His Excellency Mr. President,
Esteemed Guests,

I would like to welcome you to our ceremony held on the occasion of the 61^st anniversary of the Constitutional Court and extend my sincere greetings to you all.

This year, we are celebrating the 100^th anniversary of the Republic of Türkiye. For this reason, the theme of this symposium is “The Republic and Constitutional Justice on the Occasion of the 100^th Anniversary of the Republic”. In this context, I would like to share with you some assessments of the constitutional identity of the Republic, based on the judgments of the Constitutional Court.

First of all, it should be noted that every constitution has a living identity that is formed and shaped by time and space. The interactions, ruptures and continuities between a nation’s past and present shape its identity. In other words, constitutional identity is shaped by the decisions of legal and political actors, especially the constitutional courts charged with interpreting and applying the constitution, and is constantly renewed by taking into account social needs and developments.¹

In this regard, the most distinctive feature of the Turkish constitutional identity is the rule of law. If we read the Preamble and Articles 2 and 14 of the Constitution together, we can see that the other features of the Republic also characterise the rule of law. Accordingly, the Republic of Türkiye is a democratic, secular and social state governed by the rule of law, based on national sovereignty, separation of powers, justice and human rights. In fact, the rest of the Constitution is, in a sense, an explanation of this statement and even of the principle of the rule of law.

The Constitutional Court has also identified the rule of law as the main principle of the Constitution. According to the Court, the rule of law is a principle that must be taken into account in the interpretation and application of all articles of the Constitution.²

In this regard, the Republic of Türkiye is also a social state governed by the rule of law. Centuries ago, the famous philosopher al-Farabi stated that the virtuous or ideal state is the state that ensures human happiness.³

Pursuant to Article 5 of the Constitution, one of the duties of the State is to ensure the welfare, peace and happiness of the individual and society and, to this end, to remove obstacles that are incompatible with the principles of the social state governed by the rule of law and the principles of justice. According to the Constitutional Court, in order to ensure the well-being and happiness of individuals, the social state must provide everyone with a minimum standard of living worthy of human dignity.⁴

His Excellency Mr. President,

Introduced into our legal system with the constitutional amendment of 2010, the individual application mechanism serves to make the rule of law based on human rights more effective. In this respect, the practice of the individual application mechanism for more than ten years has made a significant contribution to the interpretation of the qualities of the Republic with a rights-based approach.

The most notable example of this contribution can be found in the interpretation of the principle of secularism. The judgments of the Constitutional Court state that in a legal order dominated by this principle, individual preferences in religious matters and the lifestyle choices made on the basis of thereof are not subject to interference by the State, but are protected by it.⁵ The Court, with its rights-based interpretation of secularism, found the removal of a lawyer from the courtroom for wearing a headscarf and the State’s interference in the election of the religious leader of a non-Muslim minority community to be in breach of freedom of religion.⁶

In addition, the Constitutional Court often uses the term “democratic state governed by the rule of law” and emphasises constitutional democracy, which is the current understanding of democracy. The Preamble of the Constitution states that sovereignty is fully and unconditionally vested in the Turkish nation and that no person or body authorised to exercise this sovereignty on behalf of the nation may deviate from liberal democracy and the legal system established in accordance with its requirements.⁷

Undoubtedly, one of the requirements of liberal democracy, and perhaps the most important, is the guarantee of fundamental rights and freedoms. Aristotle set the tone for democratic regimes some 2,500 years ago when he said: “The foundation of a democratical state is liberty”.⁸

As is well known, democratic constitutions contain constitutional principles and rules for the separation and limitation of the powers exercising sovereignty mainly in order to protect freedoms. Indeed, the purpose of the constitutional principle of the separation of powers, as emphasised in the judgments of the Constitutional Court, is to prevent the emergence of excesses of power and the violation of fundamental rights.⁹

His Excellency Mr. President,

It is the common goal of all of us that the Republic should continue on its path as a democratic state governed by the rule of law, where everyone feels that he or she belongs as an equal and free individual. I believe that the full realisation of this goal depends on two fundamental conditions, one on the social level and the other on the legal and political level.

