Why Should the Constitutional Court Annul Law No. 7527?
- Av. Deniz Helvacı
- Feb 19
- 12 min read
"Can a legitimate law be called such if any insignificant individual, in pursuit of enslaving themselves to a figure they deem powerful to feel valued, becomes so engrossed in their role that they approach a man aspiring to kingship and say, 'Your Majesty, I have brought you the three blue folders in my satchel; please accept them. Now, everything is ready to enact the death decree you have commanded.' And if other insignificant individuals, who strive to prove to others—and most of all to themselves—that the West's modernity, human rights, and similar nonsense hold no importance compared to what they call their own culture, and that their ancestors were more honorable than these infidels, roll up their sleeves to enact the decree, ultimately producing a text that resembles a law in form—can this be called a legitimate law?
ANTHROPOCENTRIC WORLDVIEW AND THE LEGAL SYSTEM
In the history of thought, three major blows to humanity are often discussed. First, Copernicus disproved the belief that the Earth was created for humans by showing that it is not the center of the universe. Second, Darwin challenged the idea that the world was created for the progeny of Adam by proposing that humans, like other mammals, are animals shaped by evolution. Finally, Freud introduced the concept of the unconscious, shattering the dogma that the human mind is a unified, conscious whole. These three blows deeply shook humanity's ego, dismantling the belief that everything was created for humans and that the purpose of all existence was humanity—the so-called "noblest of creations." Consequently, God became irrelevant in explaining causes, the first cause, ontology, the arche, values, and truth. We now know that we are not the center of the universe, that we were not created in the image of Yahweh, and that we are not beings of pure intellect and consciousness.
The injury caused by these three blows and the ensuing existential crisis do not seem to have yielded favorable outcomes. Humanity, which has long considered itself the most important entity in the universe, is trying to repair the cracks in its wounded ego by placing itself back at the center of the universe, resorting to even worse actions in the process. Perhaps if humanity stopped seeking meaning through the lens of a perfect and omnipotent God and instead examined the cracks created by these blows, it might see the light Leonard Cohen speaks of in Anthem:
"Ring the bells that still can ring
Forget your perfect offering
There is a crack, a crack in everything
That's how the light gets in."
But let us leave the efforts and outcomes of this repair for another discussion. For now, let us turn to the reflection of the anthropocentric worldview in law.
The way humans define themselves when establishing a legal system directly influences the perspective they adopt, the values they protect, and the choices they make in constructing order (or disorder).
It is possible to see choices that determine the boundaries of norms on various issues, such as who is considered a person, who lacks criminal responsibility up to a certain age, and so on. For example, questions like at what age a person gains legal capacity, which types of companies have legal personality, who is eligible to vote or be elected, who is considered an Athenian, and under what conditions non-white individuals can be enslaved are all tied to these choices. Moreover, every legal system determines who can be a rights-bearing subject through the choices it makes.
In ancient Rome, being a persona (a person) was sufficient to be a rights-bearing subject, and these terms were interchangeable. In modern law, however, this determination requires considering parameters beyond simply belonging to a mammalian species. Ord. Prof. Dr. Schwarz explained this historical and social relativity as follows:
"Who is a person in the legal sense? Who has the capacity to enjoy civil rights? The answers to this question, which is of primary importance for every legal system, have varied across different eras and cultures. The resolution of this issue depends on law; it is the legal system that grants or denies the capacity to be a rights-bearing subject." (Schwarz, as cited in Karaman, The Concept of 'Persona' in Roman Law, 2015)
Thanks to this, we can now speak of the concept of legal personality in a way the Romans might not have understood. But what could be more natural than this? In a system designed for humans, it is only natural that humans decide who is a person. In that case, there is nothing to prevent us from encountering scenes like this: "We are at war with human-like animals." (Source)
This is, in fact, a method of exclusion that has been applied for centuries to Blacks, women, children, and Jews, paralleling the legal treatment of these groups. A similar method is seen in Jacobs' distinctions between Citizen-Non-Citizen and Person-Non-Person: "...someone who violates the social contract loses their value as a human and citizen, becomes outlawed, and is declared akin to an object or animal." (Şanlı, Enemy Criminal Law, 1st Edition, 2019, p. 84)
The mental faculties humans display when they wish to destroy someone are truly astonishing. Thus, the idea that "since humans created society and law, it is up to humans to decide who is a person, citizen, or rights-bearing subject" does not prevent us from reaching this point. Considering that slavery was abolished only recently and that less than a century has passed since Nazi law, the arbitrariness that the idea of "everything for humans" could lead to must somehow be restrained. At this point, the importance of natural law, on which human rights are based, cannot be denied.
But what does this have to do with a law concerning the killing of stray animals? Because when humans, as rational beings, position themselves at the center of the universe, they believe they have the authority to decide who is a person, a rights-bearing subject, and who is an object or a slave. Current legal systems provide the means to assert that this authority is just.
The stance of Turkey's current legal system on animal rights theory is parallel to the ideas in the examples above. The use of animals as a metaphor for something opposite and inferior to humans in these examples is not coincidental. As long as there is a desire for domination and destruction, the methods of dehumanization and exclusion that humans apply to their own species are only a different level of the violence inflicted on animals daily.
