Anti-Semitism and the gag order from a criminal law perspective

By: GUNAL KURSUN

Turkey is such an interesting and hectic country, and one which, from time to time, spews up and reveals its guts. Last week, there were two different news stories in the media that attracted great attention and criticism.

The first was the statement from the governor of Edirne, which reads: “Those bandit-like people who are fanning the winds of war and doing military drills at the al-Aqsa Mosque are killing Muslims there, and we are restoring their synagogues here. I am saying all this grudgingly. The synagogue here whose restoration is about to be completed will only serve as a museum.”

A governor, not an ordinary individual, is speaking those words, and no one resigned or calls on the governor to resign, including the minister of the interior. Resignation is the best consequence for a serious mistake and its practice is widespread in civilized countries. There are two articles in the Turkish Penal Code (TCK) dealing with this first situation.

The first, Article 122 on discrimination, prescribes: “Any person who discriminates against another person on the grounds of language, race, color, gender, disability, political view, philosophical belief, religion, sect or any similar reasons by: a) preventing the sale or transfer of personal property or real estate, the performance or enjoyment of a service or who offers employment or refuses employment, … shall be sentenced to a penalty of imprisonment for a term of six months to one year or a judicial fine.”

According to the information I gathered from Ministry of Justice’s website, there is only one conviction based on this article in the whole of Turkey’s legal history and three more cases are pending. As you may see, our legal system itself explains the situation, as since there are only a few instances of discrimination in Turkey, we have solved the discrimination problem! Wherever you look you can see instances of discrimination in Turkey, yet there has only been one single case brought based on the article. Nothing will happen to that governor and I will not be surprised if he is promoted. Have pogroms in 1934, chase the Jews from their houses, and carry on this racism in 2014; what a lovely way of governing!

The other article is Article 216 which prohibits provoking the public to hatred, hostility or degradation, and reads in its first paragraph: “A person who publicly provokes hatred or hostility in one section of the public against another section which has a different characteristic based on social class, race, religion, sect or regional difference, which creates a clear and imminent danger to public security, shall be sentenced to a penalty of imprisonment for a term of one to three years.”

This article has been systematically and widely used against authors, journalists, caricaturists and intellectuals in Turkey, like Orhan Pamuk and Hrant Dink, but the real purpose for it and the rationale for using it would be against such a racist and discriminatory governor. Let us see if there is one single public prosecutor who goes outside “his majesty’s judiciary,” and is brave enough to file a case.

The other important news story in the media was the gag order regarding reporting on the activities of the parliamentary commission that has been inquiring into the alleged corruption of ex-ministers. The gag order was issued by a court in Ankara, and the decision depends on the Turkish Press Code, which is part of Turkish law, and namely its Article 3, which is a general provision that says: “The use of press freedom can only be limited, in accordance with the requirements of a democratic society; with the aim of the protection of the people’s reputation or rights, public health and morals, national security, public order, public security and territorial integrity, prevention of disclosure of state secrets or ensuring the judicial power’s authority and impartiality.”

This article is a generic article that does not shed any light on the method that should be used to make what is happening inside the commission private, and there are no specific provisions on such a circumstance in the law. However, there are many provisions in the TCK which protect people’s rights if they are violated. The court’s decision protects the ex-ministers before they become victims of a possible attack, which is contrary to criminal law principles, but fails to protect all other Turkish citizens as victims of alleged corruption.

The great Roman lawyer Marcus Tullius Cicero once said, “The safety of the people shall be the highest law.” Are we safe under his majesty’s justice?

SOURCE: CIHAN