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27 May

Chronicle of a death foretold

An overview of the draconian new laws that spell end of democracy in Turkey

“There had never been a death so foretold,” wrote Gabriel Garcia Marquez and while he might not have had Turkish freedom of expression in mind, the demise of journalism as a profession in Turkey has a similarly inexorable feel.  The death knell for Turkish democracy has tolled at least four times recently with the passage of four separate pieces of legislation that curtail individual rights.

These is the National Security Agency bill; there is an act passed as part of a portmanteau package of legislation that makes “reasonable doubt” an adequate ground for criminal detention; a harsh new domestic security bill, and lastly an internet law that curbs rather than regulates net freedoms. 

The cumulative effect of these acts are to set the clock back and reverse the trend of the early 2000s – an era when Turkey actively engaged in democratisation and legislative harmonisation as part of a commitment to kick-start an EU accession process. One could argue that this positive trend began much earlier as the civilian government laboured to undo the legacy of the 1982 Constitution and the 1980-83 period of martial law.

Yet for all this seeming progress – the growth of opposition media, civil society and newly empowered individuals – no group has been able to prevent this recent degradation of democratic standards.  The most draconian of the four laws and arguably the most oppressive one in Turkey’s post-1980 coup history is the New Domestic Security Bill, which all on its own, represents a nail in the democratic coffin. 

There are, of course, different definitions of democracy that take account of a deviation from the ideal of “government by the people including “electoral democracy” or the notion of a “competitive authoritarian democracy.” However the definitions of even these concepts defy being stretched to include laws, which give wide discretionary powers to punish anyone, deemed an “enemy of the government”-in complete defiance of any notion of democratic rights and freedoms.  

Such laws make nonsense of the notion of upcoming elections as being in any way free or fair. The government has the hypothetical ability to engineer results and suppress opposition.  

Notably, these new laws were bulldozed through the Justice and Development Party (AKP) dominated parliament in the wake of the Gezi Park protests that began on May, 31 2013 and after the massive corruption allegations that became public the following December.  This legislative quartet was a strategic response to criminalize dissent and criticism on the pretext of “maintaining public order” and overcoming plots to overthrow the elected government.

The rationale of these new laws is very much comparable to the pre-EU accession language. The emphasis then on the  “indivisible integrity of the state” is simply replaced by “crimes against the government”, and legal reasoning based on “maintaining the constitutional order” is substituted by “maintaining public order.” Both sets of language are intended to protect the state and/or, in the latter case, the government against the “external and internal enemies;” otherwise defined as anything against the official ideology. Prior to 2000, draconian laws reflected the subservience of civilian politics to the military. These new set of analogous laws draw their supposed legitimacy from the numerical electoral majority of the government.
The legal quartet
One: National Security Agency Bill

The National Security Agency Bill (Law No 6352 to Amend the National Security Agency and State Intelligence Services) was passed in February 2014 and was signed into law by then-President Abdullah Gül the following April.  This bill augmented the powers of the National Intelligence Agency (MİT), effectively turning it into a state institution with the ability to execute “operations in addition to its previous task of gathering intelligence.”  While, casting MİT as an individual actor as one of the most powerful state institutions, this law also provided extensive impunity for its staff and rendered its activities immune from any mechanism of checks and balances. Moreover, this amendment increased the scope of legitimate operations abroad and surveillance via tapping, as well as access to personal data.

Two: Portmanteau law on “reasonable doubt”

The spring and summer months after the legislation of the National Security Bill in February 2014 were dominated by two consecutive elections: local elections in March and the Presidential elections in August 2014.  The first ballot was very much a referendum on the president, given the corruption scandal of the previous year. In the August ballot, Erdoğan received nearly 52% of the vote, allowing him to be elected in the first round.  By December, once the dust had settled with selection of Ahmet Davutoğlu as the new prime minister and the formation of a cabinet, the government was able to concentrate once again on augmenting its power.

The (Law No 6572 Concerning the Amendment of Law of Judges and Prosecutors and the Law Amending Ordinances) was part of a legislative “bundle” (to use the Turkish), bringing together unrelated measures into one package. Conspicuously, bundle laws have been increasing utilized by the AKP. It is difficult for even the parliamentarians to follow the content of bundle laws, as the government tends to emphasize one particular aspect of the law, distracting attention from others. In case of this law, certain amendments regarding the Supreme Board of Judges and Prosecutors (HSYK) and the members of judiciary were emphasized; the AKP has been arguing that old bureaucratic remnants inside the judiciary were aiming to destabilize the government. There was not much concrete evidence for this argument, but this message was conveyed quite forcibly.

