The 1st Judicial Conference of the Constitutional and Supreme Courts/Councils of the OIC Member/Observer States
on “The Role of Higher Judiciary in Protecting the Rule of Law and Fundamental Rights”
14 December 2018, Istanbul
His Excellency Mr. President,
First of all, I would like to extend you all my most sincere greetings. I would like to welcome you to our Conference and express my gratitude towards Your Excellency and all our guests.
As is known, this “Grand Ceremonial Hall (Muayede Hall)” witnessed many important events throughout the history. The most important of them is probably the opening ceremony of the First Ottoman Parliament, which is one of the milestones in our history of constitutionalism and parliamentarism.
The opening speech delivered by Sultan Abdulhamid II in this hall on 20 March 1877 is closely related to the theme of our Conference. It was stated in that speech: “As you all know, the development and greatness of states and nations can be achieved only by justice. Our Sublime Ottoman State grew strength in the world from the very beginning by ensuring justice in government affairs and paying respect to rights and interests of every class of people. We all know that our great ancestor Fatih Sultan Mehmed Han gave importance to freedom and he let freedom of choosing religion and persuasion to people.”
The ambassadors of the European States and the members of the First Parliament consisting of non-Muslims by forty percent, who were present in the hall on that day, understood very well what Sultan Abdulhamid said, as “ the Pact (Ahidname)”, issued by Sultan Fatih in 1463, was known to all. Thereunder, no one would interfere with the Bosnian (Franciscan) clergy and their churches; they would live in the country safely and freely; and no one would interrupt, attack or hurt “them, their lives, their goods, their churches and their visitors from abroad”.
Nearly a hundred years after “the Pact (Ahidname)” of Fatih that provided protection of the fundamental rights in an advanced level, the reflection of a tragic practice that was completely the opposite of this understanding occurred in Geneva. A Spanish man named Michael Servetus was accused of heresy due to his religious convictions and sentenced to death by burning slowly together with his books, and he was executed in the public square as a warning to others.
However, it must be immediately noted that there have been those who have raised the voice of their conscience against deadly bigotry in every place and in all eras. Castellio, another religious scholar, issued a manifesto on tolerance in protest of the understanding that led to the burning of Servetus. Castellio criticized the attribution of all this savagery to Jesus by these words: “Oh, it is what a despicable courage of people to lay such things that may only be the demon’s desire and invention on Jesus!”.
As is known, the past exists to draw lessons and experiences rather than to hinge and live upon. Unfortunately, today we still see the repercussions of the same ferocity and despicable courage all over the world. The murders committed, in the clutches of fanaticism, for the sake and at the expense of the sacred values still continue today.
The exploited sacred values and the exploiters may change; however, the source of bigotry remains the same. The continuous restatement of the distinction between us and the other and seeing “the other” as an object to be destroyed rather than human-being to live together stands to be the roots of evil actions performed for the sake of the sacred values.
It is known that the most important obstacle before establishing a healthy relationship with “the other” is bigotry, and today it manifests itself, especially in the West, as xenophobia, racism and Islamophobia. Such a virus, spreading rapidly, poisons day by day the environment that is necessary for the coexistence of diversities.
What is graver is that the attitude of those who are expected to treat this disease, which is as virulent as plague in terms of human rights, unfortunately leads to a disappointment. It is really worrying that in the West, the supreme courts, in particular, make decisions contributing to xenophobia and Islamophobia. The national and international court decisions approving the travel ban on Muslims, justifying the headscarf ban in universities and legitimizing the discrimination caused by dismissal of employees because of wearing headscarf have strengthened the Islamophobic policies.
His Excellency Mr. President,
When we look at the Islamic geography, we do not encounter a very good atmosphere, either. Dead bodies of children that came ashore, skin-and-bones children dying of starvation, and fearful eyes of a child who lost his relatives and whose hands and face were covered in blood in a bombed town continue to hurt our conscience. What else these images reflect other than the guilt of humanity in “an age that has lost its heart”.
It is indeed worrisome that members of a religion whose name stands for “peace” and whose Prophet is titled as “emin” (“trustworthy”) fall into deep silence against the murders, massacres and injustices, save a few exceptions. In addition, unfortunately, it cannot be said that Islamic countries are doing well in the areas such as justice, rule of law, democracy and fundamental rights and freedoms. At this point, we must make self-criticism and acknowledge that we are not good enough in terms of the protection of values such as the rule of law and fundamental rights.
The person who by far the best and most clearly explained this situation was the late Alija Izetbegović. At the meeting held by the Organization of the Islamic Conference in Tehran in 1997, Izetbegović stated that “Forgive me, for I will now be very open. Nice lies do not help, but sour truths could be a cure… Islam is the best –this is the truth– but we are not the best”.
It is upsetting that these remarks of Izetbegović remain valid today, although twenty years have passed. However, it must be noted that there are areas in which “we are the best”. “We are the best” in realizing the thoughts such as “right to hospitality” and “ethics of hospitality” which were discussed by the European philosophers namely Kant, Levinas and Derrida. In the geography that is the motherland of these philosophers, refugees are seen today as dangerous “creatures” that should not be allowed to enter through the wire fenced borders due to the fear of sharing food and losing the comfort of the minds and lives.
On the other hand, our country is home to millions of refugees, based on the understanding, inherent in its spiritual roots and culture, that “guest brings along his sustenance and abundance”. Thus, in the face of “anti-hospitality” policy and practice of those who do not have a word such as “barakat” in their dictionary, Turkey has achieved a hospitality policy that will be a model to the world.
The said matters from both the East and the West and the situation we are now in calls for a change not only at the national level but also in the world order. What is required is justice and freedom. I would like to mention a wise saying of Hazrat Ali: “The religion of the state is justice, and the state of justice is freedom”. So indeed, in the absence of freedom, there is no justice, and in the absence of the latter, there exist no moral, political or social values.
The most significant manifestation and concrete appearance of justice is undoubtedly fundamental rights and freedoms of individuals. These rights and freedoms are the inalienable acquisitions necessary for each of us to live humanely and with human dignity.
In ensuring justice and protecting fundamental rights, the main responsibility falls on the courts. Most particularly, raison d'être of the constitutional/supreme courts dealing with constitutionality review is to secure fundamental rights and freedoms by upholding the rule of law.
His Excellency Mr. President,
I am of the opinion that the following three considerations are of importance for the supreme courts in the Islamic countries to duly perform this role expected of them.
First, the rule of law, fundamental rights and freedoms are not external and foreign values that we have acquired from outside. These values are −no matter of the terms and forms emerged over time− deeply inherent in our civilization and cultural world that are based on justice. For instance, the verse of the Quran “O you who believe! Stand firmly for justice, as (true) witnesses to God, even if against yourselves, or your parents, or your relatives… So do not let your desires cause you to deviate from justice…” (4/135) is sufficient per se for the manifestation of a justice-oriented understanding.
For sure, terms and institutions take various forms in different geographies throughout the history. However, universal values such as justice, rule of law, fundamental rights and freedoms, pluralism and tolerance are the common heritage of the East and the West. It is a joint responsibility incumbent on all of us, notably on the supreme courts, to develop and pass to next generations a human-oriented understanding and practice of law that are in pursuit of such values.
Second, the principle of separation of powers is of utmost importance for securing rule of law and protecting fundamental rights and freedoms. As also stressed in the judgments of the Turkish Constitutional Court, the separation of powers, which means the vesting of the legislative, executive and judiciary powers of government in separate bodies, is one of the most important safeguards for fundamental rights and freedoms.
It must be nevertheless noted that the separation of powers cannot be construed as conflict of powers. As a matter of fact, the dilemma of “a duel or duet”, which appears at many stages of life, is also in question herein. The bodies exercising state powers in the name of the nation are in need of a duet, not a duel, in order to unitedly protect the nation’s rights and interests. Likewise, the Turkish Constitution sets forth that the separation of powers does not imply an order of precedence among the relevant bodies of the State but a civilized cooperation and division of functions.
Third and lastly, the judiciary must be independent and impartial to secure rule of law and fundamental rights. Otherwise, it is not possible for the judiciary to review the lawfulness of the acts and actions of the legislative and executive bodies and to protect individual rights and freedoms.
As noted in the Mecelle, Civil Code of the Ottoman Empire, “Judges must be fair and impartial towards the parties”. In other words, judges are obliged to treat parties in a just and equal manner, which requires them to be independent and impartial.
We have all experienced and observed how those who were devoid of free mind and conscience as well as who adopted, and acted on the basis of, views and opinions of another person have caused great damage to this country by also exploiting the religion. It is beyond a necessity, but rather constitutes an exigency, for the geography of Islam to learn from such experiences and to comprehend the vital significance of ensuring independent and impartial judiciary.
His Excellency Mr. President,
Today we have broken new ground at this historical place. The constitutional courts/councils and supreme courts with equivalent jurisdiction of the Organization of Islamic Cooperation (OIC), having the highest number of member countries after the United Nations, have convened for the first time at a conference. Besides, guest participants from constitutional/supreme courts of non-member countries as well as representatives of certain international organizations are also here for joining us today.
In holding this Conference, we have intended to discuss the matters I mentioned above in general terms and potential solutions in this respect. The aim of the Conference is to build an exchange of information and experience among our courts, and notably to consider examples of good practices for the protection of rule of law and fundamental rights.
We hope that this Conference, the first initiative in its field, will also pave the way for forming a permanent platform. In this respect, a judicial forum to be established among our constitutional/supreme courts/councils will provide a significant opportunity for reflecting on
common legal matters, deliberating issues with respect to the functioning of the courts, as well as for sharing ideas and experiences. Indeed, finding permanent solutions to the problems we are facing in the realm of rule of law and fundamental rights is also a burden arising under heavy responsibility that is incumbent on us in our capacity as constitutional/supreme courts.
Taking this opportunity, I would like to express my gratitude to His Excellency our President, who is currently conducting the term presidency of the Organization of Islamic Cooperation, as well as to all participants and all persons who have contributed to this Conference. I wish that the Conference be successful and fruitful.
Ending my word, I would like to commemorate with mercy Mevlana Celaleddin Rumi, one of our soul-roots, on the occasion of his 745th reunion anniversary. I also commemorate with mercy and gratitude all our martyrs and Gazi Mustafa Kemal Atatürk, founder of the Turkish Republic, who passed away in this historical palace.
I would like to end my speech with Mevlana’s words: “Do you know how the worth of mankind is designated? By what he seeks... Man is worthy of whatever he searches for.”
Reiterating my wishes for a just world based on the rule of law and human rights, I would like to present my regards to every one of you.
|Prof. Dr. Zühtü ARSLAN|
|Constitutional Court of the Republic of Türkiye|