The 55th Anniversary of the Constitutional Court of the Republic of Turkey
International Symposium on “Constitutional Courts as Guardians of Fundamental Rights”
25 April 2017, Ankara
His Excellency Mr. President,
I would like to express my gratitude for your attendance in our ceremony on the occasion of the 55th Anniversary of the Constitutional Court and I greet you with all my heart and respect.
A great number of presidents and members of the Constitutional Courts and supreme courts from all over the world and the representatives of international courts are accompanying us today in this ceremony. I would like to welcome all of them and to extend my thanks for standing with us on such a special day.
Two important events, which are of a particular concern to the constitutional democracy, have taken place in our country since our anniversary ceremony of the last year. The first one is the coup attempt taking place on 15 July 2016, which constitutes a dark mark in our history of democracy. Thanks to our public’s consciousness of democracy and firm stand, this attempt aiming at overthrowing the democratic constitutional order failed, and thereby the Turkish democracy successfully has overcome such a significant challenge.
The second remarkable development is the referendum held on 16 April 2017. Democracy is defined, in the most general sense, as the “ruling of the people by the people for the sake of the people”. The most important element of this definition is that the subject of the ruling is the people. As is known to all, the people - as a political subject - express their fundamental preferences through elections and referendums.
In the referendum held on 16 April, our people ensured high participation in voting through a wise and democratic way. The fact that the referendum was held with a participation rate of over eighty-five percent is per se an achievement for our democracy. I would like to take this occasion to wish that this referendum be auspicious for our country and people.
Independently of the referendum, as enshrined in the Constitution, the Republic of Turkey is a democratic, secular and social state governed by rule of law, within the notions of indivisible integrity of the state, national sovereignty and justice, and based on separation of powers and human rights. It must be our common responsibility to bring the democratic Republic that endow with these characteristics, which express our constitutional identities, beyond the level of contemporary civilization that was indicated by Mustafa Kemal Atatürk, the founder of the Republic and that is expressed in the Preamble of the Constitution.
Undoubtedly, the most significant indicator of the contemporary civilization is to secure justice. Justice which is also the raison d’être of the courts is the resource of all virtues. As defined by Aristotle, “All virtues exist together in justice. Justice is not a part of virtue, but the whole virtue”. According to Nizam al-Mulk, just as justice predominates, so does the benevolence; justice is salvation for the rayah (folks) and a cornerstone for kindness.
The Turkish nation has a rich historical accumulation also in respect of the legal and political practices of justice. The principle dominating over the legal and political order of the Ottoman Empire, which is one of the most powerful and sublime states witnessed by the history, is justice. The circle of justice (“daire-i adalet”) having an important role in the Ottoman’s state tradition amounts to an understanding starting and finishing with justice. Obedience by the army, the state and the public, which are the other elements of the circle of justice, depends on merely the establishment of justice. In brief, what maintains order and salvation of the universe is justice. In his speech delivered at the opening ceremony of the First Turkish Parliament on 19 March 1877, the Sultan Abdulhamid II made reference to the role of justice in fate of the states by stating “The development of states and nations can only be achieved by justice”.
These words regarding the importance of justice and its functioning are also prevailing today. Nowadays, the most significant manifestation of justice is the effective protection of the fundamental rights and freedoms. As is also emphasized in a judgment rendered by the Constitutional Court last month, “the task entrusted with the state in democratic countries is to protect and develop the fundamental rights and freedoms and to take measures which would ensure effective enjoyment thereof”.
In this respect, the most important measure required to be taken by the state is to ensure a secure environment where the fundamental rights and freedoms may be enjoyed to the broadest extent possible. In an insecure environment, it would become difficult or even become impossible for the individuals to effectively enjoy their fundamental rights and freedoms from the right to life to the freedom of expression. Security and liberty are therefore values complementing each other.
The delicate relation between liberty and security especially comes into prominence in periods during which emergency administration procedures are in force. As is also underlined in the judgments of the Constitutional Court, “the aim of the emergency administrations must be to secure and protect the constitutional order”. In other words, the aim of the emergency administrations is to eliminate the threat resulting in the state of emergency and to ensure returning towards the ordinary period through which the fundamental rights and freedoms may be enjoyed to the optimal extent.
His Excellency Mr. President,
It is obvious that there are significant duties on the part of the constitutional courts in case of state of emergency. The first and foremost among these is to protect the fundamental rights and freedoms against the interventions that go beyond the extent required by the state of emergency.In performing these duties, the constitutional courts must act within the constitutional framework of the emergency administration.
Within this context, the Turkish Constitutional Court renders its decisions and judgments in the fields of the constitutionality review and individual application by remaining within the constitutional boundaries. This is a constitutional requisite by virtue of Articles 6 and 11 of the Constitution which respectively provide for that no organ shall exercise any state authority not emanating from the Constitution, and that the provisions of the Constitution are binding upon legislative, executive and judicial organs.
