental Principles numbered 5018 and the “Law concerning the Fundamental Principles and the Restructuring of Public Administration” and the Restructuring of Public Administration” ((Kamu Yönetiminin Kamu Yönetiminin Temel İlkeleri ve Yeniden Yapılandırılması Hakkında KanunTemel İlkeleri ve Yeniden Yapılandırılması Hakkında Kanun)) dated 2005 and dated 2005 and numbered 5227. This may cause some legal-administrative problems numbered 5227. This may cause some legal-administrative problems in practice.in practice.

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Legal Infrastructure for Ethical Administration Legal Infrastructure for Ethical Administration in Turkeyin Turkey

There is not any “There is not any “special code of conduct for all special code of conduct for all public officialspublic officials”, but several laws and by-laws in the ”, but several laws and by-laws in the Turkish national legislation, particularly for civil Turkish national legislation, particularly for civil servants, comprise a number of important rules of servants, comprise a number of important rules of conduct for public servants.conduct for public servants.

TherThereefore, the Turkish national legislation has fore, the Turkish national legislation has enough necessary legal instrumentsenough necessary legal instruments for preventing for preventing many kinds of corruption. Various instruments took many kinds of corruption. Various instruments took place in different codes of conducts for public place in different codes of conducts for public servants developed by the regional or international servants developed by the regional or international organisations are also prescribed in the legislation.organisations are also prescribed in the legislation.

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The Fundamental Pieces of Turkish National The Fundamental Pieces of Turkish National

LegislationLegislation (1)(1)

The 1982 ConstitutionThe 1982 Constitution The Civil Servants’ LawThe Civil Servants’ Law ((the CSLthe CSL) () (Devlet Memurları Devlet Memurları

KanunuKanunu)) dated 1965 and numbered 657 dated 1965 and numbered 657 The Turkish Penal CodeThe Turkish Penal Code ((Türk Ceza KanunuTürk Ceza Kanunu)) dated 2004 dated 2004

and numbered 5237and numbered 5237 The Law for Financial Disclosure and Combating Bribery The Law for Financial Disclosure and Combating Bribery

and Corruptionand Corruption ((Mal Bildiriminde Bulunulması, Rüşvet ve Mal Bildiriminde Bulunulması, Rüşvet ve Yolsuzluklarla Mücadele KanunuYolsuzluklarla Mücadele Kanunu)) dated 1990 and numbered dated 1990 and numbered 36283628

The Law concerning Prohibited Activities of Former The Law concerning Prohibited Activities of Former Public ServantsPublic Servants ((Kamu Görevlerinden Ayrılanların Kamu Görevlerinden Ayrılanların Yapamayacakları İşler Hakkında KanunYapamayacakları İşler Hakkında Kanun)) dated 1981 and dated 1981 and numbered 2531numbered 2531

The Law concerning the Trials of Civil Servants and The Law concerning the Trials of Civil Servants and Other Public ServantsOther Public Servants ((Memurlar ve Diğer Kamu Memurlar ve Diğer Kamu Görevlilerinin Yargılanması Hakkında KanunGörevlilerinin Yargılanması Hakkında Kanun)) dated 1999 and dated 1999 and numbered 4483numbered 4483

The Law about the Right of Access to InformationThe Law about the Right of Access to Information ((Bilgi Bilgi Edinme Hakkı KanunuEdinme Hakkı Kanunu)) dated 2003 and numbered 4982 dated 2003 and numbered 4982

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The Fundamental Pieces of Turkish National The Fundamental Pieces of Turkish National

LegislationLegislation (2)(2)

The Law concerning the Foundation of the Council of Ethics The Law concerning the Foundation of the Council of Ethics for the Public Servicefor the Public Service ((Kamu Görevlileri Etik Kurulu Kurulması Kamu Görevlileri Etik Kurulu Kurulması Hakkında KanunHakkında Kanun)) dated 2004 and numbered 5176 dated 2004 and numbered 5176

By-Law concerning the Principles of Ethical Behaviour of the By-Law concerning the Principles of Ethical Behaviour of the Public ServantsPublic Servants ((Kamu Görevlileri Etik Davranış İlkeleri Kamu Görevlileri Etik Davranış İlkeleri YönetmeliğiYönetmeliği)) dated 2005 dated 2005

The Law about the Prevention of Money LaunderingThe Law about the Prevention of Money Laundering ((Karaparanın Önlenmesine Dair KanunKaraparanın Önlenmesine Dair Kanun)) dated 1996 and dated 1996 and numbered 4208numbered 4208

The Public Procurement LawThe Public Procurement Law ((Kamu İhale KanunuKamu İhale Kanunu)) dated 2002 dated 2002 and numbered 4734 and and numbered 4734 and the Public Procurement Contracts the Public Procurement Contracts LawLaw ((Kamu İhale Sözleşmeleri KanunuKamu İhale Sözleşmeleri Kanunu)) dated 2002 and dated 2002 and numbered 4735numbered 4735

