‘THE AUTHORITARIAN STATE IS THE PROBLEM, NOT 301’
Yonca Poyraz DoÐan
Today’s Zaman, Turkey
Feb 11 2007
A law professor says the Turkish Penal Code is like a minefield for
intellectuals who think, write and speak their minds.
Abolishing the infamous Article 301 will not solve any problems unless
a change of mentality in the judiciary occurs, said former head of the
Istanbul Bar Association Yucel Sayman, himself battling a prosecutor
who has charged him with founding a clandestine organization and
spying. Law Professor Yucel Sayman refers to the Turkish Penal Code as
a "minefield" full of traps for people who think, write and speak their
minds. According to the former head of the Ýstanbul Bar Association
Sayman, the root of the problem lies with the authoritarian form
of the state, the curtailment of liberties with the laws enacted in
the September 12, 1980 coup period, and pitting the republic against
democracy in Turkey.
After being elected to head the bar association twice in the mid 1990s,
Professor Sayman gained prominence when a nationalist prosecutor
accused him of being a part of a German plan to prevent Turkey from
exploiting its natural resources in 2002. Representing Bergama
villagers who protested gold mining in their region at the time,
Sayman was acquitted. He filed a counter-lawsuit asking compensation
of $21,000 from the prosecutor for accusing him without evidence.
The Turkish Penal Code (TCK) was modified in accordance with European
Union adjustment laws, right? And Article 301 came with it.
A new TCK was prepared then. Article 159 was replaced with Article
301, which foresees punishment for insulting Turkishness. Article
301 is dated June 1, 2005.
Since these laws were prepared in the framework of EU adjustment laws,
we should have been expecting a better situation. On the contrary,
many problems have arisen and ultimately EU-Turkey relations have
been negatively affected. Isn’t this a paradox?
Yes, this is a paradox. I get scared whenever steps are taken in
the way of reform. It has always been the case, except for a few
cases, that liberties are curtailed by new reforms. When the TCK
is being modified, certain circles expect a revolution. However,
apart from a few changes, new modifications generally come out to be
more freedom-restrictive. The new articles in the TCK were debated
in European Union circles. Certain EU officials visited Turkey to
observe the implementation of the new TCK. They didn’t object to the
code itself. They waited for its implementation. The reason why they
didn’t object to it is that there are reactionary developments in
EU countries as well. They are increasingly enacting antidemocratic
laws. Although it might seem like a paradox, EU countries are about
to model Turkey to modify their laws. Britain, France and Germany
are currently modifying their penal codes.
Are there codes similar to Article 301 of the TCK in EU countries?
There are worse codes in EU countries. In Britain, it was proposed
to raise detention periods to 45 days in the framework of the
anti-terror act. Although it was rejected, the courage to propose
it was noteworthy. Nonetheless, the detention period is quite long
and electronic bracelets are allowed. In France, the denial of the
Armenian genocide is penalized. EU countries are no better than Turkey
from the viewpoint of their penal codes. That’s why they didn’t object
to Article 301 but said let’s wait for its implementation.
Does the problem stem from the implementation of Article 301 in Turkey?
Implementation of laws changes according to political conjecture in
Turkey. Unfortunately, this is the case with the Turkish judiciary.
There is an intentional change of mentality in the judiciary over
the last 15-20 years. Most prosecutors and a significant number of
judges assume the mission of protecting certain values, such as the
state, the republic and secularism. This is a detrimental view of the
judiciary that should not exist in a lawful state. The protection of
state is in the purview of security forces and not judicial bodies.
It is the result of such a viewpoint that most of the lawsuits filed
by prosecutors result in convictions.
What viewpoint should the judiciary adopt? Should it assume the
mission of protecting individuals instead of the state?
The judiciary is not expected to protect anybody. Its duty is
to execute laws in concrete cases. At this point, it can use its
creativity and judge in favor of liberties. It doesn’t have a duty of
protecting the state or individuals. The attitude of the judiciary in
the implementation of laws is important. The judiciary will either
interpret laws within the framework of democratic principles that
will broaden the scope of liberties or in a way that will curtail or
even abolish them.
That mentality of prosecutors that you mentioned, to protect the state,
secularism and even the republic, where did it originate from?
The process originated in the period that followed the September 12,
1980 coup. Owing to laws enacted in this period, the curtailment
of liberties was viewed as normal. These laws put pressure on daily
life in Turkey but people have become accustomed to it. These laws
were implemented more strictly after the PKK and Kurdish problems
established themselves on the agenda through violence and the civil
war that followed. It is also the way the new generation of judges
have been trained. Judges and prosecutors assumed the duty of guarding
the state. They lost their objectivity at this point.
The judiciary should feel free to act independently and put aside
fear in order to rule in favor of liberties, don’t you think?
That’s right. We have never said or claimed that the judiciary is
independent in Turkey. Judges entertain freedom of decision to some
extent. Unless facing threats against their lives, judges are not
ordered to rule in certain directions, except for several cases that
are claimed to have taken place. Nonetheless, most judges feel obliged
to rule in certain direction. This viewpoint originated in the defunct
state security courts (DGM), which were a disaster from the perspective
of liberties. Courts cannot be established to protect the state.
Debates over Article 301 were incited by discussions on specific
issues, particularly the Armenian issue. Why do they go around a
single issue?
Because the Armenian problem was on the political agenda of Turkey.
In many countries, Armenian genocide drafts were presented to national
parliaments and Turkey also started to debate this issue.
People debated whether the events in 1915 were genocide, massacre
or forced emigration. Debates were treated as attempts to insult
Turkishness. This is the reflection of political conjecture on
the laws.
