In pre-modern periods, when political power did not diffuse downward by incorporating ordinary people \/ the populace, and was not exercised through an impersonal and rational mechanism, the physical and intellectual labor required by the ruler(s) was supplied through the establishment of personal bonds. In Feudal Europe, the oath of loyalty (the fief contract) between the vassal and the suzerain, and in the classical period of the Ottoman Empire, the practices of \u201cdevshirme\u201d and \u201ckap\u0131lanma\u201d (which constituted the \u201chousehold of the Porte\u201d), served such a function. Modernity made it possible to implement, at the scale of the country \/ regnum, the democratic city-state (polis), which had been regarded in the Old World as a localized, temporary, and inefficient model of political organization. Political power would now belong to the nation, composed of free and equal individuals (fellow citizens \/ citoyens). Citizens would themselves design state organs whose function had been reformulated as \u201cproviding services to them,\u201d and would again themselves occupy the seats of these organs. While performing this task (of governing themselves), citizens would owe allegiance not to any individual or group, but solely to the community of citizens (the nation) and to the rules established by it. The statement in the 1789 Declaration of the Rights of Man and of the Citizen\u2014\u201call citizens, being equal before the law, are equally admissible to all public dignities, offices and employments, according to their abilities, and without distinction other than that of their virtues and talents\u201d\u2014was precisely proclaiming this new model (Art. 6).<\/p>\n
In the second article of the series I have titled \u201cThe Forgotten Constitution,\u201d I will examine the right to enter public service, which is set out in Article 70 of the currently in-force 1982 Constitution. First and foremost, it should be noted that the fact that this right is regulated separately\u2014distinct from the freedom to work under Article 48 and the right to work under Article 49 of the Constitution\u2014within the category of \u201cpolitical rights \/ active status rights,\u201d is a necessary consequence of the modern-democratic conception of the state explained above. This is because there is a \u201cdifference in nature\u201d between being employed by public legal entities or taking part in the provision of public services, and being employed by private law persons. Entering public service carries a \u201cpolitical\u201d character, as it entails the privileges and obligations of public authority. For this reason, the right to enter public service is defined on the basis of \u201ccitizenship\u201d (it is granted not to \u201ceveryone,\u201d but to \u201ccitizens\u201d), and it is further guaranteed that all citizens possessing merit may benefit from this right on an equal basis.<\/p>\n
Despite its political character and its definition on the basis of citizenship, the 1948 Universal Declaration of Human Rights did not remain indifferent to the right to enter public service and addressed this right in a separate provision, distinct from the right to work, by making reference to national belonging. According to the Declaration, everyone has the right to take part in the government of his or her country and to have equal access to public service in his or her country (Art. 21). The International Covenant on Civil and Political Rights, to which T\u00fcrkiye is a party, similarly guarantees this right in comparable terms (Art. 25). According to the United Nations Human Rights Committee, the supervisory body of the Covenant, the genuine provision of the right to enter public service on equal terms depends on appointment, promotion, suspension, and dismissal processes being based on objective and reasonable criteria. States Parties may, where necessary, also provide for special \/ positive measures to ensure de facto equality for all citizens. In this framework, grounding access to public office on the principles of equality of opportunity and merit, and reinforcing it with security of tenure, constitutes a guarantee that citizens may perform their duties free from political interference and pressure. The Committee further emphasizes that, in the exercise of this right, no discrimination whatsoever should be permitted on the grounds listed in Article 2(1) of the Covenant, such as race, colour, sex, language, religion, political opinion, origin, property, or birth [1].<\/p>\n
The final paragraph of Article 90 of the Constitution provides that, in cases of conflict arising from differences between duly ratified international treaties concerning fundamental rights and freedoms and domestic laws on the same subject, the provisions of international treaties shall prevail. Accordingly, both in the interpretation of Article 70 of the Constitution regarding the right to enter public service, and in the content of laws to be enacted in this direction, the requirements of the International Covenant on Civil and Political Rights, as explained above, must be taken into account.<\/p>\n
