The 57^th Anniversary of the Constitutional Court of the Republic of Turkey
International Symposium on “Constitutional Review and Legal Regime of Presidential Decrees”

Opening Address

25 April 2019, Ankara

Prof. Dr. Zühtü Arslan¹

His Excellency Mr. President,

Esteemed Guests,

I would like to welcome you to our ceremony held on the occasion of the 57^th anniversary of the Constitutional Court, as well as extend you all my most sincere greetings.

The Constitutional Court may be said to have undergone three important phases in terms of its jurisdiction since it was founded. During the first phase that was until 2012, the Constitutional Court acted as a higher judicial body which mainly reviewed the constitutionality of laws.

The second phase of the Turkish constitutional jurisdiction started in 2012. With the constitutional amendment of 2010, the individual application mechanism has been introduced into our legal system, which has also modified the Constitutional Court’s structure, as well as the number of its justices. Thus, the jurisdiction of the Court has been expanded to receive individual applications on human rights violations.

As a matter of fact, the individual application mechanism has not only extended the Court’s jurisdiction but has also changed its judicial paradigm. With the introduction of this mechanism, the Court has turned into a higher judicial body based on the individual and fundamental rights and freedoms. Such a paradigm shift has also influenced the Court’s approach in other areas of its jurisdiction. Indeed, the Court has reflected its rights-based approach, adopted in the individual application mechanism, in the constitutionality review as well.

One of the best examples of this interaction is the Court’s annulment judgment of 27 December 2018.  In this judgment, the Constitutional Court stroke down the relevant paragraph of Article 286 of the Code of Criminal Procedure no. 5271, which precluded recourse to appeal remedy against the initial conviction decisions rendered by district courts of appeal, for being in breach of Article 36 of the Constitution safeguarding the right to legal remedies. Thereby, the Court, previously adopting a cautious approach as regards the right to judicial review of decisions, has taken a significant step in conformity with the rights-based paradigm, which intended to prevent individuals from unjust treatment due to possible judicial errors.

This stance of the Constitutional Court has gone beyond the minimum safeguard provided by the European Convention on Human Rights as regards the same right.  It is also satisfactory that shortly after the publication of the annulment judgment in the Official Gazette, the legislator has made the necessary legislative amendments in order to eliminate the unconstitutionality.

His Excellency Mr. President,

The third phase of the Turkish constitutional jurisdiction has started with the constitutional amendment of 2017. With the constitutional amendment of 9 July 2018, the Constitutional Court has been empowered with the authority to review the constitutionality of the presidential decrees. Thus, the jurisdiction of the Constitutional Court has been extended to include, in addition to the legislative acts, the judicial review of the presidential decrees which are the first-hand regulatory acts of the executive.

The most important institution, the distinctive feature of the new system that has been adopted with the constitutional amendment of 2017 is the Presidential decrees.  Therefore, the constitutionality review of the presidential decrees is of vital importance for the control and balance mechanism on which the system must be predicated upon.

In fact, since the introduction of the constitutional amendments, it has been a period of intensive work during which necessary preparations have been made by the Court in collaboration with the academicians who ponder and write on presidential decrees.

In this context, we have determined the theme of this year’s symposium as “constitutional review and legal regime of presidential decrees”. Taking this opportunity, I would like to extend my sincere thanks to the academicians who will contribute to the symposium with their participation and presentations, as well as to all participants.

Presidential decree is a new institution in our constitutional system. Basic principles, rules, and limits of the Presidential decrees as well as their relation with the parliamentary laws have been laid out by the Constitution. In this respect, the task incumbent on the Constitutional Court is to carry out the constitutionality review of the contested Presidential decrees brought before it.

Such decisions rendered by the Court will clarify the legal regime of the presidential decrees, on the one hand, and provide an insight into the nature of the relations among legislative, executive and judicial bodies in the new governmental system, on the other.

His Excellency Mr. President,

The above-mentioned three phases that the Turkish constitutional jurisdiction has undergone are also a part of the constitutionalism movements ongoing since the Ottoman Empire. Given our over two-century long history of constitutionalism dating back to the Charter of Alliance (Sened-i İttifak), it may be said that our constitutional identity has gone through a stable progress. Certain changes in the governmental system as well as in the administration form took place but this has not changed the basic principles our constitutional identity. 

Our constitutional identity is best defined in Article 2 of the Constitution. Human rights, democracy, secularism, social state and state of law constitute the primary elements of the Turkish constitutional identity. Besides, indivisible integrity of the State has been a continuous part of the constitutional identity since the Ottoman Basic Law of 1876. Through its decisions, the Constitutional Court has been performing the tasks of interpreting and applying the principles set by the constitution-maker.

It must be emphasized at this point that supremacy of law or state of law serves as the most basic principle determining the constitutional identity as a whole. As a matter of fact, the Constitutional Court describes, in its many decisions, the state of law safeguarded by Article 2 of the Constitution as a principle required to be taken into consideration in interpretation and implementation of all provisions enshrined in the Constitution. Indeed, the aim of constitutionalism generally and of constitutional jurisdiction specifically is to ensure that the state be governed by law in order to secure fundamental rights and freedoms.

One of the principles making democracy “the regime of freedoms” is undoubtedly separation of powers. It is one of the most important principles contributing to the protection of fundamental rights and freedoms, through the control and balance mechanism, by avoiding a concentration of power.

