It is quite ironic that Prime Minister Recep Tayyip Erdoğan's government rushed his deputies to save his hand-picked chief of Turkey's secretive intelligence agency from legal woes by aggressively pushing for legislative changes from Parliament, while it has been dragging its feet for years now to overhaul relevant codes in Turkish laws to give breathing space to hundreds of journalists who face over 5,000 investigations. Some of these probes have turned into trials, landing several reporters in jail, whereas others are handed commuted sentences.
To add insult to injury, the draft package, submitted to Parliament on Jan. 16, looks to be little more than window dressing and falls short of being a real panacea for many concerns we as media professionals have been voicing in Turkey. It really does not address the root causes of the problems regarding press freedom but rather offers stopgap measures with some improvements. It is simply mindboggling to me why on earth Mr. Erdoğan's government shies away from offering substantive changes to expand freedom of the press in Turkey when it touts itself as the most pro-democracy government Turkey has had in decades. The do-little approach, unfortunately, does not match the campaign pledges the AK Party government made on the eve of the June 12, 2011 elections.
Here is the main concern regarding the changes proposed by the government: The draft introduces a provisional article saying that judicial fines, investigations, prosecutions and verdicts calling for up to five years' imprisonment for journalists will be commuted. The Justice Ministry hails this change as a “revolutionary feature,” advertising it as “amnesty” for “press-related offenses that will affect thousands of cases about journalists in Turkey.” But here comes the catch: The provision will only apply if the journalists do not repeat their alleged offense within three years.
This sounds to me like an implicit threat, very much like a sword of Damocles hanging over our heads ready to decapitate press freedom. It definitely amounts to censorship. If the journalist is charged with the same alleged crime within three years, the initial sentence will be imposed right away or the investigation will continue from where it left off. This proposal is not a real solution to our lingering problems in the media industry, and a great number of watchdog organizations both here in Turkey and abroad criticize the government's approach on this issue.
There are some improvements made to the draft regarding Articles 285, 288 and 125 of the Turkish Penal Code (TCK) -- concerning breaches of secrecy, attempts to influence a fair trial and defamation. This is important considering that there are thousands of cases launched against journalists in Turkey based on these articles. But the changes do not go far enough to allow investigative journalists in particular to do a proper job. The revised versions of these articles actually stipulate harsh sentences for journalists who publish stories based on leaked information from public officials in the investigation stage. I think the law in its revised form will still continue to have a myopic view of how to balance the principle of the presumption of innocence with the cardinal rule of public interest and the need to know.
Lord Ken Macdonald, in his report titled "Peer Review Report on Freedom of Expression and Media in Turkey" prepared for the European Commission, quite skillfully details problems with the above-mentioned articles.
"I conclude that, at the very least, the Press Law should be amended to include a strong public interest clause, permitting publication of otherwise questionable material in circumstances where the public interest favours publication over restriction and protecting journalists and publishers who are reporting or publishing matters of legitimate public interest, or expressing non-violent political views,” he says.
What is more, he underlines that the burden should be on the complainant to overcome this defense to the criminal standard. “Prosecutors should be required by explicit law to weigh free expression rights in the balance each time they receive a complaint under these Laws. The legal presumption should be in favour of publication," he explains. Similar arguments can also be found in two recent Council of Europe reports issued by Commissioner For Human Rights Thomas Hammarberg. One was published in 2012 titled “Administration of Justice and Protection of Human Rights in Turkey,” and the other in 2011 titled “Report on Freedom of Expression and Media Freedom in Turkey.”
Another shortcoming in the draft reform package is related to Article 132 of the TCK (also known as Law No: 5237). The article regulates sentences for the violations of the confidentiality of communication. For reasons I do not understand the revised version actually calls for harsher penalties for journalists who use illegal recordings that have already leaked and have, therefore, become public knowledge on online outlets or blogs. In other words, when a newspaper reports on a scandalous conversation involving a senior public official that was readily available on the Internet, it will get punished. The lawmaker in effect asks media professionals to turn a blind eye to shocking revelations, ignoring the public interest and its right to know. The revised law increases maximum sentences from two years to three and in some cases to five years for journalists and media outlets. Here again I think we have lost sight of the forest for the trees.
This is reminiscent of the government's halfway measure to fix the problem in Article 301 of the TCK in 2008, which previously criminalized the act of “insulting Turkishness” and which has long been seen as an obstacle to freedom of speech in Turkey. The amendment made it obligatory for prosecutors to seek the approval from the Justice Ministry before launching cases on 301-related charges. This means the government assumed a political liability instead of fixing the problem in the law and opted for window dressing rather than producing real solutions.
I suppose outgoing Commissioner Hammberberg is completely right when he said that “the background, letter and spirit of the 1982 Constitution” is at the root of the problems with freedoms in Turkey including press freedom. The current government in Turkey seems to have lost its enthusiasm to draft a brand new constitution to replace the military era one when it referred the issue to a dysfunctional parliamentary commission. With the emergency revision on the law regulating the intelligence community in Turkey this week, we were reminded once again that if Mr. Erdoğan really wants something pushed through Parliament, he has the means, power and manpower to do it. Somebody must tell Mr. Erdoğan that if he cannot deliver a new constitution during his party's third term, he and his party will suffer a strong voter backlash in the next election.