The Law about Public Financial Management and ControlThe Law about Public Financial Management and Control ((Kamu Mali Yönetimi ve Kontrol KanunuKamu Mali Yönetimi ve Kontrol Kanunu)) dated 2003 and dated 2003 and numbered 5018numbered 5018

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International Conventions ratified by TurkeyInternational Conventions ratified by Turkey OECD Convention of 1997 on Combating the Bribery OECD Convention of 1997 on Combating the Bribery

of Foreign Public Officials in International Business of Foreign Public Officials in International Business Transactions (ratified in 2000)Transactions (ratified in 2000)

1997 Council of Europe Civil Law Convention on 1997 Council of Europe Civil Law Convention on Corruption (ratified in 2003)Corruption (ratified in 2003)

1998 Council of Europe Criminal Law Convention on 1998 Council of Europe Criminal Law Convention on Corruption (ratified in 2004)Corruption (ratified in 2004)

United Nations Convention against Corruption United Nations Convention against Corruption (ratified in 2006)(ratified in 2006)

Avrupa Konseyi Yolsuzluğa Karşı Devletler Grubu Avrupa Konseyi Yolsuzluğa Karşı Devletler Grubu (GRECO)(GRECO) üyeliği (2004) üyeliği (2004)

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Fundamental Anti-Corruption Provisions in the Fundamental Anti-Corruption Provisions in the 1982 Constitution and the CSL and the 1982 Constitution and the CSL and the

Related Legislation(1)Related Legislation(1) Duties and Responsibilities of Public Servants:Duties and Responsibilities of Public Servants:

Merit principle Merit principle (the CSL, art. 3/C)(the CSL, art. 3/C) Loyalty to the Constitution and the laws Loyalty to the Constitution and the laws (the Constitution, art. (the Constitution, art.

129; the CSL, art. 6, 7)129; the CSL, art. 6, 7) Respect to impartiality, equality, the rule of law, democracy Respect to impartiality, equality, the rule of law, democracy

and human rights and human rights (the CSL, art. 6)(the CSL, art. 6) Impartiality Impartiality (the Constitution, art. 10; the CSL, art. 7)(the Constitution, art. 10; the CSL, art. 7) General principles of conduct and co-operation General principles of conduct and co-operation (the CSL, art. (the CSL, art.

8 and 9)8 and 9) Duties and responsibilities of supervising officers Duties and responsibilities of supervising officers (the CSL, (the CSL,

art. 10)art. 10) Implementation orders but objection to illegal orders Implementation orders but objection to illegal orders (the (the

Constitution, art. 137; the CSL, art. 10 and 11)Constitution, art. 137; the CSL, art. 10 and 11) Financial liability of civil servants for damages done to the Financial liability of civil servants for damages done to the

administration or the third parties administration or the third parties (the Constitution, art. 40, (the Constitution, art. 40, 125 and 129/5 and the CSL, art. 12 and 13)125 and 129/5 and the CSL, art. 12 and 13)

Declaration of assets” Declaration of assets” (the CSL, art. 14, the Law numbered 3628 (the CSL, art. 14, the Law numbered 3628 and the Law numbered 5176)and the Law numbered 5176)

Restrictions on releasing information and making statement Restrictions on releasing information and making statement through the press about public affairs” through the press about public affairs” (the CSL, art. 15)(the CSL, art. 15)

Proper use of official documents, materials and Proper use of official documents, materials and instruments” instruments” (the CSL, art. 16)(the CSL, art. 16)

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Fundamental Anti-Corruption Provisions in the Fundamental Anti-Corruption Provisions in the 1982 Constitution1982 Constitution, , the CSL and the Related the CSL and the Related

LegislationLegislation (2) (2)

Prohibitions for public servants:

Prohibition against engaging in trade and other Prohibition against engaging in trade and other

profit-making activities profit-making activities (the CSL, art. 28)(the CSL, art. 28) Prohibition against accepting gifts or obtaining Prohibition against accepting gifts or obtaining

benefits benefits (the CSL, art. 29)(the CSL, art. 29) Prohibition against obtaining benefits from an Prohibition against obtaining benefits from an

enterprise under his/her control enterprise under his/her control (the CSL, art. 30)(the CSL, art. 30) Prohibition against revealing secret information Prohibition against revealing secret information

(the CSL, art. 31)(the CSL, art. 31) Prohibition on business activities of former public Prohibition on business activities of former public

servants servants (the Law numbered 2531, art. 2)(the Law numbered 2531, art. 2)

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Disciplinary Offences and Penalties in the CSLDisciplinary Offences and Penalties in the CSL

In order to maintain proper and ethical conducts in In order to maintain proper and ethical conducts in the public service, various disciplinary penaltiesthe public service, various disciplinary penalties,,

WarningWarning ReprimandReprimand Delay in the salary step increaseDelay in the salary step increase Deduction from monthly salaryDeduction from monthly salary Discharge from the civil service, Discharge from the civil service,

varying according to the nature and seriousness of varying according to the nature and seriousness of the case, are prescribed for civil servants who fail to the case, are prescribed for civil servants who fail to comply with the orders given them and to carry out comply with the orders given them and to carry out the duties imposed upon them and who do things the duties imposed upon them and who do things which are forbidden which are forbidden (the CSL, art. 125).(the CSL, art. 125).

