The Constitution is a text that includes the binding and upper norms, specifying the distribution of duties and powers of all actors in the political system and their limits. It is seen that the idea of ​​constitutionalism is one of the intellectual foundations of modern democratic states. The main purpose of this idea is to limit the state power for protect human rights. For this reason, it would be appropriate to say that the essence of constitutionalism is to protect human rights and to limit the state power in order to achieve this. The reason for this is that human rights can be protected against the government and politicial parties benefits. According to Heywood, constitutionalism is the limitation of the state through the existence of the constitution.[1]

         Constitutional democracy can be formulated very briefly as ‘mergence of constitutional state and democratic state‘. Constitutional state; It can be defined as a state based on the principle of using political power in accordance with the principles of “constitutionalism” in order to protect the individual. Constitutionalism mainly includes two principles; “rule of law” and “separation of powers”.[2]

         Constitutional democracy, beyond the representative logic of classical democracy, refers to the system in which the elected can be controlled and limited by the people through a number of constitutional tools. As a result of constitutional democracy, the people have the opportunity to supervise the legislative activities, which include the will of the elected, even between election periods, through the constitutional review. The control mechanism that classical democracy offers to the individual through the right to vote, which can only be used during election periods, is limited and insufficient to protect individual rights alone against the elected. So much so that the elected section, which remains independent from the will of the electorate until another election period after being elected, is almost free to take some actions against the law and the will of the voters. However, in constitutional democracy, thanks to some control mechanisms such as the constitutional courts and the constitutional judiciary, the elected people can now be audited by the people between the two election periods. The basic requirements of constitutional democracy are; free and regular elections, political pluralism and competition, minority rights, political and civil liberties and the superiority of the elected over the appointed [3]

JUIDICIAL ACTIVISM AND CONCEPT OF SECULARISM

          The concept of judicial activism is seen in almost all countries where the Constitutional justice has been adopted. Due to the political nature of many issues sent to the Constitutional Courts, conflicts occurred between these courts and the parliaments for some periods. E.g; The concept of ‘judicial activism’, which is used to describe the decisions taken by the Federal Supreme Court in the USA in the direction of narrowing the field of politics, has started to be applied in various countries of the world. First of all, it is necessary to know the constitutionality audit without explaining this concept. The judges who conduct a constitutionality review interpret a constitutional norm and apply the norm they interpret to the case before them. So; they deal with an abstract norm with its social, economic and political dimensions. Constitutional judges, who make constitutionality checks within the scope of this activity, can cancel the legislative and executive proceedings by including them in the scope of unconstitutionality due to their different perceptions of some abstract principles and rules in the constitution, although they do not constitute a violation of the Constitution. We might call this definition judicial activism. In general, judicial activism is an adjective for unpopular judicial decisions in both academic and political debates

            The first decision, which was shown as an example of judicial activism and discussed in the context of the legitimacy and limits of the constitutional judiciary at the time of the decision, was the Marbury v. 1803 v. Madison’s decision. After losing the elections in 1800, the Federalist Party established new judge cadres based on its majority in the congress; The appointment decision has not been handed over to William Marbury, one of those appointed to these positions. Thereupon, Marbury applied to the Supreme Court and requested that an order be issued for the delivery of the appointment decision to him. However, the Court, presided over by Judge John Marshall, stated that the law that gave the Supreme Court the power to issue an order decision was contrary to the American constitution, and therefore ruled that this law was invalid.

            The concept of forensic activism was first used by a non-specialist in a popular journal, not in an academic study. In an article by Arthur Schlesinger published in Fortune magazine in 1947, members of the Supreme Court at the time were classified according to their views on the role of the court. Judicial activism, in the broadest sense, can be defined as exceeding the limits of judicial review. While exceeding these limits, judges are putting themselves in the shoes of lawmakers by expanding their own powers. The political and ideological views of judges replace the will of democratically legitimized bodies.[4]

            By the way, Secular refers to something that has nothing to do with religion or spirituality. We can say that secularism is a form of orthodoxy criticism based on the claim that religion hinders human progress by focusing on dogmas and superstitions rather than reason and scientific technique. Secularism asserts the right to be free of religious norms and teachings, as well as the right to be free of any government’s imposition of religion on the people. It promotes religious neutrality within a state and opposes state advantages for religion.[5]

