Integrity in Administrative Law: A Maritime Perspective

One of the oldest and most 'useful' pieces of advice in law is this: Those who wield power must be more honest. Because power magnifies mistakes; even a small arbitrariness can turn into a huge injustice in the hands of public authority. For this reason, confining the rule of honesty solely to the narrow corridors of private law diminishes the law itself. Article 2 of the Turkish Civil Code may be the text of civil law in words; but in spirit, it is the backbone of the legal order. 'Everyone must comply with the rules of honesty while exercising their rights and fulfilling their obligations; the legal order does not protect the abuse of rights.' This sentence, beyond being a criterion that courts observe ex officio, also sets a standard for the relationship between society and the state: The state cannot be satisfied with being 'just'; it must also be 'honest.'

Now let’s come to the famous objection of administrative law: 'We are a separate branch; we have our own principles; the Civil Code does not apply to us directly.' Yes, it does not apply directly. But it is also impossible to erase this reality by hiding behind this objection: Administrative law breathes with the general principles of law. Honesty, trust, certainty, proportionality, equality, justification… These are not 'luxuries'; they are the fundamental equipment of a rule of law. The administration uses its discretionary power not like a sword that it can swing as it wishes, but as an authority defined by law with the aim of serving the public interest. The honesty of the administration begins precisely here: Do the apparent justification of the authority and its true purpose align? Is the system designed by the administration bright on paper but fragile in practice? Does it undermine the trust it has created with its own hands? The question of honesty is not about 'reading intentions'; it is about looking at the outcomes of the design.

Administrative law is based on the principle that 'every act of the administration is based on law' (legality). This is a necessity of the nature of public power: the administration acts unilaterally, imposes sanctions, grants permissions, and withdraws them; sometimes it also acts ex officio. For this reason, it is often incorrect to automatically transfer the rules of private law to administrative law.

But it is also wrong to say: 'Article 2 of the Civil Code is civil law; it has no place in administrative law.' Because honesty is seen as one of the general principles of law in the decisions of the Council of State and in doctrine; it is even emphasized that it can be applied not only in substantive law but also in procedural law.

The essence of the matter is this: Article 2 of the Civil Code does not 'produce authority' in administrative law (it does not grant new power to the administration); but it operates as a measure that limits the behaviors of the administration and individuals. We can explain this with a practical analogy: Article 2 of the Civil Code is not the gas pedal in administrative law; it is the brake pad.

This approach also has a constitutional basis: It is written in Article 2 of the Constitution that the Republic of Turkey is a rule of law. A rule of law means that the administration does not act arbitrarily; the individual can trust the state; the rules must be predictable. On this basis, the rule of honesty is not 'foreign' in administrative law, but 'complementary.'

This article is published on a maritime news site, so my original aim is also to discuss the correspondence of honesty in maritime affairs. Because maritime is one of the areas where administrative law is felt most 'on the ground': port authorities, flag state operations, port state control, environmental inspections, voyage permissions, pilotage/towage arrangements, administrative fines… Here, standards and consistency in oversight from the perspective of the administration are essential: if two ships in the same situation are treated differently, it is not only a matter of equality; it is a matter of trust and honesty. Additionally, the administrative act must be justified; the answer to the question 'why did you impose a fine?' cannot be 'we deemed it appropriate.' In the decisions of the Council of State, it is emphasized that the act must be based on reasons and justifications, and that the discretionary power should not be used arbitrarily.

The current debate in the maritime sector revolves around the excessively rising public shares and the helplessness of the winning companies in the tenders, leading to cuts in pilot captain salaries, which have decreased by half from levels of $7,000–$8,000. It is likely to decrease even further. Because a spear cannot fit into a bag in any other way; only 10% of the money paid by the ship and the shipowner for 'pilotage services' goes to this service. You might ask how this is possible, but don’t; because the question of how it is possible is now far behind; what was once a question is now becoming the reality on the ground.