The right to enter public service has been one of the fundamental motivations\u2014themes\u2014of Ottoman-Turkish modernization and has consistently been recognized at the constitutional level. The Tanzimat and Islahat Edicts, along with the legal reforms carried out during that period, restructured state offices\u2014which had previously been distributed as a \u201cfavor\u201d based on personal loyalty\u2014into a secured \u201cstatus\u201d open to all subjects. The 1876 Constitution provided that all subjects of the Ottoman Empire, provided that they knew the official language Turkish, would be admitted to public offices suitable to their competence and abilities (Arts. 18 and 19). The 1924 Constitution stipulated that every Turk possessing political rights had the right to be employed in public service in accordance with his competence and merit (Art. 92). The 1961 Constitution stated that every Turk had the right to enter public service and further emphasized that, in recruitment, no distinctions other than the qualifications required by the duty could be taken into account (Art. 58). Finally, the currently in-force 1982 Constitution regulates the right to enter public service, in parallel with the 1961 Constitution, as follows: \u201cEvery Turk has the right to enter public service. \/ No criteria other than the qualifications required by the duties concerned shall be taken into consideration for recruitment into public service\u201d (Art. 70).<\/p>\n
Due to the \u201cdifference in nature\u201d indicated above, the right to enter public service is classified under \u201cPolitical Rights and Duties\u201d in the 1982 Constitution and is granted not to \u201ceveryone,\u201d but to Turkish citizens (this does not entirely preclude the employment of foreigners in public services when necessary; it merely indicates that the employment of foreigners is subject to a different legal regime than that applicable to citizens). The inclusion of the right to enter public service in this category also produces a practical consequence: while paragraph 17 of Article 104 of the Constitution\u2014 as a rule\u2014permits the regulation of social and economic rights and duties by Presidential decrees, it categorically prohibits the regulation of political rights and duties by such decrees. In other words, insofar as the right to enter public service is classified among political rights and duties, it may only be regulated by law and cannot even be made the subject of Presidential decrees.<\/p>\n
As regards the scope of the right, what should be understood from the phrase \u201cpublic services\u201d in the wording of Article 70? In other words, does the right to enter public service cover only employment under the status of a \u201ccivil servant\u201d? The following statements in the explanatory memorandum of Article 70 of the 1982 Constitution are instructive in answering this question: \u201cThe right to enter public service is the most natural right of citizens. Between 1961 and 1980, this was a provision to which political parties did not show sufficient care in practice. In principle, the right to enter public service has been preserved exactly as in the 1961 Constitution. However, in the regulation concerning the recruitment of civil servants and public officials, provisions have been introduced to prevent the abuse of this right.\u201d As can be seen, the explanatory text refers not only to civil servants but also to other public officials being recruited into public service. Indeed, Articles 128 and 129 of the Constitution, under the heading \u201cProvisions Relating to Public Service Officials,\u201d also use the expression \u201ccivil servants and other public officials.\u201d Accordingly, persons to be employed in public services are not limited to \u201ccivil servants\u201d but also include other public officials subject to various legal regimes (for instance, judges, prosecutors, academic staff, or contractual personnel). Therefore, the guarantees relating to the right to enter public service must extend not only to civil servants but also to other public officials. The Constitutional Court has adopted a similar interpretation in a decision concerning contractual personnel and has indicated that the right to enter public service is not limited to civil servant status [2].<\/p>\n
