Mine Yıldırım (MY) – Can you tell us about the inability of non-Muslim community foundations’ to elect new board members?
Sebu Aslangil (SA) – Community foundations are not foundations established under the Civil Code of the Turkish Republic, but are established by ferman issued by the Ottoman sultans. What does that mean? When the Turkish Republic was established, minority institutions from the Ottoman times remained. In the Ottoman times they were allowed to own common property. There was, then, the problem of determining which legal framework these properties would fall under. These were provided a legal status as community foundations under the old Foundations Law No. 3762. One sentence in the law said that the organization of the administration of community foundations would be regulated later. At the beginning the name given to these was not community foundation. The phrase community foundation was added in 1944.
The community foundations are actually institutions who carried out the administrative work of minority groups in the Ottoman period, especially non-Muslim minority groups, whose property was kept in common ownership and management. In other words it was property partially considered public property for them. Therefore, at first, especially in the neighborhoods where churches were densely located, the church neighborhood (district) was considered the centre (geographical scope) of these instutitutions. In 1936 public authorities requested a declaration of their properties from each community foundation and with this document the properties were in a way assigned to them. Of course their previous management consisted of the board of trustees (mütevelli heyeti). However later on since there were not enough members, in 1949 the system of election of board members was put in place. Since the minority groups shared economic resources, an important characteristic of them, was the provision of administration by people who were members of their community. The board membership is a completely voluntary administration. Because it had this content, these associations had a direct effect on the vitality of the religious group, meaning they administered their shared properties. Of course after living with this situation without a problem for many years, we came to the year 2012-2013 by holding an election once every four years. The most recent Foundations Law No 5737 brought various rights that had been limited in the past. The Foundations Law said that a regulation on the procedure of the election of board members was going to be published within six months. In six months the Foundations Regulation was published. This Regulation contained provisions on how the community foundation’s boards would be elected. And they began to elect board members in accordance with those provisions. There were however some problems with regard to the election of board members as it had been prescribed in the Regulation. As a result, very interestingly, something not seen in legal history, the Regulation articles between 29 and 33 having to do with foundation board elections were removed, or in legal language, were repealed. In other words, there is no regulatory provision with regard to how foundation board elections can be carried out.
MY – Whose decision was that?
SA – This was entirely the decision of the Directorate of General Affairs (DGA, hereafter), actually more correctly the General Assembly of the DGA. As I said, from a legal perspective, this method is not often seen. So those foundation board members, when their time has been filled and they apply to renew elections, which is usually done verbally, they always get this answer: “The Regulation on Foundations is being prepared, you will have to wait on these specific articles to be done. Because at this time there is no arrangement concerning which will be done.’ In a large measure the community foundations, and by that I mean all the minority community foundations, tried to act in accord with this proposal from the General Directorate of Foundations and they have come to this day without making any other attempts. But more than five years have passed since this Regulation was been declared null and void. Of course this problem is something the Government alone has to solve. Because there is a legal provision under Law No. 5737, the General Directorate of Foundations needs to draft this Regulation within 6 months. But for some reason it is not being done. Of course, there could be many reasons why it is not being done. But we have no way of seeing these reasons.
MY – The regulation being published by the General Directorate of Foundations means that no foundation can work out its own elections rules the way they want, correct?
SA – There is an interesting situation here. Before the reference to the Regulation in Law No. 5737, the previous Foundation Law No. 2762 mentioned a Regulation but this was never drafted. So, with no Regulation, generally, the community foundations applied the practice of the Ottoman times, meaning the administration of community foundations was carried into the time of the Republic. So elections were held and people were appointed to boards accordingly. So they handled things in this way. This was not an unusual situation. Now there is this issue, the temporary Article 2 of the Law No 5737 reads as follows: ‘’The Regulations laying out the application of the provisions of this law will come into effect when published in the official gazette within 6 months. Until these regulations come out, present arrangements, as long as they do not conflict with this law, will continue as is.” This means that, in effect, the community foundations can hold elections. So they can apply the old regulation if they want. But of course the community foundations have not wanted to go that way so far.
MY – My perception is that when compared to new foundations the community foundations are not as free as the new foundations in terms of their autonomy in regulating their internal affairs. Because the new foundations can determine their own governance in their formation statutes. But it seems to me that community foundations do not have the chance to determine their own governance.
SA – To avoid a misunderstanding, I am glad you asked the question. Let me say this: these community foundations do not have a statute like new foundations. There was a proposal from the General Directorate of Foundations, “let us prepare a statute for each foundation”. This of course would have been unlawful and would have been an arrangement that would have effectively ended the functioning of these foundations. Because no matter how much these foundations are associated with a neighborhood or a church, in reality these foundations are not new foundations tied to one neighborhood, rather they are foundations who serve all the community and share the same purposes. So the preparation of a statute, a forced statute, for every foundation would have been unlawful and anti-democratic. So that path was not taken. I know that the General Directorate of Foundations made a proposal like that. In short, as long as the board members of community foundations are elected there is no problem.
