A TRIPLE-FACETED APPROACH TO ARTICLE 301 (2)
By Dr. Zuhtu Arslan
Today’s Zaman, Turkey
Feb 21 2007
The problem that has emerged with Article 301, an amendment which
aims to protect certain values and bodies, is that in its present
state and implementation, it puts a limit on freedom of expression,
effectively undermining both individual and social autonomy.
The removal of this problem, in fact, calls for constitutional changes.
(2): ‘Let’s all change it together!’ We can see that the current
political administration, prior to the Hrant Dink murder, had already
begun to change their position on Article 301, which could be summed
up as a "let’s see how it’s implemented" view on the controversial
article.
The government has said that while it would be willing to change the
article, civil society and opposition parties have to be willing to be
involved in the process. Even if it appears that the administration’s
search for partners to share in this responsibility is not really in
harmony with being the party in power, it is understandable, from the
viewpoint of politics, why the administration is unwilling to pay the
political price that could result from changes made to Article 301,
particularly in the face of rising nationalism.
Why do suggestions for change not bring a solution?
While the administration’s call of changing the article "together" has
not elicited a positive response from opposition political parties,
there are some civil society organizations and writers who are also
calling for changes to be made.
We could group these suggestions for what should be changed in Article
301 under three separate headings: (1) Replacing the abstract term
"Turkishness" with the more concrete and easily defined concept of
"the Turkish people"; (2) making the specific permission of the
president or the justice minister necessary prior to trying anyone
under Article 301 and (3) the replacing of the word "insulting" with
the two terms used in Article 159, which preceded Article 301, with
"mocking and ridiculing."
I believe, however, that these three suggestions, as listed above,
will not bring a solution to the problems surrounding Article 301.
The term "Turkishness" is very abstract; it is a concept whose borders
are not defined.
In the explanation of the article, the concept of "Turkishness" is
put like this: "The intended meaning of Turkishness is to label the
collective shared cultural wealth particular to the Turks, no matter
where in the world they live. This cultural wealth and being are wider
than the concept of the Turkish people and includes peoples who live
outside of Turkey but who share in the same culture."
By replacing "Turkishness" with "the Turkish people," as one of the
above suggestions is proposing, the very values that could potentially
be insulted are, in fact, narrowed greatly. However, what is more
important than even the explanation of this article and the term
"Turkishness" contained within is how justice bodies themselves
interpret the concept of "Turkishness."
According to the supreme court’s general assembly, "The concept of
Turkishness mentioned in this clause is in regards to the people
of the state, and what is being referred to by this concept is, in
fact, the Turkish people themselves." In addition, the phrase "The
intended meaning of Turkishness," according to the supreme court, is
"The people who make up the Turkish people, the national and spiritual
values that are composed of the religious, historical values, as well
as the national language, national sentiments and national traditions."
In its Dink decision, the supreme court general assembly indicated
that the concept of "Turkishness" as described by Article 301 could
be found and interpreted in the constitution’s 66th article, which
deals with the definitions of Turkish citizenship.
However, whether "Turkishness" actually refers to the entire "Turkish
people," including every citizen who lives in this country, or to the
"shared values which are a result of the shared culture particular
to Turks, no matter where in the world they live," the problem is
still not solved. As it is, the second definition of "Turkishness"
breeds inequality, since it does not protect ethnic values outside
of "Turkishness." In the first definition, it would appear that the
above-mentioned inequality is lifted since insults aimed at citizens
of any ethnic origin living in this country, and not only Turks,
would be penalized. But in truth, all this does is serve the purpose
of further narrowing the domain of freedoms.
In addition, even if we imagine for a moment that these changes might
bring about solutions, it is doubtful that in this current atmosphere,
where nationalist feelings have taken hold and where pre-judgments
of "other" ethnic groups in Turkey are more and more clear, such
"equality" would really be implemented.
To wit, according to the supreme court’s general assembly, "the kinds
of nouns and adjectives that are considered mocking or ridiculing
are to be determined by the general understanding, traditions, and
rituals of the society at large."
Requiring the permission of the justice minister in order to try
someone under the strictures of Article 301 is not, as proposed above,
a solution. This was previously a condition of Article 159, but was
removed because of the worry that the justice minister’s political
leanings would affect the process. This worry was not out of place;
it is not difficult to imagine that a justice minister, who is, after
all, a member of the Turkish Parliament, would have a difficult time
remaining impartial when it comes to giving permission for someone
who has insulted the government or any one of its bodes to be tried
under Article 301. Similar worries are not out of place for the
president either.
Additionally, any permission granted by either the justice minister or
the president for someone to be tried under Article 301 could have the
possible effect of making it easier and/or encourage justice members
to penalize the person being tried. Even more important is that this
"permission condition" has not had a history of preventing these
cases. Along these lines, Hrant Dink was tried under the Article 159
with the permission of the justice minister, and found guilty.
