The Rights-Based Interpretation and the Constitutional Court of Türkiye*
Ladies and Gentlemen,
First of all, I would like to extend you all my most sincere and respectful greetings. I wish that the symposium organised by the Turkish Constitutional Court Research Center for Constitutional Justice (RCCJ) and Medipol University Faculty of Law be successful and fruitful.
I would like to express my gratitude to those who have organised this symposium for choosing such topic. Indeed, as in every field, interpretation is of vital importance in terms of constitutional jurisdiction. What makes interpretation so important is its essential role in understanding and making sense of the world we live in and the reality surrounding us. Polysemy, inherent in the nature of language, necessitates interpretation.
In this sense, interpretation is probably the most important issue in terms of constitutional jurisdiction. In the well-known Marbury v. Madison decision of 1803, which is known as the date of birth of constitutional jurisdiction, it was stated that it was emphatically the province and duty of the Judicial Department to say what the law is and that those who apply the rule to particular cases must, of necessity, expound and interpret that rule.1
The significance and power of constitutional interpretation is also emphasised through the statement “We are under a Constitution, but the Constitution is what the judges say it is” which was uttered a century after the said decision.2
As the case is in other fields, interpretation does not exist in a vacuum in the constitutional jurisdiction. There are many factors having a bearing on and determining interpretation. Constitutional judges determine the meaning of the law and the constitution, which is the most basic law, through a means established/they have established in their inner and outer worlds.
In other words, judges make sense of law as formatted interpreters in a sense. For the very reason, Heidegger says that whenever something is interpreted as something, the interpretation will be founded essentially upon fore-having, fore-sight, and fore-conception.3
In this context, we can say that the constitutional interpretation takes place in three interlocking circles. In the first circle at the center is the personal feelings and thoughts of the judge as the interpreter. The judge’s upbringing, ideology, set of values, preferences, love and anger may have a bearing on interpretation. Indeed, thousands of years ago, Aristotle stated that judges were often influenced by feelings of friendship, hatred or self-interest, which caused them to lack objectivity thereby overshadowing their adjudication.4
The second circle of interpretation is the paradigm that dominates the interpretive community. Paradigm “stands for the entire constellation of beliefs, values, techniques, and so on shared by the members of a given community”.5 In this sense, the legal paradigm has a bearing on the interpretation made by constitutional courts in their capacity as an interpretive community and may be decisive in the interpretation of constitutional rules.
The third and largest circle having a bearing on interpretation is the social and political situation we are in at the macro level. Gadamer refers to the principle of rule of law as an essential condition for legal hermeneutics. According to Gadamer, interpretation cannot come into play in authoritarian regimes since the absolute will, which does not consider itself bound by law, may also transgress the basic principles of interpretation.6
What is referred to by Gadamer is precisely described by Tolstoy in his novel Hadji Murad. When a Polish medical student failed his exam for the third time, he slightly injured his teacher with a paper knife. Tsar Nicholas, who hated Poles, thought he had a good opportunity. He wrote, and then signed, on his margin on the report regarding the student: “Deserves death, but, thank God, we have no capital punishment, and it is not for me to introduce it. Make him run the gauntlet of a thousand men twelve times.— Nicholas”.7
Tolstoy says that Nicholas knew that twelve thousand strokes meant death with torture, for five thousand strokes were sufficient to kill even the strongest man. Thus, he was pleased to give such decision about the student although there was no capital punishment in his country.8 This anecdote is a typical example of how general principles of interpretation can be transgressed by the absolute will.
In the light of these conceptual explanations, let me briefly touch upon the legal paradigm, which involves the interpretation process, and its repercussions on the decisions and judgments issued by the Constitutional Court of Türkiye (the Court).
In my article published 20 years ago, I have put forth that the courts engaging in human rights adjudication are dominated by two inter-conflicting paradigms, namely the ideology-based paradigm and the rights-based paradigm. I have tried therein to explain that the Court has been adopting the paradigm, which does not prioritise the protection of fundamental rights and freedoms and which even allows these rights and freedoms to be overridden by the ideology when needed.9
At the point we have currently reached, it is well known that especially through the individual application mechanism, a paradigm shift has occurred in the field of constitutional jurisdiction, as a result of which the rights-based paradigm has been adopted. It should be noted that amendments to the texts and constitutions, which are subject to interpretation, and the establishment of new constitutional institutions forming the basis for the interpretation may be decisive for the swifts in the paradigms of interpretation. In this sense, the individual application mechanism adopted by the constitutional amendment of 2010 has indubitably played an effective role in the adoption of the rights-based paradigm.
The rights-based paradigm is an approach, which prioritises the protection of fundamental rights and freedoms over the other societal and political interests, which regards rights and freedoms as essential whereas their restriction as exceptional, and which in the last instance entails an interpretation in favour of rights and freedoms.
In its several judgments, the Court has indicated that the approach that should predominate over the constitutional jurisdiction is the rights-based paradigm. As stated by the Court, the constitutional provisions “may fully and properly fulfil their functions only when they are interpreted through a rights-based approach.” Therefore, those wielding public power can and must “interpret constitutional provisions in favour of freedoms”.10
Besides, the rights-based approach also necessitates the interpretation of constitutional provisions in the light of the principle of rule of law. The Court has noted that rule of law is “a principle that is to be taken into consideration in the interpretation and implementation of all provisions of the Constitution”.11 Undoubtedly, this principle is extremely important for the societal and political affairs, which are the broadest circle in which the interpretation process takes place.
It may be said that the rights-based paradigm adopted in the constitutional jurisdiction has two prominent practical repercussions. First of all, this paradigm has led to an expansion in the realm of constitutional rights and freedoms both in the individual application and constitutionality review processes.