Article 70 of the Constitution employs the expressions \u201centry\u201d (girme<\/em>) and \u201crecruitment\u201d (al\u0131nma<\/em>). This raises another question regarding the scope of the right: does one fall outside the sphere of protection of the right once one has \u201centered\u201d or has been \u201crecruited\u201d into public service? If the wording of the provision is interpreted in light of both the above-cited general comment of the United Nations Human Rights Committee and the historical development of the right, it must be concluded that the right to enter public service also protects those already in office. Indeed, the Constitutional Court, in one of its decisions, reached the same conclusion through a similar method, holding that the right also encompasses remaining in \/ continuing public service: \u201cInterpreting the right to enter public service as covering only entry but not continuation would strip this right of its character as a political right, namely a right of participation. A right that guarantees only entry, but not continuation, cannot ensure participation in the conduct of public services. Participation, however, requires\u2014at least for a certain period\u2014continuity, and thus remaining in that status. Therefore, when evaluated in light of the manner in which the right to enter public service was regulated in the 1924 and 1961 Constitutions, as well as through systematic and purposive methods of interpretation, it has been concluded that the right guaranteed under Article 70 of the Constitution also encompasses remaining in public service.\u201d [3] In line with this approach, the High Court also evaluates regulations resulting in dismissal from public service within the scope of Article 70 of the Constitution [4].<\/p>\n The right to enter public service is not unlimited. While paragraph 2 of Article 70 prohibits discrimination in recruitment, it also determines the grounds upon which the right may be restricted by including the clause \u201cother than the qualifications required by the duties concerned.\u201d In this way, \u201con the one hand, the legislator is granted discretion to determine the conditions required for recruitment into public service; on the other hand, it is stipulated that any limitations imposed on this right must be compatible with the qualifications required by the duties concerned\u201d [5]. Accordingly, the legislature may impose limitations on the right to enter public service; however, such limitations must be \u201ccompatible with the qualifications required by the duties concerned.\u201d The expression \u201cqualifications required by the duties concerned,\u201d which points to the principle of merit in the public personnel regime, refers\u2014according to the Constitutional Court\u2014to conditions that ensure the effective and efficient functioning of public services, the absence of which would adversely affect the service, and which bear a cause-and-effect relationship with the public service [6]. Indeed, the High Court annulled a statutory provision that barred entry into public service in cases of conviction for negligent offenses, on the following grounds: \u201cit is difficult to argue that indefinitely preventing individuals from entering a particular public service on account of acts they committed unknowingly and unintentionally in the ordinary course of life constitutes a limitation arising from the nature of the duty\u201d [7]. The Council of State, which regards the condition of \u201cqualifications required by the duties concerned\u201d as a reflection of the principle of equality enshrined in Article 10 of the Constitution, is also of the view that such qualifications must be determined not through subjective assessments, but through objective, general, and impersonal rules [8].<\/p>\n Limitations to be imposed on the right to enter public service must also comply with the constraints set out in Article 13 of the Constitution\u2014such as \u201clegality,\u201d \u201cnon-interference with the essence,\u201d and \u201cproportionality\u201d (i.e., the limits of limitation). In this context, the Constitutional Court annulled a statutory provision that delegated the determination of the procedures and principles governing oral \/ practical examinations for entry into public service to the administration (i.e., to secondary legislation), pointing out that the provision \u201clacked definiteness\u201d and \u201cdid not satisfy the requirement of legality\u201d [9]. Another statutory provision that left the regulation of grounds for dismissal from public service to the administration (through regulations) was likewise annulled on similar grounds [10]. In assessing whether limitations on the right to enter public service are proportionate, the Constitutional Court takes into account factors such as the nature and importance of the service, as well as the geographical characteristics of the place where the service is to be performed [11].<\/p>\n It is no secret that public office\u2014once reconstituted not as a \u201cfavor\u201d bestowed from the ranks of the ruling elite but as a status contingent upon the competence and ability of the citizen\u2014has, in recent years, gradually been losing this character. The increasingly widespread use of oral examinations \/ interviews raises legitimate concerns regarding the objectivity and verifiability of the criteria applied. The number of those who believe that public offices are granted not to the most qualified but to the most loyal is steadily increasing. The forgetting of the right to enter public service, which constitutes a central theme of Ottoman-Turkish modernization, may ultimately lead to the loss of all the gains achieved in this process. For this reason, it must be continuously remembered and brought to mind.<\/p>\n