Principle of Judicial Independence as a Hallmark of a Democratic State of Law *

Zühtü Arslan**

Distinguished Guests,
Esteemed Participants,

First of all, I would like to extend you all my most sincere greetings.

I would like to express my great pleasure to see you among us at the 11^th International Summer School event.

We have been already organising this event in our capacity as the Center for Training and Human Resources Development, one of the three permanent secretariats of the Association of Asian Constitutional Courts and Equivalent Institutions (AACC). Every year, our guests from different parts of the world participate in these events where they could find the opportunity to exchange knowledge and experience with each other.

A total of 52 representatives from the constitutional/supreme courts of 25 countries and the European Court of Human Rights (ECHR) have participated in this year’s program. I would like to express my gratitude to all participants for their valuable contributions.

Distinguished Guests,

As you know, every year within the scope of this program, we address an important issue related to the jurisdiction of our courts. This year’s topic is “Judicial Independence as a Safeguard of the Right to a Fair Trial”.

This title should not mislead us. Judicial independence is not merely a safeguard of the right to a fair trial. As reiterated in the decisions of the Turkish Constitutional Court, judicial independence is the primary and most effective safeguard of all other fundamental rights and freedoms, as well as the right to a fair trial.¹

In the absence of an independent and impartial judiciary, there will not exist even a State, let alone a State governed by the rule of law. That is because, State is, by definition, the organised form of the society based on legal rules. The legitimacy of the State, holding the monopoly of violence, depends on law. The application of law by securing justice and in pursuit of fundamental rights and freedoms of individuals is conditional upon the existence of an independent judiciary.

Besides, judicial independence is a necessary consequence of not only the rule of law, but also the principle of separation of powers. The latter requires the judiciary to be free from any interference by the legislature and the executive. Otherwise, the rights and freedoms will be rendered ineffective.

So, what is judicial independence that is of vital importance for a democratic state governed by the rule of law, and what does it entail? In fact, the answers for this question may be found in all democratic constitutions. For example, Article 138 of the Turkish Constitution, titled “Independence of the courts”, addresses this question.

The said provision imposes respective obligations on courts/judges and on non-judicial actors. First of all, judicial independence, seeking to ensure the impartiality of the judiciary, refers to the ability of judges to make decisions in accordance with their personal conviction without being influenced. In the words of the Constitutional Court, independence entails “the judge’s ability to decide freely, without fear or hesitation, or in the absence of an external influence other than the requirements of the law”. In this sense, judicial independence “aims to ensure justice without direct and indirect influences, pressures, manipulations and doubts”.²

As a matter of fact, judicial independence is a prerequisite for ensuring the impartiality of the judge. As also stated in the judgments of the ECHR and the Constitutional Court, the impartiality of the judge refers to the absence of the judge’s prejudice or bias in favour of or against the parties.³

Distinguished Participants,

It is vital that the parties are convinced about the judge’s impartiality. For this, the judge must act meticulously and hold the scales of justice with the precision of a jeweller.  Hz. Umar, the second of the “Four Caliphs” of Islam, stated in his letter to Abu Musa, who was appointed by the former as a judge to hold office in Basra, that the judge must issue a decision, acting equally towards parties of the case before him even in terms of his glances at them.

The objective in ensuring equality in terms of glances is to eliminate any doubt about the judge’s justice and to avoid any misunderstanding. As a matter of fact, the letter goes on to state that with the judge’s equal treatment, the noble will not expect him to be partial and the humble will not despair of justice from him.⁴

Besides, Article 138 of the Constitution contains clear and precise phrases warning and imposing certain obligations on non-judicial actors to ensure judicial independence. The foremost of these is the negative obligation to refrain from interference. Accordingly, no organ, authority, office or individual may give orders or instructions, even make recommendations or suggestions, to courts or judges in the exercise of judicial power.

The Turkish Constitution contains a specific provision on the prohibition of interference on the part of the legislature, which provides that no questions shall be asked, debates held, or statements made in the Legislative Assembly relating to the exercise of judicial power regarding a pending case.

The positive obligation constitutionally imposed on those exercising public power in terms of judicial independence is to ensure the effective execution of the court decisions. This obligation is a complementary of judicial independence. Accordingly, the legislative, executive and administrative authorities shall execute court decisions without any alteration or delay.

Perception is also of great importance as regards the independence and impartiality of the judiciary. It is not enough for courts and judges to be independent and impartial, and this must also be known to the public. Therefore, as a requirement of the rule of law, behaviours likely to tarnish the independence and impartiality of the judiciary should be avoided.

Distinguished Participants,

Consequently, in order for the independence and impartiality of the judiciary, which is a precondition for protecting rights and freedoms, to be fully ensured, a number of obligations must be fulfilled. However, the realisation of such a principle requires first and foremost that members of the judiciary have an untainted and unshackled conscience.

This is of course not easy, as none of us live in a sterile world. However, the profession of judge requires ensuring justice with a clear conscience in such an environment.

German philosopher Nietzsche says that no one has more of a right to our respect than the one who is fair, since all virtues are inherent in him. According to him, “the hand of the just man who is competent to sit in judgment no longer trembles when it holds the scales”.⁵

With these feelings and considerations, I would like to once again extend you all my sincere regards, and I wish that the 11^th Summer School program be successful and fruitful.

I would like to thank everyone who have contributed to the program and wish you all healthy and peaceful days ahead in a more just world.

^* Speech delivered at the 11^th Summer School organised by the Constitutional Court in its capacity as the Center for Training and Human Resources Development (AACC-CTHR). Ankara, 19 September 2023.

** President of the Constitutional Court of Türkiye.

¹ The Court’s decision no. E.2021/83, K.2022/168, 29 December 2022, § 11.

² The Court’s decisions no. E.2016/144, K.2020/75, 10 December 2020, § 26, and no. E.2022/72, K.2023/3, 05 January 2023, § 24.

³Piersack v. Belgium, no. 8692/79, 1 October 1982, § 30; Hikmet Kopar and Others [Plenary], no. 2014/14061, 8 April 2015, § 110; and Çetin Doğan (3) [Plenary], no. 2021/30714, 15 February 2023, § 232.

⁴ For the full text of the letter, see Muhammed Hamidullah, “Halife Hz. Ömer Devrinde Adlî Teşkilat- Ebu Mûsâ el-Eş’arî’ye Gönderilen Kazaî Talimatnâmeler”, trans. by F. Atar, M. Hamidullah, İslâm Anayasa Hukuku, ed. by V. Akyüz, (İstanbul: Beyan Yayınları, 2015), pp. 309-311.

⁵ Friedrich Nietzsche, On the Advantage and Disadvantage of History for Life, trans. by Peter Preuss, (Cambridge: Hackett Publishing Company, Inc., 1980), p. 32.