I have explained at length in past writings what pilotage services are; I do not believe that no one knows about them. There are some services at sea that may seem commercial but are essentially public; the safety, environmental, and regulatory dimensions are predominant. The language of the higher norm does not conceal this: The regulation added to the Ports Law clearly emphasizes that these services should be carried out with priority given to public benefit and responsibility, while ensuring independence and impartiality, focusing on safety for life, property, and the environment. This text does not give the administration an unlimited instruction to 'generate income'; it says, 'manage a safety-focused and impartial public service within the law.' The same regulation also opens the door to methods of granting operating rights, such as concession for up to 20 years, negotiation, and auction techniques. Auction techniques are possible; the issue is which goal the technique enlarges.

As I mentioned, the issue that ignited the debate in the sector is the significant rise in the 'public share' competition in tenders aimed at having pilotage services carried out by private sector organizations. Reports in the sector press indicate that in some regions, public shares have settled in the 80–90% range, with even rates like 89.75% being observed; it is also mentioned in the same news that no tender has been held for Mersin. These rates are not an accounting detail; they are the heart of the model. Because when the 'public share' is taken from the revenue, as the rate increases, the area left for the operator shrinks. Moreover, what shrinks is not only profit; safety-related items such as training, shifts, maintenance, equipment renewal, and retaining qualified human resources are also fed from the same pool.

At this point, another claim emerged, and the tone of the debate intensified: It was alleged that after the tenders, pilot captain salaries fell from the $7,000–$8,000 range to the $3,000–$4,000 range, and that this was a natural consequence of the high public share competition. I deliberately choose the word 'claim'; because salary data varies by workplace, not everyone’s payroll is the same, and the parties to the debate may cite different figures. However, what is critical in terms of honesty is this: Is there a structural ground that allows this claim to arise? Yes, there is. In a model where 80–90% of the revenue is given as public share, you will finance everything with the remaining slice. If something is to be cut, the first thing to be quickly reduced is generally 'human cost.' In maritime, human cost is often safety cost; there is no need to romanticize this reality.

This is where the 'honesty' debate gains meaning. Because the administration’s duty is not to reduce a tender to just 'the one who offers the highest rate wins.' The tender is a tool for regulating public service. When the subject of public service is so intertwined with safety, merely increasing the share that goes into the coffers does not represent the entirety of the public interest; it represents at most a part of it. Moreover, sometimes while increasing that part, you may shrink another part: service quality, sustainability, independence, impartiality. When the higher norm states, 'independence and impartiality will be ensured,' it is not making a flowery statement; it is establishing a principle that these services should be free from commercial pressures. So how is independence ensured? Not just by a regulatory sentence; but through institutional design, oversight, and most importantly, by not making the working conditions of human resources a 'leftover' left to the market.

Here, the classic defense of administrative law comes into play: 'The contract is subject to private law; the employer-employee relationship does not concern me.' This is close to the truth on paper, but inadequate in practice. Because the administration establishes this market through tender design. The logic with which you determine the public share, the risks you shift to which side, the quality indicators you make genuinely binding, and how effectively you maintain oversight also determines the climate of the employment relationship in the end. In other words, even where the administration says 'I won’t interfere,' it is actually interfering; it is just doing so indirectly. The principle of honesty also looks at indirect results: If a regulation is established under the guise of public interest but produces wage pressure and safety deficiencies in practice, the honesty scale raises an alarm here.

Moreover, the debate is not limited to just the rates. There have also been reports of results from some tenders being annulled and re-concluded with different rates; such fluctuations grow the 'why' question in the minds of the sector. The maritime market does not like uncertainty; the sea is already uncertain, and there is little tolerance for the law of the land becoming uncertain. The honesty of the administration lies precisely in answering this 'why' question. If you are canceling, on what grounds of public interest did you cancel? If you are approving, what sustainability tests did you pass? To brush these questions aside as 'internal processes' erodes trust. If trust erodes, the rule of law remains only in texts.

Another aspect of the principle of honesty is proportionality. The goal of increasing the public share can be legitimate on its own; generating revenue for the public is also an element of public interest. However, proportionality questions the ratio between means and ends. A public share approaching 90% of revenue forces the operator into the dilemma of either 'incredible efficiency' or 'severe cost-cutting.' There is certainly efficiency in maritime; but efficiency is not a miracle. There are physical limits to the watch system, training requirements, inspection burdens, and equipment maintenance. Any financial pressure that exceeds this limit will crack somewhere. The crack may sometimes show in wages, sometimes in fatigue, sometimes in motivation, and sometimes in the normalization of risky decisions made to 'please the administration.' Then one day, an incident occurs; everyone asks, 'how did this happen?' It has happened; because it has been happening for a while.