The concept of separation of powers has been embraced by us since the final stage of the Ottoman Empire. In his work titled “Constitutional Law” (Hukuk-ı Esasiye) published in 1993, Babanzâde İsmail Hakkı, one of our first constitutional jurists, explains that separation of powers is indeed rooted in the very nature of human beings, and that a free person is empowered to enact and implement laws as well as to judicially resolve any disputes to arise. In the same vein, Ahmet Ağaoğlu, taking a role also in the preparatory period of the Constitution of 1924, considers that the step required to be taken in “establishing an independent and democratic State system” is to separate three powers −manifestation of national sovereignty− (the legislature, the executive and the judiciary) from one another and to ensure the harmonization of inter-relationship of these three powers.

The separation of powers, a paramount element of the Turkish constitutional system even today, as defined in the preamble of the Constitution, “refers solely to the exercising of certain state powers and discharging of duties, and is limited to a civilized cooperation and division of functions.” In this definition, ‘division of functions’ explicitly point out that each governmental branch shall fulfil, by exercising its constitutional powers, the duties entrusted to it. As a matter of fact, it is emphasized in the Court’s decisions that in accordance with the principle of separation of powers, “no branch should exceed the limits of their powers set by the Constitution and interfere with one another’s powers”.

The State organs’ working together to achieve their common goal of taking the Republic of Turkey beyond “the level of contemporary civilization” represents “cooperation”. According to the Court, the principle of separation of powers requires the bodies to operate not individually but in cooperation by way of exercising their constitutional powers. In this sense, separation of powers is in no way a conflict of powers.

State of law and separation of powers, two basic elements of our constitutional identity, require the judiciary to be independent of the two other branches, namely the legislature and the executive. In this sense, judicial independence is a sine qua non for a democratic state governed by rule of law. Essentially, this fact prevails in all legal systems and in all times.

On the other hand, our recent experiences have shown that the judiciary is to be independent not only of the legislature and the executive but also of any kind of shadow structure and organization. Judge can, under no circumstances, entrust his mind and conscience to anyone else.

For the very reason, judges, who are independent and impartial in performing their duties by virtue of the Constitution, must deliver judgments based on their personal and conscious convictions.  This constitutional provision also constitutes one of the universal rules of the judicial ethics. In fact, Article 2 of the Declaration of Turkish Judicial Ethics, which has recently been promulgated by the Council of Judges and Prosecutors and published in the Official Gazette, also regulates the independence of the judiciary, in compliance with Article 138 of the Constitution. Accordingly, judges and prosecutors “unconditionally reject any pressure and influence that may directly or indirectly affect their independence”.

Lastly, it must be noted that the existence of principles and institutions, such as state of law, separation of powers, independence of the judiciary, and judicial review, is necessary but not sufficient to guarantee the individual’s fundamental rights and freedoms. At this point, we must give an ear to the late distinguished Prof. Dr. Mr. Ali Fuad Başgil, one of the pioneers of the constitutional jurisdiction, who expresses the necessity of a Constitutional Court far back in 1948. Mr. Başgil stated that the actual guarantee for safeguarding the fundamental rights and freedoms depends on the “culture of freedom and democracy” that could be achieved through education.

According to him, “The best constitution is the one that is applicable in the best and easiest manner”. In this context, Ali Fuad Başgil emphasized that constitutional institutions and system alone would make no sense without applying and complying with the Constitution.

His Excellency Mr. President,

Esteemed Guests,

The expansion of the Court’s jurisdiction has automatically led to an increase in its workload. We face an increasing workload in terms of both individual application and constitutionality review.

The number of individual applications pending before the Court as of today is nearly 42.000. 95% of the pending applications have been lodged since 2017.

As for constitutionality review, the number of pending cases is 104 in total; out of which 76 relates to abstract review and 28 to concrete review. The ratio of the cases to undergo abstract review is approximately 73%, while that of the ones to undergo concrete review is 27%. Considering the previous year’s statistics, more than half of the total cases are subject to abstract review. However, in 2017, the ratio of the cases having undergone abstract review was approximately 11%, while that of the ones having undergone concrete review was 89%. In previous years, the ratio of the cases of concrete review had been generally higher than that of the cases of abstract review. This change points out the rapid increase in the number of the abstract review cases in the last two years.

In addition, nearly 70% of the pending cases of abstract review is comprised of decree-laws enacted under the state of emergency as well as the Presidential decrees. Currently, the Court has before it 21 Presidential decrees pending constitutionality review.

As shown by these statistics, in the forthcoming period, the decisions to be rendered through the constitutionality review will mainly be related to the decree-laws enacted under the state of emergency and to the Presidential decrees. It must be noted that in opposite of the cases of concrete review, the procedural and substantive review process as regards the cases of abstract review concerning the laws or decrees takes considerable time, as many rules are embodied in such laws and decrees.

Taking this opportunity, I extend my appreciation to all our members who work devotedly to deliver quality judgments by struggling to cope with the heavy workload, for their contributions.

On this occasion, I would like to commemorate our late retired justices and personnel. I also wish good health and prosperity to all members of the Court.

I wish that the symposium starting this afternoon be fruitful and successful. I would like to once again express my thanks to all distinguished academicians who will contribute to this symposium with their presentations and to all participants.

Once again, I would like to express my gratitude for your participation in our anniversary and for your attention. I extend my wishes of health and prosperity to all of you. 

[1] The President of the Constitutional Court of Turkey.