In constitutional democracies, the one drawing the map of powers is the constituent power, in other words, the constitution-maker, and the map of powers is the constitution. It may be certainly asserted that such boundaries are insufficient to secure a state of law along with its all institutions and rules. However, the existing constitutional boundaries are binding upon all of us by the time they are changed. Therefore, it cannot be expected from the Constitutional Court, which is entrusted with the task of protecting such boundaries, to go beyond these constitutional boundaries.
Changing the rules, which are explicitly set out by the constitution-maker as to its wording, meaning and legislative intent, by way of interpretation indeed amounts to making a constitutional amendment through the Court. It is without any doubt that this would lead to a debate of judicial activism and legitimacy. Therefore, the “rights-based” approach adopted by the Constitutional Court must be understood as the protection of the fundamental rights and freedoms by means of remaining within the constitutional boundaries and not resorting to judicial activism.
Within this scope, for instance, Article 148 of the Constitution which entails the duties and powers of the Constitutional Court explicitly sets forth that the decree-laws issued under a state of emergency cannot be brought before the Constitutional Court on the basis of their alleged unconstitutionality as to form or substance. In the light of this explicit constitutional provision and the principles cited above, the Court held that it did not have the jurisdiction to review the decree-laws issued under the state of emergency.
On the other hand, it has been revealed that the constitution-maker envisages that the decree-laws in question be subject to judicial review following their ratification by the parliament. As a matter of fact, actions for annulment of certain decree-laws which had been issued under the state of emergency and subsequently enacted upon being ratified by the Grand National Assembly of Turkey were filed with the Constitutional Court. In respect of these actions, the preliminary examination process was completed; however, the examination as to merits has still been pending.
His Excellency Mr. President,
As is known, one of the most significant changes taking place in the Turkish constitutional jurisdiction is the assignment of the task to examine the individual applications to the Constitutional Court upon the constitutional amendment of 2010. The Court has so far fulfilled this duty with due diligence and in an effective manner, which is also confirmed in the international arena.
As I also expressed with satisfaction in my speech last year, the annual ratio of applications concluded by the Court is ever increasing year by year. This ratio, which was 50% in 2013, increased to 53% and to 77% in 2014 and 2015, respectively. The ratio of concluding the individual applications lodged with the Court increasingly continued until July 2016 and reached to 85%. Our aim was to increase this ratio to 100% by the end of year in 2016; however, the coup attempt of July 15th took place in Turkey. Nevertheless, the number of individual applications concluded by the Court in 2016 is more than that of 2015.
The coup attempt has had an impact on the Court as well as other institutions and organizations. Following 15 July, the number of individual applications has considerably increased. In 2016, while 12.712 individual applications were lodged with the Constitutional Court until 15 July, 68.044 individual applications were lodged with the Court in the remaining five and a half months of the year. The number of individual applications filed in the first months of 2017 is less compared to the last months of 2016; however, the Constitutional Court has continued receiving individual applications which are higher in number than those filed in the ordinary period.
The number of individual applications pending before the Court as of today is 101.557. Out of these applications, 75% of them are comprised of those lodged within the scope of the state of emergency. This number is much higher than the total number of applications lodged with the European Court of Human Rights by 47 countries.
The Court has been taking necessary measures since the first day due to this heavy workload breaking out unexpectedly and within a short time. The Constitutional Court primarily increased its capacity for “receiving application”. This increase was sometimes about tenfold higher compared to the ordinary period. Subsequently, these applications were “registered” and “classified” by the Court.
Furthermore, necessary actions were taken for concluding the applications classified according to their subject-matters. The leading case-files in respect of which principle decision would be rendered were determined on each subject-matter and were communicated, by virtue of law, to the Ministry of Justice for receiving observations of the Ministry.
While carrying out such actions on one hand, for several months the Constitutional Court has been, on the other hand, conducting technical-legal study as to in the light of which principles and how to examine the individual applications in time of state of emergency. This study under which the relevant case in the international law and the comparative law is also dealt with is about to be completed.
Out of the applications lodged following 15 July, those which were filed against the acts and actions directly materialized by virtue of the decree-laws issued under the state of emergency take a significant place. For this reason, introducing the opportunity to apply to the Commission, which was established by the Decree-Law no. 685 on the Establishment of the Commission for the Examination of Proceedings under the State of Emergency, against the actions directly performed by virtue of such Decree-Laws and subjecting the decisions of the Commission to judicial remedies are important improvements.
A considerable number of individual applications were lodged with the Court in respect of the other acts and actions falling into the scope of the state of emergency. The applications lodged due to the measure of detention constitute a great part of these applications.
The technical study carried out, by the rapporteurs, on one of the leading case-files under which the examination procedure and method of the measure of detention within the scope of the state of emergency would be established is about to be completed, and accordingly, a principle decision will be soon rendered in this respect. Following the conclusion of the leading case-files, it is aimed to conclude also the individual applications regarding the measures of detention within a reasonable period.