           However; Even in countries that have adopted a strict interpretation of secularism in the constitutional order or in state policies, there is a relevance to religion. For example; It is noteworthy that in France, where strict secularism is practiced, most of the private Catholic schools are financed by the state. There are similar elements in the constitutions of many countries that are classified as secular, which can also be seen as a deviation from secularism. In England, the Anglican Church has legal privilege. In the Norwegian and Danish constitutions, the Evangelical-Lutheran sect of Protestantism is the official religion. Moreover, the kings in both countries have to be members of this sect. Similarly, Orthodoxy in Greece and Bulgaria and Catholicism in Malta are included in the constitutions. However, it is stated that such constitutional arrangements have a symbolic character. According to Hirschl, these regulations have little or no effect on public life

Judicial Activism in the Turkish Constitutional Court

           The constitutional justice mechanism in Turkey was actually established with the 1961 Constitution, not too late compared to European countries. The first Constitutional Court in Turkey was established with a Constitution made as a result of the May 27 military coup. The distrust of the soldiers who carried out this coup and those who later drafted the 1961 Constitution to the governments with the majority also played a role in the establishment of the Court.

           Hirschl’s “hegemonic protection” thesis is the most important of the views produced in order to comprehend the judicial activism of the Turkish Constitutional Court and in particular the strict understanding of secularism. Hirschl, in his analysis on the examples of Canada, Israel, New Zealand and South Africa, states that the constitutional justice mechanism adopted with the constitutional reforms in these countries is in a position to provide and maintain the hegemony of the political and economic elites. The political elites, who are aware that they cannot have a majority, have sought to use the constitutional court against the dangers that may arise from the majority powers.

Judicial Activism and Decision Analysis in the Field of Secularism

           The dsion of the Constitutional Court on the Law No. 6287 on Primary Education and Education and the Law on Amending Certain Laws in 2012 has made the approach of the Court about secularism an approach based on rights and freedom. With this decision regarding the regulation known as the “4+4+4 regulation” in public, the court changed its settled case-law on secularism and interpreted secularism in a libertarian framework. This attitude continued in the individual applications filed by the court afterwards. The decision is an examination made on the allegation that the legislative process regulating the optional teaching of religion courses in secondary and high schools is against secularism. The Court emphasizes that secularism is “a quality of the state, not of the individual or society”. In the part where the court examined the regulation, which is the subject of the request for annulment, in the context of the principle of secularism, “The Holy Quran” and “The Prophet He sees the regulation of “Life of the Prophet” as optional elective courses as a result of the positive obligation of the state. According to the Court, this regulation should be seen as a “necessity of religious education and training”. The Court justifies this interpretation by referring to the examples of Western countries and the ECtHR decision. Accordingly, the religious education given in public schools in Western countries shows that the religious needs of the society are reflected in state policies. Again, according to an ECtHR decision cited by the Court as an example, religious education is optional or compulsory in public schools in 43 of the 46 member countries of the Council of Europe.

         According to the strict understanding of secularism, religion is a phenomenon that only takes place in the conscience of the individual and should not be reflected in the social sphere by going beyond it. When we interpret secularism as more flexible and liberal, there is a determination that religion is a social phenomenon as well as its individual dimension. In this sense, the principle of secularism is the guarantee of freedom of religion and conscience. The secular state should establish a legal order that does not have an official religion, that stands at an equal distance from religions and beliefs, where individuals can freely live or learn their religious beliefs in peace. In short, it should ensure the freedom of religion and conscience, which are among the fundamental rights and freedoms.[6]

           Another decision that adopts the right and freedom approach in a similar direction is the 1943 West Virginia State Board of Education v. Barnette’s decision. In this decision, the Court considered that not saluting the flag due to religious belief was within the scope of freedom of expression and it was stated that the state could not force people to be patriotic.[7]

          It is debatable whether these decisions, which are based on the interpretation of the principles of the Constitution or the articles of the written Constitution, by the judge, in other words, whether judicial activism is a good or bad attitude in general. Lipkin on this subject; “Why should supreme court judges have the right to have the last word on the meaning of the Constitution?” he asked the question. According to Lipkin, judicial activism is wrong and the final say should be with the electorate, not the judge. He found the solution to this as going to a referendum on constitutional cases and debates.[8]