THE LEGAL STATUS OF ANIMALS
Since the perspective of those who establish the legal order (the sovereign) is based on the understanding that everything in the world (including the world itself) is a tool for humans, and since the authority to determine what or who is a tool, object, or thing lies solely with the order's architects, animal rights theory may seem like nonsense to many. However, debates in ethics and rights theory require a stronger position than the conservative attitude that tries to dismiss the issue with argumentum ad absurdum.
On the other hand, this article is not about why animals should have rights—that is, the foundations of animal rights theory—but rather about whether Turkish legislation offers any possibility for animal rights and why the Constitutional Court should annul the relevant law. (For a more detailed reading on why animals should be rights-bearing subjects and the Turkish practice, see Attorney Gizem Karataş's thesis, The Legal Status of Animals and Turkish Practice.)
Therefore, we must first state that animal rights are not recognized in Turkey or globally, and animals are considered property. The Animal Protection Law No. 5199, often mistakenly referred to as the Animal Rights Law, is merely a welfare text aimed at limiting certain human behaviors toward certain animals. As Karataş has stated:
"Legal systems grant personhood to entities with moral status and protect their interests through 'rights'—shields or bargaining chips—to ensure that others fulfill their negative obligations not to harm or positive obligations to protect them. Animals, however, are not considered capable of holding rights; they are still bought, sold, imprisoned, killed, and used as property. This situation troubles the conscience of a significant portion of the public and undermines their sense of justice, leading to pressure on legislators to enact animal rights laws. However, recognizing animals as rights-bearing subjects in legal systems would mean ending the use of animals, which is why legal systems have adopted the softer view of animal welfare. Accordingly, the laws enacted in the world and in Turkey are not animal rights laws but animal protection and welfare laws. These laws maintain the status of animals as property and their use, limiting this use only to prevent unnecessary suffering." (Karataş, G. (2024), The Legal Status of Animals and Turkish Practice)
Of course, it cannot be said that a value not defined by positive law cannot be defined or defended philosophically in terms of rights. This was also true for the concept of human rights, which was once considered nonsense by many. However, there is a sharp distinction between advocating for human rights and advocating for animal rights. In the case of human rights, at least there is a historical struggle process, General Principles of Law, international conventions, and constitutional protections. Violations of these rights do not mean they are unrecognized. However, the struggle for animal rights begins by presenting moral arguments that animals should also have rights and pointing out the contradictions, errors, and injustices in the current legal system. In this respect, it is not wrong to say that the struggle for animal rights must remain in constant contact with ethics and legal philosophy.
Thus, in Turkey, as in other countries, there is no positive regulation recognizing animal rights. However, as we have stated, a value does not disappear or lose its worth simply because it is not legally recognized. After all, positive regulations are shaped by the values embraced by society.
Therefore, in Turkey, we can say that animals are currently the subject of property rights and that there is a welfare law that limits certain human actions toward certain animals. However, with Law No. 7527, the Animal Protection Law has ceased to be a law that protects animals, particularly stray animals, and has instead become a text from which stray animals must be protected.
ARGUMENTS THAT CAN BE PUT FORWARD IN AN ANTHROPOCENTRIC ORDER
So, does the current legal system, which does not yet recognize animals—beings capable of feeling pain and emotion—as unique rights-bearing subjects, offer no arguments to be made? In other words, must we wait for the legal system, which changes form at a glacial pace according to debates, to transform? At first glance, this rhetorical question must be answered with a resounding no.
If the legislator has lost its capacity for reasoning and rationality, and if the state, through a law, eliminates its positive obligation to protect animals (or humans, and thus animals) and grants the "possibility" of killing stray animals, then all arguments in favor of animals under existing legislation must be put forward.
Indeed, these arguments, produced through the collective efforts of veterinarians, academics, lawyers, and human/nature rights advocates defending the right to life, have been submitted as an Amicus Curiae brief to the opposition party demanding the annulment of Law No. 7527 and to the Constitutional Court.
From the arguments defending the right to life, we quote the section presented to the judiciary, which explains why animals should have legal protection and provides examples from around the world. For those interested in reading all the arguments that can be made based on the current Constitution and the right to life, we leave a link at the end of the article.
The Incompatibility of Article 1 of Law No. 7527 Amending the Animal Protection Law No. 5199 with Article 2 of the Constitution in the Context of Animal Rights and Environmental Law:
Before demonstrating why Law No. 7527, which contradicts the very name of the law it amends by undermining the purpose of protecting animals, and for other reasons to be explained, must be entirely annulled, it is necessary to explain why humans feel the need to enact special regulations for animal rights and/or protection.