First of all, at social level, we need to establish a healthy relationship with those who are not like us, with those who think and live differently from us. Unless we accept the ontological existence of those we see as “the other”, there is no possibility of establishing this healthy relationship. We have to create the climate for living with our differences by seeing “the other” as deserving what we think we deserve, by demanding justice and freedom not only for ourselves but also for others.

Besides, the future of the democratic Republic depends on the full implementation of the principle of the separation of powers at the legal and political level and, in this context, of the independence of the judiciary. It should be noted that, whatever the system of government is adopted, democratic constitutions contain specific provisions to protect the independence and impartiality of the judiciary.

Article 138 of our Constitution, entitled “Independence of the Courts”, states that judges shall rule according to their conscientious convictions, that there shall be no interference with courts and judges in the exercise of judicial power, including recommendations and suggestions, and that court decisions shall be executed without delay. As such, we can call Article 138 the guarantor of the democratic rule of law.

According to the Constitutional Court’s interpretation of this article, the independence and impartiality of the judiciary require that the judge be able to decide freely and impartially, without hesitation or fear, and without being subject to external influence.¹⁰ This is made possible by certain constitutional and legal guarantees for judges, such as geographical guarantees, a sound personality and an untainted judicial conscience.

In fact, the principle of the independence and impartiality of the judiciary, like many other elements of constitutional identity, is not new. For instance, the independence of the judiciary was guaranteed in our first constitution, the Kanun-ı Esasî, with the provision “Courts are free from any interference” (Art. 86).

During the period of the constitutional monarchy, one of the people who personally experienced the implementation of this provision was Namık Kemal. The famous poet expressed in his writings that justice is the key to the continuity of the state and the happiness of the people. For example, in one of his poems, he says: “If justice is not found among the members of the nation, the state will one day perish, even if its stature rises to the heavens”.

In short, where there is no justice, even if the stature or power of the state rises to the heavens, it will one day crumble to the ground. Namık Kemal stated that the first condition for securing justice is the independence of the judiciary and the security of tenure of judges.¹¹

However, Namık Kemal learnt during his pre-trial detention that justice and the independence of the judiciary are not a matter of rhetoric but of action. The one who would teach him this was none other than Abdüllatif Suphi Pasha, President of the Court of Appeals, whom he had called “nebbâş”, meaning “grave robber”, in his letter written a few years earlier.

The trial was followed with great interest. Due to some kind of political interference, almost everyone, especially Namık Kemal, expected a verdict of conviction. However, contrary to what was expected, the verdict was to set Namık Kemal free.

When his daughter asked Suphi Pasha, President of the Court, at home in the evening whether he was afraid to make this decision, he gave the following answer, which is an unforgettable lesson for judges of all times: “There is a Judge [God Almighty] before whom both His Majesty and I will appear tomorrow, and I am only afraid of Him!”¹²

His Excellency Mr. President,

One of the greatest guarantees of all these principles and values that make up our constitutional identity is an independent and impartial judiciary. For this reason, as a democratic state governed by the rule of law, the Republic demands of us, in the words of Mustafa Kemal Atatürk, members of the judiciary who are “free in their ideas, free in their conscience and free in their wisdom”.

On the other hand, in order to safeguard the achievements of the Republic in the field of law, such as the practice of individual application, and its character as a State based on human rights, it is essential that the institutions exercising sovereignty work together. Indeed, according to the Constitutional Court, the principle of the separation of powers does not require the powers to work in isolation, but rather in a “civilised cooperation and division of functions”, as stated in the Preamble to the Constitution.¹³

Institutional “cooperation” is crucial, in particular for the endurance of the individual application as an effective remedy and thus for a better protection of fundamental rights and freedoms. If the erga omnes effect of the individual application is not achieved through cooperation, it will not be possible to reduce the increasing number of applications and to prevent violations.

As we have stated on every occasion, the most effective way of successfully implementing the individual application mechanism is to eliminate the source of the violations. To this end, legislative provisions and administrative or judicial decisions that have caused violations found by the Constitutional Court should be swiftly repealed in order to prevent further violations.

