Academic journal article Journal of Legal, Ethical and Regulatory Issues

Preliminary Examination of the Regulatory Regime to Establish a Foundation University in Turkey

Academic journal article Journal of Legal, Ethical and Regulatory Issues

Preliminary Examination of the Regulatory Regime to Establish a Foundation University in Turkey

Article excerpt

INTRODUCTION

Foundations (waqf in Arabic, Vakıf in Turkish) first emerged in the 12th century and played a crucial role in social and economic development throughout the Ottoman Era by providing basic public services such as education and health (Zihnioglu, 2010). The term "foundation" is used interchangeably as "waqf" (vakif) in Turkey (Sesli, 2010). Article 130 of the 1982 Constitution regulates the right to form a foundation. Foundations are defined in Article 101 of the Turkish Civil Code (Law No. 4721) as:

"Charitable groups under the status of a legal entity formed by real persons or legal entities dedicating their private property and rights for definite and constant objectives" (Hatice, 2011).

It also refers to as non-governmental, non-profit organization, having a principal fund of its own, managed by its own trustees or directors and established to maintain or aid social, educational, charitable, and religious or other activities serving the common welfare (Barnhardt, 2017). Foundation is a non-profit organization that typically either donates funds and supports other organizations or provides the source of funding for its own charitable purposes (Driver, 2010). It is formed by the allocation of sufficient assets and rights by real or legal persons, for specific and continuous purposes (Bulut & Sarikatipoglu, 2013). Two basic elements form the definition of a foundation: (1) dedicated assets; (2) the purpose to which those assets are dedicated. Since the existence of foundations is older than the Turkish Republic itself, within the Turkish legal system, there are two major types of foundations: (1) foundations established prior to the Turkish Civil Code; (2) foundations established as per Turkish Civil Code (Alias, 2011). Foundation can be formed provided it is not contrary to the characteristics of the Republic defined by the Constitution, Constitutional rules, laws, ethics, national integrity and national interest; or with the aim of supporting a distinctive race or community (Article 101/IV) (Hatice, 2011).

LITERATURE REVIEW

Koc (2013) has thoroughly discussed the evolution of the role of foundation in higher education in Turkey. His discussion covers seven different periods as follows:

1. Seljuks Ottoman and early Ottoman period (1000-1300s).

2. Ottoman period between (1450-1600s).

3. Ottoman period between (1600-1920).

4. Early Republic era (1920-1950).

5. Intermittent Democratization Era of Republic (1950-1980s).

6. Era under the Higher Education Council (YOK) (1980-2007s).

7. Recent changes in YOK and emergence of foundation universities (2007-2012).

Koc (2013) further elucidated that the major modification of foundations occurred after the establishment of the Republic of Turkey in 1923. In this era, the "Awqaf and Shariyya Ministry" was eliminated and a legal body under the state was established known as "Directorate General of Foundation" (DGF). This body has taken control of all ancient foundations and newly formed foundations. Shafii et al. (2015) have explained on the roles of DGF as mentioned in Article 35 of Foundations Law 2008.

Furthermore, Hatice (2011) observed that the establishment of the Turkish Republic has reformed the foundation and educational systems. The Foundation Law 2008 became a new law to regulate and unify both systems. According to Hatice (2011), more foundations are expected to be formed under this new law as it provides detailed regulations regarding foundations. A well-known Turkish expert, Cizakca (2016) explored the development of waqf (foundation) in Turkey till the present and he confirmed that the Foundation Law 2008 grants full personality to waqf (foundations).

Bulut & Sarikatipoglu (2013) in their study explained the procedural requirements of how foundations could be established. They also illustrated the important of tax exemption laws to be enacted. The tax initiative should be given to foundations so that it will encourage more individuals to form foundations. …

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