Welcome Address by the President of the Constitutional Court Mr. Zühtü Arslan at the Swearing-in Ceremony of the Justice Mr. Basri Bağcı
9 June 2020
His Excellency Mr. President,
I would like to welcome you to the swearing-in ceremony of the newly appointed Justice of the Constitutional Court and extend you all my most sincere and respectful greetings.
First of all, I would like to congratulate our new Justice Mr. Basri Bağcı and wish that his new office bring auspiciousness to himself, his family, our Court as well as our country. I believe that Mr. Bağcı will significantly contribute to the constitutional jurisdiction with his vast professional experience and especially his profound knowledge in the field of human rights.
Today, we are having an extraordinary swearing-in ceremony with masks and social distancing rules in place. I hope this will be the last ceremony we have held in this manner.
This ceremony represents the current situation very well. The world has been fighting a dangerous pandemic for a considerable time. Maybe this is the first time in the history that we have been experiencing a global quarantine. Our daily routines and habits have been disrupted.
On the other hand, these times during which the life has slowed down led to self-examination by individuals, institutions, and even the whole society. In this regard, the current pandemic has reminded us of at least two things. First, the pandemic, which has spread all around the world and rendered helpless even the developed states, has shown how important the national and international solidarity is.
We all know that the concept of solidarity has a special place in our intellectual and spiritual roots. For example, Al-Farabi, a famous philosopher who lived eleven centuries ago, stated that the way to maintain a virtuous society and state is solidarity. According to Al-Farabi, a society in which people help each other to achieve the real happiness is a virtuous society. A nation where all cities help each other for the same purpose is a virtuous nation. Furthermore, a virtuous universal society can be achieved if all nations help each other to find the happiness.
Another point reminded by this pandemic is the indispensable nature of fundamental rights and freedoms. By placing everyone, if you will, under house-arrest for a long time, the pandemic has once again reminded us how valuable the fundamental rights and freedoms, such as personal freedom, freedom of movement and freedom of worship, and especially the right to life are.
The protection of rights and freedoms is one of the most important elements of democracy. As a matter of fact, the Constitutional Court has, in its many judgments, described democracies as “the regimes in which fundamental rights and freedoms are ensured and guaranteed to the greatest extent”.
The protection of fundamental rights is also a moral issue as well as a legal one. We must admit that those who are not like us, do not think or live like us are also entitled to the same rights with us. In other words, the notion of rights requires the acknowledgement of the 'other' as the subject of the rights.
His Excellency Mr. President,
As is known, racism, xenophobia and Islamophobia, which stem from a sick image of “other” especially in the West, continue to endanger the fundamental rights and freedoms. These concepts are fatal. Here we are talking about the attitude to destroy the 'other', which is, in the words of Lyotard who is a postmodernist philosopher, “to treat her/him like a garbage” that will be burned in the end.
Therefore, racism and xenophobia are much more dangerous than the current pandemic for the future of humanity. A virtuous society cannot be achieved through the mentality of killing the refugees arriving at the borders to deny their entry the country, and even showing them as the cause of the pandemic, thus making them to be perceived as demons. Likewise, a virtuous universal society cannot be built with an approach that does not allow a person to breathe because of his/her colour or belief.
The cure of this morbid mentality is a justice-based pluralist understanding that sees human as “the most honourable creature”. As emphasized by the Constitutional Court in one of its judgments, in a pluralistic society, the State is under an obligation to protect the differences and those who are different against any threat.
In addition, the foundation of a virtuous society and state where individuals may co-exist without being subject to discrimination and violence is justice. The justice symbol, a blindfolded lady carrying a set of scales in one hand and a sword in the other, represents impartial justice, fair trial and enforcement of the judicial decisions, which are the three elements of justice. First of all, justice is blindfolded and treats the parties equally regardless of who they are. Undoubtedly, impartiality of a judge or a court first and foremost requires independence. As stated in Article 138 of the Constitution “No organ, authority, office or individual may give orders or instructions to courts or judges relating to the exercise of judicial power, send them circulars, or make recommendations or suggestions”.
