Paylaş | 09 September 2023

President Arslan participated in the International Conference on “Constitutional Justice: Dignity, Freedom and Justice for All” held in Astana on 7-8 September 2023 on the occasion of the Constitution Day of the Republic of Kazakhstan. President Arslan was accompanied by Justice Mr. Rıdvan Güleç, Chief Rapporteur-Judge Mrs. Şermin Birtane and Rapporteur-Judge Mr. Onur Mercan.

At the Conference, President Arslan delivered a speech titled “The Conditions for an Effective Constitutional Judiciary: Lessons from the Turkish Experience”. At the beginning of his speech, President Arslan, stressing that the primary issue to be resolved since the emergence of human societies was how to effectively limit the absolute power of rulers, stated that the idea of constitutionalism and constitutional justice was a response to the problem of limiting power with a view to safeguarding the rights and freedoms of individuals.

President Arslan noting that “the mere existence of constitutional or supreme courts is not sufficient to protect fundamental rights and freedoms”, underlined that an effective and functional constitutional judiciary depended on the fulfilment of external and internal conditions. He further stated “Both are related to the institutional quality of the constitutional order. … The external condition is the predominance of the principle of separation of powers in the constitutional system. This principle is based on the idea that in cases where the legislative, executive and judicial powers are not divided into separate branches, the protection of rights and freedoms becomes impossible. … The internal condition for an effective constitutional jurisdiction is that the constitutional courts adopt a rights-based paradigm. … The rights-based paradigm requires that the constitution be interpreted in favour of freedoms by giving priority to fundamental rights vis-a-vis any kind of social and political interests.”.

Touching upon the development process of the rights-based approach in Türkiye, President Arslan provided information on the said process, pointing to the Court’s judgments regarding headscarf. Referring to the Court’s judgments in order to clarify the process before and after the rights-based approach, President Arslan noted that the Court had annulled certain laws and constitutional amendments in 1989 and 2008 allowing the headscarf to be worn in universities, as being in breach of the principle of secularism enshrined in the Constitution. President Arslan expressed that with the adoption of the individual application system in 2012, the Court shifted to the rights-based approach in interpreting and implementing the constitutional principles, including secularism. 

President Arslan, recalling that after adopting the rights-based approach, the Constitutional Court examined an individual application in 2014 concerning the expulsion of a lawyer from a courtroom for wearing a headscarf due to its being allegedly contrary to the principle of secularism, stated that the Court had ruled that the interference with the applicant’s freedom of religion had not met the constitutional requirement of “lawfulness”. Dwelling on the said case where the Court had found no objective and reasonable basis for preventing the applicant from being present in the courtroom with a headscarf because of her religious beliefs, President Arslan also noted that in this sense, the prohibition of discrimination had also been violated, as the applicant had been placed in a disadvantageous situation in comparison to the lawyers who did not wear headscarves.

Having referred to this precedent judgment with a view to providing a concrete and compact insight into the rights-based approach adopted by the Turkish Constitutional Court, President Arslan concluded that there were many important lessons to be drawn from the experiences of our respective courts and that the most important one was the necessity on the part of the constitutional/supreme courts to adopt a rights-based approach in deciding the cases before them. President Arslan concluded his speech by emphasizing that this was the basic requirement for achieving the main objectives of constitutional justice.

During his negotiations in Kazakhstan, President Arslan met with Ms. Elvira Azimova, Chairman of the Constitutional Court of Kazakhstan. At this meeting, the parties agreed to amend the Memorandum of Understanding that had been previously signed between these two courts.

Click for the full text of the speech delivered by President Zühtü Arslan.