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Ethical Principles for Public ServantsEthical Principles for Public Servants in thein the By-Law concerning the Principles of Ethical By-Law concerning the Principles of Ethical

Behaviour of the Public ServantsBehaviour of the Public Servants dated dated 2005(1)2005(1)

Public service consciousness in performing a duty Public service consciousness in performing a duty (art. 5)(art. 5)

Consciousness of serving the community Consciousness of serving the community (art. 6)(art. 6) Compliance with the service standards Compliance with the service standards (art. 7)(art. 7) Commitment to the objective and mission of public Commitment to the objective and mission of public

agency agency (art. 8)(art. 8) Integrity and impartiality Integrity and impartiality (art. 9)(art. 9) Respectability and confidence Respectability and confidence (art. 10)(art. 10) Decency and respect Decency and respect (art. 11)(art. 11) Notification to the authorities Notification to the authorities (art. 12)(art. 12) Avoiding conflict of interest Avoiding conflict of interest (art. 13)(art. 13)

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Behaviour of the Public ServantsBehaviour of the Public Servants dated dated 2005(2005(22))

Prohibition against the misuse of duty and authority Prohibition against the misuse of duty and authority for deriving benefits for deriving benefits (art. 14)(art. 14)

Prohibition of receiving gifts or deriving benefits Prohibition of receiving gifts or deriving benefits (art. (art. 15)15)

The proper use of public properties and resources The proper use of public properties and resources (art. 16)(art. 16)

Avoiding extravagance and waste Avoiding extravagance and waste (art. 17)(art. 17) Unauthorised and factitious statementUnauthorised and factitious statement (art. 18)(art. 18) Notification, transparency and participation Notification, transparency and participation (art. 19)(art. 19) Accountability of administrators Accountability of administrators (art. 20)(art. 20) Restrictive relations with former public servants Restrictive relations with former public servants (art. (art.

21)21) Declaration of assets Declaration of assets (art. 22)(art. 22)

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TThe principles determined by he principles determined by the By-Lawthe By-Law issued by the issued by the Council of Ethics for the Public Service in 2005 are Council of Ethics for the Public Service in 2005 are actually quite similar to those prescribed by actually quite similar to those prescribed by the CSLthe CSL. . Therefore, it can be argued that such principles, in Therefore, it can be argued that such principles, in essence, support the present national legislation in this essence, support the present national legislation in this issue. However, there are issue. However, there are some criticismssome criticisms about the about the various aspects of this By-Law. various aspects of this By-Law.

Firstly,Firstly, those ethical principles (code of conduct) are those ethical principles (code of conduct) are regulated through a by-law rather than a law. It is regulated through a by-law rather than a law. It is quite easy to change by-laws in the Turkish legal and quite easy to change by-laws in the Turkish legal and administrative system; and it is not in accordance administrative system; and it is not in accordance with the tradition of regulating issues related to the with the tradition of regulating issues related to the status of civil service in Turkey either. status of civil service in Turkey either.

Secondly,Secondly, the contents of some principles (e.g. the contents of some principles (e.g. respectability and confidence; decency and respect) respectability and confidence; decency and respect) like some in the CSL, are not clear. like some in the CSL, are not clear.

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Thirdly,Thirdly, the reflections of the new public management and the reflections of the new public management and governance approaches can easily be detected in the terms governance approaches can easily be detected in the terms and language (e.g. continuous improvement, results-driven, and language (e.g. continuous improvement, results-driven, commitment to mission, compliance with service standards, commitment to mission, compliance with service standards, transparency, accountability, citizen-focused, co-operation transparency, accountability, citizen-focused, co-operation with the civil society) used in the By-Law. The state-with the civil society) used in the By-Law. The state-oriented values and principles (of the CSL) and such oriented values and principles (of the CSL) and such managerial and governance-type values and principles are managerial and governance-type values and principles are together taken place in the By-Law. Unfortunately, the By-together taken place in the By-Law. Unfortunately, the By-Law cannot provide administrators and public servants with Law cannot provide administrators and public servants with a clear guideline when those different values are contradict. a clear guideline when those different values are contradict.

