The Swearing-in Ceremony of Justice Mr. İrfan Fidan
9 February 2021, 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. İrfan Fidan and wish him success in his new office. I also wish that his new office bring auspiciousness to himself, his family, the Court, as well as to the country.
As is known, swearing is a long-standing tradition. The expression “It is the oath which holds democracy together”, which was said by Lycurgus about 2500 years ago, illustrates the function of swearing an oath quite well. So indeed, in almost every part of the world, those who will exercise the State authority take an oath before the public that they will support and defend the constitution, which unites the community, before assuming the duties of an office.
The Constitution, which we as the justices of the Constitutional Court have sworn to defend and protect, is comprised of common values that form its spirit and identity. The primary of these values that unite and unify us is the Turkish National Anthem (“or the Independence March”), the 100th anniversary of which we celebrate this year.
The Turkish National Anthem has recently fulfilled its unifying function also at the Plenary Session of the Grand National Assembly of Turkey (“the Assembly”). This year was declared as the “Year of Turkish National Anthem” through a joint motion signed by the MPs from all political parties represented in the Assembly.
In this sense, I would like to provide you with some introductory information as to the Turkish National Anthem in the constitutional context.
It should be primarily noted that the National Anthem we recite or listen to on every occasion is a text, which is also afforded protection by the Constitution. As set forth in Article 3 thereof, the national anthem of the Turkish State is the “Independence March”. In the legislative intention of this provision, it is emphasised that ‘Independence March’, the national anthem of the Turkish Nation since the Turkish War of Independence written by Mehmet Akif Ersoy”, is a symbol that unifies the community. As explained therein, the Independence March is one of the “holy symbols embraced by the Turkish State and Nation”. That is why Mehmet Akif did not incorporate the Independence March into his work, Safahat (“Phases”, the collected poems of Mehmet Akif), stating that “It is not my work of art, but of the nation!”.
His Excellency Mr. President,
The “Independence March”, as its name implies, is a manifesto of independence. The marking feature of this manifesto is undoubtedly liberty. The third stanza starting as “I have lived free since the beginning, I live free” constitutes, as for me, the very essence of the Independence March.
This verse is also the intellectual summary of the Turkish Constitution. In this context, the notion “liberty”, one of the basic terms cited in the Independence March, may be said to have three constitutional aspects directed towards individual, society and State.
- In individual terms, liberty means the possession of fundamental rights and freedoms. Accordingly, in their capacity as a human being, individuals forming the nation have been the subjects of these rights and freedoms since time immemorial. The main objective of the Turkish Constitution is to safeguard the rights and freedoms that individuals innately enjoy.
- In social terms, liberty amounts to the exemption from reliance on, or control by, other nations, and the ability to forge its own destiny; that is to say, independence. The last time that the Turkish nation fought for liberty and independence at the cost of their lives is the resistance of 15 July when they demonstrated the whole world that no one could fetter them. On the other hand, the maintenance of independence acquired by the nation at heavy cost is one of the basic duties conferred by the Turkish Constitution on the State.
- Lastly, in terms of the State, liberty corresponds to the exercise of sovereignty vested in the nation. In this sense, liberty entails the ability for the State organs to freely take decisions in compliance with the constitution as a social contract. In all Turkish Constitutions adopted since the 1921 Constitution, it is set forth as an indispensable principle that “sovereignty rests unconditionally with the nation”. Pursuant to Article 6 of the Constitution in force, which is titled “Sovereignty”, “the Turkish Nation shall exercise its sovereignty through the authorized organs, as prescribed by the principles set forth in the Constitution”.
In short, the Constitution is the symbol of the liberty, sovereignty and independence of the nation, as expressed in the Independence March. For that very reason, the constitutional provisions are the superior legal provisions binding on the legislative, executive, and judicial organs, the administrative authorities, as well as on natural and legal persons.
Besides, the rule of law is also a requisite of ensuring the maintenance of the nation’s existence, unity and independence, which are the common values inherent in the Independence March. In this sense, the poet of the Independence March addresses to Asım in Safahat as follows:
“Bestow the whole power on the statute so that the unity shall continue to exist…
Otherwise, you are not a nation but merely a disorganised crowd…”
Therefore, the respect for rule of law and thereby the allegiance to the Constitution, the common responsibility incumbent on all constitutional and legal institutions, are also the requisite of the loyalty to the Turkish National Anthem, as well as of the commitment to its spirit.
His Excellency Mr. President,
As is known, according to the Constitution, one of the competent bodies exercising sovereignty is the Constitutional Court. The jurisdiction of the Constitutional Court that is entrusted with the review of the constitutionality of laws since its establishment has expanded over time. In particular, the constitutional jurisdiction has entered into a new era through the adoption of the individual application mechanism, namely since 23 September 2012.