CONCLUSION

          The constitutional judiciary has functioned positively in the USA and other countries, with the exception of some difficult periods, with its activist decisions that ensure the supremacy of the constitution within the scope of legality review, providing guarantees for human rights through its rights and freedom-oriented interpretation. However, it should be reiterated that there is no constitutional mechanism that will prevent the constitutional judiciary from making decisions that narrow the constitutional authority of the political power through the expediency control or that will corrode the field of human rights through purpose-ideology-oriented interpretation. This depends entirely on the will of the judges of the constitutional court to limit themselves. We can say that the most important factor that will feed the will of the constitutional judiciary to limit itself may be the reactionary attitude of the people against the narrowing of the authority of the political power through the expediency control or the interpretation of the abstract constitutional principles and norms regarding rights and freedoms on the basis of purpose-ideology. Sometimes, due to this reaction, the Constitutional Courts may have to adopt an understanding of interpretation based on rights and freedom. On this occasion, in the prevention of judicial activism that conflicts with the idea of ​​human rights, democracy and constitutionalism, besides the determined stance of the political powers, it may be positive that a predominant part of the public reacts by showing sensitivity in a clear and determined way. In short, the constitutional judiciary alone does not guarantee to perform the function of securing constitutional democracy. For this, first of all, constitutional norms should be compatible with constitutional democracy, the constitutional judiciary should focus on legality instead of expediency, limit itself for this purpose, attribute meanings to abstract constitutional norms and principles with an approach based on rights and freedom, and make decisions in this direction more effective than the public and there should be a constant supply.

REFERENCES

A Brief Note On The Constitutional Court’s Judgment Numbered: E. 2012/65, K. 2012/128, Dated: 20.09.2012/The Prophet Of The Constıtutıonal Court And A New Step About Dıscrımınatıon. (2013). Journal Of Constitutional Law, 184–200.

Barin, T. 2021). Anayasa Yargisinin Demokratik Mesruiyeti. On Iki Levha Yayincilik.

Casanova, J. (2008). Secular Imaginaries: Introduction. International Journal of Politics, Culture, and Society, 21(1–4), 1–4. https://doi.org/10.1007/s10767-008-9042-8

Constitutionalism and Democracy. (2003). Google Books. https://books.google.es/books?hl=en&lr=&id=WeedJnRFvVcC&oi=fnd&pg=PP9&dq=constitutionalism&ots=glwInOultn&sig=370kt9_uqwlY-nKwUHbngYeDVu8&redir_esc=y#v=onepage&q=constitutionalism&f=false

Erdogan, M. (2015). Anayasal Demokrasi. Ankara Siyasal Kitabevi. 100.

 Fiedler, R. (2012). Andrew Heywood, Global Politics, Palgrave Macmillan 2011, pp. 560. Przegląd Strategiczny, 2, 193. https://doi.org/10.14746/ps.2012.2.14

Gozler, K. (2010). Anayasa Hukukunun Genel Esaslari. Ekin Basim Yayin. 717.

Lipkin, R. J. (2008, December 1). What’s Wrong with Judicial Supremacy? What’s Right About Judicial Review? by Robert Justin Lipkin :: SSRN. What’s Wrong with Judicial Supremacy? What’s Right About Judicial Review? https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1309757

Nweke, C. C. (2015). Secularism, secular state and religious freedom | Journal of Religion and Human Relations. Secularism, Secular State and Religious Freedom. https://www.ajol.info/index.php/jrhr/article/view/119663

Seven, G., & Vinx, L. (2016). The Hegemonic Preservation Thesis Revisited: The Example of Turkey. Hague Journal on the Rule of Law, 9(1), 45–82. https://doi.org/10.1007/s40803-016-0044-8

West Virginia State Board of Education v. Barnette. (n.d.). The First Amendment Encyclopedia. Retrieved June 16, 2021, from https://www.mtsu.edu/first-amendment/article/227/west-virginia-state-board-of-education-v-barnette