The Dynamics of Constitutional Interpretation and the Constitutional Court^*

Zühtü Arslan^**

Distinguished Participants,
Ladies and Gentlemen,

I would like extend you all my most sincere and respectful greetings.

It is a great pleasure to be here and to address you at the conference held with the joint initiatives of the Research Centre for Constitutional Justice (AYAM) of the Constitutional Court and Koç University Law School. I would like to express my gratitude to the honourable rector of the University, to the honourable dean of the Law School, and to all its members for hosting this conference.

I would also like to thank everyone who has contributed to the organisation of the conference, moderators and speakers for their valuable contributions, and I hope that the conference will be successful and fruitful.

The theme of the conference is “The Future of Constitutional Interpretation”. However, to start with, I would like to share some of my considerations on the current state of constitutional interpretation in our country. In my speech, I will try to provide a brief explanation regarding four interrelated issues based on our Constitution as well as our practice of constitutional justice.

First, I will make a conceptual introduction to the issue of constitutional interpretation by seeking an answer to the question “What is interpretation and why is it necessary?”. Secondly, I will touch upon the framework and limits of constitutional interpretation. Thirdly, I will try to explain the right-based paradigm adopted by the Court in the interpretation of constitutional provisions, based on three interlocking circles determining constitutional interpretation. Finally, we will discuss the minimum requirements for the establishment and construction of a sound constitutional interpretation.

1. Conceptual Introduction: What is Interpretation and Why is It Necessary?

Interpretation, in the broadest sense, is defined as “determining the meaning of an object”.¹ As for legal interpretation, it is the act of determining the meaning of the facts constituting the subject matter of a dispute as well as meaning of the applicable provisions. When it comes to providing meaning to the constitutional provisions applicable to constitutional disputes, the concept of constitutional interpretation emerges.

What makes interpretation essential as an act of sense-making is the ambiguous and polysemous nature of language which is the instrument of this act. Besides, the determinative and binding relationship between norms in a legal system necessitates legal interpretation, and in particular, constitutional interpretation.

As a matter of fact, Hans Kelsen states that constitution, which is a higher-level norm, determines not only the procedure whereby the lower-level norm is created but possibly the content of the norm to be created as well. According to Kelsen, constitutional provisions intended to safeguard fundamental rights and freedoms attempt to determine the content of future statutes -at least negatively- by precluding certain other content interfering with these rights and freedoms.²

Article 11 of our Constitution, titled “The supremacy and binding force of the Constitution”, actually fleshes out Kelsen’s words. Accordingly, laws shall not be contrary to the Constitution which embodies binding fundamental provisions of law. Article 13 of the Constitution also prescribes the content of laws restricting fundamental rights and freedoms by specifying the characteristics they must have. In this context, legal provisions restricting fundamental rights and freedoms must not infringe upon their essence, must pursue a legitimate aim, and must comply with the requirements of the democratic social order and the principle of proportionality.

The constitutionality review of laws and acts of public power based on laws also necessitates interpretation. It should be noted that interpretation in constitutional jurisdiction is necessarily of a dual nature. While the meaning and scope of the legal provision or of the act of public power under review is determined on one hand, the constitutional provision which is the higher-level norm that is also relied on as a reference norm during the review is interpreted on the other.

However, while the Court emphasises that disputes should be resolved by interpreting a given legal provision in consideration of the latter’s wording and intent, it also points out that the subject matter of constitutionality review is not related to the interpretation or application of a legal provision, but to the provision itself. In the Court’s view, “problems that may arise in relation to the interpretation of the provision, rather than the provision itself, fall outside the scope of the constitutionality review” (see the Court’s decision no. E.2017/135, K.2019/35, 15 May 2019, § 31).

This approach, which is adopted in terms of constitutionality review, necessarily differs when it comes to individual application. This is because in the individual application, the Court reviews the constitutionality of the act of public power performed based on the interpretation and application of a legal provision in a given case. As such, whether the interpretation of the constitutional and legal provisions applied by the courts of first instance to a given dispute has caused any violation of a fundamental right or freedom is examined.