Now, it would be simplistic to place the burden of honesty solely on the administration. The companies entering the tender also have a debt of honesty. It is not honest commercial behavior to say, 'I will give 90% public share, and I will take it,' then shift this burden onto the essential elements of the service. Because such an offer carries the message to the market that 'I will cut costs from invisible places.' In services related to safety, this message conflicts with public order. The regulation was issued to detail the technical requirements, standards, obligations, and oversight dimensions of these services; in other words, the state is saying, 'there is a standard for this job, you cannot do it as you please.' But setting a standard is not enough; the economic ground that will sustain the standard must also be considered. Otherwise, the regulation turns into a good faith document hung on the wall.

For professionals within the profession, honesty is also intertwined with professional ethics. In every maneuver performed by the pilot captain, 'impartiality' and 'safety' must be primary. The higher norm already establishes the legal counterpart of this with the expression 'independence and impartiality.' However, honesty also states this: If you place unlimited responsibility on the shoulders of the professional while weakening their working conditions and economic independence, then telling them to 'be independent' loses its credibility. Independence is not just a matter of character; it is a matter of institutions. Maritime is a job that tests character; but systems that constantly whip character can wear down even the strongest characters.

This debate seems likely to become even more visible in the upcoming period with other tenders. For example, there was news regarding the tender for the transfer of the operating rights for towage in Samsun; it was shared that the base share rate for the auction is 25%, the process will be concluded through negotiation and auction within the scope of Law No. 4046, and a period of 20 years is anticipated. Such announcements indicate that the system continues. Therefore, the question of honesty also continues: Will this model serve only the 'maximum public share' competition, or will a balance be established that truly centers on safety and sustainability?

Headlines like 'public share has increased, the state has won' may receive applause from the public. But law is not governed by headlines. The principle of honesty reminds us: Increasing public revenue is not the entirety of public interest; sometimes it is only the most visible part of public interest. The real public interest is the protection of life, property, and the environment at sea; the continuity, impartiality, quality of service, and the preservation of the institutions’ reputation. The language of the higher norm also points to this reality. Therefore, for the administration to act 'honestly' means not only conducting a tender but also anticipating the results of the tender, managing risks, clarifying justifications, ensuring effective oversight, and most importantly, not presenting financial pressure that devalues human resources as 'public interest.'

Some may ask at this point, 'So, should the public share decrease?' My answer is simple: The issue is not whether the share is high or low; the issue is whether it is honest. Honesty demands that the goal be stated clearly. If the goal is merely to increase revenue, do not use the word 'safety' like a marketing slogan. If the goal is to strengthen safety, do not undermine the people and systems that carry safety. Honesty does not like to say two opposing things at the same time and market both as if they are correct; nor does law. The fact that bad faith is not protected by law sometimes encompasses not only 'open lies' but also the effort to achieve full results with 'half-truths.'

Whether the claims of salary reductions raised in the sector press are true, how widespread they are, and how they occurred in which regions and companies should certainly be discussed with concrete data. But the main issue in a column is not the content of individual payrolls; it is why the model established by the state has given rise to the criticism of being 'a system that converts labor into public share.' Because even this criticism itself shows that the trust relationship has been damaged. When trust is damaged, the most expensive price is not paid with money; it is paid with reputation, motivation, and sustainability. The translation of this in maritime is clear: If the culture of safety weakens, one day the sea will send you the bill. The sea sends the bill quickly but collects it slowly; but it will definitely collect.

The legal order does not protect bad faith. When you say this sentence to the state, the state’s answer should not be 'I already acted in accordance with the law.' Compliance with the law is the beginning of the matter; honesty is the standard of the matter. Administrative law is a branch of law that legitimizes public power while simultaneously disciplining it. In a safety-focused field like maritime, the name of this discipline is clearer: Transparency, predictability, consistency, and sustainability. It is easy to grow the money that enters the coffers; the real skill is not to grow the coffers without growing public service. If this skill is absent, what grows is not the public share, but the public risk.

Source: SeaNews Türkiye