The concept of judicial orders in English Law and its applicability in Turkey

One of the most important problems faced by judicial review of administrative action in Turkey is the non-implementation of court decisions. The subject of this thesis is the use of judicial orders in the field of judicial review as one of the solutions to this problem. Judicial orders are given to secure the implementation of administrative court decisions. They are either in the form of an order to compel an administrative authority to perform an administrative decision or action or in the form of an order to prevent the execution of an administrative decision or action. Although many Continental European administrative systems, such as France have recently adopted this remedy, it is in fact Anglo-American in origin. The aim of this work is to examine judicial orders as they are seen originally in the English legal system, to evaluate the applicability of these remedies in the Turkish administrative justice system and to defend the fact that the proposal will have a positive influence on Turkish administrative law.In the English legal system administrative disputes are solved by the ordinary courts of the land. This fact often leads people to the conclusion that the English do not have a developed system of administrative law. Therefore the thesis begins with an account of the historical development of administrative law in England and the theories that have been put forward to explain the nature and purpose of administrative law. The second part starts with some observations concerning the general characteristics of judicial orders in English administrative law and continues by examining the different types of judicial orders, namely, mandatory order, prohibitory order and injunction. The last part of the thesis is concerned with the applicability of judicial orders in Turkey. Both the Constitution and Administrative Courts Procedure Act state that administrative courts cannot review the appropriateness of an administrative decision or action. This rule on the limits of judicial review has been interpreted as a prohibition on judicial orders. In this thesis it is argued that there are no clauses in the Constitution or any other statute that prohibit judicial orders in Turkish administrative law. Turkish administrative court judges have only two remedies available to them. They can either quash a decision or award damages. It is a fact that the administration has a tendency not to implement court decisions. Judicial orders will improve the effectiveness of administrative court decisions, by guiding the administration through the implementation process. Lastly, the thesis concentrates on the proposals for the application of these orders in Turkish administrative law.