To look then at the last of these three suggestions, that "insulting"
be replaced by "mocking and ridiculing," this, too, would not be
successful in getting rid of the problem. The Supreme Court General
Assembly, in its Dink decision, used these verbs interchangeably to
mean the same thing.
However, as "mocking and ridiculing" may well be more difficult to
define, replacing "insulting" with these words might in fact be more
effective in protecting freedom of expression.
What if other countries also have an Article 301?
Those who defend keeping Article 301, or defend preserving after some
changes are made, often argue that this article can be found in the
exact same or similar forms throughout the world, especially in Europe.
First of all, articles like 301 cannot be found in Anglo-Saxon
countries, but instead in continental Europe, where the state is at the
forefront of political culture. In particular, it is understandable
why countries like Italy, Germany and Spain, which carry the scars
of fascism in their memories, would have protective penal codes such
as these as a part of their national and constitutional bodies.
Second, the real target of protection in these countries is not the
abstract being of the state or the nation, but rather public order
itself. In other words, though Article 301 may at first glance appear
similar to these articles in other countries, the real goal of these
countries’ articles is the guarantee of individual rights and freedoms.
Third, defenders of this who say "but it exists in other countries,"
have admitted that these "similar" articles in other countries are
actually "sleeping articles," which means that they are generally
not implemented.
On the other hand, if we even stop and accept for a moment that
articles similar to Article 301 exist in European countries,
this is still not an argument which makes the current Article 301
right. Gaps in Turkey’s freedoms and democracy are greater than those
in these other countries. In addition, it is a far from consistent for
nationalists, who have moved to the center with their anti-European
stances, to then use Europe as a reference point on Article 301.
Going along with this logic, we could, as an "independent" and
"sovereign" power, independently remove Article 301 on our own, unlike
these other countries. After all, don’t we keep on repeating over
and over how many things Europe is going to learn from us, or should
learn from us? So here you have it — a historical opportunity! Let’s
be one step ahead in terms of freedom of expression.
Any steps taken in this direction would also put an important trump
card into Turkey’s hand in relation to countries trying to make denial
of the Armenian genocide a crime. The lifting of Article 301 would
be both pragmatically and politically to Turkey’s benefit.
Despite all the criticisms laid out above, efforts to alter Article 301
should be lauded, and certainly preferable to the stance that says it
should not be changed at all. However, it is necessary to define the
crimes referred to by Article 301 in a concise, concrete manner. If,
instead of verbs such as "insulting" or "mocking and ridiculing"
the characterization of possible criminal expressions was altered
to be defined as "expressions which put public order at risk," or
"expressions which clearly and openly threaten public security," this
would have the effect of greatly widening the freedom of expression.
(3): ‘We’ve got to get rid of it!’ The problem that has emerged
with Article 301, an amendment which aims to protect certain values
and bodies, is that in its present state and implementation, it
puts a limit on freedom of expression, effectively undermining both
individual and social autonomy. The removal of this problem, in fact,
calls for constitutional changes.
To wit, there are strong parallels between the political understanding
on which Article 301 is based and the beginning of the Turkish
Constitution, which says: "There are no activities which go against
the interests of the Turkish people, the Turkish being, the union
of the State and its nation, Turkish history and its spiritual
values…. which will be protected."
During the changes to the Turkish Constitution that took place in
2001, the phrase "no thoughts or political leanings" was taken out
and replaced with the phrase "no activities" due to worries that the
former phrase would be a barrier to freedom of thought. However,
this was only a cosmetic change. To this end, the term "activity"
can be interpreted widely, even opening the path to being defined as
including thought.
The "insulting" included in Article 301 is interpreted as an "activity"
or an "action." In this situation, it is very likely that any changes
made to Article 301 would resemble the cosmetic changes made to the
beginning of the Turkish Constitution. For this reason, what needs to
be done is to abandon these false policies, and debate on what level
the Turkish Constitution can really be implemented, as well as get rid
of Article 301, whose ambiguous expressions make its interpretation
and clarification extremely difficult.
301 discriminates between different state bodies Aside from
all this, there are two other reasons that can be given for the
complete lifting of Article 301. The first is that Article 301,
on both vertical and horizontal planes, creates inequality and,
in fact, discrimination from the perspective of the state bodies
that it purports to protect. Vertically, we see inequality emerge
in terms of the punishments meted out for "insulting" by the state’s
legal and justice bodies. While the upper limit for prison sentences
for those found guilty of insulting the Turkish Parliament is three
years, the same limit for those found guilty of insulting the state
or its justice bodies is two years. In the Turkish Constitution’s
explanation of the separation of powers, it is clearly stated that:
"There should not be predominance of one State body over another,
but cooperation and division of labor based on State authority and
carrying out of duties." For this reason then, there is actually no
constitutional basis for insults to a law-making body (the Turkish
Parliament) to receive more of a punishment than insults to any other
body of the state.
