The Role of the Turkish Constitutional Court in Promoting Pluralist Democracy1
Ladies and gentlemen,
It is a great pleasure to be here and address such eminent participants.
I would like to thank my friend and colleague Mr Anwar Usman, the Chief Justice of the Indonesian Constitutional Court for hosting this meeting.
I hope next time we will be able to meet in person with all the participants without having to wear masks.
In my brief speech, I would like to say a few words about the contribution of the Turkish Constitutional Court to pluralist understanding of democracy.
Let me begin with a very simple and general observation as to the main task of the constitutional courts. Charged with the constitutionality review of the legislative and executive acts, constitutional courts exist first and foremost to protect the basic values, principles and provisions enshrined in the constitutions.
Democracy is the primary value to be protected by the constitutions. Today almost all constitutions contain provisions to promote democracy alongside the principle of rule of law and human rights, albeit in different terminology.
As we all know from the ancient times up until today democracy has been defined as the rule of majority. Thucydides says that “Our constitution… is called democracy because power is in the hands not of a minority but of the majority.”2
However, in a plural society, understanding and practice of democracy cannot rely on the absolute rule of majority. It is true that democracy is inconceivable without elections which determine those who shall govern. On the other hand, democracy also requires the constitutional restraints to be imposed on ruling majority to protect individual rights and liberties.
Modern democracy is not merely the rule of majority. Late Alija Izetbegović emphasized this aspect of democracy long before the establishment of Bosnia-Herzegovina. On 27 March 1990 he defined democracy “not as the rule of majority, but as the rule of law”. Alija justified his definition by declaring that “Majority rule without the mediation of law inevitably transforms itself into the tyranny of the majority, and the tyranny of the majority is as much a tyranny as any other”.3
It wouldn’t be therefore wrong to say that modern democracy has been oriented on the rule of law in order to protect and promote human rights. The term “constitutional” turned out to be the indispensable adjective of “democracy” subjecting the rule of majority to the rule of law with a view to protecting rights and liberties of individuals.
In this regard Article 2 of the Turkish Constitution describes the Republic of Turkey as “a democratic state governed by the rule of law”. Likewise, the Preamble of the Turkish Constitution states that those who are empowered to exercise sovereignty in the name of the nation shall not deviate from “the liberal democracy indicated in the Constitution”. In a nutshell, like many other constitutions, the Constitution of Turkey embodies constitutional democracy with its basic concepts such as rule of law, human rights, separation of powers and judicial/constitutional review.
Ladies and Gentlemen,
At this part of my speech, I must first state that the introduction of constitutional complaint system in 2012 has significantly affected the way the Turkish Constitutional Court has interpreted and applied these concepts and conceptions of constitutional democracy. It wouldn’t be exaggeration to say that constitutional complaint revolutionized the legal system in general and constitutional justice in particular.
I would like to mention a few judgments to give you a slight idea about how the TCC has contributed to the protection and promotion of constitutional democracy. The Court has interpreted democracy as a concept which is interconnected with the rule of law and basic rights.
According to the TCC the protection of fundamental rights and liberties is a must for democratic society. Therefore the primary function of a democratic state is to protect and promote these rights and liberties. The obligation incumbent on democratic states is both negative and positive. In other words, the state should refrain from arbitrary intervention in enjoyment of the rights and liberties, and must also take necessary measures for the effective use of these rights including certain measures to protect individuals against the encroachments of others.4
The Court’s role in promoting democracy can be traced through its judgments concerning the right to stand for election and right to engage in political activities. For the Court, these political rights are among the indispensable elements of pluralist and participatory democracy.5
In most cases these political rights have been taken together with freedom of expression. The TCC has continuously emphasised that freedom of expression is the main instrument to maintain the pluralistic nature of democracy. For the Court, social and political pluralism thrives on free and peaceful expression of every kind of opinions with the exceptions of racism, hate speech, and incitement to terror. Therefore, democracy is impossible without duly protection of freedom of expression.6
I must note that the Court has been more vigilant and diligent in protecting the freedom of expression when it is exercised by the parliamentarians. The Court has pointed out that since the parliamentarians represent the thoughts, demands and interests of the electorates in political sphere, the Constitution provides more protection under the institution of legislative immunity.7
The Constitutional Court declared unconstitutional the provision of the standing orders (by-law) of the Turkish Parliament, which had envisaged the imposition of the disciplinary sanctions on MPs when their speeches were contrary to the administrative structure of the Republic defined in the Constitution. The Court made it clear that in a democratic state, especially parliamentarians must have the freedom to defend all sort of views in a peaceful manner even if they are contrary to the opinions of majority.8
More recently, the Court delivered two crucial judgments about the significant role of parliamentary immunity for the MPs in ensuring their right to stand for elections and engage in political activities. The cases involved the detention and imprisonment of the MPs despite the fact they had parliamentary immunity.
