Welcome Address by the President of the Constitutional Court Mr. Zühtü ARSLAN at the Swearing-in Ceremony of the Justice Mr. Yıldız SEFERİNOĞLU
20 February 2019
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 express my gratitude towards you. I would also like to extend you all my most sincere and respectful greetings.
First of all, I would like to congratulate our justice Mr. Yıldız Seferinoğlu, who is about to assume office after the oath, and I wish that his new office will be auspicious for himself, his family, for our Court as well as our country. I believe that he will perfectly contribute to the Constitutional Court with his vast professional experience.
As is known, it is a universal practice for public officials to take an oath before taking office. This is a statement of loyalty and commitment. The aim here is to remind, at the beginning, those taking office of the values they have owe to protect and the manner and attitude they have committed to adopt.
In this scope, when taking office as Constitutional Court justices, we promise to protect the Constitution and the fundamental rights and freedoms. In addition, we guarantee that we will only comply with the order of our conscience away from any impact and influence.
In fact the raison d’être of the Constitutional Court is summarized in the text of the oath. The Constitutional Court is a high court with the mandate to protect the rule of law and the fundamental rights of individuals within judicial independence and impartiality. With no doubt, the Court has to fulfil the protection of the Constitution by acting within the limits of the constitutional borders.
His Excellency Mr. President,
In our ancient state tradition, justice has been accepted as the basic condition for the State to continue its existence. Yusuf Has Hâcib neatly described the “concept of justice” in Kutadgu Bilig thousand years ago, which later also marked the Ottoman state understanding. The concept of justice is a good governance formula with “justice” in the middle of the circle.
According to this, “in order to hold a country, one needs many soldiers and an army, and many goods and wealth to feed the soldiers; in order to obtain these goods, one needs a rich society, and in order to make people rich, one needs to introduce just laws”. According to Yusuf Has Hâcib, “The governor who introduces just laws in the country puts his country in order and lightens its day.”
Realization of the “concept of justice”, which is also contemporarily significant, depends on the State’s being bound by the just laws and, in a more current context, its organization as a state of law based on fundamental rights and freedoms. In other words, justice requires that state affairs be governed by the rule of law and thereby the fundamental rights and freedoms of individuals are protected. Besides, according to the late Alija Izetbegović, justice is the source of the political and legal legitimacy. In his words, “Power and the laws are solely the means employed to achieve justice”. From this aspect, the law is the most important means for the realization of the justice. Justice is the foundation of the State, while the law is the foundation of justice.
Law is a necessity in every society as vital as bread, water and air. Accordingly, ensuring and maintaining the rule of law is a guarantee of the future of a country.
In this context, “reaching the level of a modern civilization”, which is expressed in the Constitution and which is our national goal, is only possible with the establishment of the rule of law with its all principles and institutions. Especially for this reason, the rule of law has been placed as the basis of our constitutional identity. According to Article 2 of the Constitution, the Republic of Turkey, in addition to its other qualities, is a democratic state governed by rule of law, respecting human rights, within the notion of justice.
A state of law is a state that guarantees fundamental rights and freedoms. According to Robert Nozick, one of the most prominent political philosophers of the last century, “individuals own rights” and “these rights are so powerful and extensive” that they determine the State’s map of powers.
Constitutional courts undertake to mark out the boundaries of this map of powers notably through the individual application mechanism. In this respect, adoption of this mechanism in our country through the constitutional amendment of 2010 is a milestone for the protection of fundamental rights and freedoms.
This revolutionary change has divided the examination of the Turkish constitutional justice into two periods: before and after the introduction of the individual application.
His Excellency Mr. President,
Taking this occasion, I would like to once again express my gratitude to first Your Excellency as well as to everyone contributing to the introduction of the individual application mechanism in our legal system. In the same vein, I also thank to the esteemed justices and rapporteur judges of the Constitutional Court, who are endeavouring to implement this mechanism as an effective remedy despite all difficulties, as well as all staff of the Court.
As is known, the individual application mechanism has enabled examination, at national level, of the alleged violations of fundamental rights and freedoms before being referred to the international judicial organs, which is actually the practical aim pursued by the mechanism. Let me express with pleasure that this aim has been attained to a significant extent by means of the qualified decisions so far rendered by the Court on the rights and freedoms under the protection of the individual application mechanism within six years since its adoption.. Therefore, the European Court of Human Rights (the ECHR) takes every occasion to indicate that the individual application to the Turkish Constitutional Court is an effective remedy required to be certainly exhausted before lodging an application to it, by making a reference to the decisions rendered by the Court.
The Constitutional Court aims to conclude individual applications within a reasonable time despite the increasing workload. Since 23 September 2012, we have concluded 176.000 applications out of around 216.000. In this regard, our ratio of concluding cases is increasing every year. In 2018, the Court concluded nearly 93% of the individual applications received in that year. We expect this ratio to be over 100% thanks to the recently taken measures.
As is known, the individual application mechanism is an extraordinary remedy, meaning that the Court is not an appeal authority where any kind of judicial dispute is finally concluded. The decisions issued by the Court in the individual application process also point out this fact. In this regard, a large number of applications have been declared inadmissible for either being a complaint to be considered in appellate review, or not satisfying the admissibility conditions.
His Excellency Mr. President,
The Constitutional Court is facing some challenges such as heavy workload and the necessity to develop principles related to new judicial institutions. However, the Court has been maintaining, despite all difficulties, its rights-based approach in both constitutionality review and individual application since 2012. The rights-based approach is based on the paradigm of honouring people with fundamental rights and freedoms at its centre.
As Mevlana says, “Body resembles the Blessed Virgin Mary, and each of us bears a Jesus inside this body”. It is thereby inferred that you will have the grief, passion and ambition that are inherent in whatever you desire.
As the Constitutional Court, inspired by Mevlana’s metaphor of compass, one of our feet is fixed in the values of this land, and with the other we strive for the establishment of constitutional justice by opening up to the world. We bear the concern and desire of an ideal constitutional review that would fully protect rights and freedoms and take its place among the best practices in comparative constitutional jurisdiction.
Because we know that an effective constitutionality review bears a vital function in maintaining the existence of a democratic state of law.
Ending my speech, I once again thank to Mr. Nuri Necipoğlu and Mr. Osman Alifeyyaz Paksüt, our esteemed justices having retired last year, for their valuable contributions to the Court and I wish peace and prosperity, during the retirement period, to them as well as all other retired officials of the Court.
I would like to once again compliment newly-appointed justice, Mr. Seferinoğlu and wish him every success in his new office.
I express my gratitude for your participation in the oath-taking ceremony and extend my wishes of peace and prosperity to you all.
|Prof. Dr. Zühtü ARSLAN|
|The Constitutional Court of the Republic of Turkey|