OPINIONS: TURKEY’S CHRONIC HEADACHE
The New Anatolian, Turkey
22 September 2006
After all, it all comes down to free speech. When I met Chief
Negotiator Ali Babacan at an international meeting Friday, Sep 15,
it was evident: as soon as he stopped his deliberation before the
guests, the first question asked was about Elif Shafak case and what
the government would to amend or lift the infamous article 301 of
Turkish Penal Code.
Babacan, politely as he has always been, told us that the government
had no such plan to touch 301 and came up with the only possible
argument: that we should wait and see the course all the cases invoked
upon 301 would lead to.
He seemed to mean that no precedent by a verdict from High Court was
established yet. He added, to be cautious, that changes were possible
in the future if needed.
For those in the audience, those who know about how far the case of
Hrant Dink, editor of Agos – daily of the Armenian minority – these
remarks were not convincing at all.
It seemed as if the chief negotiator was unaware of the seriousness
of the matter. After all, politics and human rights are not his
Many shook their heads in grave disbelief.
As we continued to gather in a one-day meeting – fourth Bosphorus
Conference – the overwhelming view expressed privately by the eminent
guests were that, regarding the complexities of Cyprus case as a
strong enough stumbling block for the Turkish accession, the most
clever and facile path Ankara should take to make things easier would
be to revise Article 301 urgently.
Such a move, argued those who wanted to see at least some "progress"
for Turkey before the year ended, would certainly disarm the skepticals
and give the Commission fuel for further moves in Turkey’s favor.
Would the government change its mind and set about to deal with 301?
It is rather evident, that, if it does not, it will yet again squeeze
itself in a corner.
High Court of Appeals (Yargýtay) issued the detailed final verdict
days ago on Dink case, which ended with Dink being sentenced to six
months in prison.
Nine judges had taken part in the voting and seven of them agreed that
"Critique may be hard, but slander or libel can not be tolerated. Hrant
Dink, in a masterful style, humiliated Turkishness."
Although two judges (one of them being the chairman) made clear in
their dissent, that the spirit of new laws in accord with the norms of
EU was not comprehended, the inevitability of the right to criticize
was not reflected (in the verdict); that the lower court did not take
into consideration ECHR precedents.
Two judges also emphasize that "There is still fear for expressing
thought of dissent in Turkey. No opinion, which has been tried
and sent to jail dies. On the contrary, such opinion finds other
supporters. One should know that dissent can not be prevented by
creating fear for punishment."
Fine conclusion, indeed, but in clear minority.
What, then, stops the government to deal with Article 301?
After all, the parliament is now convened under extraordinary
circumstances, only to pass further laws of reform.
What is at stake here?
As Dink case is finalized and as Elif Shafak case becomes the focus
for global attention, what you see in behaviour amongst the ranks of
AK Party deputies could be defined by certain motives:
First of all, you have the ignorance about what Free Speech
means in a democracy. For many deputies, the difficulty lies in
between distinguishing libel/slander and criticism; between fact and
fiction. (It is clear, regarding Shafak case, that, for some attorneys
fiction must also be punished!) For others, it simply does not have
a priority amongst the issues.
And for those who are now dealing with the upcoming elections, this
issue is not a "winner"; for electoral support.
The element that adds salt to the wound is the attitude of the main
opposition, CHP, which made it clear that it will not be supporting
any move to amend 301.
A deputy of CHP, Orhan Eraslan, member of the justice commission of
the parliament, said "301 is not wrong. It should not change. It is
not only a need, it is also a necessity. If we want to remain as a
nation and state, it should remain."
Depressing view for those who see a clash ahead with the EU and ECHR.
Surprising? I doubt it. Recently a colleague told me, that he had
coincidentally met lawyer Kemal Kerincsiz at a holiday resort, who
organises violent demonstrations in and around free speech cases. At
one point he asked him what party he should vote for.
"CHP," he answered, without hesitation.
What should or could be done, then?
If the government means still serious business with the EU Commission,
it is of great importance that it deals boldly with the matter, as
it dealt with some issues in agriculture and bureacracy, before the
Progress Report is discussed in the EU.
As a primary move, the government could, through the Ministry of
Justice, ask prosecutors to drop all cases related with articles 301
and 288. Further, the ministry should, with the participation of the
Chief Negotiator, gather representatives of the judiciary and clearly
explain them that both the prosecutors and the judges should take
all the international legal treaties, human rights agreements and
ECHR precedents into consideration, and decide accordingly.
Secondly, the Turkish Government should present a bill to the
Parliament, that at least abolishes imprisonment for those who
"breach" articles as 310 and 288, and instead puts symbolic fines;
as it is in some "sensitive" cases throughout EU.
This, to gain time in order to revise all articles that in one way
or another, relates to articles on the free speech territory.
This will mean good intentions both to the domestic scene and EU.
The AK Party government should make itself clear, that unless it
reforms such articles, it will be causing " in the long run" great
damage to democracy.
CHP, perhaps not surprisingly, thrown the towel to the ring, and
declared that "enough is enough" for EU reforms, by its leader.
Who will, then, lead Turkey into EU, other than AK Party?
Without a leadership, the project of EU membership is doomed.
Turkey’s EU path must be irreversible.
But, where is the leadership?