In the meantime, it should be noted that the Constitutional Court also continues examining the applications lodged in the previous years. The Court could uninterruptedly maintain its ordinary process also in the period following the coup attempt of July 15th and concluded the applications that were filed mainly in 2014. Accordingly, the Constitutional Court rendered various decisions and judgments in respect of almost all fundamental rights and freedoms from the right to life and the freedom of expression.
Consequently, the Constitutional Court has, within a few months, encountered with a high volume of workload which has never been faced with by any national or international judicial body examining individual applications. I would like to emphasize that the Constitutional Court, which has at the same time maintained its ordinary process, has acted in a rapid and decisive manner and has taken and continues taking all necessary measures.
The individual application system, which serves for the better protection and improvement of the fundamental rights and freedoms, is a crucial acquisition for our country. Therefore, it must be noted that the endeavours to reflect the system of individual application as an ineffective remedy are not proper.
His Excellency Mr. President,
In this part of my speech, I would like to deal with a matter which poses a threat to the contemporary civilization and is of a particular concern to all of us. This matter is xenophobia which has been especially promoted and increasingly deepened in the West.
As is known, many constitutional courts in Europe and the European Court of Human Rights were founded in reaction to the intensive human rights violations taking place in the course of the Second World War and to the totalitarian regimes giving rise to these violations. The raison d’être of the relevant courts is to protect the fundamental rights and freedoms.
I consider, in spite of these historical facts, adopting the same opinion and maintaining the same conscience is a great tragedy at the point where we stand now following all wars, massacres and systematic right violations taking place in the last century. What is much graver is feeling the effect of the xenophobia and Islamphobia, which have originally taken place in the social and political field, also within the judiciary.
Within this scope, the prohibitive decisions rendered by the national and international judicial organs especially concerning headscarf are remarkable. It is not possible to associate this approach, which on one hand closes doors for the refugees and consider them as detrimental elements that must not be allowed to enter inside their country and which on the other hand excludes headscarf from public and social spheres, with the human rights which are one of the fundamental values of the Europe.
Such an exclusivist approach, which has increasingly become widespread and new instances of which we encounter with every day, would make Immanuel Kant, who stated “not as a matter of charity but by virtue of ¢the right to hospitality¢ they have, we are obliged not to treat aliens, upon crossing our borders, as an enemy”, turn in his grave. In the same vein, this attitude which does not fulfil their responsibilities towards those who they regard as “the other” makes the spirit of Emmanuel Levinas, who said “The conscience of the European is not at ease at the very hour of its modernity (...) it is also the guilty conscience arising at the end of many ongoing thousands of years”, suffer anguish.
It is beyond question that what underlies this important matter is the failure to establish a proper relationship with “the other”. Therefore, the way to eliminate the global guilty conscience being suffered is to regard someone else as a human being and to acknowledge human rights are at the same time “the rights of the other”. This approach requires adopting and internalising an understanding which regards human being as “the most glorious of those created by Allah” (eşrefî mahlukât).
Indeed, we all know a philosopher and a statesman who was the pioneer of this understanding. This person is the late Alija Izetbegović. He was addressing as follows in the middle of a devastating war during which his public was being slaughtered at the centre of Europe and in front of the whole world: “being humane and maintaining to be so are our responsibilities towards Allah and us”.
Alija transferred the notion of “being humane and maintaining to be so”, which was completely qualified by him as a moral value, to the political field and indicated that this notion corresponded to “a lawful state” where “no one would be subject to oppression due to his religion, national (identity) or political belief” and where this is deemed to constitute the fundamental law. In brief, the notion of “being humane or maintaining to be so” was formulated, in the political context, as the pluralist, democratic state of law.
The dimension of “maintaining to be humane” of this notionmeans not to diverge from law and the rule of law even in the most critical situations. I hope that the humanity adopting the same opinion and maintaining the same conscience and therefore seemed to be exposed to new guilty conscience would pay attention to the universal message of Alija Izetbegović.
His Excellency Mr. President,
On this occasion, I would like to express my condolences to the relatives of Mr. Necdet Darıcıoğlu, the retired President of the Court, Mr. İhsan Necdet Tanyıldız and Mr. Ahmet Oğuz Akdoğanlı, the retired justices of the Court, and all of our other personnel, who passed away last year. May Allah rest their souls in peace!
I would like to express my gratitude, on behalf of the Court and myself, to the Vice-Presidents, members, rapporteurs, assistant rapporteurs and all personnel of the Court, who are serving under a heavy workload in a devoted manner and with great eagerness.
I firmly believe that declarations to be presented and discussions to be held during the symposium which will start in the afternoon will make significant contributions to the accumulation of the constitutional jurisdiction. I would like to express my thanks in advance to all participants who will provide contributions for the symposium through their declarations, questions and comments.
Once again, I would like to express my gratitude for your participation to honour our anniversary and for your attention. I extend my wishes of health and prosperity to all of you.
|Prof. Dr. Zühtü ARSLAN|
|The Constitutional Court of the Republic