The 8th Summer School of the AACC
on the “Restriction of Human Rights and Freedoms in Health Emergencies: The Example of Covid-19”
7 September 2020, Ankara (video-conference)
Ladies and Gentlemen,
It is a great pleasure for me to open the 8th Summer School programme of the AACC. Unfortunately, this year we are not able to host you here in Ankara because of Covid-19. However, I am very pleased to see that a high number of courts are represented here today. Our colleagues are joining us from 28 different countries.
As you all know, the world has been fighting a dangerous pandemic for a considerable time. Maybe this is the first time in the history that we have been experiencing a global quarantine. Our daily routines and habits have been disrupted.
On the other hand, these times during which the life has slowed down led to self-examination by individuals, institutions, and even the whole society. In this regard, the current pandemic has reminded us of at least two things. First, the pandemic, which has spread all around the world and rendered helpless even the developed states, has shown how important the national and international solidarity is.
At this point let me mention the beautiful poem of “Bani Adam” (Children of Adam) written by famous Persian poem and sage Saadi Shirazi. He says:
“Human beings are limbs of each other,
For they’re created of the same essence.
When one organ be troubled by pain,
The others would suffer severe strain.
If you have no sympathy for the sufferings of others!
Deserve not the name human being”.1
Saadi’s teachings make it clear that we must be in cooperation and solidarity in fighting this pandemic. This period that we have been living through is a clear indicator that mankind has the common fate, regardless of race, colour, gender, faith and nationality. Accordingly, we -as the judicial bodies- should act together with respect to protection of the rule of law and fundamental rights. Indeed, the AACC activities and the Summer School events are intended to achieve this purpose.
I must emphasize that almost all judicial systems allow for taking measures under the states of emergency such as the ongoing pandemic. In this scope, countries have adopted various measures and, owing to these measures, the pandemic has been brought under control to a certain extent. The Turkish Constitutional Court has also swiftly implemented the in-house measures and put remote work system into action. The Court also switched to hold video conference/online meetings for a while.
This pandemic also reminded us the indispensable nature of fundamental rights and freedoms. By placing everyone, if you will, under house-arrest for a long time, the pandemic has once again reminded us the value of the fundamental rights and freedoms, such as the right to life, personal freedom, freedom of movement and freedom of worship.
Covid-19 pandemic and the related measures have brought these fundamental rights to the forefront of the constitutional justice. Within this scope, it is of great importance that the high judicial bodies in different countries exchange opinions and experiences on the judicial issues. In fact, your discussions during this Summer School will make a significant contribution to both judicial analyses and the constitutional justice literature.
As Lord Acton famously said, “power tends to corrupt, and absolute power corrupts absolutely”. This historical fact led to the idea that especially political power must be restricted to protect individual rights and liberties. The idea of limiting power may be traced back to the ancient times. Indeed the Gilgamesh Epic, which was written about four thousand years ago, tells us the story of how gods created Enkidu to check and control King Gilgamesh, who oppressed the people of Uruk. Gods declared that “let them [Enkidu and Gilgamesh] vie (compete) with each other, so Uruk may be rested!”2
However, the project of ending the tyranny of Gilgamesh ended up in failure when Enkidu became the King’s best friend. In today’s world, four thousand years later, we still seek to resolve what is called the “Gilgamesh problem”, that is how to control the political authority.3
There is no doubt that constitutional courts have been created with a view of helping to solve the problem of controlling the authority. In other words, the constitutional or supreme courts, charged with the review of constitutionality of legislative and executive acts, play significant roles in protecting rights and liberties of individuals.
This role becomes more crucial in times of emergencies. We all know that rights and freedoms are inevitably subject to more restrictions than the ordinary times during such a period. Undoubtedly, the aim pursued by these restrictions should be to ensure the return to ordinary times within the shortest time possible. The measures derogating from the rights and freedoms must be lifted once the ongoing threat is overcome. At this point, the judicial institutions are entrusted with very important duties.
In fulfilling their critical roles in a state of emergency, the constitutional courts must be cautious at least in two regards.
First of all, as constituted powers the courts must be aware of the fact that they are also bound by the constitution. In other words, they may only exercise the powers defined in the provisions of “emergency constitution”.4 The courts’ self-respect for constitution is crucial especially in a state of emergency because any kind of judicial activism during such times may lead to legitimation crises. The constitutional courts must protect constitutional rights by operating within the boundaries of the constitution itself.
Secondly, even though the executive is in a better position to evaluate the threats to public health and the means to eliminate them, it by no means has unlimited powers. The executive must act within the law, and a state of exception must be governed by the rule of law. Therefore, the role of the constitutional or supreme courts is to ensure that the executive fights the threats by adopting measures within the framework of the law. These measures must be necessary in a democracy and proportionate to the aim of eliminating the dangers that caused the sate of emergency.
To sum up, during emergencies the courts have a limited and circumscribed power in reviewing the acts and activities of the executive power. It is certainly beyond the power of the courts to remove the threat to the public health. Solving the problem of pandemic is the task of executive and legislative powers. The role of the courts in such process is to ensure that the state authorities act within constitutional and statutory boundaries.
Ladies and gentlemen,
There are heroes in times of crises. In this period, particularly healthcare staffs all around the world work with great sacrifice. There is a famous statement made during the Second World War. We can adapt it to the healthcare staff in present-day conditions and say that “never in the field of pandemic fight was so much owed by so many to so few”.
To conclude my remarks, I wish successful and fruitful academic sessions for all participants. I hope that this conference will make a contribution to academic debates as well as the case laws of our respective courts regarding legal issues surrounding the ongoing pandemic.
I wish you all healthy days.
|Prof. Dr. Zühtü ARSLAN
|Constitutional Court of the Republic of Türkiye
1 Sadî Şirâzî, Bostân ve Gülistân, (İstanbul: Beyan Yayınları, 2016), Gülistan- First Chapter, Tenth Story, p. 246
2 The Epic of Gilgamesh, trans. A. George, (London: Penguin Books, 1999), p. 5.
3 Daron Acemoglu and James A. Robinson, The Narrow Corridor: States, Societies, and the Fate of Liberty, (New York: Penguin Press, 2019), p. xiv.
4 On this issue see Bruce Ackerman, “The Emergency Constitution”, The Yale Law Journal, Vol. 113, No. 5, (2004) : 1029–1091.