Interpretation of the Constitution in the Protection of Fundamental Rights and Freedoms *
First of all, I would like to welcome you to our country and the Turkish Constitutional Court, as well as extend you all my most sincere greetings.
I wish that the 10th Summer School event, organised by the Turkish Constitutional Court in its capacity as the Center for Training and Human Resources Development of the Association of Asian Constitutional Courts and Equivalent Institutions (AACC), be successful and fruitful.
As we all know that we had to hold the summer school events in the last two years via video-conference due to the COVID-19 pandemic. This year’s event is fortunately held in a hybrid format. Taking this opportunity, I would like to express my gratitude for being able to host a significant part of the summer school participants at the Court after a long period of two years.
We are also pleased to have a broad participation in the 10th Summer School event we have just inaugurated. We are here today with over 40 jurists and administrative staff from a total of 24 countries, 16 of which are represented here in person, as well as from the European Court of Human Rights. This program, like the previous ones, will undoubtedly increase the collaboration and the exchange of examples of good practices among our courts and institutions.
Until the last year, the topics of the summer school events were chosen among the respective fundamental rights and freedoms every year, and the representatives participating in the events exchanged their knowledge and experience on these topics. However, in the last year’s event held online, the discussions and assessments were made regarding the execution of the Constitutional Court’s judgments. The topic of this year’s summer school is the interpretation of the constitution in the protection of fundamental rights and freedoms. It is explicit that the interpretation of the constitution is of vital importance for the protection of all constitutional rights and freedoms.
Let me hereby provide you with some introductory information notably in the light of the experience of the Turkish Constitutional Court.
It should be at the outset noted that the polysemy in language, that is to say the capacity for a word or phrase to have multiple meanings, inevitably entails interpretation, which is a process of comprehending and assigning of meaning. Judicial decision is the output of this interpretation process.
In fact, all decision-makers wielding public power in a legal system continuously engage in the interpretation of the constitution. The political, administrative or judicial decisions are all in any way based, directly or indirectly, on the interpretation of the constitution and laws. These interpretations may conflict with each other. In such cases, it is for the constitutional courts to designate the authentic interpretation in the final instance. In this sense, the authority to interpret, and assign a meaning to, the constitution and norms subject to constitutionality review in a final and binding manner is exercised by the constitutional courts.
It should be noted at this stage that the interpretation is decisive both in the constitutionality review cases and in individual applications. In this sense, in conducting the constitutionality review of provisions, the constitutional courts determine, both the meaning as well as the scope of the provision under review and the meaning of the constitutional provisions referred to as the binding rules.
Besides, the interpretation and implementation of a provision of law by the bodies wielding public power and inferior courts in the individual application are also subject to the review of the constitutional courts. In this context, the Turkish Constitutional Court may find a violation of any fundamental rights and freedoms due to the interpretation and implementation of a provision of law, which the Court has not found it unconstitutional in the abstract constitutionality review, by public authorities including courts and may ultimately find unconstitutional the very same provision.1
On the other hand, it is known that in constitutional jurisdiction, the methods of literal, teleological, historical and systematic interpretation are employed. However, there are interpretation paradigms adopted by the constitutional courts that make use of these methods and are regarded as “interpreting communities”. In this regard, we may say that the interpretation followed within the constitutional jurisdiction is predicated on two main paradigms. The first paradigm is the ideology-based paradigm entailing a strict interpretation of the constitutional provisions such as nationalism and secularism, whereas the second one is the rights-based paradigm that prioritises the protection of fundamental rights and freedoms.
In its several judgments, the Turkish Constitutional Court has stressed that the approach that should be followed in the constitutional jurisdiction is the rights-based paradigm. According to the Court, the constitutional provisions, notably those related to political rights and freedoms, “may fully and properly fulfil their functions only when they are interpreted in pursuance of pluralist democracy and through a rights-based approach.”2
Rights-based approach is predicated upon the assumption that freedom is essential, whereas limitation is an exception. This approach necessitates that the Constitution be interpreted in favour of the freedoms, by attaching priority to fundamental rights. As a matter of fact, as a repercussion of this approach, the Court has reiterated that the duty incumbent on the State in democracies is to protect and improve fundamental rights and freedoms, as well as to take measures that will secure the effective exercise thereof.3
I would like to give an example to illustrate how these two paradigms differ and lead to the contradictory interpretations of the same constitutional principles.