Fourthly,Fourthly, the By-Law, in principle, envisage a prohibition the By-Law, in principle, envisage a prohibition against accepting gifts or obtaining benefits but not accept against accepting gifts or obtaining benefits but not accept a “a “zero-tolerancezero-tolerance” policy (art. 15). Small and symbolic gifts ” policy (art. 15). Small and symbolic gifts and various donations (there is no clear-cut monetary limit) and various donations (there is no clear-cut monetary limit) are not covered by this general prohibition; and therefore, are not covered by this general prohibition; and therefore, it is the weak point of the system brought the By-Lawit is the weak point of the system brought the By-Law..

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Corruption Crimes, Offences and Penalties in Corruption Crimes, Offences and Penalties in the Turkish Penal Code numbered the Turkish Penal Code numbered 5237 5237

Various heavy penalties Various heavy penalties (heavy imprisonment and fine)(heavy imprisonment and fine) are determined for various corruption crimes and are determined for various corruption crimes and offences committed by public servants. offences committed by public servants.

Penalties for Penalties for embezzlementembezzlement, , peculationpeculation, , extortionextortion, , briberybribery,, negligence in the duty of controlnegligence in the duty of control, , misuse of misuse of authorityauthority, , revealing secret information about the dutyrevealing secret information about the duty, , engaging in tradeengaging in trade are the most important ones among are the most important ones among them within the framework of felonies against the them within the framework of felonies against the functioning of the State functioning of the State (Part 4 and Section 1 of the Penal (Part 4 and Section 1 of the Penal Code).Code).

The civil servants who are punished due to such crimes The civil servants who are punished due to such crimes and offences are also deprived from the public service and offences are also deprived from the public service temporarily or in perpetuity. In a similar way, the civil temporarily or in perpetuity. In a similar way, the civil servants concerned lose their one of the prerequisites for servants concerned lose their one of the prerequisites for civil service employment due to these heavy penalties civil service employment due to these heavy penalties given them and then terminated from the Civil Service given them and then terminated from the Civil Service according to the CSL according to the CSL (art. 48/5 and 98/b).(art. 48/5 and 98/b). Civil servants for Civil servants for whom disciplinary or criminal investigation is being whom disciplinary or criminal investigation is being carried out can also be suspended from their offices as a carried out can also be suspended from their offices as a precautionary measure in the interest of the public precautionary measure in the interest of the public service service (the CSL, art. 137 and 140).(the CSL, art. 137 and 140).

These are the These are the momostst serious measures serious measures taken against taken against corruptioncorruption in the Turkish legislation. in the Turkish legislation.

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TThe Investigation and Trial of Crimes and he Investigation and Trial of Crimes and Offences committed by Public Servants in Offences committed by Public Servants in

Relation with Their DutiesRelation with Their Duties (1) (1) According the “According the “Law for Financial Disclosure and Combating Law for Financial Disclosure and Combating

Bribery and CorruptionBribery and Corruption” dated 1990 and numbered 3628, ” dated 1990 and numbered 3628, public prosecutors start investigation about civil servants who public prosecutors start investigation about civil servants who commit the crimes and offences prescribed in this Law without commit the crimes and offences prescribed in this Law without having any permission from any administrative authority. This having any permission from any administrative authority. This Law is quite important because it brings Law is quite important because it brings a special a special investigation procedureinvestigation procedure for offences and crimes described in for offences and crimes described in this Law this Law (e.g. unjust enrichment, untrue declaration of financial (e.g. unjust enrichment, untrue declaration of financial assets)assets) and for many kinds of corruption and for many kinds of corruption (e.g. extortion, (e.g. extortion, peculation, embezzlement, bribery, smuggling, fraudulent act in peculation, embezzlement, bribery, smuggling, fraudulent act in public contract and procurement, revealing the secrets of the State).public contract and procurement, revealing the secrets of the State).

Most importantly, both the 1982 Constitution (art. 129), the Most importantly, both the 1982 Constitution (art. 129), the CSL (art. 24) and the “CSL (art. 24) and the “Law concerning the Trials of Civil Law concerning the Trials of Civil Servants and Other Public ServantsServants and Other Public Servants” dated 1999 and ” dated 1999 and numbered 4483 aim to protect civil servants against any sort numbered 4483 aim to protect civil servants against any sort of claims about their duties and to subject them to a “of claims about their duties and to subject them to a “special special criminal investigation procedurecriminal investigation procedure” in the cases of “crimes and ” in the cases of “crimes and offences committed because of their duties”. Civil servants offences committed because of their duties”. Civil servants cannot be subject to criminal investigation, except in some cannot be subject to criminal investigation, except in some cases, without the “permission” of administrative authorities cases, without the “permission” of administrative authorities concerned.concerned.

