6^th Congress of the Association of Asian Constitutional Courts and Equivalent Institutions (AACC)

“The Role of Constitutional Justice within the context of Sustainable Society”

Bangkok/Thailand
19 September 2024

Honourable President of the Constitutional Court of the Kingdom of Thailand,

Distinguished Presidents/Chief Justices and Members of the Asian Constitutional Courts and Equivalent Institutions,

Esteemed Guests,

Ladies and Gentlemen,

It is my distinct honour and privilege to extend my warmest greetings to you all. It is a great pleasure to be here and address such eminent participants.

I am fully confident that this academic program organised on the occasion of the 6^th Congress of the Asian Association of Constitutional Courts and Equivalent Institutions (AACC) will prove very beneficial and fruitful for each and every one of us. Taking this opportunity, I would like to extend my sincere gratitude to Mr. Nakharin Mektrairat, President of the Constitutional Court of the Kingdom of Thailand, as well as the justices of the Court and all those who contributed to this organisation. I also would like to congratulate Mr. President on his successful tenure as the Term-President of the AACC.

In my remarks today, I will dwell on the role of the judiciary in fostering a sustainable society through examples from the jurisprudence of the Constitutional Court of the Republic of Türkiye (“the Court”).

While the concept of sustainable society is broad and multifaceted, I will focus on three key aspects: the right to live in a healthy environment, the principle of social state, the freedoms of association and peaceful assembly.

Distinguished Participants,

One of the critical aspects of a sustainable society is the right to live in a healthy environment. The notion of sustainability was first introduced at the 1972 Conference on "the Human Environment" in Stockholm. In 2002, the United Nations Environment Programme (UNEP), in collaboration with the Constitutional Court of South Africa, organised a Global Judges Symposium on Sustainable Development and the Role of Law (Global Judges Symposium). Following the Global Judges Symposium, attended by 70 judges from around the world, the “Johannesburg Principles on the Role of Law and Sustainable Development” were adopted. The Symposium emphasised the essential role of an independent judiciary and judicial process in the implementation, development, and enforcement of environmental law.

Today, the pressing challenges posed by global warming and climate change serve as reminders of the crucial importance of the environment. Environmental degradation has emerged as a widespread issue affecting not only just one or several countries, but also the entire world.

Undoubtedly, addressing large-scale problems such as climate change requires international cooperation to exert political will. However, the matter also entails constitutional and legal aspect. Today, the right to environment is recognised and protected under many constitutions around the world. In addition, numerous national laws and regulations envisage provisions as to the protection of the environment. Therefore, the protection of environment is closely linked to the judiciary, particularly the constitutional jurisdiction.

Article 56 of the Turkish Constitution enshrines the right to live in a healthy environment and indicates that the protection of environment is within the joint responsibility of both the State and its citizens. Under this article, the State has a positive obligation to take necessary measures for environmental protection, as well as to ensure and monitor the effective implementation of these measures. In a constitutionality review decision, the Court has pointed to the obligations incumbent on the State by stating that “it is among the fundamental duties of the State to take all necessary measures to improve the environment, protect environmental health, prevent environmental pollution, and preserve historical, cultural and natural assets and values.”¹ 

Distinguished Colleagues,

The Turkish Constitutional Court does not provide a precise definition of the environment in its judgments, but rather specifies the nature or elements of a healthy and sustainable environment. In this sense, the Court has indicated that mining activities, natural beauties, urban transformation, hunting and wild animals and their natural habitats, zoning plans, water, coasts and coastlines, and noise pollution fall within the scope of the concept of environment.