At this point, it should be noted that the Constitutional Court, in fulfilling the tasks assigned to it, both in the constitutionality review and in the individual application, takes care not to go beyond the map of competences drawn up by the Constitution. In this sense, the Court does not engage in judicial activism, nor does it restrain itself by refraining from exercising its constitutional and legal powers.

His Excellency Mr. President,
Esteemed Guests,

Undoubtedly, the judgments of the Constitutional Court, like all judicial decisions, can be criticised. Moreover, they should be criticised, because without criticism the development of jurisprudence is not possible. In this respect, we benefit from criticism that reads and analyses our judgments and thus holds up a mirror to us. We are truly grateful to those who do this.

It is important to note, however, that no benefit can be derived from superficial generalisations made by detracting from the integrity of the jurisprudence of the judgments made in the context of individual applications. Similarly, those who try to interpret even the most sensitive and technical judgments in 140 characters, often without reading them properly, cannot contribute to the development of jurisprudence for the protection of fundamental rights.

Moreover, accusations that target the signatories of the judgments instead of criticising the judgments, that are incompatible with mercy and reason, and that ultimately aim to damage personal and institutional reputations, are not helpful. On the contrary, serious attacks on the Constitutional Court and its members undermine public confidence in the judiciary and do the most damage to the democratic rule of law and the judiciary responsible for protecting it.

Taking this opportunity, I would like to express my gratitude to our vice presidents, justices, rapporteur judges and all our staff who work with great dedication despite all kinds of adversities and difficulties. I would like to pay tribute to our retirees who passed away during the last period and wish those who are still alive good health and prosperity.

Finally, I hope that the symposium we have organised to mark our anniversary will be fruitful. I would like to thank the session moderators, all the speakers, the participants and all those who have contributed to the organisation of the symposium for their contributions.

With these sentiments and thoughts, I would like to once again express my gratitude for your participation in our ceremony and extend my best wishes for health and prosperity to all of you.

¹ See Gary Jeffrey Jacobsohn, Constitutional Identity, (Cambridge: Harvard University Press, 2010).

² Kenan Kalkan [Plenary], no. 2018/36174, 15 February 2023, § 48.

³ Farabi, İdeal Devlet (Ideal State), 9^th Edition, Trans. A. Arslan, (İstanbul: İş Bankası Yayınları, 2020), p. 98.

⁴ Constitutional Court’s decision, no. E.2022/51, K.2022/94, 20 July 2022, § 17.

⁵ Constitutional Court’s decision, no. E.2012/65, K.2012/128, 20 September 2012.

⁶ See Tuğba Arslan [Plenary], no. 2014/256, 25 June 2014; Levon Berç Kuzukoğlu and Ohannes Garbis Balmumciyan [Plenary], no. 2014/17354, 22 May 2019.

⁷ Constitutional Court’s decision, no. E.2018/81, K.2021/45, 24 June 2021, § 34.

⁸ Aristotle, Politics,  trans. W. Ellis, (London: J. M. Dent & Sons Ltd., 1912), Book VI, Chapter II, 1317b, p. 184.

⁹ Constitutional Court’s decision, no. E.2006/113, K.2011/102, 16 June 2011.

¹⁰ Constitutional Court’s decision, no. E.2022/50, K.2022/107, 28 September 2022, § 133.

¹¹ Namık Kemal, Adlün sâatün hayrun min ibâdeti elfi sene, Hürriyet Newspaper, No. 52, 21 June 1869; Sürgünde Muhalefet: Namık Kemal’in Hürriyet Gazetesi (Opposition in Exile: Namık Kemal’s Hürriyet Newspaper), Volume II (1869-1870), Prep. A. E. Topal, (İstanbul: Vakıfbank Kültür Yayınları, 2018), p. 11.

¹² Mithat Cemal Kuntay, Namık Kemal: Devrinin İnsanları ve Olayları Arasında (Namık Kemal: Among the People and Events of His Time), Volume 2, (İstanbul: Maarif Basımevi, 1956), p. 217.

¹³ Constitutional Court’s decision, no. E.2017/20, K.2018/75, 5 July 2018, § 28.