TESEV PAPER: The New Constitution and the Freedom of Expression |By Levent Pişkin
Freedom of expression and freedom of the press were discussed under the heading of “basic rights and freedoms” in the summer round of discussions on the new constitution, run by the Constitutional Reconciliation Commission under the supervision of parliament.
Of the 41 articles listed as dealing with basic rights and freedoms, 21 were drafted, but only seven of these were resolved to the complete satisfaction of all parties. The article dealing with press freedom was one in which much text remained in brackets, denoting “further discussion necessary”. Left in brackets were the Justice and Development Party’s [AKP] proposal to restrict freedom of the press on the basis of public order and general morality as well as the Nationalist Movement Party’s [MHP] proposal to include restrictions on the basis of national security. The Republican People’s Party [CHP] and the Peace and Democracy Party [BDP] objected to any and all limits on press freedom in the article . Resolution of the debates surrounding articles undergoing editing and all bracketed text was postponed to a later date.
The constitutional drafting process is conducted in this way both in order to start a debate on the political parties’ proposal in the commission and to come to an agreement. The topic of this essay is the inclusion of press censorship in the constitution as part of the article on press freedom proposed by the AKP.
The proposals of the political parties are certainly of great importance to the process of drafting a new constitution, because in representative democracies, political parties are the actors with the greatest ability to provide representation and, as the current process has shown, are those actually authorized to create the new constitution. Yet democracy is a humanistic ideal we cannot simply surrender to the political parties. Political parties’ mere capacity to represent the people is not a sufficient basis for the understanding of democratic governance sought here.
One after another, societal developments and technological advances have provided us with a series of tools enabling people’s direct participation in democracies. The media—known as the “fourth branch of government”—is one result of these developments. The press and visual media are two of the most important tools for reaching broad masses of people and are thus indispensable for our understanding of democracy today. The freedom of expression is the foundation of liberal democratic states and of societies composed of free, autonomous individuals. Limiting the freedom of expression means having to make concessions on majoritarian democracy. Specifically, passing regulations in such a way as not to harm unrepresented groups’ political autonomy and self-expression will also determine the use of other freedoms and/or the limits placed on them.
For comparison, I will mention two parties’ proposals on the freedom of expression and its limits. The BDP made the following proposal: “All people enjoy the freedom to express and propagate their thoughts and opinions in the language of their choice, using any legally sanctioned means, either as individuals or as a group. This freedom includes the freedom to access news, information, and opinions, as well as propagate them, without interference by public authorities.” The CHP’s proposal, meanwhile, was the following: “Freedom of the press may only be curtailed in case of an attempt to change the rights-based democratic and secular constitutional order by means of violence; in case of a spreading of hatred in society on the basis of race, language, religion, gender, class, region, or confession; in case of an incitement to or praise of war or violence; in order to protect a plurality of voices in the media, the rights and freedoms of others, or trade secrets as governed by law; in order to prevent crime and punish criminals; or in order to ensure that court orders can be executed properly.”
The most striking thing, however, was the inclusion of constraints like “public order” and “general morality” in the proposal made by the AKP. The AKP’s initial list of constraints had included “national security” and “ensuring the independence and impartiality of the courts” as well, but these were removed after eliciting a negative reaction and replaced with a restriction on the basis of “preserving the public order, general morality, and the rights of others.” The final draft of the proposal was recorded as: “Freedom of the press may be limited for the purpose of preserving the public order, general morality, and the rights of others.”
The Proposal’s Constraints
The constraints found in the various versions of the AKP’s proposal—national security, public order, general morality, crime prevention, preserving the independence and impartiality of the courts, and others—might be seen as being in accordance with Article 10 of the European Convention on Human Rights [ECHR]. This led some observers to state there was nothing surprising in the AKP’s proposal. Several concepts in the proposal, like “incitement to war” or “all promotion of discrimination, animosity, or hostility and hatred” along with vague expressions like “national security, public order, and general morality” give the impression of being in line with a more progressive, democratic reform but, in the constitution, would actually be open to subjective, anti-democratic interpretations or be grounds for all kinds of state activity. Their inclusion has thus proven the newspaper columnists and esteemed jurists who criticized the reforms correct.