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TThe Investigation and Trial of Crimes and he Investigation and Trial of Crimes and Offences committed by Public Servants in Offences committed by Public Servants in

Relation with Their DutiesRelation with Their Duties (2) (2)

The Temporary Law dated 1913The Temporary Law dated 1913 was long seen as the was long seen as the main obstacle to the ethical administration in Turkey. main obstacle to the ethical administration in Turkey. The possibility of evasion of civil servants from The possibility of evasion of civil servants from investigations and trials through the permission investigations and trials through the permission system even in the cases of serious corruption and system even in the cases of serious corruption and human rights violations was severely criticised by civil human rights violations was severely criticised by civil society institutions and international organisations as society institutions and international organisations as well some jurists and academics.well some jurists and academics.

With With the Law numbered 4483the Law numbered 4483, the permission system , the permission system has, in principle, been kept but it has been modestly has, in principle, been kept but it has been modestly changed by taking such criticisms into consideration changed by taking such criticisms into consideration to a certain extent. The scope of the system has been to a certain extent. The scope of the system has been narrowed in terms of persons, and crimes and offences narrowed in terms of persons, and crimes and offences subject to the Law; and the administrative subject to the Law; and the administrative investigation process has been shortened.investigation process has been shortened.

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Institutional Infrastructure for Ethical Institutional Infrastructure for Ethical Administration in TurkeyAdministration in Turkey

A special institution (i.e. A special institution (i.e. the Council of Ethics for the the Council of Ethics for the Public ServicePublic Service/Kamu Görevlileri Etil Kurulu/Kamu Görevlileri Etil Kurulu ) to monitor ) to monitor the behaviours of public servants in terms of ethical the behaviours of public servants in terms of ethical principles and standards was newly established with principles and standards was newly established with quite restricted duties and authorities in Turkey.quite restricted duties and authorities in Turkey.

However, the However, the legislative, executive and judicial organslegislative, executive and judicial organs of the Turkish polity are, however, directly or indirectly of the Turkish polity are, however, directly or indirectly authorised for combating corruption in the way of authorised for combating corruption in the way of establishing an ethical administration in Turkey.establishing an ethical administration in Turkey.

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The Ways of Control of Corruption and The Ways of Control of Corruption and Authorised BodiesAuthorised Bodies for Combating Coruptionfor Combating Coruption

(1)(1)

Legislative ControlLegislative Control The ParliamentThe Parliament (TBMM)(TBMM) The Parliamentary Commission for PetitionsThe Parliamentary Commission for Petitions (TBMM (TBMM

Dilekçe KomisyonuDilekçe Komisyonu)) The Parliamentary Commission for Human RightsThe Parliamentary Commission for Human Rights

((TBMM İnsan Hakları İnceleme KomisyonuTBMM İnsan Hakları İnceleme Komisyonu) )

Administrative ControlAdministrative Control Internal Control (Internal Control (hhierarchical ierarchical ccontrol and ontrol and ccontrol ontrol

by by iinspection nspection bboards)oards) External Control (External Control (aadminitrative dminitrative ttutelage and utelage and

sspecial pecial ccontrol by ontrol by eexpert xpert ppublic ublic bbodies)odies)

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The Ways of Control of Corruption and The Ways of Control of Corruption and Authorised BodiesAuthorised Bodies for Combating Coruptionfor Combating Coruption ((22))

Judicial ControlJudicial Control There is not any specialist court for the judicial There is not any specialist court for the judicial

control of corruptioncontrol of corruption The legal proceedings about corruption cases are, The legal proceedings about corruption cases are,

however, carried out by both the constitutional however, carried out by both the constitutional higher courts and judicial, administrative and higher courts and judicial, administrative and military courtsmilitary courts

Control of public opinionControl of public opinion mass mediamass media civil society institutionscivil society institutions

Ombudsman Ombudsman The execution of “the Law about Omdusman” The execution of “the Law about Omdusman” ((Kamu Kamu

Denetçiliği Kurumu KanunuDenetçiliği Kurumu Kanunu)) dated 2006 and numbered dated 2006 and numbered 5548 was halted by the Constitutional Court5548 was halted by the Constitutional Court

International ControlInternational Control the European Court of Human Rightsthe European Court of Human Rights

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Authorised Bodies for Combating Authorised Bodies for Combating Bureaucratic CorBureaucratic Corrruption through uption through Administrative Administrative CControl in Turkeyontrol in Turkey

Internal Administrative ControlInternal Administrative Control Inspection Board of the Office of the Prime Ministry and Inspection Board of the Office of the Prime Ministry and

inspection boards in every ministry and autonomous inspection boards in every ministry and autonomous public bodiespublic bodies

External Administrative Control through expert public External Administrative Control through expert public bodiesbodies The Audit Court/The Court of Accounts The Audit Court/The Court of Accounts (Sayıştay)(Sayıştay) The State Supervisory Council The State Supervisory Council (Devlet Denetleme Kurulu )(Devlet Denetleme Kurulu ) The Higher Supervisory Council of the Prime Ministry The Higher Supervisory Council of the Prime Ministry