2. Framework and Limits of Constitutional Interpretation

As is known, interpretation in general and constitutional interpretation in particular does not exist in a vacuum. There are many factors having a bearing on, determining and limiting interpretation. Foremost among these is our language in which we determine the meaning of words in the context they are used. As Wittgenstein, a leading linguistic philosopher of the last century, says, “The limits of my language mean the limits of my world.”³ This also applies to interpretation. While language necessitates and enables interpretation, it also defines the limits of interpretation.

In addition, we are all aware that there are different interpretation methods used to understand and explain the language of the constitution. There is a wide range of interpretation methods between “originalism”, which argues that the meaning of a constitutional provision at the time of its introduction should prevail, and “living constitutionalism”, which argues that constitutional provisions should be interpreted in a way to adapt them to new developments. As a matter of fact, methods such as literal, historical, teleological or systematic interpretation may often be used by courts in a complementary manner.⁴

In fact, what determines this is the language of the constitution. At the cost of generalisation, it can be said that there are two types of provisions in constitutions. The first category consists of provisions whose meaning is so clear that no interpretation is required. For instance, Article 3 of the Constitution reads as “Its [Turkish State] flag, the form of which is prescribed by the relevant law, is composed of a white crescent and star on a red background”, and Article 67 provides “All Turkish citizens over eighteen years of age shall have the right to vote in elections and to take part in referenda”.

There is no need for interpretation of such provisions, as the text is quite clear. The Ottoman Code of Civil Law (Mecelle) also states that “Where the text is clear, there is no room for interpretation” (Art. 14). In other words, when the provision is clear, there is no need for referral to the case-law, and thus no need for interpretation. If the provision is clear, then interpretation is rendered impracticable.

On the other hand, concepts such as democracy, secularism and rule of law enshrined in Article 2 of the Constitution, which also constitute the basis of our constitutional identity, are constitutional principles that must be interpreted when applied to cases. Moreover, the requirements of these principles may change over time and depending on the interpreter. As a matter of fact, for many years, the Court interpreted secularism as a strict principle that did not allow headscarves to be worn in universities. However, with the adoption of the right-based interpretation since 2012, this constitutional principle has been interpreted in a liberal manner, with the accompanying consideration that the principle of secularism does not require the prohibition of the external manifestations of belief.⁵

Besides, interpretation may sometimes be limited by the text itself. In this sense, some constitutions also specify how they are to be interpreted as well as the limits of interpretation. The Preamble of the Constitution, including many statements and principles, stipulates that the Constitution has been entrusted to the nation “to be interpreted and implemented accordingly, thus commanding respect for, absolute loyalty to, its letter and spirit”.

It is set forth in Article 14 of the Constitution that “No provision of this Constitution shall be interpreted in a manner that enables the State or individuals to destroy the fundamental rights and freedoms recognized by the Constitution or to stage an activity with the aim of restricting them more extensively than stated in the Constitution”.⁶ The Court has found in breach of the prohibition of interpretation stipulated in Article 14 § 2 of the Constitution the approaches maintaining that the requirement of legality, which prescribes that fundamental rights and freedoms can only be restricted by law, can also be satisfied by court decisions. In this sense, the Court has characterised these approaches as interpretations that restrict fundamental rights and freedoms more extensively than provided for in the Constitution.⁷

Undoubtedly, constitutional provisions limiting interpretation also needs to be interpreted. Moreover, the abstract nature of the constitutional principles, especially those enshrined in the Preamble, necessitates the interpretation of such provisions. For instance, what is the “spirit of the Constitution”, which is stated in the Preamble as the limit of interpretation, and in Article 13 as the limit of restrictions on fundamental rights and freedoms? Which interpretation is in line with the “spirit of the Constitution” and which interpretation is contrary to it?

This is not an easy question to answer. This is because, unlike the “letter”, the “spirit” is far from being a concept that can be easily framed and defined. It is partly for this reason that the Court has not delved into the concept of spirit and has rarely employed the criterion “the spirit of the Constitution”.