For instance, the Court has construed Article 36 of the Constitution enshrining the right to legal remedies in a way that would also cover the right to appellate review of a decision.12 In the same vein, the Court has concluded, by adopting historical, systematic and teleological methods of interpretation, that Article 70 of the Constitution where the right to initially acquire a public office is laid down also covers the right to continued exercise of public office.13
The second practical repercussion of the rights-based paradigm comes into play in its contribution to the process known as “constitutionalisation of law”. In its recent judgments, the Court has found a violation of the prohibition of discrimination in so far as it relates to property in the case where the additional indicator rate applied in respect of the professors transferred from the military higher education institutions was lower than that of the other professors.14 In this judgment, the Court has stressed on one hand that in interpreting and determining the scope of the laws, the inferior courts must take into consideration the Constitution, and on the other hand that the Constitution is a living instrument. As noted by the Court, “Constitution is not merely a text formulated as a document, but rather a legal living instrument, which steers the legal system and is to be taken into consideration in case of all public acts and actions performed.”15
It is undoubtedly the Constitutional Court that attributes the ultimate meaning to the Constitution as “a living instrument”, interprets the provisions included therein and applies them to the given cases, and, so to speak, puts flesh on the bones of these provisions. Therefore, it is a requisite of the rights-based paradigm that the interpretation and application adopted in the constitutional jurisdiction be taken into account by the other courts.
As is known, the principle of res interpretata requires that the judicial interpretation of basic principles and rules in case of a dispute be taken into consideration by the other courts in similar cases. Despite not clearly citing this principle as a concept in its judgments, the Court refers to the requirements of this principle within the scope of “objective function”.
In the sense of individual application mechanism, “Objective function undertaken by the Court is to interpret the constitutional provisions related to fundamental rights and freedoms and to ensure their implementation”.16 What is expected from the courts and all institutions wielding public power following the interpretation by the Court of the basic constitutional principles and procedures on a matter is to “act, in case of any similar matter, within the framework of the Court’s interpretation”.17
Consequently, the Court’s insistence on the legal and constitutional interpretation within the scope of the rights-based paradigm is of vital importance for the protection of the individuals’ fundamental rights and freedoms.
As a matter of fact, probably the most formidable challenge in the field of constitutional jurisdiction will be the protection and maintenance of the rights-based paradigm vis-à-vis the global adverse waves in support of authoritarianism.
I sincerely believe that the Turkish Constitutional Court will continue to be the bulwark of fundamental rights and freedoms thanks to the experience it has gained in the human rights jurisdiction, the system it has established and the paradigm it has adopted notably during the last 10 years.
With these feelings and considerations, let me once again extend you all my sincere regards. I would also like to thank everyone who have contributed to this organisation.
I would like to express my gratitude to the Rector, all administrative staff and academics of the Medipol University, particularly to the academics who have devotedly organised this program.
Let me also express my thanks to those who will contribute to the organisation through their presence, presentations and comments, and wish you all health and prosperity.
|Prof. Dr. Zühtü ARSLAN
|Constitutional Court of the Republic of Türkiye
* Opening speech delivered at the Symposium on “Interpretation in the Judgments of the Constitutional Court of Türkiye” organised by the Constitutional Court Research Center for Constitutional Justice (RCCJ) and Medipol University Faculty of Law. İstanbul, 3 January 2023.
** President of the Constitutional Court.
1 Marbury v. Madison, 5. U.S. 137 (1803), p. 177.
2 Addresses and Papers of Charles Evans Hughes, Governor of New York, 1906-1908, (New York: G.P.Putnam’s Sons, 1908), p. 139.
3 Martin Heidegger, Being and Time, trans. J. Macquarrie & E. Robinson, (Oxford: Basil Blackwell, 1962), p. 191.
4 Aristoteles, Retorik, Trans. A. Çokona, VIII. Edition, (İstanbul: İş Bankası Yayınları, 2022), Book 1, Chapter 1, p. 3.
5 Thomas S. Kuhn, The Structure of Scientific Revolutions, 3rd ed., (Chicago: University of Chicago Press, 1996). p. 175. For the definition of legal paradigm, see Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, trans. W. Rehg, (Cambridge, MA: The MIT Press, 1996), p. 194.
6 Hans-Georg Gadamer, Truth and Method, Second Edition, trans. J. Weindheimer & D.G. Marshall, (London: Sheed & Ward, 1989), p. 329.
7 Leo Tolstoy, Hadji Murad, trans. A. Maude, (London: Thomas Nelson & Sons, 1912), pp. 151-152.
8 Tolstoy, Hadji Murad, p. 152.
9 Zühtü Arslan, “Conflicting Paradigms: Political Rights in the Turkish Constitutional Court”, Critique: Critical Middle Eastern Studies, 11/1, (Spring 2002): 9-25.
10 Ömer Faruk Gergerlioğlu [Plenary], no. 2019/10634, 1 July 2021, § 50; and Ali Kuş [Plenary], no. 2017/27822, 10 February 2022, § 50.
11 Mehmet Güçlü and Ramazan Erdem, no. 2015/7942, 28 May 2019, § 50.
12 Constitutional Court’s decisions, E. 2018/71 K. 2018/118, 27 December 2018, § 8; E. 2022/89 K. 2022/129, 26 October 2022, § 23.
13 Constitutional Court’s decision, E. 2021/104 K. 2021/87, 11 November 2021, § 48.
14 Mehmet Fatih Bulucu [Plenary], no. 2019/26274, 27 October 2022.
15 Mehmet Fatih Bulucu [Plenary], § 76.
16 K.V. [Plenary], no. 2014/2293, 1 December 2016, § 52.
17 K.V. [Plenary], § 53.