(Başbakanlık Yüksek Denetleme Kurulu)(Başbakanlık Yüksek Denetleme Kurulu) The Council of Ethics for the Public ServiceThe Council of Ethics for the Public Service-CEPS -CEPS (Kamu (Kamu

Görevlileri Etik Kurulu)Görevlileri Etik Kurulu) TThe Banking Regulation and Supervision Agency he Banking Regulation and Supervision Agency ((BBDDKDDK)) TThe Public Procurement Authority he Public Procurement Authority (Kamu İhale Kurumu)(Kamu İhale Kurumu) TThe Examination Board for Financial Crimes he Examination Board for Financial Crimes ((MASAK)MASAK)

31

The Common Features and Weaknesses of The Common Features and Weaknesses of Authorised Bodies for Combating Authorised Bodies for Combating

Bureaucratic CorBureaucratic Corrruption exceptuption except CEPS CEPS

Authorised bodies except CEPS are, in fact, not Authorised bodies except CEPS are, in fact, not deliberately established for preventing and deliberately established for preventing and combating corruption and monitoring the issues of combating corruption and monitoring the issues of public service ethics. Although they do their public service ethics. Although they do their supervisory functions indirectly, they are not always supervisory functions indirectly, they are not always effective enough to achieve this aim.effective enough to achieve this aim.

Furthermore, the supervisory report of the State Furthermore, the supervisory report of the State

Supervisory Council is not mandatory for public Supervisory Council is not mandatory for public organisations. organisations.

One of the most serious deficiencies in the One of the most serious deficiencies in the supervisory activities of these bodies is that the supervisory activities of these bodies is that the results of supervision are not publicly known enoughresults of supervision are not publicly known enough

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The Council of Ethics for the Public ServiceThe Council of Ethics for the Public Service--CEPS CEPS (Kamu Görevlileri Etik Kurulu)(Kamu Görevlileri Etik Kurulu)

With “With “the Law concerning the Foundation of the the Law concerning the Foundation of the Council of Ethics for the Public ServiceCouncil of Ethics for the Public Service” dated 2004 ” dated 2004 and numbered 5176, and numbered 5176, a specialised councila specialised council for for supervising the ethical conducts of public servants supervising the ethical conducts of public servants was establihed for the first time in Turkey. was establihed for the first time in Turkey.

The The recommendations of regional and international recommendations of regional and international organisationsorganisations such as the EU, the Council of Europe such as the EU, the Council of Europe and the OECD was influential in the establishment of and the OECD was influential in the establishment of the Council as an important part of the ethical the Council as an important part of the ethical infrastructure of Turkey.infrastructure of Turkey.

The establishment of such a national ethics council The establishment of such a national ethics council represents an represents an important stepimportant step in improving ethical in improving ethical record of Turkish public administrationrecord of Turkish public administration..

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The Aims and Duties of CEPSThe Aims and Duties of CEPS

The Council is commissioned and authorised to “The Council is commissioned and authorised to “determine determine the principles of ethical behaviourthe principles of ethical behaviour” to be abided by public ” to be abided by public servants while performing their duties, “servants while performing their duties, “perform the perform the necessary investigation and researchnecessary investigation and research” with the personal ” with the personal claim that the ethical principles are violated or the same claim that the ethical principles are violated or the same based on the complaints to be received, to inform the based on the complaints to be received, to inform the relevant authorities regarding the result of such relevant authorities regarding the result of such investigation and researches, “investigation and researches, “perform or make performed perform or make performed studies to establish the ethical culturestudies to establish the ethical culture” within the public ” within the public and to support the studies to be performed in this regard and to support the studies to be performed in this regard (art. 3). (art. 3).

The Council is also authorised to examine, when necessary, The Council is also authorised to examine, when necessary, the the declarations of assetsdeclarations of assets of public servants (art. 8). of public servants (art. 8).

With the duty of establishing and enhancing ethical culture, With the duty of establishing and enhancing ethical culture, the Council represents the Council represents a smooth transition to integrity a smooth transition to integrity based ethics managementbased ethics management as a complementary element to as a complementary element to the compliance based ethics management.the compliance based ethics management.

34

Factors Restricting the Effectiveness of CEPS Factors Restricting the Effectiveness of CEPS in Combating Corruption and Establishing in Combating Corruption and Establishing

Ethical AdministrationEthical Administration There are There are some criticismssome criticisms about the way of its about the way of its

establishment, the structure, the span of duty, establishment, the structure, the span of duty, authorities, and its capacity and functioning of the authorities, and its capacity and functioning of the CouncilCouncil

The The narrow span of authoritynarrow span of authority of the Council (politicians, of the Council (politicians,

military-judical-academic personnel are not covered by military-judical-academic personnel are not covered by the Law) is one of the most significant critisims.the Law) is one of the most significant critisims.