However, in some of its judgments, the Court has given some clues as to what should be inferred from the concept “spirit”. In this sense, the “spirit” can only be derived from the whole Constitution, not from a certain part of it. According to the Court, “if it is argued that the law is contrary to the spirit of the Constitution, then the entire Constitution must be interpreted, not a limited number of articles and principles enshrined therein”.⁸

In addition, we can look to Hegel for an understanding of the spirit. At the beginning of his book Lectures on the Philosophy of History, Hegel says that the nature of spirit may be understood by a glance at its direct opposite – matter. Hegel states that the essence of matter is gravity, and the essence of spirit is freedom. According to him, “freedom is the sole truth of spirit”.⁹

In the constitutional language, Hegel’s opposing concepts of matter and spirit may be manifested in the phrase “the essence of the spirit of the constitution is freedom”. In other words, freedom is the sole truth of the spirit of the constitution. For this very reason, the Court has emphasised in many of its judgments that constitutional provisions should be interpreted in favour of freedoms.¹⁰

3. The Right-Based Paradigm of the Constitutional Court

At this point, we may proceed to our third topic, the interpretation paradigm adopted by the Constitutional Court.

In determining the meaning of law and constitution which is the most basic law, constitutional judges act in a medium established by their inner and outer worlds. In this regard, it would be accurate to say that constitutional interpretation takes place in three interlocking circles.

The personal world, views and opinions of the constitutional interpreter in the first circle at the centre play a decisive role in constitutional interpretation. In other words, judges in general, and constitutional judges in particular, provide meaning to constitution and other norms as formatted interpreters in a sense. For the very reason, Heidegger says that whenever something is interpreted, the interpretation will be founded essentially upon fore-having, fore-sight, and fore-conception.¹¹ Interpretation, therefore, also reflects the interpreter’s identity and the influence of the elements that constitute it.¹²

The second circle of interpretation is the paradigm that dominates the interpretive community. Paradigm “stands for the entire constellation of beliefs, values, techniques, and so on shared by the members of a given community”.¹³ In this sense, the legal paradigm has a bearing on the interpretation made by constitutional courts in their capacity as an interpretive community and may be decisive in the interpretation of constitutional provisions.

It should be noted that amendments to the texts and constitutions, which are subject to interpretation, and the establishment of new constitutional institutions forming the basis for the interpretation may be decisive for the shift in the paradigms of interpretation. In this sense, the individual application mechanism adopted by the constitutional amendment of 2010 has indubitably played an effective role in the adoption of the right-based paradigm. 

The right-based paradigm adopted by the Court is predicated on two interrelated meanings of the word “right”. “Right” means on the one hand “justice as equity” and on the other hand “what is in possession”, as in the example of the right to life, or right to property. In this regard, the right-based paradigm within which constitutional interpretation takes place is a paradigm seeking to safeguard fundamental rights and freedoms by ensuring constitutional justice; in other words, it is a paradigm that seeks to accord and assure ‘rights’ in both senses of the word. At the spiritual root of this paradigm lies Mevlana’s understanding of justice, which he formulated as putting everything in its right place and granting everyone what they deserve.¹⁴

Thus, the right-based paradigm embodies an approach, which prioritises the protection of fundamental rights and freedoms over the other societal and political interests, which regards rights and freedoms as essential whereas their restriction as exceptional, and which in the last instance entails an interpretation in favour of rights and freedoms.¹⁵

In its several judgments, the Court has indicated that the approach that should predominate over the constitutional jurisdiction is the right-based paradigm. As stated by the Court, the constitutional provisions “may fully and properly fulfil their functions only when they are interpreted through a right-based approach.”¹⁶ Therefore, those wielding public power can and must “interpret constitutional provisions in favour of freedoms”.¹⁷  The Constitutional Court has “subjected the relevant constitutional provisions to a systematic and right-based interpretation in the context of the protection of democracy”, particularly in the case of political rights such as the right to vote and stand for election.¹⁸

It may be noted that the right-based paradigm adopted in the constitutional jurisdiction has two prominent practical repercussions. First of all, this paradigm has led to an expansion and protection in the realm of constitutional rights and freedoms both in the individual application and constitutionality review processes.

