The Swearing-in Ceremony of Justice Mr. Kenan Yaşar
16 February 2022, Ankara
His Excellency Mr. President,
I would like to welcome you to the swearing-in ceremony and extend you all my most sincere and respectful greetings.
First of all, I would like to congratulate newly appointed Justice of the Constitutional Court, Mr. Kenan Yaşar, and wish him success in his new office. I also wish that his new office bring auspiciousness to himself, his family, the Court, the country, as well as to the nation. I would like to express my sincere belief that his previous experiences as a self-employed lawyer and a chairman of the bar association would make significant contributions to the Court.
As is known, the tasks and duties of the Court justices are summarised in the text of the oath. As justices of the Court, we commit ourselves to protect the Constitution as well as fundamental rights and freedoms while embarking on the mission, like those exercising the legislative and executive powers.
Making this commitment upon honour and dignity, which are considered as the most valuable elements of spiritual personality, demonstrates that the values needed to be protected are indeed indispensable for our individual and social life. So indeed, raison d'être of the State is to secure people’s peace and welfare, which may be ensured through the protection of fundamental rights and freedoms in pursuit of rule of law.
Fundamental rights and freedoms have reached the present day by undergoing certain changes in temporal and spatial terms and become the common values of humanity today. It was not until the second half of the last century that the universal and regional covenants on human rights emerged. However, the consideration that people, as a social being, have certain rights and even that the continued existence of the State is conditional upon the protection of these rights dates back to much older times.
In this sense, it is possible to come across the traces and practice of the rights- and justice-oriented thought in our civilisation background and spiritual roots. For instance, in his work, the Muqaddimah, Ibn Khaldun states that in cases affording no protection for human rights and law, the State will sustain damage.
More importantly, Ibn Khaldun also notes that human rights should be protected in judicial terms, responsibility of which is incumbent on judges. Therefore, we may reasonably regard Ibn Khaldun not only as the founder of sociology but also one of the intellectual pioneers of human rights jurisdiction.
His Excellency Mr. President,
The expressions concerning human rights, law and justice, which are stated in the Muqaddimah, are indicated also in the Siyasetnames (the Books of Government) that have an important place in the State’s tradition. Almost all statesmen including but not limited to Nizamülmülk and Hayreddin Pasha, who were reflecting on the administration, have pointed to the vital importance of securing justice and protection of fundamental rights for the maintenance of the social and state life.
Besides, the experience gained through the history has shown that to secure justice is not a matter of commitment or discourse but of action. Justice should be secured, which should also be ensured in an apparent way. In practice, justice necessitates an equitable and impartial hearing so as to accord, and to ensure the assurance of, a right.
Taking this opportunity, let me briefly touch upon two historical letters which well express the importance of justice as assurance of a given “right”.
First of them is the letter which was addressed by Caliph Ömer to Ebû Mûsâ appointed by the former as a judge to hold office in Basra and where the basic principles and procedures of trial procedure are succinctly set forth. Caliph Ömer therein explains that a judge must issue a decision, acting equally towards parties of a case before him even in terms of his glances at them, and then duly execute his decision. That is because, according to Caliph Ömer, “Granting a right which will not be exercised and issuance of a decision which will not be executed are of no avail.”
The second letter pointing to the importance of justice is Hatt-ı Hümayûn addressed by Suleiman the Magnificent ruling over the Ottoman Empire for nearly a half-century to Gazi Bâli Bey. Suleiman warns his bureaucrat, seeking to become a vizier, as follows: “Justice is of first priority. If you rule equitably, each of your days will be regarded as a divine service… If anyone complains, on the day of judgment, of us due to any oppression or unfairness having occurred at any place under your governance, I will hold you responsible therefore.”
The message sought to be conveyed by these letters is obvious. Justice is the basis of both the State and country. The peaceful existence of the individual, society and state is dependent on the rule of law, as well as the accordance and assurance of rights under a fair governance.
His Excellency Mr. President,
As is known, today constitutional courts have an important role in the securing of justice and protection of fundamental rights. In this sense, the Turkish Constitutional Court founded sixty years ago has been endeavouring to do its best, notably since the adoption of individual application mechanism, to fulfil its task of protecting fundamental rights and freedoms.
The Court continues adopting a rights-based approach in making decisions in the fields of constitutionality review and individual application, as well as in its other affairs. These decisions put an emphasis on the fact that individuals’ fundamental rights and freedoms safeguarded by the Constitution and laws, including but not limited to rights to life, to a fair trial, to respect for private life and freedom of expression are indispensable elements of a democratic state of law.
It should be noted that the individual application mechanism, incorporated into the Turkish legal system through the constitutional amendment of 2010 and put into operation in 2012, has made and continues to make significant contributions to the good administration of justice in the sense of the accordance and assurance of rights. As emphasised in the Court’s judgments, individual application institution affords individuals a guarantee at the highest level for the protection and improvement of fundamental rights and freedoms.
Nevertheless, our ten years’ experience in this field has revealed that the effectiveness of this remedy is conditional upon the proper execution of violation judgments. The Court has stated that the execution of judicial decisions is an element complementary to the trial process, and that in case of any failure to execute them, then the trial will also make no sense, which will apparently in turn undermine the public trust in law and the judiciary.
As we have frequently emphasised in consideration of importance attached thereto, the objective pursued by individual application mechanism is not merely affording redress for the violation found in a given case. Besides, the erga omnes effect of individual application necessitates, in line with the violation judgments already rendered, the prevention of any further violations likely to occur regarding the same matter.
At this stage, the Court’s findings as to the causes of such violations come into prominence. Violations of any given right or freedom may stem from the established administrative practice, judicial interpretation, or the law itself. The executive, the judiciary, or the legislature, depending on the source of the violation, is expected to take the necessary steps in order to eliminate problems giving rise to the violations of the Constitution and prevent similar violations.
As a result, the maintenance of individual application mechanism, a great acquisition for the Turkish legal system, is conditional upon the proper execution of violation judgments, which undoubtedly require the administration, the courts and the legislative body to not only eliminate the violation found in a given case but also take the necessary measures for the prevention of new violations.
His Excellency Mr. President,
On this occasion, I would like to extent my gratitude to everyone, all institutions and organisations contributing efforts for the introduction and effective operation of individual application in the Turkish legal system. In this sense, let me express my appreciation to the Court’s vice-presidents, justices, rapporteur-judges and all staff working devotedly in pursuit of the fundamental rights and freedoms.
I would like to once again thank Mr. Celal Mümtaz Akıncı, the Court justice who retired last week, and wish him, along with all other retired justices, a healthy and prosperous retirement period. On this occasion, I would like to commemorate our retired justices Mr. Erol Cansel, Mr. Cafer Şat, Mr. Lütfi Tuncel and Mr. Yavuz Nazaroğlu and other members, who lost their lives in the recent period. I also extend my condolences to their families.
As a matter of fact, retirement and death once again remind us that the duties and offices we undertake are temporary. Everything with a beginning has an end. What matters is the capability of leaving a favourable impression behind.
With these feelings, I once again congratulate Mr. Kenan Yaşar and wish him success in his office. I would like to extend my gratitude for your participation in our ceremony and extend my wishes of health and prosperity to you all.
|Prof. Dr. Zühtü ARSLAN|
|The Constitutional Court of the Republic of Türkiye|