I came across a news article in a newspaper a while ago, and the title of the article caught my attention:
Yes, you read it correctly! In 2008, a requirement was introduced that anyone wanting to become a general secretary of chambers and stock exchanges must have a criminal conviction for the abovementioned crimes.
The first sentence above was the headline of a news article published in the economy section of the Hürriyet newspaper on June 11, 2008 [1]. Around the same time, this incident was reported in various media outlets, and the Radikal newspaper also published a story about it with the headline “Scandal in Parliament: The LawNOT Scandal” [2].
The Turkish Grand National Assembly (TBMM) amended 156 laws, including Law No. 5174 on Chambers and Commodity Exchanges, with Law No. 5278, which consists of 583 articles, on January 23, 2008.
The main aim was to broaden the scope of the law by adding different imprisonment and fine penalties to the existing convictions, preventing those who committed these crimes from becoming general secretaries of chambers and stock exchanges. However, the final text of the legislation, after the legislative process, had the opposite effect, making it mandatory to have a conviction for these crimes to be eligible for these positions!
After the changes made on January 23, 2008, the 74th article of Law No. 5174 states, “The General Secretary must possess the qualifications specified below:” and item (d) of the same article includes the following statement:
“Even if the periods specified in Article 53 of the Turkish Penal Code have passed, those who have been sentenced to imprisonment for five years or more due to an intentionally committed crime or those who have been sentenced to imprisonment for committing crimes against the security of the state, crimes against the constitutional order, crimes against national defense, crimes against state secrets and espionage, embezzlement, misappropriation, bribery, theft, fraud, forgery, misuse of trust, fraudulent bankruptcy, subversion of the competitive bidding, subversion of the performance of an act, laundering of assets derived from a crime, smuggling, tax evasion, or acquiring property unlawfully.”
In the previous version of the law, the text included the phrase ‘having no convictions’ after listing the crimes, but the new version states ‘those sentenced to imprisonment,’ which led to this error. The steps that led to this error are as follows: The draft Law No. 5278 related to the Turkish Grand National Assembly was prepared by the Ministry of Justice in 2006, became obsolete in 2007, and was re-submitted to the Turkish Grand National Assembly by the Prime Ministry. After 45 days of discussion in the Justice Commission, it reached the Turkish Grand National Assembly in November 2007. The bill was enacted on January 23, 2008, and after a 14-day review by the President, it was published in the Official Gazette on February 8, 2008.
After being prepared by the Ministry of Justice, it went through the corridors of the Turkish Grand National Assembly and the Prime Ministry for about two years, passing in front of many bureaucrats, experts, and politicians. The error in the published law was noticed by Remzi Özmen, a writer for Terazi Law Journal, in April 2008, and the Turkish Grand National Assembly corrected it with Law No. 5795 dated 30.7.2008. There is a period of six months and one week between the acceptance of the erroneous law and its correction, during which the Turkish Grand National Assembly enacted 517 other laws.
This mistake may seem trivial to some, but for others, it’s as important as “to be or not to be.” Theoretically, the erroneous text was a regulation that would affect the elections of general secretaries of chambers and stock exchanges during the time it took to correct it. But during this time, it’s left to our imagination whether a person who doesn’t have convictions for these crimes could have been a candidate or, conversely, a person with a conviction could have been rejected as a candidate. What would the consequences be if one of these scenarios happened? These are all left to our imagination at this stage. But at least, when it was implemented, it would undoubtedly lead to a loss of rights for those not convicted of a crime…
Some might wonder about the benefit of bringing up such a SMALL incident six years later. Here are the reasons:
- While a single syllable or a couple of letters between the phrases “to be convicted” or “not to be convicted” may not pose a problem in everyday life, when it appears in a legal text, it can be a clear error that can paralyze the operations of institutions and the convening of general assemblies until it is noticed and corrected, taking six months in the process.
- The error in the text, which concerns more than a hundred civil society organizations, directly affects thousands of businessmen, and is expected to be read and checked by hundreds of eyes, went unnoticed for two months even after being announced nationwide through the Official Gazette after being approved by 550 members of the parliament. This appears to be a testament to our “sensitivity to legislation.”
- It’s acceptable that there is a clear material error in the text, that the error should be corrected, and that it needs to be waited for correction. However, these fast legislative processes might have led to other errors we haven’t noticed yet. If there are less obvious errors like this, when will they appear, and what kind of damage will they cause until they are corrected? It’s not possible to know that in advance.
To prevent such errors, we should look at the root causes:
- In the Turkish Grand National Assembly (TBMM), multiple draft laws are processed simultaneously, and a law referenced in one draft or proposal is modified simultaneously by another draft or proposal.
- Many of the draft laws discussed simultaneously in the Turkish Grand National Assembly are in the form of “omnibus laws,” and it is seen that several articles of multiple laws are changed in one draft. Therefore, a method that should be exceptional according to the Regulation on Procedures and Principles of Preparing Legislation is commonly used recently.
- In this process, the drafts undergo many changes through proposals in commissions or sub-commissions. There is no systematic approach to proposing and evaluating the proposals, and it becomes increasingly challenging to track changes made to the text in commission meetings that last until late at night. There have even been cases where, at times, members of the same political party in the Turkish Grand National Assembly have proposed similar amendments in the same direction without knowing about each other. As a friend of mine in the Turkish Grand National Assembly shared, a deadline of April 31 was given for implementing an article in a sub-commission; the situation was noticed after the text passed the sub-commission. (If you have similar examples, please share them in the comments.)
- Finally, after the commission processes are completed, changes are made with proposals in the Turkish Grand National Assembly General Assembly at the last minute. No analysis time is given after the proposal is made to the General Assembly for these last-minute changes. Thus, not conducting a detailed analysis in advance paves the way for major errors.
In summary, apparently and unfortunately, Regulatory Impact Analyses are not conducted for many draft laws (and not for “omnibus” laws either), and even if they were, these analyses do not reach the Turkish Grand National Assembly. Law proposals are not subject to impact analysis; those who prepare the text tend to become “blind” over time. Additionally, commission and General Assembly sessions are prone to “last-minute goals.”
Accepting that 517 laws are passed in six months can be seen as an achievement; however, as bad as the bureaucracy’s slowness is, speed leads to disasters in the legislative process. Other countries manage their legislative processes through bicameral legislatures for various reasons, and for the reading of reasons and analyses concerning legislative proposals, the proposals that go to the General Assembly go through processes such as the 1st reading, 2nd reading, etc., to ensure a thorough debate.
Therefore, it’s essential to remember a proverb when facing the “speed trap”: “Haste makes waste.” When it comes to “omnibus” bills that affect many institutions, make changes to 156 laws, and are embraced by everyone in some way, it might be time to remember a British proverb: “Too many cooks spoil the broth…”
[1] http://www.hurriyet.com.tr/odalara-zimmetci-casus-hirsiz-sahtek-r-genel-sekreter-araniyor-9148185 [2] http://www.radikal.com.tr/politika/mecliste-yasama-skandali-882972/
(*) The views and suggestions presented in this article are entirely personal and not binding on any individual, institution, or organization.
(**) You can access the previous articles on this subject via the following links:
