OPENING SPEECH BY THE PRESIDENT OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF TURKEY MR. ZÜHTÜ ARSLAN ON THE OCCASION OF THE 53rd ANNIVERSARY OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF TURKEY (27 APRIL 2015, ANKARA)

His Excellency Mr. President,

Esteemed guests,

I would like to welcome you to our ceremony on the occasion of the 53rd Anniversary of the Constitutional Court of the Republic of Turkey and oath-taking of our Court’s newly-elected Member Judge. I greet you all with my sincere feelings and respect.

I would like to congratulate our new Member Judge of the Court Mr. Rıdvan Güleç. He was elected for the Court of Accounts quota by the Grand National Assembly of Turkey and began his office by taking his oath a short while ago. I sincerely wish that his office will be auspicious to himself, his family, to our Court and to our country. I firmly believe that the vast knowledge and experience he accumulated during his service at the Court of Accounts will serve in the field of “constitutional justice” and thus, he will perfectly contribute to the strength of the Constitutional Court. I wish him every success in his office.

I would also like to congratulate our Member Judge Mr. Burhan Üstün for his recent election as Vice-President of our Court and Mr. Nuri Necipoğlu for his election as Vice-President of the Court of Conflicts. I wish them every success in their offices.

His Excellency Mr. President,

John Rawls, one of the leading philosophers of politics in the 20th century, says “Justice is the first virtue of social institutions.” The key principle of justice, which Rawls considers to be the basis of a proper-functioning constitutional order, is that everyone has equal share of fundamental rights and freedoms.

In this sense, justice can be defined as that everyone takes his rightful share and gets his just reward. Mawlana Jalaluddin al Rumi makes a very sententious description for this aspect of justice. In Mawlana’s opinion, justice is to put everything into its place. According to him, justice is “giving water to trees” whereas injustice “to give water to thorns”

Justice, which is considered to be antonym of cruelty, has been accepted as basic principle of state and society in our lands for many centuries. Kınalızade Ali Çelebi, who lived in the 16th century, makes a description of justice in the end of his famous book “Ahlâk-ı Alâ’î". He emphasized the universal aspect of justice and its central importance in Ottoman state mentality by saying “It is justice that ensures the order and salvation of the world.” Justice is the basis of not only the state but also the civilization. Justice is a sine qua non for the establishment and survival of a civilization to set an example to whole humanity.

Justice is a merit that should apply not just for the laws but for their interpretation and implementation as well. In this sense, it is beyond any doubt that the judiciary is one of the most influential institutions in ensuring justice. That is why the buildings of the courts are called “adliye” (house of justice or palace of justice) in Turkish language. In many languages the word “justice” also means the “judge”. As a matter of fact, judiciary plays a more significant role than all other organs in maintaining a fair political and legal order based on human rights and freedoms

Judiciary is going through one of the most critical and sensitive period in its history in Turkey. Judiciary bears a very heavy burden to administer the justice and, in order to get through this burden and to serve its function, judiciary must confront the concept of “tutelage”. The confrontation and self-criticism by the judiciary is not sufficient alone; but all other components of the political and legal system must make self-examination.

The mentality of tutelage serves to neutralize the democracy and rule of law by rendering these notions meaningless and non-functional. The tutelage is based on the presumption that democratic political reason is insufficient. When it comes to an individual level, this mentality is fuelled by the idea that an individual cannot be left to his own decisions but must be guided so that he can make the correct decisions. In both cases, the political and individual reason is put under pledge. That is why Kant considers tutelage as the enemy of freedoms and puts the motto of Enlightenment as “Dare to use your own reason!”

Tutelage is the biggest threat against the free use of reason and conscience not only in the political domain but also in judicial sphere as well. Therefore, a genuine independence of the judiciary is a sine qua non for the rule of law. The independence of the judiciary requires the judiciary at institutional level to be free from any order, instruction and command of any person or organ. On the other hand, the members of the judiciary at individual level must be able to use their reason and will freely without being subject to any form of tutelage.

We must keep in mind that one cannot be a judge without a free reason and conscience. One cannot be a judge if he rents out his reason and conscience or if he puts his will under pledge. There cannot be a remote-controlled judge or judiciary in the rule of law.

Indeed, the pathologic relation between the judiciary and the tutelage has two aspects; one is that the judiciary itself becomes an organ of tutelage and the other is that judiciary is subjected to tutelage. Both of these cases pose equal threat to the democratic rule of law. The first is that judiciary cannot and shall not act as an institution of tutelage attempting to social and political engineering. It is impossible to accept an understanding of judiciary that assumes itself as the owner and the final guardian of the system and, therefore, attempts to adjust and institutions accordingly. The role of the judiciary in a democratic society is not to impose and order to the society and the politics but to settle the conflicts by passing the legal rules through the filter of justice. This is the only way that a judge and the judiciary becomes the guaranty of the fundamental rights and freedoms.

On the other hand, the judiciary must resist resolutely against all forms of tutelage to be established on itself. In other words, it is of vital importance to establish a true independence of the judiciary both at institutional and individual level. In conclusion, the biggest enormity against the judiciary would be to position it as an institution of tutelage or an institution under tutelage.

Similarly, there are two problematic aspects of the relations between the judiciary and the politics. It would be a great danger if the judiciary, in institutional sense, falls under the influence of political organs or if it dissociates on the basis of political opinions. The politization of judiciary would be the end of the rule of law. On the other hand, if the judiciary acts as an institution of tutelage and takes the decisions which must be taken by the politics, this would lead to judicialization of politics. The judicialization of politics would be the end of democracy. Therefore, both the politization of the judiciary and the judicialization of politics are equally dangerous to the democratic state of law.

It is beyond any doubt that the principle of separation of powers is one of the most important constitutional instruments to ensure independence of the judiciary and to normalize its relationship with the tutelage and the politics. The underlying basis for concept of separation of powers is the need to restrict power which is the very essence of constitutionalism. Fundamental rights and freedoms are at risk if the power is not restricted by law. As Montesquieu puts it, the accumulation of all powers, legislative, executive, and judiciary, in the same hands would be the end of freedoms

It must be noted that the restriction of power by law does not apply just for the legislative and executive but for the judiciary as well. If the judiciary exceeds beyond its power and attempts to design the political domain, then this contradicts with the separation of powers too. The juristocratic attitude of the judiciary and the illimitable attitude of the executive pose equal threat to democracy.

On the other hand, separation of powers is by no means a conflict or struggle of powers. Contrary, the Preamble of the Constitution defines the separation of powers as such: “The separation of powers, which does not imply an order of precedence among the organs of the State, but refers solely to the exercising of certain state powers and discharging of duties, and is limited to a civilized cooperation and division of functions.”

Actually, no organ can solve its problems and succeed without the help and cooperation of other organs. In this sense, it must be noted that today we need cooperation among the organs of the state power more than ever.

I would like to emphasize that it is our joint responsibility to solve the current problems of the judiciary and to improve it to a better position. For this purpose, everyone and every institution must pay the necessary care and commitment. This is a serious matter that cannot be solved with some formal changes. It requires a series of radical and serious works and steps in a vast filed of such issues as legal education, court practices, legal ethics and the expectations of the society from the judiciary.

If we aim to establish an exemplary judicial system and to become one of the founders and actors of an international system based on justice and ethics, it is a sine qua non for us to have a well and effective functioning, independent and impartial judiciary trusted by the whole society.

His Excellency Mr. President,

In November 2012 in Mexico City I had the opportunity to represent our Court at an international conference attended by the presidents and judges of various Supreme Courts from around the world. The title of my paper in that conference was “The New Turkish Constitutional Court” and the sub-title was “Towards a Paradigm Shift?” I placed a question mark to the end of the sub-title on purpose. Because, then it was not clear yet whether the Court could achieve this transformation and adopt a “rights-based paradigm”. That paper discussed that the biggest challenge before the new Constitutional Court formed after the Constitutional amendments in 2010 was to realize this paradigm shift through the individual application system.

I am more than happy to express that the new Constitutional Court has shown a significant progress to achieve this paradigm shift in a period of approximately three years. Our Court strives to establish constitutional and individual justice through constitutionality review and individual application. Consequently, the Constitutional Court has become the guarantee of fundamental rights and freedoms to a considerable extent.

This is what is expected of the Constitutional Court exactly. As a matter of fact, the constitutional courts emerged as a result of the idea that fundamental rights and freedoms must be protected against the elected legislative majority as well. The raison d’etre of these courts, which became a distinctive feature of constitutional democracy, is to ensure constitutional justice by carrying out the constitutionality review of laws. In countries where the mechanism of constitutional complaint or individual application is adopted, the constitutional courts examine whether fundamental rights and freedoms are violated by public power acts and thereby checks the constitutionality of actual practices.

This paradigm shift that we go through can be tracked down in our individual application judgments. In these judgments, the Constitutional Court adopted an approach which broadens the scope of protection and improves the standards for a series of rights from right to life to right to individual liberty and security, from the right to a fair trial to freedom of expression and association, from the right to a private life and to freedom of religion and conscience.

In this context, our Court ruled the judgments that led up to the release of detained members of parliament and these judgments emphasized the importance of the right to political representation in democratic societies. Likewise, the Court considered the removal of female judge wearing headscarf from the hearing room as a violation of freedom of religion and prohibition of discrimination.

Apart from these, we have hundreds of judgments identifying a violation of rights in such cases where a conviction is established without providing the defendant under custody with legal aid, cases where effective use of right to object to detention is impaired as the justified ruling for conviction is not prepared for a very long period of time, cases where the means and opportunities of the plaintiff or the prosecutor is not provided to the defendant, cases where the freedom of expression is infringed by banning social media and other platforms, cases where the public officers enjoying their union rights are inflicted a disciplinary punishment and many other cases.

All these judgments ruled by our Court with a “rights-based” approach serve to improve the standards of human rights in our country which is a long-awaited status. On the other hand, these judgments also increase the prestige of our country in international arena by providing us the opportunity to contribute to corpus of universal law. It is beyond any doubt that if Turkey internalizes such universal values as justice, equality, freedom and human rights and ensures peaceful co-existence of differences and thereby strengthens its democratic regime, then Turkey will become a very effective soft-power.

The new “rights-based” paradigm of the Constitutional Court makes significant contribution to the long-debated ideal of our country for co-existence of differences without resorting to violence. Actually, the most challenging task for all pluralistic democracies including that of us is to ensure and maintain the co-existence of differences.

As it is known to all, the key to co-existence with the “other” at social level is tolerance. Indeed, the concept of tolerance contains inequality and, perhaps, a certain degree of hierarchy in the relations between the individuals or groups. The one that shows tolerance assumes his/her own opinion and lifestyle to be superior or dear to that of the one s/he tolerates in any case but, even so, s/he displays the will to live together with the other.

However, the formula at political and legal level to ensure co-existence is “recognition” rather than tolerance. Recognition requires the acknowledgement of the ontological status of the other. In this sense, the responsibility of the state as a political and legal institution is not to tolerate different worldviews and lifestyles but to recognize them being equal to all others. Such a recognition is a prerequisite of a pluralistic democracy.

As a matter of fact, in one of its judgments in 2012 the Constitutional Court referred to the policy of recognition by stating “one of the main aims of the democratic and secular state is to establish political orders, where the individuals will live together in peace with the faiths they have by protecting the social diversity”

In one of its individual application judgments last year, our Court emphasized the requirements of recognition and the policy of pluralism as a consequence of recognition as follows:

“…“recognition" requires that the state accepts the existence of all religious and faith groups as regards the state-individual relations… The pluralism is only possible when everyone takes part in the social and political life through his/her own identity and as himself/herself. The pluralism cannot be mentioned in a place where the differences and those, who are different, are not recognized and protected against the threats. In the pluralistic society, the state shall be obliged to ensure that the individuals live as required by their own world views and faiths. The state does not have the authority to accept one of the views or life styles present in the society as "wrong". In this context, unless the reasons for limitation stipulated in the Constitution are present, making the differences exist together is a requirement of the pluralism although the majority or the minority does not like it.”

Being the successors of a civilization that displayed good examples of living together in peace, the sources of inspiration that we need are present in our cultural codes. As expressed in Mawlana’s words “Come, come, whoever you are… Come and come yet again...” and Haji Baktash Wali’s words “The greatest book to read is the human being.”, such a human oriented understanding will provide the intellectual climate required for the management of differences.

His Excellency Mr. President,

I would also like to state that our Court is yet at the very beginning of this paradigm shift. We are well aware of the fact that we have a long way to go and that we have to complete this transformation and ensure its consistency.

We all know that every transformation is painful. One of the major challenges that we face in this process is the increasing workload of the Court. The “rights-based” judgments of our Court, perhaps somewhat paradoxically, cause a continuous increase in the number of individual applications filed.

As of today, the number of individual applications in pending status is 18.009. We have concluded 20.689 applications since the actual introduction of individual application on 23 September 2012. Similar to the practices of such countries as Germany and Spain which adopted individual application, most the applications have been found inadmissible. 637 applications have been examined on merits and violation of at least one constitutional right was identified in 572 cases. Accordingly, our Court has identified a violation of right in approximately 90% of the applications found worthy of examination on merits.

445(%76,60) of the judgments for violation are on the right to fair trial, 48(%8,08) judgments on right to personal liberty and security, 26(%4,38) judgments on union rights, 18(%3,03) judgments on right to property and 12(%2,02) judgment on freedom of expression. When it is noted that more than eighty percent (80%) of violations of right to a fair trial are related to right to trial within a reasonable time, the role of the structural problems in the violation of fundamental rights and freedoms becomes clear.

Our Court continues its efforts to ease the workload of the individual application. We take and implement such measures as to increase the effectiveness of filtering system, to focus the Sections and the Plenary on applications for structural problems relating to the whole legal system and to classify the rapporteur judges on the basis of rights and to assign them to the applications according to their fields of expertise.

However, increasing the effectiveness of the functioning of the Constitutional Court is not sufficient alone in solving the problems. First of all, everyone must understand the fact that individual application does not provide for a new and “super” way of appeal after the exhaustion of other remedies. Secondly, a decrease in the number of individual applications or preventing the increase of applications to the extent that it blocks out the system depends on a more delicate and sensitive conduct of administrative and judicial authorities. The subsidiarity principle of the individual application requires the reparation for violations of rights primarily before the courts of instance. Despite all the difficulties and problems, individual application plays a very important role in improving the standards of rights and freedoms in our country and in the transformation of the Constitutional Court and, perhaps, the whole judicial system. This situation is an important reflection of the cooperation among the state organs which was mentioned before. All the success of individual application practice is not in the sole possession of the Constitutional Court but it is also a success of other institutions and especially that of the legislative organ and our nation itself as the ultimate source of sovereignty. Taking this opportunity, I would like to express in the name of our Court my gratitude and appreciation to everyone and each and every institution who contributed to this success.

On the other hand, it must be noted that every judgment of the Court ruled so far and to be ruled in future is open to criticism. The judges and the rulings of the courts are not sacred. Like all other persons, judges are liable to make mistakes and take wrong decisions. Therefore, the judiciary must welcome such criticisms as normal and take notice of these criticisms to correct possible errors.

I would like to state that our Constitutional Court takes due consideration of all kinds of criticism. For instance, considering the criticisms to that end, we have abandoned our practice of announcing the decisions for annulment before preparing the grounds and justifications of such decisions. The purpose of this change is to ensure that the Constitutional Court, being an organ in charge of ensuring the supremacy of the Constitution, acts in accordance with the Constitution and to ensure that its reasoned decisions are announced faster than it used to be. In short, our Court benefits and will continue to benefit from fair and constructive criticisms.

His Excellency Mr. President,

In the final part of my speech, I would like to share my opinions on the issue of “new constitution” which is a permanent item of our country’s agenda at principal level and under five clauses.

First of all, it must be noted that a new constitution emerges as a sine qua non for our country considering its level of economic and political development today. It is known to all that there is a very broad, if not a full, consensus in the society on the need for a new constitution. What we need today is and effective will to be shown by all actors of the constitution-making process.

As it is known, a favorable climate is need for the making of a new constitution. The creation of such a climate requires a positive attitude which emphasizes dialogue and reconciliation rather polarization in discourse and actions, which does not exclude but embrace and which prefers constructive approach to destructive one. It is our joint responsibility to create a favorable climate for a new constitution together with all civil and political actors of society. The participation of all segments of the society to this process insofar as possible and the embracement of this “social contract” by all citizens of this country with a sense of “my constitution” totally depends on the fulfillment of this joint responsibility. Besides, the dialogue among the social and political actors in the constitution making process must be based on a healthy and undistorted communication and there must be a free platform of discussion where all kinds of views and opinions can be defended on condition that they do not contain violence and not intend to kill the existence of the other.

Secondly, the new constitution must broaden the domain of democratic politics by eliminating all components of the bureaucratic tutelage and must ensure a full protection of fundamental rights and freedoms by establishing all the rules and organs of a state of law. In other words, a healthy constitutional democracy requires a social order where there are no conflicts of values between society and state organs, where the political majority comes to power but fundamental rights and freedoms of minority is guaranteed as well and, perhaps the most important of all, where all people deem themselves as equal and free citizens.

Thirdly, our positive and negative constitutional experiences must be taken into consideration in the new constitution making process. I must be noted that the pursuit of a new constitution is not an issue peculiar to today. This country has been seeking its constitution for more than 150 years. Midhat Pasha, who drafted the 1876 Constitution, defines the constitution as such in one of his articles in 1878 “it is the only cure for our diseases, the only advantageous instrument in our struggle against the domestic and foreign enemies”.

Since the time of Midhat Pasha, excluding the amendments to constitutions, we have made five brand new constitutions. When we make a comparative reading of Kanun-i Esasi(our first constitution) and today’s Constitution, we see that there are very significant continuities both at institutional and principal level. Briefly speaking, it is self-evident that such continuities and constitutional tradition must be taken into account in the making of a new constitution.

Fourthly, we must benefit from the experiences provided by the comparative constitutionalism in determining the content of the new constitution and making the institutional choices accordingly. At this very point, we need to secure an optimum harmony between the universal principles of democratic constitutionalism and the sociological, political and cultural characteristics of our society. It would be wrong to make a “copy-paste constitution” while it would also be wrong to attempt to draft a constitution without taking due notice of essential components of democratic constitutions such as separation powers, rule of law, human rights and pluralism. In short, considering our social structure and political culture, it is possible to make a democratic and libertarian constitution which establishes a well and effective functioning system based on separation of powers.

Fifthly and finally, one of the major obstacles to a new constitution may be the demand for the involvement in the constitution of opinions and proposals that are extremely difficult to reconcile upon in spite of everything and everyone else. In such a situation, the actors of the process may be required to reconsider their maximalist demands and, perhaps, take a step back from their current position. As a matter of fact, it has become more important in terms of social psychology to show that our people can make a new constitution with their own dynamics in an ordinary period of time than the contents of the new constitution to be made.

On the other hand, the new constitution is a magic wand to provide one-touch solution to all the problems in a while. No constitution can solve problems by itself. In proper-functioning democracy, the constitutions are expected to provide a basis required for the solution of social, political, economic and legal problems. Therefore, regardless of how we shape the content of a new constitution, good interpreters and implementers of the constitution are equally, if not more, important than a good constitution.

After all, we understand that Turkey’s pursuit of a new constitution will continue in upcoming period. Slavoj Žižek tells a witty story to explain the paradoxical nature of searching process. I would like to conclude this part of my speech by sharing this story as it resembles to our quest for a new constitution.

A conscript who tries to evade military service by pretending to be mad: he compulsively checks all the pieces of paper he can lay hands on, constantly repeating: ‘That’s not it!’ They refer him to the psychiatrist and he continues to do the same thing at the psychiatrist clinic. He checks all the papers in the doctor’s room, even those thrown into litter bin. The psychiatrist, finally convinced of his insanity, gives him a written certificate releasing him from military service: the conscripts casts a look at it and says cheerfully: ‘That is it!'

Here Zizek tells on the basis of this anecdote that the failures in search process may yield success in finding what you are searching for. Accordingly, it is the process of search itself that creates what you are searching for. We sincerely hope that we will reach “the new constitution” at the end of our search process.

His Excellency Mr. President,

Taking this opportunity, I would like to extend our gratitude on behalf of our Court to our Member Judge Zehra Ayla Perktaş who retired previously this year and to our former President Mr. Haşim Kılıç for all their contributions to our Court. Mr. Kılıç provided significant services to our Court and our country during his term of office as Member Judge, Vice-President and President of the Court and he was the pioneering leader of the paradigm shift that I have explained before. I wish them health, happiness and peace in their retired ages.

I would like to express my condolences to the relatives of Mr. Selahattin Metin, retired member judge of our Court who passed away last year, and Mr. Şevket Müftügil, retired president of our Court who passed away last week. May Allah rest their souls in peace!

I would also like to extend my thanks and appreciation to our Vice-Presidents, Member Judges, Rapporteur Judges, Assistant Rapporteur Judges, Directors and all other staff of our Court who work devotedly for an ideal of Constitutional Court which is the guarantee of our people’s rights and freedoms, which deserves the trust and praise of our nation and serves as a model to the rest of the world.

Finally, our Courts judgments on individual applications will be discussed in details during the symposium in the afternoon and tomorrow with criticisms and proposals to be voiced. I would like to express in advance my thanks on behalf of our Court to all speakers and participants to contribute this symposium.

His Excellency Mr. President,

Esteemed Guests,

Ending my word, I would like to reiterate my thanks and appreciation for your participation our anniversary and oath-taking ceremony. I extend my wishes of health and prosperity.

27 April 2015

Zühtü ARSLAN
President of the Constitutional
Court of the Republic of Turkey

 

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