In an environment where freedom of expression is under this much pressure, there is no convenient discussion ground for a constitutional amendment, opposition lawmakers say
After leaving behind a year in which top topics of discussion included the coronavirus outbreak, economic woes and the political authority's pressure on the judiciary, Turkey has started 2021 with “reform” discussions once again dominating the agenda. While the government is expected to introduce a fourth judicial reform package in the near future within the scope of the Judicial Reform Strategy Document, it is obvious that the previous reform packages have not been very effective in securing free speech and press freedom in Turkey.
Nevertheless, President and ruling Justice and Development Party (AKP) Chair Recep Tayyip Erdoğan sparked a new discussion recently: the "need for a new constitution." The framework of the new constitution is expected to be included in the Human Rights Action Plan, which will be announced this week. It is an issue of concern whether this initiative will contribute to legal reform and be a remedy for Turkey’s problems in the fields of law and justice.
We asked opposition MPs Ömer Faruk Gergerlioğlu, Sezgin Tanrıkulu and Züleyha Gülüm, and the former rapporteur of the Constitutional Court, Osman Can, what kind of constitution Turkey would need to secure freedom of expression, and the reignited discussions about a new constitution.
Gergerlioğlu: The government should amend TCK and TMK first
Just as the new constitution discussions were reignited, Peoples' Democratic Party (HDP) Kocaeli MP Ömer Faruk Gergerlioğlu, who is also a member of the Parliamentary Committee on Human Rights Inquiry, submitted to the Parliament a legislative proposal on the Amendment of the Anti-Terror Law (TMK) and the Turkish Penal Code (TCK).
Stating that he does not think that the matters brought up by the government under the titles of new constitution and judicial reform address the fundamental issues of Turkey, Gergerlioğlu says that the new constitution is a "window dressing work" and points out that amendments should be primarily made in TMK and TCK.
Proposing the amendment of objectionable provisions in these two codes before amending the Constitution, Gergerlioğlu asserted: “You cannot change anything and get nowhere with the constitution discussion, if you do not clear the path for freedom of expression and take steps to resolve fundamental human rights issues.”
"Anyone sentenced to prison for exercising their right to freedom of expression can understand very well that the intention of the government is not good at all,” Gergerlioğlu said, stressing that the current constitution must first be respected and the judiciary must be made impartial and independent. “However, that is not their purpose. Just last week, I submitted a legislation proposal to the Parliament. I requested some of the provisions of TMK and TCK to be amended and some of them to be abolished completely. Because the definitions of terror in TMK are usually very vague. The decision is left to the discretion of the judges. Therefore, the decisions change according to the conjuncture. The judges think that if they do not render the decisions that the government wants, they will be [relegated to another post] in no time. Therefore, people can easily be declared members of an organization or convicted for propaganda.”
Highlighting that the same situation is also valid for TCK, Gergerlioğlu said that there are many provisions in TCK that restrict free speech and that these provisions must first be amended: “Articles 213, 214, 215 on the ‘Offences against Public Peace;’ Article 300, criminalizing the act of ‘Degrading the Symbols of State sovereignty; Article 318 on ‘Discouraging People from Performing Military Service;’ and Article 319 on ‘Encouraging Soldiers to Disobey’ should first be removed from TCK.
"Similarly, it is not written in Articles 2, 4, and 7 of TMK which behavior is criminalized. Besides, Article 6/2 of TMK is abstract and contradicts with the freedom of expression. These articles restrict rights and freedoms, especially freedom of expression. If a legal reform is really needed, if a legal arrangement is required, the government can start by amending these articles that stand as a major obstacle to freedom of expression in Turkey.”
Tanrıkulu: A new constitution is a must, but…
Republican People's Party (CHP) Istanbul MP and lawyer Sezgin Tanrıkulu began by reminding that Turkey must definitely replace the current constitution, prepared in the aftermath of the coup d'etat of 1980, with a civil constitution.
Reminding that one third of the current constitution has been renewed since it came into force, Tanrıkulu underlined that it could not be transformed into a constitution based on citizenship and guaranteeing freedoms. Tanrıkulu said that today's problems arise from the non-implementation of the current constitution in terms of freedoms rather than the need for a new constitution:
“What we are against is the non-implementation of this constitution in terms of freedoms. It is this government that does not implement it. It is this government that violates and disregards our rights enshrined in this constitution. Therefore, the problem is not that the government’s new constitution proposal, but that it does not establish an order in line with the guarantees in the current constitution. With what intentions does the government, which does not maintain this order, propose a new constitution? If a new constitution is to be made, it will not be as suggested by the AKP.”
