A Constitutional “Right to Know the Truth” and the Constitutional Issue of “Crimes Against Humanity and Genocide” / and about BDP

by Editor Levent Köker* – 17.9.2012

As work began on the text of the new constitution, political parties began to announce their proposals on rights and freedoms and their proposals began to be discussed in earnest in the public sphere. One of the most noteworthy proposals on rights and freedoms—an area of such central importance to any constitution—came from the Peace and Democracy Party (BDP)[1] in the form of a “right to learn the truth.”

In their words: “Everyone has the right to learn the truth, to access substantive information about the country’s history, and to request that documents and information about this history be made public, including from government archives. There is no statute of limitations on genocide or crimes against humanity”[2].

We should note one thing right away: The BDP’s proposal has a symbolic value related closely to the kind of state that must be envisioned by the new constitution. If Turkey’s new constitution is not to continue down the path of every “nationalist” constitution before it (including 1961) in remaining loyal to the goal of “constructing a Turkish nation-state”, then it will have to enable society to develop a healthy relationship with its own history. This issue is of central importance in the attempt to establish a modern democratic Turkish society with a new constitution sensitive to differences between social groups, be they based on ethnicity, religion, confession or belief, gender or sexual orientation, class, or something else.

Aside from its symbolic importance, we must also reflect seriously on the fact that the proposal creates a new category of constitutional rights, i.e., the “right to learn the truth.” The first reason why this is important is the legal value of the “right to learn the truth” as a constitutional right. Assuming that any constitutional right or freedom, to be meaningful in a concrete way in the administration of positive law, must contain a principle that can ultimately be considered by a court of law, we must ask whether the “right to learn the truth” actually meets such a definition. As the BDP proposal includes a recognition of every person’s right to access material in the state archives, it also means that the free exercise of this right may not be blocked or restricted under the guise of “state secrets” or on other grounds by using measures like the temporary or indefinite closure of archives.

How can this right become meaningful within the context of positive law? First, the constitution would have to state clearly that the proposed “right to learn the truth,” like all other basic rights and freedoms, would be binding for all state institutions in the absence of another law to the contrary. I believe that, in order for this right to be able to be contested in a court of law, such a clause is absolutely necessary, especially given a judicial culture in Turkey that prioritizes state interests. Second, it must also be established clearly in the constitution that, other than the general restrictions on basic freedoms, the “right to learn the truth” is not to be restricted for any reason, including on grounds of “state secrets” or any similar-sounding justifications seeking to preserve the existence and survival of the state.

The second clause of the BDP’s proposal states that “there is no statute of limitations on genocide or crimes against humanity.” It is interesting that this rule should be tied to the “right to know” in the same article of the BDP’s proposal. This statement would act as a constitutional guarantee that, even as information about an ever-changing, ever-expanding “past” is revealed, acts which could be considered “genocide or crimes against humanity” will always remain open to investigation. While this is important because it would give a constitutional status to articles 76 and 77 in the current Turkish Penal Code[3], it is not proposing something that is, in essence, entirely new.

Nevertheless, there are several things that could be done with respect to the issue of genocide in the new constitution. The first that comes to mind is the addition of a statement in a new preamble stressing that the new constitution was created with a collective conscience that condemns in the broadest terms all crimes against humanity experienced in this society’s history on the basis of basic differences like ethnicity, religion, confession, belief, gender, and sexual orientation, and one in which remaining apathetic about such crimes is no longer possible. In addition to this symbolic statement, the inclusion of a constitution-level reform to strengthen hate-crime laws by “forbidding the denial of genocide (and crimes against humanity)” ought to be considered. It is imperative that Turkey recognize the parallel between the criminalization of genocide-denial and hate-crime reforms among the world’s most advanced democratic societies, most notably in Europe, of which Turkey is historically a part. In a society where discrimination on the basis of any and all social categories (particularly ethnicity, religion, and belief) have been the cause for enormous pain and suffering at the hands of the state, the importance of a right to learn the truth is certainly great. But what is at least as important as the right to learn the truth is the elimination of the ever-spreading phenomenon of “denying the past” that stands as a mental barrier to learning the truth. Therefore, in my opinion, it is necessary to simultaneously reform the laws governing hate crimes and introduce laws dealing with those who deny the fact that genocide or crimes against humanity could have been a part of this country’s social and political history. For this reason, we ought to consider a corresponding addition to the BDP’s proposal.

This is what an expanded version of the BDP’s proposal might look like:

“Everyone has the right to learn the truth, to access substantive information about the country’s history, and to request that documents and information about this history be made public, including from government archives. In the absence of a law or other regulation to the contrary, this right shall be respected and implemented by all executive, judicial, and other state bodies and shall not be restricted on any grounds or in any way. The denial of genocide and crimes against humanity constitutes a hate crime whose typical features and penalties shall be regulated by law. There is no statute of limitations on genocide or crimes against humanity.”

*TESEV Constitutional Reform Monitoring Project Consultant and Professor of Law at Atılım University, Ankara

Translator: Alex Balistreri

[1] A left-leaning party known for representing Kurdish interests. –Trans.

[2] http://bdpblog.wordpress.com/2012/07/27/anayasa-uzlasma-komisyonununa-sundugumuz-maddeler/

[3] These articles of the Turkish Penal Code define “genocide” and “crimes against humanity” as well as specify that no statute of limitations shall apply to them. –Trans.

Editor | September 11, 2012 at 9:27 am | Categories: Analysis, Civilianization, Human Rights, Levent Köker, Parliament and Political Parties, Philosophy of the State | URL: http://wp.me/p2rMT2-ez