It is, however, early to evaluate the effects of the works It is, however, early to evaluate the effects of the works

of the Council since it was put into force in late 2004. of the Council since it was put into force in late 2004.

Nowadays, the Council is heavily occupied with Nowadays, the Council is heavily occupied with conducting a project called “conducting a project called “Ethics for the Prevention of Ethics for the Prevention of Corruption in TurkeyCorruption in Turkey” ” (Türkiye’de Yolsuzluğun Önlenmesi (Türkiye’de Yolsuzluğun Önlenmesi İçin Etik Projesi),İçin Etik Projesi), in co-operation with the Council of in co-operation with the Council of Europe.Europe.

35

ConcludConcludiing Remarks: Osbtacles And ng Remarks: Osbtacles And FacFaciilliitators For Establtators For Establiishshiing An Ethng An Ethiical cal

AdmAdmiinniistratstratiion on iin Turkeyn Turkey (1)(1)

In spite of measures recently taken byt the Turkish In spite of measures recently taken byt the Turkish Governments, corruption still remains a serious problem Governments, corruption still remains a serious problem requiring requiring major effortsmajor efforts in in::

legislative legislative (i.e. an anti-corruption law),(i.e. an anti-corruption law), institutionalinstitutional (i.e. an independent anti-corruption (i.e. an independent anti-corruption

body),body), administrative administrative (i.e. co-ordination, co-operation) and(i.e. co-ordination, co-operation) and politico-culturalpolitico-cultural (i.e. public awareness, social dialogue (i.e. public awareness, social dialogue

and political will) and political will)

fields by taking international standards into fields by taking international standards into consideration.consideration.

However, there are However, there are enough basic legal instruments and enough basic legal instruments and institutional mechanismsinstitutional mechanisms (i.e. hard measures of ethics (i.e. hard measures of ethics management) in Turkey for combating corruption. management) in Turkey for combating corruption.

36



Furthermore, a special institution for monitoring the Furthermore, a special institution for monitoring the issues of public service ethics (i.e. issues of public service ethics (i.e. CEPSCEPS) was newly ) was newly established and some legal regulations and institutional established and some legal regulations and institutional arrangements on the issues of right to information, arrangements on the issues of right to information, transparency, and financial management and control transparency, and financial management and control were recently completed. were recently completed.

In other words, the In other words, the insufficient aspectsinsufficient aspects of ethical of ethical infrastructure have been infrastructure have been rectified partly in the process of rectified partly in the process of accession to the EUaccession to the EU..

The performance of Turkish governments on this issue The performance of Turkish governments on this issue has also been acknowledged by the EU authorities in has also been acknowledged by the EU authorities in their offical progress reports.their offical progress reports.

37



If so,If so,

Why does corruption have still a widespread effect on Why does corruption have still a widespread effect on the Turkish polity? the Turkish polity?

Why are such legal and institutional instruments and Why are such legal and institutional instruments and mechanisms not enough to establish an ethical mechanisms not enough to establish an ethical administration in Turkey? administration in Turkey?

Is there any serious deficiency in the application of Is there any serious deficiency in the application of legal-administrative mechanisms, rules and sanctions legal-administrative mechanisms, rules and sanctions due to some cultural factors in spite of recent efforts due to some cultural factors in spite of recent efforts and improvements? and improvements?

38



The most important aspect of the fight against The most important aspect of the fight against corruption is, of course, corruption is, of course, not only enacting not only enacting anti-anti-corruption legislation, corruption legislation, but also thebut also the enforcementenforcement of of legal provisions and continuous monitoring of activities legal provisions and continuous monitoring of activities of all public servants. of all public servants.

In spite of improvements recently made in the legal In spite of improvements recently made in the legal and institutional infrastructure, most of the legal-and institutional infrastructure, most of the legal-administrative administrative institutions and mechanisms are not institutions and mechanisms are not operated properly in practiceoperated properly in practice. This is the most serious . This is the most serious obstacle in establishing an ethical administration in obstacle in establishing an ethical administration in Turkey.Turkey.

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Those questions can be explained through such factors:Those questions can be explained through such factors:

Socio-political traditionsSocio-political traditions (collectivist culture based on (collectivist culture based on solidarity and traditional spoils culture)solidarity and traditional spoils culture)

AAdministrative traditionsdministrative traditions (e.g. patronage in entering the (e.g. patronage in entering the public service, gift giving and taking, and keeping business public service, gift giving and taking, and keeping business relations with the government department after retirement) relations with the government department after retirement)

LLegal uncertaintiesegal uncertainties (e.g. lack of definition of secret (e.g. lack of definition of secret information or lack of regulation in the case of morally or information or lack of regulation in the case of morally or ideologically repugnant order)ideologically repugnant order)

CComplexity of public servicesomplexity of public services (e.g. difficulties in the (e.g. difficulties in the examination of the content of orders)examination of the content of orders)

SSocio-economic problemsocio-economic problems (e.g. the side effects of neo-liberal (e.g. the side effects of neo-liberal economic policies and new managerial techniques conducted economic policies and new managerial techniques conducted without questioning enough their philosophical essence and without questioning enough their philosophical essence and illegal commercial activities of public servants because of illegal commercial activities of public servants because of their lower salaries)their lower salaries)

40



The Importance of Cultural Factor:The Importance of Cultural Factor:

As is seen, most of the deficiencies in the operation of As is seen, most of the deficiencies in the operation of such mechanisms and application of legal-administrative such mechanisms and application of legal-administrative rules mainly stem from “cultural factors”. rules mainly stem from “cultural factors”.

