Legislation Or Practice?

A person's command of his/her native language also draws the lines of his/her thoughts. It is also difficult to analyze and interpret a subject that cannot be explained and has difficulty expressing. There is no point in thinking about a subject that cannot be explained. Therefore, the richness of a language is also the richness of the speaker of that language. 

It is more important for the reader to understand a subject than to explain it in written form. To understand, it is perhaps necessary to master the language more than the speaker. Otherwise, the differences between what is said and what is understood must be filled with interpretation. This is where the communication problems begin.

Leaving aside the debate on the richness or poorness of the Turkish language, the fact that everyone draws their own conclusions from the same legal text and tries to carry out their work based on this meaning leads to a conflict between legislation and practice. Unfortunately, as a country, we experience this constantly in different fields. For this reason, we often use the expression “It is necessary to look at the will of the legislator”. However, for some reason, either the legislator cannot express his will clearly or the reader cannot understand the legislator's will from the text as the legislator put it. As a result, public officials who are obliged to enforce the law and citizens, regardless of their status, come into conflict, which constitutes a legal dispute between the public and the citizens.

We use the same phrase both to disregard the warnings made during the drafting of the law and to extend it over time, and to express distrust despite the perfection of the text of the law: “Let's see the implementation.”

In other words, we have a general problem; we accept the difference between law and practice. In other words, we either do not understand or do not prioritize the will of the legislator. In both cases, we undermine the rule of law.

Apart from the contradictions and contradictions within the legislation itself, financial legislation is one of the areas where there is a discrepancy between what is written in the legislation and the practice. In line with our profession, we wanted to discuss the root causes of such disputes in customs procedures.

Gray areas in the legislation

Customs procedures are generally practical. In both imports and exports, one end of the transaction is outside the borders of the country. For this reason, it is not possible to foresee all the details of customs procedures in national legislation and to regulate them in legislation. These unforeseen areas constitute gray areas in customs legislation. The existence of gray areas is filled by practitioners in the face of an unforeseen situation. For these reasons, different practices between administrations are inevitable. These practices, which are formed by producing solutions on a case-by-case basis, sometimes lead to results that are not in the same intents of the legislation.

Discretion

As mentioned above, the customs legislation can't include all kinds of applications. At the same time, it may be necessary to decide according to the course of the event and the situation of the goods and the obligor. For this reason, in most parts of the customs legislation, the customs administration is authorized to decide on the issue. The use of this authority, which we call the discretionary power of the administration, does not behave in the same way, some act more liberally and based on trust in the obligation, while others choose to use discretionary power in favor of the public. In this case, there is a culture of practicing in more than one way on the same subject and under the same conditions.

Technological developments

The basis of customs procedures is the import and export of goods. The entire customs system is based on the numerical classification of goods called HS-Code. Although HS-Code determination is based on interpretation, determining a wrong HS-Code has severe consequences. As a result of rapid technological development, the continuous trade of new products is reflected in customs procedures as a new problem. 

Traditions

Public servants continue the tradition of business as usual rather than written legislation. Lower-level officials, who are usually tasked with doing the assigned work, simply carry out the customary work rather than investigating the rationale and legislative basis for their work. This traditional pattern of behavior is not sensitive to reforms and changes. Instead of exhibiting more holistic behavior and examining the nuances between events, they carry out the traditional work and maintain their old habits despite legislative changes. Instead of eliminating the discrepancy between legislation and practice, this situation makes the problem chronic.

Right to Treasury

Public officials, especially in matters of public revenues such as taxes and fines, generally act with the motive of obtaining public revenues instead of applying the legislation correctly. This behavior sometimes results in the decision to tax goods that are not subject to tax, and at the same time to impose a triple fine. Sometimes, in the determination of the customs tariff of the goods, instead of interpreting the legislation on the tariff, the goods are forced to be included in the high tax tariff.

Even in matters that have been objected to many times and found to be inappropriate by judicial decisions, tax accrual, and penalty decisions can still be issued. In a way, it is as if tax and penalty collection is a duty above all legislation, including the Law. As a result, they act with the motive that there is no harm in acting with the peace of mind of generating revenue for the state budget, but that a mistake, even if it is a small possibility, will cause great harm to them. This motive justifies ignoring all legislation in favor of the possibility of treasury income.

Responsibility

Man wants to have all the authority but no responsibility. Therefore, he aspires for authority but avoids responsibility. Customs procedures are a public duty that requires the use of discretionary authority. However, in accordance with the principle of equality in authority and responsibility, every exercise of authority is followed by responsibility. Some public officials do not use authority only to avoid responsibility or use authority only in such a way that they will not be held responsible. As a result, rights that are legally granted to individuals are not exercised simply because of fear of being held accountable. This is the clearest example of prioritizing implementation over the law.

Indication of power 

Some people use the public power given to them as a show of force, as a means of making things difficult. These people use the authority given to them by the legislation as an opportunity to, in the Turkish proverbial phrase, “drive the weary to the brink”. It is a type of behavior usually exhibited by people who are insufficient in knowledge and lack self-confidence. 

Conclusion

Due to the nature of customs procedures, it is obligatory for the administration to use discretionary authority according to the situation of the event, as well as not being able to foresee all kinds of details in advance. For this reason, it is inevitable that there are situations or differences in practice that are not included in the legislation. The solution to this problem is to shape common practices with legislative regulations instead of each public official creating a practice according to himself/herself.