The idea that animals, as beings capable of feeling pain, should not be subjected to mistreatment and should be protected, and that they are individuals with a right to life, is far more widespread today than in past eras. The relationship humans—a species of animal—have with their environment and the Earth has evolved this thinking and changed sensitivities toward sentient beings, thanks to increased empathy and/or moral debates. Indeed, your court has expressed its perspective on animals in the following decision, which also references the Universal Declaration of Animal Rights: "The necessity of treating animals 'well' is one of the moral rules agreed upon by everyone. For it is known that many animal species, like humans, have the capacity to feel. Animals may have many interests, but as long as they are capable of feeling, it must be accepted that avoiding pain and suffering is in their interest." (HINT ASEEL ANIMAL PROTECTION AND DEVELOPMENT ASSOCIATION AND HIKMET NEGUÇ APPLICATION, Application No.: 2014/4711)
This perspective finds its foundations in the Universal Declaration of Animal Rights, proclaimed in Paris on 15/10/1978, and in subsequent European conventions to which Turkey is also a party. (Turkey signed the European Convention for the Protection of Pet Animals, No. 125, on 18 November 1999 and ratified it on 28 November 2003. It signed the European Convention for the Protection of Vertebrate Animals Used for Experimental and Other Scientific Purposes, No. 123, on 5 September 1986. It signed the European Convention for the Protection of Animals Kept for Farming Purposes, No. 87, on 6 June 2007. It ratified the European Convention for the Protection of Animals During International Transport, No. 65, and its Additional Protocol No. 103, on 19 December 1975 and 19 May 1989, respectively.)
The understanding of animals as tools or objects is increasingly being abandoned, not only in conventions but also in regulations providing constitutional protection to animals.
Article 80 of the Swiss Constitution, titled "Protection of Animals," addresses the keeping of animals, their treatment, animal experiments, the use of animals, the trade in animals and animal products, and animal slaughter. ((https://www.fedlex.admin.ch/eli/cc/1999/404/en accessed 05/08/2024)
In Germany, Article 20a of the Constitution, titled "Protection of the Environment and Animals," states: "The state protects the natural foundations of life and animals through legislation and, in accordance with law and justice, through executive and judicial action, also in responsibility for future generations." (Source, accessed 05/08/2024) Furthermore, the constitutions of France, Austria, and Brazil also contain provisions, directly or indirectly, granting constitutional protection to animals.
As expressed in the dissenting opinion of your court's decision dated 20/08/2024 (2021/97E., 2022/36K.), "The Constitutional Court of Ecuador has stated that animals are rights-bearing subjects and that animal rights, with their unique characteristics, constitute a specific dimension of the natural rights guaranteed under Article 71 of the Ecuadorian Constitution." (https://normkararlarbilgibankasi.anayasa.gov.tr/ND/2022/36Donemler_id=2&KelimeAra%5B%5D=hayvanları%20koruma)
All these explanations aim to show that the arguments for why animals should have rights are not merely theoretical debates but are reflected in many legal systems that recognize the concept of rights not as a hierarchy but as a mutual interaction and balance between humans and their environment and its subjects. This chronological sequence led to the enactment of Law No. 5199.
Despite all these developments in favor of animals having rights, the amendment to Article 1 of Law No. 5199, which adds the phrase "provided that human, animal, and environmental health are safeguarded," shows that the legislator, while amending a law concerning animals, fails to grasp what animals are as part of the environment and as partners in life with humans, and more importantly, that the law has been amended contrary to the public interest.
As understood from the justification for the amendment, it is stated that Law No. 5199 was amended due to its inadequacy, and it is thought that the amendment to the purpose clause will eliminate this inadequacy. However, the amendment, which is a mere reiteration of the state's obligation already present in Article 56 of the Constitution, is contrary to legislative technique and serves no purpose other than stating the obvious.
According to Article 2 of the Constitution, which requires a state based on the rule of law, legislative acts must be carried out to achieve public interest, not personal benefits. (Constitutional Court Decision dated 17.06.2015, No. 2014/179 E.; 2015/54 K.) Moreover, the principles of certainty and predictability, which are requirements of the rule of law, necessitate the implementation of enacted laws.
As understood from the committee meeting minutes and general assembly discussions of the law in question, the amendment proposal does not serve a public interest purpose. If an amendment is desired, administrative measures for the implementation of the law must be taken, as the law has not been implemented or has been poorly implemented since its enactment in 2004. This is also acknowledged by the legislator, as evident from the amendment to the purpose clause.
Therefore, to achieve the public interest and fulfill the state's positive obligation to protect animals, the existing law must first be implemented. Thus, an amendment that contradicts the law's name by adding the phrase "provided that human, animal, and environmental health are safeguarded," leading to the killing of certain animals, cannot be said to serve a public interest purpose.
Because the main issue is not that the law, prior to the amendment, was implemented without safeguarding human, animal, and environmental health, but that the law was not implemented, and the state, which has an obligation to protect animals, failed to fulfill its duty to provide public services for human, animal, and environmental health, without any sanctions imposed on the relevant administrative authorities.
By adding a conditional clause to the law's purpose, the amendment renders the specific purpose of protecting animals ineffective with an ambiguous reservation, creating a rule that is in clear conflict with the ratio legis of the law and is contrary to the rule of law principle in the Constitution.
To read the full opinion:
Respectfully,
Attorney Deniz Helvacı
October 4, 2024
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