For instance, the Court has construed Article 36 of the Constitution enshrining the right to legal remedies in a way that would also cover the right to appellate review of a decision.¹⁹ In the same vein, the Court has concluded, with reference to international law and other constitutional principles - that the principle of retroactivity of the more favourable law is inherent in the relevant constitutional provision.²⁰ Additionally, the Court has concluded, by adopting historical, systematic and teleological methods of interpretation, that Article 70 of the Constitution where the right to enter a public service is laid down also covers the right to continued exercise of public office.²¹

The second practical repercussion of the right-based paradigm comes into play in its contribution to the process known as “constitutionalisation of law”.  In one of its judgments, the Court has stressed on one hand that in interpreting and determining the scope of the laws, the inferior courts must take into consideration the Constitution, and on the other hand that the Constitution is a living instrument. As noted by the Court, “Constitution is not merely a text formulated as a document, but rather a legal living instrument, which steers the legal system and is to be taken into consideration in case of all public acts and actions performed”.²²

Finally, the right-based approach also necessitates the interpretation of constitutional provisions in the light of the principle of rule of law. The Court has noted that rule of law is “a principle that is to be taken into consideration in the interpretation and implementation of all provisions of the Constitution”.²³

4. Two Prerequisites for Constitutional Interpretation

The fact that the Constitutional Court places the principle of the rule of law at the centre in the interpretation of the Constitution, both in the constitutionality review and in the individual application, is of crucial importance in relation to the social and political situation at the macro level, which is the third and largest circle having a bearing on interpretation. In fact, one of the prerequisites for the establishment and construction of a sound constitutional interpretation is the existence of a legal/political environment in which the principle of the rule of law in general and the supremacy of the Constitution in particular is recognised and its requirements are complied with.

Gadamer refers to the principle of rule of law as an essential condition for legal hermeneutics. According to Gadamer, interpretation cannot come into play in authoritarian regimes since the absolute will, which does not consider itself bound by law, may also transgress the basic principles of interpretation.²⁴

What is referred to by Gadamer is precisely described by Tolstoy in his novel Hadji Murad. When a Polish medical student failed his exam for the third time, he slightly injured his teacher with a paper knife. Tsar Nicholas, who hated Poles, thought he had a good opportunity. He wrote, and then signed, on his margin on the report regarding the student: “Deserves death, but, thank God, we have no capital punishment, and it is not for me to introduce it. Make him run the gauntlet of a thousand men twelve times.— Nicholas”.²⁵

Tolstoy says that Nicholas knew that twelve thousand strokes meant death with torture, for five thousand strokes were sufficient to kill even the strongest man. Thus, he was pleased to give such decision about the student although there was no capital punishment in his country.²⁶  This anecdote is a typical example of how general principles of interpretation can be transgressed by the absolute will.

In addition, the decisive and binding nature of constitutional interpretation constitutes another prerequisite for the establishment and construction of a reasonable interpretation. As is well known, in the judicial process the interpretation is manifested in the judgment. In constitutional jurisdiction, the interpretation of constitutional provisions becomes decisive and binding when it is embodied in a judgment.

It may be argued that the interpretation underlying the judgment is inaccurate, yet there is no doubt as to the binding nature of the judgment. This is due to the fact that, before the specific articles expressly establishing the binding nature of the Constitutional Court’s judgments, the constitutional provisions safeguarding the principle of binding effect and supremacy of the Constitution explicitly confirm this binding nature.

Needless to say, both the legislature and the administrative and judicial authorities interpret constitutional provisions in their respective spheres of jurisdiction. However, when the norms created and acts of public power performed on the basis of these interpretations are subject to constitutionality review, the authority to interpret the Constitution in a final and binding manner is exercised by the Court.²⁷

Otherwise, a situation arises where everyone and every institution claims that their interpretation is “valid”. The rule of law recognises the diversity of interpretations, but it does not allow for an anaphora of interpretations.

Distinguished Participants,

As a matter of fact, probably the most formidable challenge in the field of constitutional jurisdiction is the protection and maintenance of the right-based paradigm vis-à-vis the global and local adverse waves in support of authoritarianism. I am of the opinion that the future of constitutional interpretation in our country will be marked by the will of the interpretive communities to maintain a right-based approach in the face of these adverse waves.

With these feelings and considerations, let me once again extend you all my sincere regards. I would also like to thank everyone who have contributed to this organisation.

Let me also express my thanks to those who will contribute to the organisation through their presence, presentations and comments, and wish you all health and prosperity.

^* Opening speech at the Conference on “The Future of Constitutional Interpretation” held with the joint initiatives of the Research Centre for Constitutional Justice (AYAM) of the Constitutional Court and Koç University Law School. İstanbul, 26 February 2024.

^** President of the Constitutional Court of Türkiye.