Therefore, it can be argued combating corruption and Therefore, it can be argued combating corruption and unethical conducts has to be supported with “unethical conducts has to be supported with “cultural cultural strategiesstrategies” as well as legal-administrative strategies. ” as well as legal-administrative strategies.

Public service ethics cannot only be maintained by Public service ethics cannot only be maintained by punishing public officials who committed corruption, but punishing public officials who committed corruption, but through understanding the “through understanding the “cultural dimension of ethical cultural dimension of ethical administrationadministration” and establishing an “” and establishing an “administrative administrative climate based on ethical valuesclimate based on ethical values”.”.

Cultural factors facilitating the implementation of ethical Cultural factors facilitating the implementation of ethical rules (rules (integrity based ethics management and its soft integrity based ethics management and its soft measuresmeasures) make significant contribution for establishin an ) make significant contribution for establishin an ethical administrationethical administration..

41

Legal, Institutional and Cultual Legal, Institutional and Cultual MMeasures easures need to be need to be ttakenaken

in the in the LLight of International Principles and ight of International Principles and StandardsStandards (1) (1) The structure, The structure, authority and capacity of the Council of authority and capacity of the Council of

EthicsEthics for the Public Service should be improved; for the Public Service should be improved; In addition to the Council of Ethics, an “In addition to the Council of Ethics, an “independent independent

anti-corruption bodyanti-corruption body” (as a hard measure of compliance ” (as a hard measure of compliance based ethics management) can be established and the based ethics management) can be established and the links between this body and the Council of Ethics (as soft links between this body and the Council of Ethics (as soft measure of integrity based ethics management) should measure of integrity based ethics management) should be clearly established; all elected and appointed public be clearly established; all elected and appointed public officials should be covered by these two bodies;officials should be covered by these two bodies;

Two important institutions for combating corruption, Two important institutions for combating corruption, ““OmbudsmanOmbudsman” and the “” and the “Office for Right to InformationOffice for Right to Information” ” can be accommodated within the Council of Ethics.can be accommodated within the Council of Ethics.

A comprehensive “A comprehensive “anti-corruption lawanti-corruption law” should be ” should be enacted; the structure and language of the present enacted; the structure and language of the present national legislation should be simplified; and the links national legislation should be simplified; and the links between this general anti-corruption law and other between this general anti-corruption law and other national legislation should be clearly regulated;national legislation should be clearly regulated;

A A ““general code of conductgeneral code of conduct” for all elected and ” for all elected and appointed public officials should be prepared. In the light appointed public officials should be prepared. In the light of this general code and international standards, special of this general code and international standards, special codes of conduct for certain categories of public codes of conduct for certain categories of public servants may also be regulated; servants may also be regulated;

42

Legal, Institutional and Cultual Legal, Institutional and Cultual MMeasures easures need to be need to be ttakenaken

in the in the LLight of International Principles and ight of International Principles and StandardsStandards (2) (2)

Transparency in governmental activities should be Transparency in governmental activities should be developed through the right to information; developed through the right to information; accountability mechanism should be improved through accountability mechanism should be improved through legal measures and modern managerial techniques;legal measures and modern managerial techniques;

The consistency of the related policies and the degree of The consistency of the related policies and the degree of co-ordination and co-operation among policies and co-ordination and co-operation among policies and institutions should be enhanced;institutions should be enhanced;

More actions in the field of ethics education actions More actions in the field of ethics education actions should be taken to raise public awareness of corruption should be taken to raise public awareness of corruption as a serious criminal offence; supporting cultural factors as a serious criminal offence; supporting cultural factors for ethical behaviour should be promoted;for ethical behaviour should be promoted;

Dialogue between the parliament, government, public Dialogue between the parliament, government, public administration and civil society should be strengthened;administration and civil society should be strengthened;

Continuous will and support of the highest political level Continuous will and support of the highest political level for the fight against corruption should always be for the fight against corruption should always be welcome.welcome.

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ConcludConcludiing Remarkng Remark

It should always kept in mind that It should always kept in mind that developing an infrastucture for establishing developing an infrastucture for establishing an ethical administration is a long term and an ethical administration is a long term and hard task.hard task.

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