The Swearing-in Ceremony of Justices Mr. Recai Akyel and Mr. Yusuf Şevki Hakyemez
05 October 2016, Ankara
His Excellency Mr. President,
I would like to welcome you to the swearing-in ceremony of our newly appointed justices of the Constitutional Court and I greet you with all my heart and respect.
I congratulate our justices who are about to assume office after the oath and I wish them success.
I believe that Assoc. Prof. Dr. Recai Akyel, who has worked in public administration for many years, will carry his vast experience to the field of constitutional justice and will make important contributions to our Court considering his past position as a district and province governor.
Likewise, I would like to express my belief that Prof. Dr. Yusuf Şevki Hakyemez, who is known for his studies in constitutional law and especially for his works on the Turkish Constitutional Court’s approach to fundamental rights, will make significant contributions to the development of the “rights-based” case law of our Court.
Once again I want to congratulate our new justices and express my belief that the Court and this Country will greatly benefit from their service.
Also, I would like to welcome our guests from 13 countries who are among us for the “Summer School Programme” organized for the fourth time by our Court within the framework of the Association of Asian Constitutional Courts and Equivalent Institutions.
As is known, in the history of countries and nations there are moments of truths and turning points. The 15th of July 2016 is such a day for this country. On July 15, we witnessed one of the most important events not only in the Turkish political history but also in the history of modern democracy.
On this night we experienced opposite feelings. First a faction/junta within the Turkish Armed Forces caused us to witness despicable moments. By attempting to destroy all democratic efforts and achievements, they made us feel the shame of the possibility of turning back to the days that we recall as the dark pages of our history.
But at the same night, our glorious nation erased this disgrace by showing a heroic resistance and let us enjoy dignity. The night that started dark witnessed a democratic resistance, and a history of democracy was made that we will pass onto future generations with honor. The night of 15 July once again confirmed the following words of late Alija Izzetbegovic: “History always repeats the same story: People that are ready to die win against those who aren’t ready.”
Taking this opportunity, I want to note that I owe a gratitude, on behalf of our Court and on my own behalf, first of all to our President, all other statesman, the leaders of the governing and opposition parties, the patriotic members of the Turkish Armed Forces and the National Police, the media who showed a democratic and firm stance, and above all to our brave and courageous nation that had nothing more than flags in their hands yet stood strong against the tanks at the cost of their own lives for letting us experience this dignity and honor.
The sole raison d’être of the Constitutional Court is to protect the constitution and the fundamental rights and freedoms secured within. That is why the Constitutional Court justices swear on their honor and dignity to protect the Constitution of the Republic of Turkey and the fundamental rights and freedoms. Of course, the duty to protect the constitution and rights is fulfilled within the scope of the powers granted by the Constitution.
The purpose of the coup attempt of July15 was in essence to overthrow the democratic constitutional order and the fundamental rights and freedoms secured by it. If this attempt would have succeeded as before, the mission of the constitutional court to protect the constitutional and fundamental rights would have been rendered meaningless.
For this very reason, during that evil night at the densest moment of the darkness, for the first time in the history of constitutional justice, the Constitutional Court made a public statement. This statement was as follows: “We repudiate all kinds of antidemocratic attempts against the constitutional order and we would like our beloved nation to know that we stand beside the democratic constitutional state.” We considered this statement as a must arising from our duty to protect the constitution and fundamental rights.
Taking this opportunity, I once again want to express my belief that the Constitutional Court justices will dully fulfill their duty to protect the Constitution and fundamental rights against any kind of anti-democratic and unconstitutional attack by staying loyal to their oaths.
His Excellency Mr. President,
We have to analyze the mentality and structural problems behind this coup attempt well. As it is the case with all coup and coup attempts, an understanding of “tutelage/paternalism” lies behind July 15. This paternalism implies nothing more than delirium of a group who thinks that they hold the magic globe of truth in their hands so that they are entitled to form the society and the state and to tame them or so to say to bring them to heel. The civil-military bureaucratic tutelage that leans on different ideological buttresses at different times is based on the hypothesis that the democratic political mind is insufficient at institutional levels. On individual level, it is fed by the thought that an individual should not be left to him/herself and must be guided otherwise he/she cannot make right decisions. In any case, putting a restraint on the institutional and individual mind is at issue. Exactly for this reason the famous philosopher Kant described paternalism as “the greatest conceivable despotism”.
What makes the paternalism behind July 15 worse and more dangerous is that its proprietors belong to a structure striving to capture all layers of civil and political society and acting with this purpose in mind. Therefore this exacerbates the current danger to the extent that it is not comparable with the previous ones.
Hence the Constitutional Court pointed out in its decision taken unanimously dated 4 August 2016 the following: “The facts that the FETÖ/PDY has been organized within nearly all the public institutions and that the concrete coup attempt is conspired by this structure turned the potential (possible) danger into existent (present) danger and made it compulsory to take extraordinary measures in order to maintain the democratic constitutional order.”
As a matter of fact the existence of tutelage/paternalism on this land is nothing new. Since the 1913 Ottoman coup d'état (also known as Raid on the Sublime Porte-Babıali Baskını) we have witnessed classic, modern and postmodern types of tutelage. This witnessing thought us that coups and coup attempts cannot have any legitimate ground whatsoever. Any person or any institution cannot infer justifications for coups from any text and secular or religious ideology. The real guardian of the democratic constitutional regime in Turkey is the nation itself.
Coups are, in a way, putting our political will and mind into a straitjacket. Military interventionism (darbecilik) attempts to encroach on the national will, and it is an incorrigible disease in the paternalistic elitism’s claws silently gnawing democracy and an overall political perversion.