As a matter of fact, the judicial debate revolved around whether they had legislative immunity under Article 83 of the Constitution to prevent their detentions and trials. The inferior courts and the Court of Cassation ruled that they couldn’t benefit from the parliamentary immunity guaranteed by the Constitution.
The MPs lodged constitutional complaints separately before the TCC on the basis that their rights to stand for election as well as freedoms of expression were violated.9 Having emphasised the importance of legislative immunity for the MPs to express their views without any fear and interruption, the TCC reached the conclusion that denials of parliamentary immunity by judicial authorities were contrary to the Constitution.
In its most recent judgment, which was delivered on 1 July 2021, the TCC has pointed out that although the parliamentary immunity was not absolute, exceptions must be regulated by the law in a clear and foreseeable language. The lack of such law and the inconsistent practice of courts may lead to arbitrary decisions which are not compatible with the parliamentary immunity.
For the Court, the inferior courts failed to provide any convincing argument for the decision that constitutional exception to immunity was applicable to the activities of the applicant.
The Court also found a violation of the freedom of expression of the applicant who was convicted of disseminating propaganda on behalf of a terrorist organisation for having shared news on his social media account. The TCC examined the content and context of the news and reached the conclusion that the impugned expressions did not incite terror or violence.10
Let me conclude that the constitutional courts turned out to be an indispensable part of constitutional democracies, even though the legitimacy of constitutional review has long been questioned on the basis of majoritarian arguments.
This is also the case in Turkey where, as I mentioned, the mechanism of constitutional complaint provided the necessary leverage to adopt a rights-based approach to the protection and promotion of three foundational values of the State, namely rule of law, democracy, and human rights.
Thank you for your attention.
|Prof. Dr. Zühtü ARSLAN|
|The Constitutional Court of the Republic of Turkey|
1 Speech delivered at the 2nd Judicial Conference of Constitutional Courts of the OIC Member Countries (J-OIC) held in Bandung, Indonesia, on 16 September 2021.
2 Thucydides, The Peloponnesian War, Book II, Chapter 37. Qouted in the Preamble of the EU Constitution (Draft Treaty Establishing A Constitution for Europe).
3 Alija Izetbegović, Inescapable Questions: Autobiographical Notes, Trans. S. Rissaluddin & J. Izetbegović, (Leicester: Islamic Foundation, 2003), p. 68.
4 AYM (TCC), E.2017/21, K.2020/77, 24/12/2020, § 45.
5 See AYM, E. 2002/38, K. 2002/89, 8/10/2002; Mustafa Hamarat, No: 2015/19496, 17/1/2019, § 45.
6 AYM, E.2017/162, K.2018/100, 17/10/2018, § 112.
7 AYM, E.2017/162, K.2018/100, 17/10/2018, § 113.
8 AYM, E.2017/162, K.2018/100, 17/10/2018, § 116.
9 See Kadri Enis Berberoğlu (2) [Plenary], No: 2018/30030, 17/9/2020 and Ömer Faruk Gergerlioğlu [Plenary], No: 2019/10634, 1/7/2021.
10 Ömer Faruk Gergerlioğlu [Plenary], No: 2019/10634, 1/7/2021, §§ 168-169.