Examining of the Changes in the Turkish Citizenship Law Through Law Number 7039
Significant changes were made in the Turkish Citizenship Law on different subjects through the Law numbered 7039 “Amending the Law on Population Services and Certain Laws”. These amendments have been in the form of repealing the provision of the law, making amendments to the provision of the law and arranging additional an article. Although there are important regulations, it has not been subjected to a detailed examination of the doctrine yet. Furthermore, although the amendments have been made almost two years ago, no amendment has been made to the Regulation by following the law yet.
Türk Vatandaşlığı Kanununda 7039 Sayılı Kanun ile Yapılan Değişikliklerin İncelenmesi
7039 sayılı “Nüfus Hizmetleri Kanunu ile Bazı Kanunlarda Değişiklik Yapılmasına Dair Kanun” ile 5901 sayılı Türk Vatandaşlık Kanununda farklı konularda önemli değişiklikler yapılmıştır. Yapılan bu değişiklikler ile bazı maddelerin fıkralarını yürürlükten kaldırma, bazı maddelerin hükmünde değişiklik yapma ve ek madde düzenlemesi gerçekleşmiştir. Önemli düzenlemeler olmasına rağmen doktrinde henüz detaylı bir incelemeye tabi tutulmamıştır. Ayrıca, yapılan değişikliklerin üzerinden iki yıla yakın bir süre geçmesine rağmen Türk Vatandaşlığı Kanununun Uygulanmasına İlişkin Yönetmelik’te kanuna paralel bir düzenleme yapılmamıştır. Bunun sonucu olarak normlar hiyerarşisine aykırı bir şekilde düzenlemeler arasında çelişki meydana gelmiştir.
The Turkish Citizenship Law (TCL) numbered 5901, in effect since 2009, has recently been subject to numerous changes through the Law numbered 7039 “Amending the Law on Population Services and Certain Laws”. Although said changes are of an important nature, they have not yet been subject to a detailed examination of the doctrine. In this study, we aim to address these changes from various angles. The changes made in the TCL through the Law numbered 7039 have been in the form of (i) making new additions, (ii) making amendments to certain existing provisions and (iii) repealing certain provisions. We are of the opinion that it would not be accurate to categorically classify the changes made to the TCL through the Law numbered 7039 as correct or incorrect, since different changes made through said Law have apparently been made for different reasons and therefore it is necessary to address them separately. For instance, the Law numbered 7039 brought an accurate amendment to Article 15/1 of the TCL, according to which the maximum duration a foreigner wishing to acquire Turkish citizenship by decision of the competent authority can spend abroad have been increased from six to twelve months. This amendment is in accordance with the problems encountered in practice and the criticisms of the doctrine. However, on the other hand, some of the reasoning given for said changes are, in our opinion, problematic. For instance, Article 10/2 of the TCL, one of the new additions introduced by the Law numbered 7039, stipulates that the main principles to be implemented in the acquisition of citizenship after birth are to be determined by the Ministry of Interior upon receiving opinions from the relevant public institutions and organizations. We are of the opinion that this provision contravenes the principle of legality, since it makes it possible for the administration to determine the main principles to be implemented in the acquisition of citizenship in lieu of the lawmaker. Furthermore, some of the changes brought by the Law number 7039, namely the amendment made to Article 39 and the new Additional Article 1, raise questions as to their practicality. In addition, the changes have also led to certain discrepancies between the articles within the TCL itself, such as between Additional Article 1 and Article 44 as well as between Article 43/1 and Article 43/2. With the Law Numbered 7039, a new paragraph has been added to Article 12 of the TCL. According to the new paragraph, the Ministry of Interior rejects the requests of those who are in a position to constitute an obstacle in terms of national security and public order. Article 12, paragraph 1 of the TCL, already has the condition of not having any obstacle in terms of national security and public order. While this is the case, the second paragraph added that the Ministry of the Interior will reject the applications of persons with a condition that would constitute an obstacle in terms of public order and national security. Citizenship is granted by the President to those who wish to acquire Turkish citizenship within the scope of Article 12. Therefore, whether these persons have acted contrary to public order and national security was evaluated by the President. When this new authority was granted to the Ministry of Interior, the workload of the President was reduced. In this case, the President will only be able to examine whether the applicants are among the groups of persons referred to in Article 12 of the TCL. One of the important amendments introduced by the Law numbered 7039 is to increase the residence period of persons who want to acquire Turkish citizenship from six months to twelve months. Retaining up to twelve months abroad for the last five years from the date of application for citizenship does not constitute an obstacle to the acquisition of Turkish citizenship. This change has been useful. The six-month period was short for “qualified” people who wanted to gain Turkish citizenship. Accordingly, in light of the principles of certainty and legal security, it is important that changes to laws in effect are not made in short time periods and that they are made pursuant to prior deliberation with the experts and practitioners in the field, in accordance with international law. Otherwise, the changes made by the law-maker will certainly be subject to further change at short notice. Furthermore, although the amendments were made almost two years ago, no amendment has yet been made to the Implementing Regulation. This situation creates a contradiction between the provisions of law and regulation in contradistinction to the principle of the hierarchy of norms and therefore, this is also a problem which needs to be urgently addressed.
