ملف ٣٨٧٧ لسنة ١٩١٢، الجزء ٤، "تركيا الآسيوية: الامتيازات النفطية" [ظ‎‎٣‎٧] (١٧٦/١٦)

organic Statute of the Council of Srate (dated the 2 nd April, 1868. and printed i
Young’s “Corps de Droit ottoman," vol. i, p. 3) defines the functions of the Council 1
This Statute, though modified by subsequent legislation, is still the main enactment
! embodying fundamental principles governing the Council. The Constitution of the
Empire, both as originally drawn up in 1876 and as modified since 1908, contains no
definition of the Council’s position in the State except article 117, which in both text°
declares that the interpretation of the laws belongs to the Council of State in matters
of civil administration. A very wide construction might be put upon this brief
expression, but it must be read in the light of the organic Statute which has never as
a whole, been repealed or revised and of long practice. Of the seven headings under
article 2 of the organic Statutes, Nos. 3 and 4 were, as I gather, from Hakki Bey’s (now
Hakki Pasha's) work on the administrative system published in 1906, modified many
years ago. The remaining five are, so far as I am aware, still in force. Of them the
only one which clearly confers on the Council the power to give judicial decisions is
paragraph 6 , which has no bearing on the special question now under consideration
Paragraph 1 has also no direct bearing, and though paragraph 2 implies a right of
giving formal decisions, its scope is limited by the qualification “ dans les limites de ses
attribmions, or, to translate from ITakki Pasha s work, “ m the measure confided to it
by law or regulation.’ There remain paragraphs 5 and 7 , which cover what is in
practice the bulk of toe Council’s work, and these paragraphs clearlv limit its role to
“expressing opinions.” When, in conjunction with this expression, it is remembered
that the Council ©in only consider matters referred to it by the Grand Vizier, and can
report only to the Grand Vizier, though while examining cases it mav correspond with
other departments, it is difficult to resist the conclusion that for all purposes, excepting
that of judging functionaries, the Council is merely an advisory bodv. That ^reat
weight attaches to its pronouncements, and that, in the majority of cases; they are acted
op, cannot be doubted ; but it is to my mind, almost equally certain that the pronounce
ments are not in themselves binding on the executive, and that the Council of Ministers
can, on their responsibility, override them.
^ t° pronounc 6 w ith absolute confidence on this question, it would be
and rvmnblln '“CC 1 ? h / urkls i legal authorities, such as the Law Officers of the Porte
Tw“d t Spte tnemselves. The circumstances in which the present question
wt J, d m * ke lt mdlscl, eet to take this course, especially as to obtain thoroughly
t ustworthy opinions it would be necessary to define the particular issue I have
acauaintknc a e U wto a h qU T 1< | n geneml f erms to be addressed to an official of „,y
suCffinate cToc t h \T & ° a ° ex P enence of the Council of State, though in a
bordmate capacity. My messenger reports his opinion in the following terms:—
avis ou^in n ^ Savo ^ s * ^ es decisions du Conseil d’Etat sont de simple
est consider’e le Mo obiV ca f e S on H uenl y t que depuis plusieurs amides le Conseil d’Etat
Con^rdeTMffiktre?! ! ^ Specla oounseUor ’) da Grand Vizirat. Done, le
a le droit k^center o,mil 6 r P TT e f eCu y fet d °»t le president est le Grand Vizir,
aucune. Meme dans le ^'d' • ° U ^ 8 . c l® el sions du Conseil d’Etat sans exception
Conseil d’Etat est le senl miliea alle c 88 lois, m a-t-il dit, oil la section legislative du
de ir l dite Lct on II f ’ TT 11 dtS Ministres P eut ne pas accepter 1 ’avis
n’ont Gbail eu dl laraktbl Ki m' Element que les decisions efu Conseil d’Etat
le Conseil des Ministres qui se (fonllcb” 0 ^ * Gouvernemen t. <=ar eu dernier lieu e’est
deoision'of the Council 7<£117^ experlence m wh ^ it has been claimed that a
the Government is that f tl 'wT , llllllls ! la,:lve matter was absolutely binding on
Demh KanT C7c,te M,ll lK ? ltWll i clalm to the ri g. ht concession of the
Messrs. WhittaU had, many v’earl blfcre tlklntl 10 "? t,Ce ofthe embass y «» 19 . 1L
the concession. They had ^undov T r i t P relll ^ lnar y steps towards obtaining
waived their rights whilp SUr6 u . lrac ^ er,stlc of the Hamidian regime,
of regime in 1908 thev soucdit^n S . ln an ulcl| oate form. After the change
Ministry of Minos whicb COwin g into conflict wtth the
whereas Messrs. Whittall claim rl J 6 ®? 10 t ^ mi J le a8 a discovered ami abandoned one,
matter went to theCo^ ^ ^ ^er constraint. The
The Council of Ministers reiectoH tK f h h ^ aVe a ^ ecislon ln M cssrs. WhittalTs favour.
Mines. Messrs. Whittall contended tbaf 01 - 8101 ! ^ U P helcl the view of the Ministry of
acted ultra vires, on the ground that the C °w t { le ^°. u T c h °f Ministers had
and as such unassailable.^ The embassv ° UnC1 btates decisioi i was a judicial one,
certain measure of support in thfirTI was a l'P ea ^ et * to , and gave Messrs. Whittall a
upport in their claim to be granted the concession on grounds of