The second symbol of justice is the scale. Thanks to this scale, disputes are resolved on an equitable basis, thereby ensuring the public order. For the very reason, Jalaluddin Rumi defined the judge as “the scale of God” and stated that judge is “mercy” and “a drop from the ocean of justice on the day of judgment.” Indeed, the law embodying the principle of fair trial is a mercy for the society and state. That is why a state without law is like a patient in need of life-support.
Thirdly, justice requires implementation of judgments reached by the judge through the scale of justice. Two-edged sword symbolises the rule of law and binding authority of justice. As highlighted in the judgments of the Turkish Constitutional Court, one of the important elements inherent in the right of access to a court is the effective enforcement of the judicial decisions. Otherwise, right to access to a court and to have a trial become futile.
As a result, justice requires duly enforcement of the just decisions issued by the independent and impartial judiciary. Ensuring and maintaining public confidence in judiciary is contingent upon the realisation of the three elements of justice.
His Excellency Mr. President,
The main duty of the Constitutional Court is to protect fundamental rights and freedoms, which is one of the concrete forms of justice. Therefore, we, as the Justices of the Court, have sworn to protect the Constitution and fundamental rights and freedoms while taking the bench.
It should be noted with satisfaction that the Constitutional Court copes with the increasing workload in terms of both constitutionality review and individual application on one hand, and it renders right-based decisions/judgments on the other. The Turkish Constitutional Court has continued to discharge its functions with appropriate methods by taking the necessary precautions during the pandemic.
No country successfully implementing the individual application mechanism has received such a considerable number of applications comparable to Turkey. The Turkish Constitutional Court received nearly 43.000 individual applications only in 2019. Besides, approximately 40.000 applications were adjudicated last year. Accordingly, the Court has concluded the received applications by nearly 93% in the last two years. Nevertheless, even such a great performance does not suffice for us. Our objective is to adjudicate, at least, as many applications as the Court receives within the year.
On this occasion, I thank all my colleagues who work devotedly despite all difficulties.
In addition, rendering decisions so as to protect fundamental rights and freedoms is not per se sufficient. In particular, it is of great importance for ensuring, as well as good administration of, justice to also revise the practice in light of the decisions and judgments rendered through the individual application mechanism.
As I expressed in the previous swearing-in ceremony, violation decisions have two consequences, one is subjective and the other is objective. In the individual applications where it has found violations, the Constitutional Court also determines how the violation will be redressed. In this scope, it may order retrial, award compensation or decide both.
The objective effect of the violation judgments, which is beyond a given application as well as its applicant, is much more important. The ultimate aim of the individual application mechanism is to prevent occurrence of violations, rather than to address and eliminate all violations afterwards one by one. To attain this aim, all administrative and judicial authorities should consider the principles laid down in the Constitutional Court’s judgments in similar cases before them without awaiting further applications to be lodged. In cases where the violation results from legislation, the way to prevent new violations is undoubtedly introducing statutory amendments.
His Excellency Mr. President,
Before ending my speech, I would like to commemorate Mr. Mahir Can Ilıcak, one of the retired Justices of the Court, who passed away at the end of last year, and extend my condolences to his family members.
I also wish those who have lost their lives due to the pandemic rest in peace as well as I wish a quick recovery for the patients. I would also like to extend my gratitude to all healthcare professionals working devotedly during this period and to everyone who have contributed to the fight against the pandemic.
Lastly, we know that the swearing-in ceremonies lead to conflicted emotions. On the one hand, there is the sadness for those who have left us, and on the other, the happiness for those who have joined us. In any case, these ceremonies remind us that we are temporary and that the court is not a property of the judge. Hafız Ali, Judge of Afyon Province, leaving his office in 1782, wrote in the court book that “Worldly post (title) is not everlasting for anyone on the earth”. Indeed, what remains is not the post (title), but ”a pleasant sound in the dome”.
With these feelings, I once again congratulate Mr. Bağcı and wish him success in his office. I would also like to thank our retired Deputy-president Mr. Recep Kömürcü for his contributions to our Court and I wish a joyful retirement for him and all our retired members.
I would like to once again extend my gratitude for your participation in our ceremony and extend my wishes of health and prosperity to all of you.
|Prof. Dr. Zühtü ARSLAN|
|The Constitutional Court of the Republic of Turkey|