Saturday, April 12, 2008

Power of the President?

Criticism of AKP's proposal to amend Article 301 has been rampant from both those who do not think it goes far enough and those who see any change as cow-tailing to EU pressure and tying the hands of the Turkish state. In his column in yesterday's Turkish Daily News, Burak Bekdil reflected the former. However, what is of note in Bekdil's complaints is his attention to the consent-of-the-president component in the proposal. As it stands now, the proposal reads that the the president's approval should be sought before proceeding with 301 prosecutions. Before any 301 complaint is to be tried in court, the president is supposed to decide that a trial is in the "national interest."

Although AKP members have argued that the president's decision as to whether prosecutions are in the national interest is not inappropriately political and very different from the president deciding the guilt or innocence of any potential defendant (thus not unduly entangling the office in the judiciary), the president can hardly be expected to be neutral when evaluating Article 301 complaints. This seems all the more nonsensical when one takes into account that under the current constitution the president is already unrealistically expected to be above politics.

Whether to place the authority to review 301 complaints before their prosecution in the office of the president, the justice minister, or another body was an issue of debate within AKP, and it does indeed seem that the decision AKP made risks entangling the president in politics since (unfortunately) 301 prosecutions are inherently political. More evidence that the best thing to do would be to scrap 301 altogether. . .

Here is Bekdil's column:

The headline is from a cartoon published recently in a humor magazine. The cartoon depicts a courtroom in which the defendant looks helpless and the presiding judge announces the verdict: “I respect your views, but I sentence you to 350 years in prison!” That more or less summarizes Turkey's unfortunate journeys from Article 159 of the penal code to 301, and now to 301 Version “Please smile!”Under 159 it was an offense to insult Turkishness and the several gray buildings in Ankara that accounted for the country's constitutional institutions (for example, this columnist was given a 20-month suspended sentence for insulting the judiciary).

Please smile!:

Under 301, however, “insulting” them was no longer a crime, but “humiliating” them was. For that reason nearly a thousand cases have been opened against not only writers and intellectuals, but also against anyone who angered the occupiers of those gray buildings, including Turkish-Armenian journalist Hrant Dink. And finally, under 301 Version “Please smile!” humiliating “Turkishness” and those gray buildings will no longer be an offense, but humiliating the “Turkish nation” and those gray buildings will be. But there is another difference between 301 and 301 Version “Please smile!” The present legislation requires a nod from the justice minister before a court case against a defendant can proceed.

The new “absolutely EU-friendly version” requires that nod not from the justice minister, but from the president; or, in other words, that go-ahead will be given by the former AKP foreign minister instead of the current AKP justice minister. Of course, that makes a big difference, only if you are naïve enough to believe in fairy tales and in the presumption that we have a perfectly neutral, absolutely apolitical president. No, unfortunately, former President Ahmet Necdet Sezer was “biased” in the wars between Islamists and seculars, so is President Abdullah Gül, and probably so will be Mr. Gül's successor, in favor of either warring camp. There are several potentially explosive aspects about Version “Please smile!” To begin with, tasking the president with the job of selecting which court cases on charges of humiliating sacred Turkish entities should proceed and which ones should not is against the constitutional article that tells about presidential duties. But that's only a minor fault. Also technically, a presidential nod will mean yes, the court should proceed, and then we'll have a real case. Without that nod, the indictment will become null and void but will forever stand there, depriving the defendant of the right to stand trial. In that case, the defendants will forever be deprived of the right to defend and prove their innocence. This fault may be overcome by an amendment so as to allow proceedings in case the defendant prefers so. But we'll probably have several people around prosecuted but is neither guilty nor innocent.

Potentially explosive aspects:

Another technical problem could be the conflict of interest. What will happen if someone is prosecuted for humiliating the president and his dossier ends up on the president's desk for approval for legal proceedings? Will it not be against the basic principle that a party in a legal dispute cannot also be part of the judgment/trial process? Of course, the same problem was there in the case of insulting the judiciary in general (like in my case), but what's the point about shifting the same dilemma from one gray building to another? But more essentially, can that task be entrusted to a presumably neutral, but practically political figure, who, for example, comes from the ranks of Islamic militancy or, for that matter, Kemalist militancy? Under the draft Version “Please smile!” once the prosecutor has indicted a defendant for humiliating Turkish sacredness, including the same gray buildings, the president will decide whether the court should proceed. Here is a fictitious example that might illustrate the risk. Columnist X writes an article in which he argues that “the chief public prosecutor's indictment against the AKP is evil, shameless and an act that reflects a corrupt mindset.” The prosecutor indicts columnist X on charges of “humiliating the judiciary.” The dossier goes to President Gül. Mr. Gül reads it and denies permission for legal proceeding, citing freedom of expression. Personally speaking, that would be all very fine with me. In our second case, columnist Y writes an article in which he argues that “Parliament's constitutional amendments that lift the campus ban on the Islamic turban are evil, shameless, and acts that reflect a corrupt mindset.” The prosecutor indicts columnist Y on charges of “humiliating Parliament.” The dossier goes to President Gül. Mr. Gül reads it and endorses legal proceedings, citing the dignity of Parliament. How, then, should we view the cases of columnists X and Y? With good faith and a childish belief that our “former” Islamist president “who is at equal distance to every ideology and opinion” will remain perfectly neutral in his judgments? No, not me, I never believed in fairy tales. There is more than enough evidence that the political movement in which Mr. Gül “evolved” has the habit of following a part-time democratic practice when it comes to free speech. Wear a hat or you'll be prosecuted!

The trouble is, the opposite camp has a similarly unconvincing past record in its commitment to free speech: Free speech for “suitable” speech only and no freedom for “unsuitable” speech. It's the same malady with opposite appearances. And we cannot guarantee that the next 39 presidents will come from the AKP ranks, can we?Once, Cemil Çiçek, then justice minister, said something admirably realistic, “Amending Article 301 could mean nothing when there are several other articles under which prosecutors and judges can convict someone (if they wish to).” I once wrote that had Mr. Dink, for example, not been prosecuted under 301, he could well have been prosecuted under 222 which, believe it or not, makes it compulsory for every man to wear a western-style hat! If you want to cause trouble to someone on ideological grounds, the penal code is an endless treasure! After all, do we not have “independent judges” and laws subject to “interpretation by these independent judges?” The only solution is becoming increasingly utopian in this increasingly polarized society: Minimal room for judicial interpretation and maximal freedom from ideology. I know this sounds too oxymoronic in the Turkey of 2008.

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