The conservative nationalist ideology that lies at the heart of claims of national security, public order, and general morality has pervaded our lives since the 1924 constitution and has turned the lives of the opposition and of ethnic, religious, and gender minorities into a kind of hell. In fact, a ruling added in 2004 through Law No. 5170  to the first clause of Article 90 of the constitution gave force to international treaties on human rights in Turkish domestic law and even gave precedence to the treaties in case of a conflict between laws. In practice, this amendment essentially made our application of ECHR standards a constitutional imperative.
As noted above, banning the advocacy of “animosity, hostility, and hatred”—something which is not in the ECHR but known in the literature as “hate crimes”—is a proposal that is progressive and, particularly for Turkey, necessary. Here it would also behoove us to look at how the similarly inspired Article 217 of the Turkish Penal Code, currently in force, is actually applied. In practice, this article is used to punish and criminalize those who demand peace and defend the collective rights of the Kurdish people. This regulation, the only one of its kind in our positive law, is being rendered utterly useless by judges and meddling prosecutors with their unfavorable interpretations. The lawsuit brought against İbrahim Kaboğlu and Baskın Oran on the basis of their “Minority Report” is the most prominent example of how this article has been misinterpreted.
Nevertheless, the inclusion of contradictory concepts as limits on free expression presents a challenge from the perspective of legal method: Isn’t a police officer who punishes someone for violating “general morality” by going out at night also committing a hate crime in some respects?
The proposal discussed here ought not to enter the constitution as currently written. In its place, the opinions of the European Court of Human Rights should be taken as templates. The constitution should stress that freedom of expression applies not only to opinions seen as unproblematic, but also to opinions that might offend or shock the state or certain segments of society. Limits on free speech should be placed only with this in mind.
The inclusion of terms like “public order, national security, and general morality” as arguments for limits in any article governing freedoms is a sign that the constitution is going to be written not with a perspective based on human rights and freedoms, but one that merely respects them, in the words of the coup-era 1982 constitution.
Though expectations about the position of people in power regarding freedom of expression were high in this phase of discussions on the new constitution, we can now draw the conclusion that on the authority-versus-freedom scale, the former will continue to be emphasized.
*TESEV Democratization Program – Judiciary, Law and Justice Project Assistant
 Derya Sazak, “Anayasada Basın Özgürlüğü” [Freedom of the Press in the Constitution], Milliyet, 13 August 2012. (http://www.milliyet.com.tr/anayasada-basin-ozgurlugu/ombudsman/haberdetay/13.08.2012/1580107/default.htm)
 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
 Ergun Özbudun, “ Basın Hürriyeti Hiç mi Sınırlanamaz?” [Can the Freedom of the Press Not Be Resitricted At All?], Açık Görüş, Star television ( http://www.stargazete.com/acikgorus/basin-hurriyeti-hic-mi-sinirlandirilamaz/haber-650715)
 Resmi Gazete [Official Gazette] 22.5.2004, S.25469.
 Any person who incites the animosity or hostility of one segment of society toward another segment of a different class, race, religion, confession, or region, and, in doing so, presents a clear and present danger to public safety, shall be sentenced to between one and three years in prison.
Any person who publically denigrates a segment of society on the basis of its class, race, religion, confession, gender, or region shall be sentenced to between six months and one year in prison.
Any person who publically denigrates the religious values adopted by one segment of society and whose act has the potential to disturb the public peace shall be sentenced to between six months and one year in prison.
 “216. maddeden 23 sanık” [23 suspects on Article 216], http://www.bianet.org/bianet/ifade-ozgurlugu/113121-2008de-toplumsal-gerilimin-insani-bedeli-435-dusunce-suclusu , Accessed: 11.09.2012
 “İbrahim Kaboğlu ve Baskın Oran Yargılanmayacak” [İbrahim Kaboğlu and Baskın Oran not to be put on trial], http://www.radikal.com.tr/Radikal.aspx?aType=RadikalDetayV3&ArticleID=924524&Date=04.03.2009&CategoryID=77 , Accessed: 11.09.2012
READ MORE http://turkeyconstitutionwatch.org/2012/09/12/the-new-constitution-and-the-freedom-of-expression-levent-piskin/