Those who have been caught this disease should be reminded that in democracies the only way to come into power is through election. And the way to amend the Constitution or make a new one goes through convincing people and gaining the support of the nation, and consequently through the parliament. Any other roads are dead ends without any legitimacy.
July 15 is also the turning point to hold this sick and antidemocratic mentality to account. This nation demonstrated that it will disallow coups at the cost of its life and blood, and that the sovereignty only belongs to itself. I believe that July 15 marks the day that brought an end to the ill fate of Turkey on coups and coup attempts, and it is the beginning of mental revolution that is an essential part of constitutional democracy.
Protecting the democracy, the constitution and all this values against those who try to abolish the legal system, thus the constitutional rights and freedoms, especially the right to life of individuals, is the fundamental duty of the state and is moreover its raison d'être. This is not a matter of choice but a constitutional obligation. But how and with which methods this will be achieved depends on the choices the political will is going to make within the scope of the Constitution.
Yes, constitutions are social contracts, but not, as in the words attributed to Abraham Lincoln, “suicide pacts”. That is why no constitution can remain unresponsive to actions intending to overthrow the democratic constitutional order. In almost all modern democratic constitutions, extraordinary administration procedures or state of emergency that allow in such circumstances to further limit fundamental rights and freedoms are prescribed. This is because extraordinary situations result from the fact of “necessity”. Serious threats to the existence of the state and the nation create without doubt a state of necessity.
However, the democratic conception of state of emergency rejects the complete suspension of constitutions and rendering fundamental rights and freedoms totally dysfunctional. Therefore a state of emergency is not a state of lawlessness. Indeed the state of emergency is regulated in detail in the Constitution, and the limitations of fundamental rights and freedoms during a state of emergency are clearly defined. Of course the aim is to return to normal situation as soon as possible, by eliminating the threats to fundamental rights and freedoms.
The objective of democratic constitutions is to maintain the constitutional order securing the individual’s rights and freedoms. This can be achieved through securing the social order and security because it is hard to talk about freedoms when there is no security. In this sense, security is an individual right and the precondition for the protection of other rights and freedoms. As to liberty, again in the words of Alija Izetbegovic it is “what gives meaning to our lives”. That is why freedom and security are not opposing but complementary values to one another. Security and freedom are equally essential for a dignified individual and social life. Just like the air we breathe, in their presence we don’t appreciate them, but in their absence we cannot breathe.
Justice is undoubtedly the core value in arranging the relation between two vital values of freedom and security Justice is the cement of the legal order and the basis state. Therefore during exceptional times where fundamental rights and freedoms become more fragile the establishment of justice is much more important.
His Excellency Mr. President,
July 15 is maybe one of the most formidable crises of our political history. What is our part as a state and nation is to overcome this crisis in unity and to carry the democratic state of law to the future by reconstructing it on the basis of justice, security and freedom in a strong and powerful manner.
The unity that has been formed after July 15 has rebuilt the idea of “us” by gathering all different elements of the country under one roof. This unity does not mean uniformity or that everybody has the same thought in all matters. On the contrary, it is a unity and solidarity that will surround those who do not think alike, believe alike or live alike.
With this understanding, what we, especially our representatives, owe to the Martyrs and veterans of July 15 is a new constitution that totally eradicates the paternalistic mentality lying behind coups and coup attempts, that declares the will of nation as the sole source of political power, and that forming a democratic state of law with all its institutions based on human rights. Actually the spirit of the social and political unity after July 15 has also provided the necessary climate for a new constitution.
A democratic and liberal new constitution is really important on the one hand with regard to mounting on the level of contemporary civilizations founder of our Republic Mustafa Kemal Atatürk has referred to, and on the other hand with regard to crowning the democratic acquisitions.
However, it should be noted that the constitution is not everything. Moreover, if the fire of freedom in the hearts of the people goes out, the constitution would be meaningless. During World War II Judge Learned Hand said the following in his speech delivered at Central Park that became known as the “Spirit of Liberty”: “I often wonder whether we do not rest our hopes too much upon constitutions, upon laws, and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it.”
The coup attempt of July 15 showed that the liberty in the hearts of our people on this land has not died, and that there are millions of people ready to sacrifice their lives to carry this fire in their hearts. And this demonstrates that liberty and democracy are not granted or donated by someone from above but are values achieved through the struggle of the society by paying a heavy price, and they are thoroughly deserved. Now our biggest duty is to protect those values and implement them with all requirements and pass them on to future generations.
Finally, it must be noted that the “free world” did not do well about the event of July 15 that will go down in the world’s history of democracy. Those who come out at every opportunity as the owners and defenders of democratic values acted like in “the Silence of the Lambs” against the attempt in Turkey to destroy the democracy intentionally with deadly weapons, and the democratic resistance in the face of it.
On the contrary the day after the coup attempt some also published messages of solidarity. For instance, the Conference of Constitutional Jurisdictions of Africa that has 35 member countries published a message, which they also sent us, on July 16 that they denounce the coup attempt and are in solidarity with the Turkish Constitutional Court. Likewise, the statement of solidarity of the Association of Asian Constitutional Courts and Equivalent Institutions rejecting the coup is precious for us.
Taking this opportunity I want to extend my thanks to the directors of these two international organizations that are working in the field of constitutional justice, to the presidents of the relevant constitutional courts and high courts.
At the end of my speech, I want to pray for all our martyrs and retired presidents and justices who passed away. May Allah rest their souls in peace! And I wish the veterans and retired justices a healthy and prosperous life!
His Excellency Mr. President,
I would like to express my gratitude for your participation in the swearing-in ceremony and I extend my wishes of pleasant and peaceful days.
|Prof. Dr. Zühtü ARSLAN|
|The Constitutional Court of the Republic