On the other hand, horizontally speaking, Article 301 also creates
discrimination between the organizations and parts of the state.
Despite the article’s heading "Insulting Turkishness, the republic,
the state’s organizations and bodies," the state is only penalizing
the insult of certain organizations and bodies .
Article 301, outside of the Turkish Parliament, is also protective
of the justice system and military and police forces. Even if for a
moment we accept that a state’s true mission is to provide security
and justice and that within these terms, the security and justice
bureaucracy are inseparable parts of the state, it is still difficult
to legitimize this horizontal inequality.
To wit, from the perspective of the perpetuity and security of
the state, it is difficult to say that National Education forces,
universities and, what’s more, the National Security Board are any
less important and active in preserving the state than the justice
system and the armed forces.
For this reason, Article 301 either needs to be altered to make it
criminal to insult all of the state’s various bodies and divisions,
or the parts of the state currently mentioned in the article need
to be completely removed from the article itself. The first option
would only widen the arena of things which are forbidden, making it
only that much more difficult to interpret and act on the law. Again,
for this reason, what needs to be done is to remove Article 301 in
its entirety from implementation.
Article 301 not in keeping with European court findings Yet another
reason for the complete removal of Article 301 is that in its current
state, it and the court cases which we have seen related to Article
301 are not in keeping with the rulings and decision made by the
European Court of Human Rights concerning freedom of expression. The
European court interprets even the strongest words used in reference
to states, state bodies, prime ministers and governmental ministers as
"criticism."
In addition, it as a court stresses that the borders limiting criticism
of governments or government employees are wider than those limiting
criticism of ordinary, individual citizens. Within this understanding,
expressions such as "They make fascists with blood on their hands into
the justice minister," (Birol/Turkiye) or "The steadily rising state
terror taking place in East and Southeast Anatolia" (Ceylan/Turkiye)
are interpreted as being within the limits of freedom of expression.
In addition to all the above, the lifting by Turkey of Article 301
would contribute to the number of cases waiting before the European
court. Of 205 verdicts rendered by the European court in cases having
to do with freedom of expression between 1999-2006, 125 were against
Turkey. This court in 2005 delivered 50 verdicts on cases concerning
the infraction of freedom of expression. Of these, 39 (or around
80 percent) concerned Turkey. In 2006, out of 62 cases before the
European court dealing with infractions of freedom of expression,
35 concerned Turkey.
Problems of freedom of expression in Turkey will not just go away
because we lift Article 301. There have, along these lines, been
similar arguments in the past about Articles 141, 142, and 163. When
these articles were removed from the penal code, before long, Article
312 was implemented. This article then went on to act as a penalizing
force for all sorts of thoughts and expressions.
And despite any reforms which might take place, the current Article 216
(formerly known as Article 312) is of a type which could easily fill
any gaps left by the lifting of Article 301. For this reason then,
far more important than any alterations in articles to the Turkish
Penal Code is a sweeping shift in the mentality of the justice system.
The phrase "With good judges, there are no bad laws" shows the power
and clarification abilities of legal interpretation. And as for a
good society, it is one that can root its existential relations with
the "other" on a healthy foundation. It is a society that wants the
same rights and freedoms for others that it desires for itself, and,
likewise, one that perceives as intolerable treatment that itself
does not desire when shown toward others.
At the root of this matter partially lies the truth that we are all
unable to form healthy relations with the "other." We are unable to
form empathetic relations with those who are not one of us, those
who come from the "outside"; those whom we have left outside.
We are somehow unable to put ourselves in their place. We are unable
to become the "other" for even a moment. We are even afraid of
metaphors. For days now we have been debating the "We are all Hrant
Dink" slogans. We seem to literally have seen these slogans as some
sort of swear words.
We are not able to mourn for the "other," and we cannot cry for them.
We don’t even think that mourning is possible for them. We don’t see
mourning for the "other" as something worth doing.
Even the death of the "other" is examined in terms of the possible
damage it will have on our country, our state, our people, our parties,
our sects or our ideologies.
We compare the newfound absence of this "other" with the "absence"
of our image. We take the "other" from his or her status as a person
and turn them into something material. But it is not putting ourselves
in their place and not mourning for them that perhaps makes up the
true spirit of all these policies, all these ideologies and wars.
Turning the "other" into the enemy and reducing them to a symbol
that needs to be destroyed or cleaned up creates the foundation that
nourishes radical nationalism and chauvinism.
From: Emil Lazarian | Ararat NewsPress