In Türkiye, the headscarf ban for women in public institutions and universities was on the public agenda for many years. Unfortunately, at the outset, the Court, along with the Council of State, interpreted the Constitution by adopting an ideology-based paradigm, and endorsed and justified the impugned ban.
Such a prohibitive approach was predicated upon a strict interpretation of secularism. The Court found the legal regulation allowing for wearing a headscarf in universities in breach of the principle of secularism. According to the Court, “The Constitution aimed to ensure the diligent protection of the principle of secularism regardless of freedoms, and did not allow this principle to be overridden by freedoms.”4 Moreover, the Court took another step in 2008 and annulled the constitutional amendment prescribing the lifting of the headscarf ban on grounds of incompatibility with the principle of secularism.5
On the other hand, the Court has adopted a rights-based paradigm since 2012, thus making a liberal interpretation of secularism. Hence, the Court has found violations of constitutional rights of a lawyer expelled from the courtroom for wearing a headscarf, and of a student expelled from university and of a public official dismissed from office for the very same reason.6
One of the most challenging aspects of constitutional interpretation comes into play in the cases where fundamental rights conflict with each other. As is known, the reasons underlying the limitations on fundamental rights are not always abstract principles such as secularism, or the maintenance of national security and public safety. In such cases, it is relatively easier to interpret and apply the Constitution by adopting a rights-based approach.
Besides, "protection of the others’ rights and freedoms" is also among the reasons justifying any limitation on fundamental rights. A typical example of the conflicting rights is the conflict between freedom of expression and right to protection of honour and dignity, which is a frequent case in individual applications, especially in almost all defamation cases. In this sense, the duty incumbent on the constitutional courts is to strike a fair balance between the conflicting rights.
As a matter of fact, the Turkish Constitutional Court endeavours to strike such a balance not in an abstract manner, but under the particular circumstances of every individual case, taking into consideration the nature of the impugned expressions, the questions whether these expressions have a factual basis and have contributed to a public debate, the identity of the person using the impugned expressions, the questions whether the addressee is a public figure and has had the opportunity to respond to the impugned expressions against him, as well as whether the limits of acceptable criticism to which the addressee was subject should be wider than those of an ordinary citizen.7 In this scope, it is of importance to make a holistic assessment of the impugned expressions within the context they are uttered.
In such cases, constitutional courts consider whether a sound and reasonable balance has been struck between the conflicting rights. At this point, the courts endeavour to accord and assure the rights by striking a fair balance. Such an effort is requisite for constitutional justice, since the justice is to put everything in its place as expressed centuries ago by Mevlânâ Jelaleddin Rumi. 8
The approaches adopted, by the Turkish Constitutional Court and the other constitutional courts/equivalent institutions, in interpreting the constitution for the protection of fundamental rights will be discussed during the program. I believe that these considerations will serve the common purpose of protecting fundamental rights.
Ending my speech with these feelings and thoughts, I would like to express my thanks to everyone who have contributed to the organisation, especially the staff of the Center for Training and Human Resources Development, all speakers and participants.
I once again wish that the Summer School event be successful and fruitful. I would like to extend you all my sincere regards.
|Prof. Dr. Zühtü ARSLAN|
|Constitutional Court of the Republic of Türkiye|
* Opening Address, 10th Summer School Event organised by the Turkish Constitutional Court in its capacity as the Center for Training and Human Resources Development of the Association of Asian Constitutional Courts and Equivalent Institutions, Ankara, 21 September 2022.
1 See Atilla Yazar and Others [Plenary], no. 2016/1635, 5 July 2022.
2 See Ömer Faruk Gergerlioğlu [Plenary], no. 2019/10634, 1 July 2021, § 50; and Ali Kuş [Plenary], no. 2017/27822, 10 February 2022, § 50.
3 Constitutional Court’s decision, no. E.2016/165, K.2017/76, 15 March 2017, § 17.
4 Constitutional Court’s decision, no. E.1989/1, K.1989/12, 7 March 1989.
5 Constitutional Court’s decision, no. E.2008/16, K.2008/116, 5 June 2008.
6 See Tuğba Arslan [Plenary], no. 2014/256, 25 June 2014; Sara Akgül [Plenary], no. 2015/269, 22 November 2018; and B.S., no. 2015/8491, 18 July 2018.
7 See Durmuş Fikri Sağlar (2) [Plenary], no. 2017/29735, 17 March 2021, § 46.
8 The Mathnawî of Jalâlu’ddîn Rûmî, trans. Reynold A. Nicholson, (Konya: Konya Metropolitan Municipality Book, 2010), Book V, §§ 1085, 1090.