The Court has examined the alleged unconstitutionality of a legal provision, which legitimized various unauthorised buildings in the Bosphorus region of İstanbul. The Court has stated that the legislature is vested with discretionary power to make the regulations it deems necessary; however, in doing so, the legislature must take into account the conflicting public interests and strike a fair balance between them. Considering that there are many outstanding cultural and natural assets in the Bosphorus region, the Court has concluded that there is a significant public interest in the preservation and development of the natural beauty of, as well as cultural and historical assets in, the Bosphorus coastline and coastal area. Therefore, the Court has annulled the impugned provisions on the grounds that they upset the fair balance to be struck between the conflicting interests.²

Besides the cases of constitutionality review, the Court has also rendered decisions on the right to environment through individual application mechanism. As is known, the right to environment is not set forth in the European Convention on Human Rights (“the Convention”). However, the European Court of Human Rights considers the protection of environment within the scope of the right to respect for private life. The Court has adopted the same approach (as required by the common protection clause) and dealt with the environmental issues within the scope of the right to respect for private life.

In this regard, the Court examines, within the scope of individual applications, whether the public authorities have taken the necessary measures to ensure the effective protection of the environment. At this point, let me mention a judgment of the Court regarding a mining project in our country where a tragic mining accident occurred. Before the mining accident in question, the Court had found a violation in an individual application regarding the project. The Court identified discrepancies between the environmental report issued by the public authorities for the project and the relevant expert report, and noted that the inferior courts failed to address and resolve these discrepancies. Hence, the Court found a violation of the right to respect for private life on account of the superficial assessments by public agencies regarding the environmental impact of the mining project.³

The Court also considers the right to environment in terms of the citizens’ right to participate in decision-making processes on environmental issues.⁴ In accordance with the applicable legal procedures, it is strictly monitored whether citizens are informed of the environmental impact assessment processes and whether they are provided with the opportunity to effectively participate in these processes. In cases where the authorities have failed to fulfil these requirements, the Court finds a violation.

Distinguished Participants,

Another aspect of a sustainable society is the principle of social state. Article 2 of the Turkish Constitution clearly indicates that the Republic of Türkiye is a social state governed by the rule of law. Article 5 thereof also points to the fundamental aims and duties of the State, which are, inter alia, “to ensure the welfare, peace and happiness of individuals and the society; to strive for the removal of political, economic, and social obstacles which restrict the fundamental rights and freedoms of the individual in a manner incompatible with the principles of justice and of the social state governed by rule of law; and to provide the conditions required for the development of the individual’s corporeal and spiritual existence”. The right to social security, a concrete manifestation of the principle of social state, is enshrined in Article 60 of the Constitution. The subsequent provision lays down that the State shall take the necessary measures to protect the relatives of martyrs, veterans, the disabled, the elderly, and the children in need. 

The right to labour is also among the rights safeguarded by the Turkish Constitution. However, it does not indeed fall the joint protection of the Constitution and the Convention. However, the Court has examined, to the extent possible, the cases relating to the professional life of individuals under the right to respect for private life.

In its several judgments, the Court has found a violation of the right to respect for private life within the context of professional life. These judgments particularly point out that public authorities cannot act arbitrarily in matters such as appointments, promotions or dismissals from public office, that such procedures must be subject to review by administrative courts, and that the applicant’s allegations must be addressed by a concrete, sufficient and relevant justification.

The Court also strictly monitors the impact of professional life on family life. There are many violation judgments rendered by the Court in this regard. Among such cases, the Court has examined the relocation of public officers to other regions without considering the impact of such process on their family life. In its assessment, the Court has stressed that a reasonable balance must be struck between the public interest in the appointment or relocation of public officers and the individual’s interest in the enjoyment of the right to respect for family life. It should not be overlooked that the absence of such balance would undermine the right at stake. In exercising the discretionary power to order the relocation of public officers, the authorities must also observe the positive obligations imposed on the State under the right to respect for family life, which is safeguarded by Article 20 of the Constitution. In such cases, the Court found a violation in the case of relocations ordered without taking into consideration that the person has family members in need of care.⁵

Esteemed Colleagues,

For a sustainable society, the significance of the right to freedom of association and freedom of peaceful assembly is also beyond dispute. According to the Court, “the right to freedom of association enables individuals to realise their political, cultural, social and economic goals in community with others.”⁶  It also indicates that “in democracies, the existence of associations where citizens can freely interact and organise among themselves to pursue common goals is integral to a healthy and well-functioning society, and such an ‘association’ enjoys fundamental rights which must be respected and protected by the State.”⁷