¹ Andrei Marmor, Interpretation and Legal Theory, (Oxford: Clarendon Press, 1992), p. 13.

² Hans Kelsen, “On the theory of interpretation”, trans. B. L. Paulson & S. L Paulson, Legal Studies, Vol. 10, No. 2, (July 1990): 127-135, § 2, p. 128.

³ Ludwig Wittgenstein, Tractatus Logico-Philosophicus, trans. C.K.Ogden, (Wisehouse: Chiron Academic Press, 2016),, § 5.6.

⁴ In this context, for a study arguing that the approaches of “originalism” and “living constitutionalism” are not in opposition to each other, but rather can be reconciled through the “text-principle” method, see Jack M. Balkin, Living Originalism, (Cambridge, Mass.: Harvard University Press, 2014).

⁵ See Zühtü Arslan, “Yüzüncü Yılında Cumhuriyet’in Anayasal Kimliği ve Anayasa Yargısı”, Anayasa Yargısı, Volume: 40, Issue: 2, (2023): 1–23, pp. 16-19.

⁶ See, in this respect, Bertil Emrah Oder, Anayasa Yargısında Yorum Yöntemleri, (İstanbul: Beta Yayınları, 2010), pp. 28-31.

⁷ Şerafettin Can Atalay (2) [Plenary], no. 2023/53898, 25 October 2023, § 71.

⁸ Constitutional Court’s decision, E.1990/1, K.1990/21, 17 July 1990.

⁹ Hegel, G.W.F. (1894). Lectures on the Philosophy of History, trans. Sibree, J., London: George Bell& Sons, p. 18.

¹⁰ Ömer Faruk Gergerlioğlu [Plenary], no. 2019/10634, 1 July 2021, § 50; Ali Kuş [Plenary], no. 2017/27822, 10 February 2022, § 50.

¹¹ Martin Heidegger, Being and Time, trans. J. Macquarrie & E. Robinson, (Oxford: Basil Blackwell, 1962), p. 191.

¹² For further explanations, see Oya Boydar, Anayasal Yoruma Giriş, (İstanbul: On İki Levha Yayıncılık, 2021), p.72: “When we interpret legal norms, particularly the Constitution, we are, in essence, saying who we are.”

¹³ Thomas S. Kuhn, The Structure of Scientific Revolutions, 3^rd ed., (Chicago: University of Chicago Press, 1996). p. 175.

¹⁴ Mevlâna, Mesnevi, trans. V.Izbudak, (Konya: Konya Büyüksehir Belediyesi Yayinlari, 2004), Vol.V, §§ 1085, 1090, p. 112.

¹⁵ For a conceptual explanation of the right-based paradigm, see Zühtü Arslan, “Conflicting Paradigms: Political Rights in the Turkish Constitutional Court”, Critique: Critical Middle Eastern Studies, 11/1, (Spring 2002): 9-25.

¹⁶ Ömer Faruk Gergerlioğlu [Plenary], § 133.

¹⁷ Ali Kuş [Plenary], no. 2017/27822, 10 February 2022, § 50.

¹⁸ Şerafettin Can Atalay (2) [Plenary], § 67.

¹⁹ Constitutional Court’s decisions, E. 2018/71 K. 2018/118, 27 December 2018, § 8; E. 2022/89 K. 2022/129, 26 October 2022, § 23.

²⁰ Constitutional Court’s decision, E. 2019/9 K. 2019/27, 11 April 2019, § 19-22.

²¹ Constitutional Court’s decision, E. 2021/104 K. 2021/87, 11 November 2021, § 48.

²² Mehmet Fatih Bulucu [Plenary], no. 2019/26274, 27 October 2022, §76.

²³ Mehmet Güçlü and Ramazan Erdem, no. 2015/7942, 28 May 2019, § 50.

²⁴ Hans-Georg Gadamer, Truth and Method, Second Edition, trans. J. Weindheimer & D.G. Marshall, (London: Sheed & Ward, 1989), p. 329.

²⁵ Leo Tolstoy, Hadji Murad, trans. A. Maude, (London: Thomas Nelson & Sons, 1912), pp. 151-152.

²⁶ Tolstoy, Hadji Murad, p. 152.

²⁷ Kadri Enis Berberoğlu (3) [Plenary], no. 2020/32949, 21 January 2021, § 81.