The 'cancellation of equivalence' (denklik iptali) decisions recently issued by the Council of Higher Education (YÖK) have reached a scale that directly affects many constitutional rights, from the right to property to the freedom to work. These processes, which particularly affect graduates of Payame Noor University (PNU), are subject to judicial review within the framework of the principles of 'legal certainty', 'administrative stability' and 'acquired rights', which are the cornerstones of administrative law.
The administration's power to withdraw its own acts is not unlimited, and cancellations made many years later, in particular, are tainted by serious unlawfulness.
1. The Administration's Power to Withdraw an Act and the 'Reasonable Time' Limit
As a rule, the administration does not have the power to withdraw its unlawful acts at any time. Settled case law of the Council of State (Danıştay) and legal doctrine accept that the administration may withdraw acts arising from its own error only within the time limit for bringing an action (60 days).
Under the decision of the Council of State Assembly for the Unification of Jurisprudence dated 22.12.1973, E:1968/8, K:1973/14, except in cases of nullity, fraud or manifest error, the administration may withdraw a beneficial administrative act only within the time limit for bringing an action. Withdrawing the act after this period has expired undermines the principle of 'administrative stability'.
2. Acquired Rights (Müktesep Hak) and Legal Certainty
An equivalence certificate is in the nature of a "beneficial act" that confers academic and professional status on the person concerned. Where the person has neither committed fraud nor made a false statement, this certificate, issued by YÖK following its own examination, gives rise to an acquired right once a reasonable time has passed.
The principle of legal certainty requires that individuals' trust in the legal system be protected. Wiping out the entire career of someone who, relying on an equivalence granted years ago, has completed a master's degree, taken up a public-sector post or practised a profession, because the administration changed its view years later, is incompatible with the principle of the rule of law.
3. Exceptions to the Power of Withdrawal: Fraud and Manifest Error
There are two situations in which the administration may withdraw an act without any time limit:
1. Fraud and Issuance: If the person concerned submitted forged documents or misled the administration, no time limit applies.
2. Manifest Error: This is an error in the issuance of the act so obvious that anyone could see it. However, differences in the interpretation of legislation or subjective assessments such as the 'suitability of the education model' cannot be regarded as manifest error.
4. Payame Noor University Decisions and Legal Analysis
In YÖK's cancellation decisions concerning PNU graduates, the reason frequently given is 'the subsequent finding that the education was provided in an open education model'. However:
1. If the university's education model was subject to the administration's examination when equivalence was granted,
2. If the type of education is clearly stated in the diploma supplements,
3. If the person concerned submitted all documents in full,
then there can be no question of 'fraud' or 'manifest error'. What is at issue here is the administration's wish to exercise the discretion it used in the past differently today, which contravenes the prohibition on retroactivity.
5. Assessment in the Light of Court Decisions
The Council of State and the Constitutional Court find it unlawful for the administration to shift its own fault onto the individual where the individual has fulfilled his or her obligations and has acquired a right after clearing the administration's review.
✦ Lapse of Time: Cancellations made after long periods such as 10, 20 or 30 years have passed since the equivalence decision are regarded as violations of the 'right to respect for private life' and the 'right to property' under the European Convention on Human Rights.
✦ Administrative Good Faith: The administration is obliged to act honestly towards its citizens and to remain faithful to the legal consequences it has created.
Conclusion
Cancellation of equivalence is not merely the withdrawal of a document; it is the cancellation of a person's past, effort and future. For those who graduated from Payame Noor University or similar foreign institutions and face cancellation of equivalence, it is vitally important to bring an action for annulment with a request for a Stay of Execution within the statutory time limits from the date the decision is served on them.
Remember that all actions and acts of the administration are subject to judicial review, and that 'acquired rights' are under constitutional protection.