In one of its judgments on the right to form associations, the Court has stated that “the freedom of association and its sub-element, the right to form associations, are regarded as an essential component of democratic life under the Constitution”, and that “the limitations to this right are subject to strict scrutiny as to whether they are necessary in a democratic society.”⁸ Additionally, the Court has considered that the freedom of association also encompasses the right to form trade unions, stating that this right “assures that employees shall be subject to no sanction for their trade-union membership.”⁹

The Court has also ruled on the right to hold meetings and demonstration marches in a number of judgments. According to the Court, this right is “one of the most fundamental principles of a democratic society and is intended to ensure that individuals are able to associate with one another in order to defend collectively their common ideas and to disseminate them to others.”¹⁰ In its judgments, the Court has emphasised that the Constitution safeguards the right to hold peaceful demonstration marches without prior permission. In this regard, the Court strictly examines interventions to non-violent peaceful demonstrations and finds a violation if the public authorities fail to provide a concrete basis substantiating the intervention to public demonstrations. In a similar vein, the imposition of administrative or criminal penalties on individuals participating in peaceful demonstration marches constitutes a violation of the relevant principles.

Finally, I would like to refer to a norm review decision on the freedom of peaceful assembly. In this decision, the Court found unconstitutional and thus annulled the contested provision in the Law on Meetings and Demonstration Marches, which stipulates that “demonstration marches cannot be organised on intercity highways.”¹¹

The relevant provision restricts the right to hold meetings and demonstration marches on highways in order to prevent the obstruction of traffic and safeguard the freedom of movement of others. In its examination, the Court has concluded that the provision imposes a categorical ban for highways and grants absolute advantage to the prevention of disruption of traffic, and that the balance to be struck between the right to hold meetings and demonstration marches and the public order, along with the rights and freedoms of others, is disproportionately upset to the detriment of the former right. As stated in other judgments of the Court, it is inevitable that meetings and demonstration marches may cause some inconvenience to the daily lives of others and this must be tolerated in a democratic society.

If the disruption of traffic due to the organisation of a demonstration march in a particular place makes daily life extremely and unbearably difficult, it is possible to restrict the relevant right, provided that constitutional principles and rules are complied with. The provision, however, categorically bans the organisation of demonstration marches on intercity highways, without specifying the extent of the restriction. In this regard, the Court has found that the restriction imposed on the right to hold meetings and demonstration marches does not meet a pressing social need, and nor does it comply with the requirements of the democratic society. For these reasons, the Court found unconstitutional and annulled the relevant provision.

Distinguished Participants,

I have sought to present the concept of a sustainable society in the context of fundamental rights and freedoms in three main aspects through the case-law of the Turkish Constitutional Court. I sincerely hope that you have found useful the information and jurisprudence I have provided in a very brief manner due to the limited time available.

Thank you for your attention.

¹ See the Court’s decision, no. E.2011/106, K.2012/192, 29 November 2012.

² See the Court’s decision, no. E.2019/21, K.2020/51, 24 September 2020.

³ See Eşref Demir, no. 2020/12802, 1 November 2023.

⁴ See Fevzi Kayacan (2), no. 2013/2513, 21 April 2016, §§ 56-58.

⁵See Nurbani Fikri, no. 2014/2502, 11 October 2018.

⁶ See Tayfun Cengiz, no. 2013/8463, 18 September 2014, § 30.

⁷ See Eğitim ve Bilim Emekçileri Sendikası and Others, no. 2014/920, 25 May 2017, § 75.

⁸ See Hint Aseel Hayvanları Koruma ve Geliştirme Derneği and Hikmet Neğuç, no. 2014/4711, 22 February 2017, § 41.

⁹ See Anıl Pınar and Ömer Bilge, no. 2014/15627, 5 October 2017, § 35.

¹⁰ See Yasin Agin and Others [Plenary], no. 2017/32534, 21 January 2021.

¹¹ See the Court’s decision, no. E.2020/12, K.2020/46, 10 September 2020.