“It’s clear that anything may be placed under the cloak of ‘state secret’,” Dilek Akagün Yılmaz, a CHP member of the Justice Commission, told Today’s Zaman, noting that the bill establishes a State Secret Evaluation Council, authorizing it to label any documents or actions it wishes as “state secrets.”
The CHP has two major misgivings about the bill. One of them is the authority the bill bestows on the State Secret Evaluation Board, which is composed of the prime minister as chair, plus four ministers from the ministries of foreign affairs, the interior, defense and justice. The second is the cloak of secrecy under which the government could potentially place its acts if it so wishes.
“The bill bestows on the government the authority to establish what is considered a crime, and the punishment thereof,” Bülent Tezcan, another CHP member of the Justice Commission, said. Speaking to Today’s Zaman, Tezcan pointed out that the bill gives political authorities the chance to “define” which acts constitute crimes as per Articles 326 to 339 of the penal code which deal with crimes regarding security of the state and exposure of documents deemed state secrets. “And this represents a violation of the principle which says that crimes and punishment are to be established by law.”
Members of the main opposition party are concerned because “state secret” is a concept which is difficult to define with precision. In Article 3 of the new bill, it is defined as follows: “A state secret includes secret information, documents and records which may damage the state’s international relations or national security [if made public].” And the bill not only authorizes the State Secret Evaluation Board to decide what is to be considered a state secret but also says, in the first sub-clause of Article 8, “The board may choose to not submit the information, documents and records demanded by courts of law, providing that the reasonable grounds for rejection of the courts’ demands are expressed.”
The bill makes an exception as regards legal cases which are tried in a criminal court, in which case demands of the court need to be complied with by the board. “[But in matters related to administrative justice], judicial access is practically closed,” Tezcan stated, noting that the board may decide not to provide information demanded by administrative courts of law. “A serious crisis in oversight will present itself,” he commented, claiming that this is in contradiction to Article 125 of the constitution, which prescribes that all administrative decisions and acts may be brought before the law.
No higher authority is established by the bill for appeals to be submitted to concerning the decisions of the board. But in most countries, it is possible to lodge appeals to Parliament or to courts of law regarding the decisions of boards of this kind, Yılmaz noted, adding that once something is labeled a state secret, any violation of its secrecy requires the accused to be tried in a specially authorized court. So the press will not be able to publish any information on such issues, either, once the board takes such a decision.
Given the formation of the board, it will be the prime minister who will ultimately decide what is to be deemed a state secret. And the main opposition party is concerned that this may allow the government to hide its unlawful practices. Maintaining that the bill obstructs people’s right to information, Tezcan said, “The bill makes it possible for a new deep-state organization to be established, and may potentially pave the way for the state to commit crimes, something from which Turkey has suffered greatly in the past.”
For Professor Doğu Ergil of Fatih University, according to whom the term “state secret” needs to be strictly defined and well limited, the bill represents a concentration of power for those involved. “The bill is in conflict with democratization. And this is something which obstructs the accountability of the state,” he told Today’s Zaman.
But Murat Başesgioğlu from the Nationalist Movement Party (MHP), who is also a member of the Justice Commission, told Today’s Zaman he is of the opinion that people need to trust politicians in this matter “because the politician also carries the responsibility of being a statesman.”
As per the bill, the secretarial services of the board will be performed by the Undersecretariat of the Prime Ministry, and the board is to convene upon the invitation of the prime minister. As regards state secrets, state institutions don’t have the right to make proposals directly to the board but need to go through the ministry with which they are affiliated or the Prime Ministry. And it is up to the related ministry or the Prime Ministry to bring the matter before the board or not. Matters deemed state secrets by the board are to lose this designation 50 years from when the board renders its decision.