The individual application mechanism is a significant reform and achievement in the Turkish legal system, thanks to Your Excellency’s great effort and the will of our nation. As also emphasized in a recent decision of the Court, the individual application mechanism is the most effective domestic legal remedy of the last resort for the protection of fundamental rights and freedoms, which is directly predicated on the Constitution.
As specified by the constitution-maker, the objective of the individual application mechanism is to put into practice a well-operating national legal remedy that will “raise the standards in terms of rights and the rule of law”. At this point, I would like to state with pleasure that despite certain extrinsic problems, this objective has been achieved to a great extent, and individual application mechanism is successfully operated in our country.
The statistics that we publish on a regular basis also reveal the extent of success in terms of individual application. The relevant data indicates that the Court has annually received approximately 40.000 applications in the last four years. As of today, the number of pending applications is around 40.000, which means that for the last four years, the Court has been able to adjudicate the applications at the rate equal to that of which it has received. Moreover, despite the ongoing pandemic, over 45.000 applications were adjudicated last year, thus the ratio of the adjudicated applications has reached the level of 112 percent.
Besides, in addition to coping with the heavy workload, the Court also further develops its case-law regarding fundamental rights and freedoms subject to individual application day by day. Accordingly, the Court, through its decisions/judgments, has raised the standards based on constitutional rights and the rule of law in line with the aim of the constitution-maker and for the best interest of our people.
However, individual application is a relatively new institution in our country. Therefore, we all know that some issues related to its implementation have arisen. The most important one among these issues is the execution of the judgments finding a violation.
First of all, it should be noted that when the Court finds a violation, it indicates the steps to be taken so as to redress the violation and its consequences. As a matter of fact, this issue is not at the discretion or option of the Court, but is a necessity that is prescribed by the Law and stems from the nature of the individual application mechanism.
At this stage, it is incumbent on the relevant institutions to take the necessary steps in order to redress the violation and prevent similar violations. In this context, as a rule, a restoration of the original state should be ensured as much as possible, in other words, the situation existing prior to the violation should be restored. In addition, pursuant to Article 153 of the Constitution and Article 50 of Code no. 6216, the administrative and judicial authorities are liable to execute the Constitutional Court’s judgments. This absolute liability is essentially a requisite for the legal order and the state governed by the rule of law, which are stipulated by the Constitution.
The binding nature and compulsory execution of the Constitutional Court’s judgments are also a guarantee for the protection of the constitutional rights and freedoms. In order for the effectiveness of the individual application mechanism, which has been introduced to ensure the better protection of fundamental rights, the violation judgments must be executed without delay.
It should be noted that the failure to execute the Court’s judgments might render the Constitution completely devoid of purpose and dysfunctional. In cases where the Constitution became devoid of purpose, and the confidence of individuals and the community in the legal system and that of in the State has been undermined, it will no longer be possible to preserve and maintain the common values uniting the community.
His Excellency Mr. President,
Lastly, it should also be noted that the sole wording of concepts such as right, law and freedom in constitutions is not sufficient. In order to ensure their protection, all segments of the society should act with due diligence so as to ensure the implementation of constitutional provisions as well as the protection of common constitutional values.
The Constitutional Court, adopting a rights-oriented approach in the matters falling under its jurisdiction, exerts a significant effort to realise the common constitutional values. The Court endeavours to preserve universal values enshrined in the Constitution, such as justice, equality, fundamental rights and freedoms, sovereignty, independence and democratic state of law by ensuring their materialisation through its decisions/judgments.
Therefore, I would like to extend my thanks to the vice-presidents, justices, rapporteur-judges and all other personnel working devotedly despite the pandemic that has had a profound impact on the humanity.
On this occasion, I wish God's mercy upon our great poet and thinker Mehmet Akif Ersoy, who awarded us a meaningful and magnificent national anthem the centenary of which we are celebrating.
I also commemorate, with mercy and gratitude, all heroes of the national struggle as a result of which the Turkish National Anthem was written, especially Ghazi Mustafa Kemal Atatürk, and the deputies of the Ghazi Parliament who adopted this anthem in tears and applause, and all our martyrs.
Before ending my speech, I once again congratulate Mr. Fidan, and I wish our retired justices Mr. Serdar Özgüldür and Mr. Burhan Üstün a peaceful retirement period. I also wish God’s mercy upon all our late members and a healthy life for those who are alive.
I would like to extend my gratitude for your participation in our ceremony and extend my wishes of health and prosperity to all of you.
May you live long and prosper! 9.2.2021
|Prof. Dr. Zühtü ARSLAN|
|The Constitutional Court of the Republic of Türkiye|