MY – How does the inability to vote affect minority communities?
SA – As I said before these are voluntary organizations, people here make time from their schedules and serve. Therefore this time of service is expected to be a reasonable time, people are expected to give this type of self-sacrifice. Many associations due to people being tired or not being able to give the time, have started working with less than the expected normal number of people on the board. This situation of course, creates a sort of unseen weakness. So in order for the religious group to enliven or for people with new ideas to come to the fore of administration, elections are needed. This is being hindered and this greatly effects the vitality of the communities.
MY – Now I have heard something. Association authorities, due to documents having to do with their authority having an older date, are finding it difficult to do some work, so for example banks can ask for documents with more recent dates.
SA – Presently they are not creating much of a problem from the General Directorate of Foundations. The problem is not with the foundations themselves, it originates with the General Directorate of Foundations. When this hindrance was brought to the attention of the General Directorate of Foundations, there was a written response to the effect, there is no problem with this documents being used. So instead of solving the problem they tried to deal with the problem through palliative means. Now this Regulation’s not being produced is a big handicap for the community foundations. Here I would like to move to your next question, what needs to be done and who needs to do it for this problem to be solved? I, as a legal scholar, think for this problem to be solved, at the very beginning, when the Regulation was not published in the first six months, the board members should have applied to the General Directorate of Foundations and made known their desire to hold an election. Most likely they would have received a written response such as this (some have actually received this written response): “Without a Regulation, elections cannot be held.” Yet from the perspective of the continuation of state institutions this position cannot be sustained. I think that if this situation had been taken to court, at the start, this would have all been solved through court intervention. Because there is little chance of this type of court case losing since there is no acceptable defense as to why the General Directorate of Foundations did not draft and published a Regulation.
MY- OK, so why was this not taken to court?
SA – On this subject the community foundations, more accurately the non-Muslim community foundations have a general hindrance, a certain logic that solving the State’s dealings via the judicial route is not a gentlemen’s game. I mean the feeling of taking the state to court. Of course, it is a wrong feeling, but one that has found acceptance. But the judicial route is one to establish your right. You know the foundations of state government, namely legislative, legal and executive. It is true that the legal remedies are a constitutional right. But for whatever reason they did not move on that interpretation. Of course the suggestions of General Directorate of Foundations were largely effective.
MY – Like what?
SA – “It will come out today, come out tomorrow, come out this way”…and yet, all these words were left hanging. The General Directorate of Foundations from an appearance point of view has a statement and that statement is not one that lines up with a state based on the rule of law. Their defense is like this: Our Regulation is ready but our authorities above us do not approve it. The Foundations used to be under the Prime Minister’s Office, now they are connected to the Presidency, more accurately to the Culture and Tourism Ministry. That Ministry’s responsible person is the President.
MY- Has there been any meeting about a solution to this problem with the President recently?
SA- Now, there is the representative of the non-Muslim community foundations on the General Assembly of Foundations. This representative now agrees that the reasonable time period for waiting for a new Regulation has come to an end and the subject of going to court. But for this to be effective, psychologically, these associations have to look at what minority group they are connected with, act in concert with one another and choose to go to court.
OK, you have a question about why we are not solving this. Now of course this is an open question, for several reasons. The first thing to come to mind, is that some administrators of the minority foundations, love their job, let’s say it that way, they do not want to give up their seat, it may be that. Or, since from the beginning the state has never really adopted this method of election they may have gone all the way to the point of trying to find a way to eliminate the elections. Of course the concrete result is that this situation obstructs the exercise of a right. No one wants to think that a state would deliberately chose to do something that would push a portion of their citizens toward such an injustice. But this issue has been ongoing for such a long time that this thought comes to mind. It is being neglected somewhat, whether you want to or not, it brings the conviction that it is being knowingly neglected. The question “Why is it not being solved” does not have a legal answer, at least.
MY- True, there does not seem to be anything preventing a legal solution.
SA – There is nothing blocking this, as I previously declared. I would also argue that there is nothing in the Foundations Law that would prevent election even under these circumstances. But the situation seems frozen, without anything being done.
MY – I think currently one might say that the right to association of the community foundations has been effectively suspended.
SA – Of course this is a multidimensional issue. It has to do with their economies, religious freedoms and associative freedoms. If we look at the result from a bird’s eye view, the issue remaining as it is means there is a loss of some constitutional rights. There is also this defense, the “General Directorate of Foundations’ statement to the effect, “We prepared it, no one from the state has approved it” shows this issue to be a planned one. This is not a constitutional answer in any way. They had also been saying that the minority groups have been giving different proposals for the Regulations and, “we are surprised, we did not know which way to choose”, however they are not using this excuse anymore. That would be a mistaken ground/reason. Because the state is in the end sovereign. They can draft a Regulation and apply it. If there are foundations that are not happy with this Regulation, either partially or wholly, can go to court and try to change the Regulation. These are all possibilities in the realm of legal actions. But unfortunately the issue has slid off the legal platform. And the true responsible party for this is the state, the state run institutions.