The new law allowed for the police to conduct searches based on “reasonable doubt.” Prior to this the grounds were “strong suspicion based on concrete evidence”.

On top of this sweeping change, the bill allowed the possibility of the seizing of assets of those accused as a result of “reasonable doubt”.  Specifically, the seizure of assets could be applied to any suspects’ allegedly conspiring to commit crimes against the state. The law does not explicitly use the wording “crimes against the state”, but I think this broad umbrella is more than implied for the actual felonies which include “crimes against the Constitutional Order and the functioning of this order,” “membership in an armed organization” or “supplying arms to the armed organization”, “breaching the Constitution”, “committing crimes against the judiciary organ”, “committing crimes against the government”, and “organizing armed revolt against the government”. In practice, there has always been leeway to prosecute for “crimes of conspiring against the state.” Historically, it has been possible to translate opposition to the official state ideology into a criminal charge. But the new package introduced a much broader and a far vaguer definition that could be used to charge individually or collectively criticism of the government. Indeed, another component of this law created two new crimes, punishable by up to five years of prison sentences: “threatening public officials”, and “threats made by public officials” (presumably to ward off any possible threat directed towards the government by the bureaucrats).  At the same time, the President’s office and the Prime Ministry became much bolder in pursuing “defamation”, which by my own reckoning, resulted in cases being initiated against 150 citizens including minors (and in one notable case a primary school student) in the first three months of 2015 for the offence of “insult.”

Another new crime introduced was prison sentences for publicizing “state secrets”. As Turkey’s “investigative journalism” predominantly relies on official leaks, introduction of this specific crime could lead to the total suppression of media publication of “special news” concerning corruption or any state misconduct.

While casting a broader net for offenders, the new amendment package restricted their rights of the defence. Defence lawyers’ access to files and data on grounds of accusation is restricted, which severely hampers their ability to prepare for trial.

Three: Internet Law

In March 2015, another “bundle law” was passed referred to as the “Law No 6639 to Amend Some Laws and Decrees Equivalent to Laws”, which included radically restrictive clauses on Internet access, was legislated. Previously, in February 2014, a very similar law was passed, but it was subsequently annulled by the Constitutional Court upon an appeal filed by the Republican People’s Party (CHP). According to this law, internet access to certain parts of or the whole of a website might be banned or prevented if “public order”, “national security”, “public health”, or “people’s lives”, “rights and freedoms” are threatened. The restriction might be decided by a Minister or the Prime Ministry; and the Telecommunications Directorate (TIB) would have to comply within four hours. A court order would be necessary for the ban to be extended beyond 24 hours. Even if the court rules against the ban, the website in question may remain out of reach for up to 72 hours. In case of internet site contents deemed as “criminal”, when they threaten the above mentioned conditions, heavy penal fines, amounting up to 500,000 TL (around 250,000 dollars) might be imposed or website might be closed down all together.  The existing (2007) Law No 5651 allows for similar penal measures but was limited to strictly defined crimes as “encouraging suicide, sexual abuse of children, assisting drug use, obscenity, prostitution, providing place and possibility for gambling, providing material hazardous for health, and crimes committed against Atatürk”. The older law, which is still in effect, still requires a court decision to ban sites.  

Four: New Domestic Security Bill

“Law No 6638 to Amend Police Missions and Authorizations, Gendarmerie Organization, Mission and Authorities” strengthens the powers and “rights” of the security forces in the following ways:

--It expands the right of the police to use firearms to “effectively deactivate” in protests, if any “banned articles” are used. Molotov cocktails are specifically forbidden but there is a potential for a “shoot-to-kill” policy to be used against protestors carrying fireworks or ball bearings (iron pellets). The law does indeed cite possession of fireworks or non-explosive offensive weapons such as iron pellets or slingshots as criminal acts subject to sentences of from 2.5 - 4 years imprisonment.  Even the use of masks or anything covering the face is considered a felony. Given the liberal use of tear gas by the police in previous demonstrations, residents hoping to protect themselves with gas masks could find themselves facing up to four years in prison.