When people express their opinion on such an issue, why has debate
been associated with crime?
Throughout the history of the Turkish Republic, except for one or two
periods, thought has always occupied a place in the penal code from the
perspective of philosophy of law. Creativity of mind, namely thought,
has always been treated as a potential means of crime.
Therefore, the penal code contains articles regarding thought crime.
Confiscation of books and closure of theatres are frequent practices
in the history of the republic. Research conducted in early 1990s
listed 626 laws and amendments restricting freedom of thought.
What constitutes a thought crime?
There are certain values that states are supposed to protect like
Turkishness. The state tries to protect these vales. It claims the
protection of these values against insult and humiliation. Certain
values are under legal protection of the state. When you criticize or
debate these values, you are tried for breaking applicable laws. A
penal code, which was prepared with the mindset of a sacred state,
prevails in every aspect of life to impede criticism of the state.
Insulting a person can be considered as a breach of personal rights.
However, this act cannot be put in the purview of a penal code.
Otherwise, it will be a vengeful attitude. Penalizing the insult of
persons with imprisonment cannot solve the problem, but the aggrieved
party can demand a public apology or compensation if the perpetrator
fails to apologize. A mentality that penalizes the insult of persons
with imprisonment will go further and protect Turkishness and other
sacred values against thought, debate and you. One cannot understand
how endorsing the Armenian genocide or massacre can insult or humiliate
Turkishness.
Now there is a debate about what should the exact term be in Article
301: Turkishness or Turkish nation?
Turkishness refers to race. Turkish citizenship includes Anatolian
Armenians too, but Article 301 is not applied when they are insulted.
Insulting Central Asian Turks, who are not citizens of Turkey could
even be considered as an insult against Turkishness.
Will replacing the term Turkishness with Turkish nation settle the
problem?
Such debates are meaningful in terms of philosophy of law. Proposals
can be made about what terms to use. The best solution would be to
remove thought from the purview of the penal code and to see that terms
cannot be protected by trying people who express their thoughts. Any
other modification would impede creativity of thought.
The way to achieve this is to abolish Article 301 and all other
similar ones.
Are there any other traps for liberties in the TCK?
Yes, many. Article 305 is another trap. The TCK is like a mine field
for people who think, write and speak their minds. The Armenian problem
cannot be resolved by abolishing Article 301. It can be removed from
the purview of the crime of insulting Turkishness and put under the
title of another threat, which are plentiful in the TCK.
The government asked NGOs for proposals regarding Article 301. What
do you think about this move?
It is a significant development that the government exchanges opinions
with NGOs and works on a draft considering their proposals.
It is a rare occurrence in Turkey. Armenians were killed and gangs
are being formed amidst debates over the issue. The government should
abolish the article in question. Racism, not nationalism, is rising
in Turkey. Society includes every person living in the country.
However, the word Turkishness is limited to a single people. This is
racism, not nationalism. The notion of Turkishness fosters racism.
The government should act at this point to prevent such an
inclination. You cannot consider racism as a sort of nationalism. It
is a detrimental movement.
Neither the government nor the opposition seems to be acting to
abolish Article 301 or other similar ones.
There is no party that wants to abrogate the article. Certain leftist
parties seem ambitious to act, but they don’t have clear-cut proposals.
Why is there resistance to change?
The problem stems from pitting the republic against democracy in
Turkey. The Turkish constitution defines the republic as a form
of government. In fact, it regulates the formation and function
of government. If you adopt it as a form of government, you have
to establish its principles, since structurally it doesn’t mean
anything. A republic can be fascist, socialist, popular, democratic
or Islamic. In the constitution, the republic is defined as secular,
democratic and adheres to the law. Democracy is treated as a principle,
but not as a form of government. Democracy is a form of government
and secularism is an inevitable principle of democracy.
The republic and democracy contrast in the political arena. Political
parties and political scientists endorse democracy as a principle.
They say it can be sacrificed to protect other principles or the
republic. Democracy and freedom are debated in this framework.
Inalienable principles of democracy are treated as threats to the
republic in Turkey and the exercise of liberty is not tolerated at
this point. If a government proposes an amendment to a law, it is
accused of acting against the republic. Since we accept the republic
as the form of government instead of democracy, we view principles of
democracy as threatening. The republic and democracy can neither merge
nor separate. What should be done is to exercise effort to bring them
closer to each other. However, right wing and antidemocratic circles
consider it threatening to the republic.
Is there way to break this vicious circle?
Of course. This deadlock will be broken when people realize that the
freedom of others is their freedom.
Do you think there is progress in this direction?
Whenever a party vows to broaden liberties, it obtains a majority
of votes. The Democratic Leftist Party, and Democrat Party in the
past, and Justice and Development Party most recently prove this
hypothesis. However, these parties used words of democracy to win
elections. They thought democracy was limited to this. To obtain the
votes of leftist people, late Prime Minister Bulent Ecevit vowed to
abolish oppressive laws, but enacted antidemocratic laws in the 1970s.
Will the upcoming elections have an influence?
Political parties can initiate popular movements by endorsing
liberties. However, there are numerous obstacles. The formation of a
political party requires financial power. The ten percent election
threshold is another obstacle, not to mention political, legal,
constitutional and implementation obstacles. Certainly they are not
insurmountable.
What are your suggestions?
Turkey has a despotic and authoritarian form of government. Nothing
better can be expected from despotic and authoritarian states. In
fact, Turkey is about to lose a crucial chance. It can replace the
authoritarian state regime with a democratic structure and become a
democratic model at a time when Europe is heading toward the right
and wars are on rise. However, there is no political will to achieve
this in Turkey. Even if such a will appears, it is suppressed.
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