Stating that the main priority must be to ensure constitutional safeguards in an environment where there is no trust in the judiciary, Tanrıkulu said: “Currently, trust in the judiciary is at the lowest point in the history of the republic. The judiciary disappeared as an institution and became a part of the executive body, turned into an apparatus of the AKP. It is impossible to make a constitution in such a period. Because there is no suitable discussion ground. How will a new constitution be made while every single critical voice is facing the threat of punishment? How will people voice their opinions? How will [the other] half of the society express their ideas in such a highly polarized, hostile environment? What can we discuss in an environment of political lynching against MPs, politicians, activists and dissidents?"
Underlining that the AKP has been in power since 2002, Tanrıkulu said, “Now they have no right to complain about this order. They are the ones who created this Turkey.”
Gülüm: There is no suitable environment to make a constitution
HDP Istanbul MP Züleyha Gülüm, a lawyer and a member of the Justice Commission of the Parliament, is also of the opinion that Turkey is absolutely in need of a new constitution. However, Gülüm also doubts that the AKP government will do this in a democratic and participatory manner.
Stating that the discussions about a new constitution were initiated by the government to create an issue that would exclude topics it wanted to cover up, Gülüm said that there was no suitable environment for drafting a new constitution:
“If the government really had the intention of making a new democratic constitution, it would have to create an environment where people can freely discuss by implementing the existing constitution first. But when we look at the current practice of the government, we see a government that does not even comply with the current constitution and disregards it. Of course, it is not sincere for such a government to discuss a new constitution in the name of freedom.”
Stating that the announced judicial packages have not brought any positive change, Gülüm said that a reform package for the demands of freedom and justice has not been put forward yet: “On the contrary, all the practices they have carried out until today were in fact legislating regulations that further restricted freedoms and abolished the democratic environment. Remember the regulation that followed the reform rhetoric and paved the way for the appointment of trustees to associations and non-governmental organizations. NGOs should not be structures that are under the control of the government or that speak in the way the government wants."
Stating that the judiciary has been instrumentalized as a means of pressure on social opposition, Gülüm says that the reform discussions emerged as a result of the AKP's "governance failure": “We are living in a period where the judiciary, which refuses to implement European Court of Human Rights or Constitutional Court judgments, does not implement the existing legal regulations, renders decisions without applying the laws, and which has become a government tool for represion on social opposition. All of this came after the 'reform' rhetoric. Was the treatment faced by Boğaziçi University students a 'reform'? So, the reform discussion itself is not real."
"What kind of a democratic constitution discussion can be held in a period when we cannot speak freely; we are taken into custody for every word we say; arrested over a Twitter post; detained for using our democratic rights; and when everyone is silenced?" asked Gülüm, adding: “If a constitution is to be made, it should be done in a way that empowers local governments, where the center is not built on such authoritarian and repressive mechanisms, that the public can speak, that includes the demands of students, youth, women and LGBTI+, that protects nature and peoples, acknowledges human rights, enables all peoples living in this country to live under equal conditions, and paves the way for rights and freedoms.”
Can: The government wants "a rose without thorns"
Professor of Constitutional Law Osman Can, who is also a former Constitutional Court rapporteur-judge, thinks that the discussion of “a new constitution” is "a favorable lever to extend the life of the government."
Stating that there are many issues that the government complains about the current state of the Constitution, Can says, "We can see that they want to get rid of these complaints and create a rose garden without thorns for themselves."
Emphasizing that in addition to the problems in the field of economy and security, the minimum conditions in terms of legal predictability have disappeared, Can says that the government tends to divert attention from real problems due to the loss of social approval. “When they do not have the constitution or constitutional amendments they desire, until the next elections, they may proceed along a line that is very sensitive to constitution discussions and that demands a new constitution, and after exhausting the political and intellectual energy of the opposition with these discussions, they might tell the public, 'Look, we wanted a new constitution, but they are not sincere,' and this way demand more votes in the election and more seats in the Parliament. One should not interpret the opening of this discussion on the basis of sincerity. Moreover, it is not in good faith that this discussion has been opened. In any case, it should be seen as a search for an opportunity to clear the last remnants of democracy, human rights and the rule of law.”