Legal actions like those taken against two journalists last week for covering groundbreaking stories, such as Ergenekon, a clandestine crime network that has alleged links within the state, and a military action plan that included shady plots to kill non-Muslims in the country, are worrisome and an obstacle to freedom of the press in Turkey.It is universally accepted that a free and independent press is critical to good governance and the constitutional order in modern democracies. The press should be free to publish news reports without fear that the state will criminalize those publications. Publicizing the wrongdoings of some officers and criminals is not the same as stealing state secrets or spying for the enemy. There is a distinction between discussing publicly available information and leaking sensitive national security information. Plotting against the people and publishing or discussing leaks about those plots are not equivalent. It is one thing to question the wisdom or propriety of publishing sensitive information on national security or to allege media bias and compromise in efforts against separatism or terrorism; it is quite another to call for the criminal prosecution of journalists for reporting on matters of public concern, even when those matters do not involve national security. Not every disclosure or discussion is a criminal act. Indeed, sensitive information should be treated sensitively, not only by journalists but all. However, people are growing wary because of recent applications of vaguely worded statutes, particularly in the face of clear breaches of the law and Constitution by state and military authorities. If the courts and judiciary continue to prosecute journalists for reporting on already publicly available information, it will further hamper freedom of speech and expression and set a dangerous precedent.
The defenders of Ergenekon have already initiated more than 3,000 criminal investigations against journalists. Who is breaking the law: the assassins, plotters and putschists or those who leak and publish such schemes and plots? Honest judges and courts are already busy with hundreds of leaks and breaches. Even legal scholars who are pro-democracy and constitutionalism say the legal questions are not straightforward. Deep-state supporters are making threats that they may be able to carry out legally to prevent further exposure of their countless violations of the law. They use the vagueness and ambiguity of the existing laws in theory.
Prosecutors demanded a sentence of between 18 months and six years for Star columnist Şamil Tayyar for violation of the confidentiality of the Ergenekon investigation in his published articles. In the event, he received a 20-month suspended prison sentence. But what Tayyar discussed was already in the Ergenekon indictment and available to the public in print and electronic versions. There are already 30,000 entries on the web about the information over which he was charged. On the same day Tayyar received his sentence, Mehmet Baransu, a reporter from the Taraf daily, was charged with violating the principle of confidentiality of an ongoing judicial process. Baransu exposed the military plot known as the “Cage Operation Action Plan.” This was a plot to assassinate prominent non-Muslim figures and to massacre children in order to put domestic and international pressure on the Justice and Development Party (AK Party), which would in turn lead to diminishing public support for the party. Fortunately, Baransu was released by the court.
Tayyar and Baransu are not the only journalists facing charges. The trials of journalists are intended to give an explicit message to all journalists to be more cautious about what they write and to engage in self-censorship or face arrest or assassination. With these punishments and bans, the oligarchic minority within the system aims to block Turkey’s democratization and consolidation of the rule and supremacy of law.
But what if those journalists and their newspapers aren’t exposing criminal wrongdoings? What are we doing to keep these journalists out of prison? What would happen in Turkey if the chaotic plans of the Cage plot and Ergenekon had been put into practice? The right to have access to information destroys the myth of state and military officials’ untouchability and privileges. The incumbent government should act to eliminate nearly 15 laws in the Turkish Penal Code (TCK) that limit freedom of expression, some of which the European Union has been requesting Turkey abolish for almost two decades. Otherwise, Turkey will continue as a country under the rule of oligarchic judges and the military rather than under the rule of law and democracy.