--The bill legalizes up to 48 hours of incommunicado police detention for people regarded as “criminal suspects”. The police are allowed to take the testimonies of witnesses, suspects and victims upon taking them into custody.  Prior to this amendment, only the judiciary had the power to detain a person and testimonies could be taken in police centres under legal guarantees; police could not make any judgment of criminality. Police can now conduct conduct strip searches and car searches without any legal warrant.

--The bill de facto renders participation in protest a “crime” in cases where insignia, banners, pictures, etc., deemed as belonging to illegal groups are displayed. The participants in such protests can be detained while pending trial. Article 34 of Turkey's Constitution grants the right to demonstrate peacefully without prior permission, but other laws stipulate that protests should be permitted administrative authorities, at least 48 hours before the event. Therefore, spontaneous protests or those not permitted by authorities are deemed “illegal” to begin with.  Additionally, protestors may now be “removed from the scene” but how such “removal” can take place is not specified.

-- Provincial governors, who are selected by the government and appointed by the President, are given extensive executive powers to “maintain public order”.   The local administrators representing the state may assume the powers of the judicial prosecutor as they deem necessary. They may issue direct orders to the police to act against “crimes”. In essence, the law provides legal grounds for local administrators, representing a highly centralized state power to have police incarcerate protestors, even elected local administrators like mayors-to maintain public order.  Moreover, the gendarmerie and the related institutions like the Gendarmerie Intelligence and Counter-terrorism Units are place under the administrative command of the governors. 

Can democracy exist under such laws?

The government, with 312 of the 535 parliamentary seats in the 20011-15 parliament, was already in a position to force through legislation, but was aided by an opposition consisting of three parties who showed very little unity of purpose to block the passage of these bills. The exception was the concerted action taken in February 2015 to oppose the Domestic Security Bill in February 2015 using parliamentary stalling tactics available.  This unity was short lived. The government bought off the opposition of the Kurdish-nationalist People’s Democracy Party (HDP) by appearing to make concessions on the Kurdish peace process.  The HDP announced twice that “the Domestic Security Bill was to be revised by the government.” The media reported that some of the more controversial clauses had been sent back to the committee for revision but this was not in fact the case: in fact, this was not possible under parliamentary procedure.

The misreporting in the media compounded the failure of the opposition. According to the rules of the General Assembly, articles of a legislation already approved by the majority of the parliament could not be “revised”; and the most offensive clauses had already been passed. The ruling party dropped some of the more benign clauses of the bill concerning population registers. In mid-March, the unlegislated part of the law was sent back to the Commission and the rest of the law came into effect on 4 April 2015, in time for the recess ahead of the 7 June general election. 

It would be wrong, therefore to simply credit the AKP’s parliamentary majority for the new, restrictive laws. In 2014, Turkey had two elections, one local and one for the election of the Head of the Republic in which the new legislation was not even an issue. Turkish politics is no longer policy oriented but has been polarized into culturally defined camps due in large part to the oratorical skills and charisma of the party’s favorite son- Typo Erdoğan.

Populist politics – the “us and them” of everyday political rhetoric has drowned out substantive debate. In August 2014, Erdoğan became the first ever president to be chosen by popular vote – adding to his legitimacy and confirming the success of his populist tactics. The vicious circle into which Turkey has fallen is that this populism has drowned out real debate on the erosion of democratic freedoms. And the new legislation makes the possibility of that debate increasingly difficult and unlikely.

In such circumstances it is at best naïve to assume the June 7 poll will be free and fair. Regardless of the outcome, President Erdoğan has managed to position himself at the heart of highly centralized executive and is in a strong position to deflect dissent or opposition, including that of the malcontents in the party he left behind.

Turkish democracy faces chronic problems. There is a constant search for the “magic cure”, the “heroic savior” but there is no easy remedy to problems which are structural and deep-seated.  They are not of a nature that can be cured by a single leader or the results of a single poll.

There is no way to get the right answer if one asks the wrong question: Elections are a part of the problem and not the solution, as they constantly deepen the political polarization. All political parties and their voter base need being reminded of the importance of “democratic minimums”, as in the heydays of the European Union candidacy times in 2000s. Turkey must re-establish the ground rules for a working democracy, level the playing field. Only then can it at least begin to end the paralysis of political polarization.  The job will not be easy but a start has to be made.

Tags: democracy , repression , turkey , media , national security law ,MİT , reasonable doubt , internet bill , internet freedoms ,erdoğan , davutoğlu , oppression


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