“Censorship reflects a society’s lack of confidence in itself. It is a hallmark of an authoritarian regime.” ~ Potter Stewart, Associate Justice, US Supreme Court (1958-1981)

For those of us familiar with North Kurdistan, Amnesty International’s recent statement of protest of Article 301 of the Turkish Penal Code, is an act which is praiseworthy in itself since it is a defense of freedom of speech, a protest against censorship, and an enlightenment for that greater world which operates from a position of ignorance, an ignorance born of the luxury that one has when one is able to take for granted things like the idea of freedom of speech, freedom of thought and opinion and freedom of communication. If one has not experienced a censorship which is based on the laws of the state, it is all too easy to take freedom of speech for granted. But Kurds are not ones to fall into the inexperienced category.

From Amnesty’s statement, Article 301 states that:

1. Public denigration of Turkishness, the Republic or the Grand National Assembly of Turkey shall be punishable by imprisonment of between six months and three years.

2. Public denigration of the Government of the Republic of Turkey, the judicial institutions of the State, the military or security structures shall be punishable by imprisonment of between six months and two years.

3. In cases where denigration of Turkishness is committed by a Turkish citizen in another country the punishment shall be increased by one third.

4. Expressions of thought intended to criticize shall not constitute a crime.

Item number 4 is mere decoration and I suspect it was intentionally added in order to soften the blow of items 1 and 2, but the fact is that it does no such thing. Previous incarnations of item number 4 did no such thing. Amnesty is correct in taking a jaundiced view of item 4 because the history of the Turkish state proves that one man’s criticism is another man’s public denigration. If you can get into the spirit of Newspeak, you will understand the Turkish legal system very well. George Orwell himself could never have dreamed up such a nightmare.

The Turkish Penal Code itself was adapted from Mussolini’s own penal code, way back in 1926. This shouldn’t be a surprise since the official state ideology, Kemalism, is also based on the Italian fascism of the 1920s and 30s. The 1991 Anti-Terror Law abolished some of the provisions of the Turkish Penal Code, provisions that dealt with similar “crimes” as Article 301, such as “disparagement of the State abroad” and the making of “separatist propaganda.”

Two articles of the penal code that are of interest in determining how law is interpreted to denigrate the State can be found on page 27 of this report by the International Federation of Human Rights:

Article 158 states that, “Whoever insults the President of the Republic face-to-face or through cursing shall face a heavy penalty of not more than three years…. Even if the name of the President of the Republic is not directly mentioned, allusion and hint shall be considered as an attack made directly against the President if there is presumptive evidence beyond a reasonable doubt that the attack was made against the President of Turkey. If the crime is committed in any published form, the punishment will increase from one third to one half”.

Article 159 of the Turkish Penal Code, one of the most widely-used provision, grants a “moral personality” (manevî sahsiyeti) both to corporate bodies, such as the judiciary and parliament, and to abstract concepts like “Turkishness.” Article 159 warns that, “Those who publicly insult or ridicule Turkishness, the Republic, the moral personality of Parliament, the Government, State Ministers, the military or State security forces, or the moral personality of the Judiciary
will be punished with a penalty of no less than one year and no more than three years of heavy imprisonment”115

That report goes on to mention how EU harmonization packages have altered the previous Articles.

But we see that Article 301 is in keeping with the finest Turkish legal traditions dating all the way back to the foundation of the state. Article 301, as well as the Turkish Penal Code and the Anti-Terror Law of 1991 are subject to the Turkish constitution, a constitution whose drafting was supervised by Turkey’s generals. The fact that a constitution’s writing was not only supervised by a group of military officers but is also enforced by the military, should raise eyebrows, especially when we are constantly flooded with the propaganda from all sides that Turkey is a democracy.

It stands to reason, from the viewpoint of common sense that no law of any nation may stand in contradiction to that nation’s constitution, and Turkish law is no different. But don’t simply take my word for it; read it from the constitution itself :

ARTICLE 11. The provisions of the Constitution are fundamental legal rules binding upon legislative, executive and judicial organs, and administrative authorities and other institutions and individuals.

Laws shall not be in conflict with the Constitution.

The constitution tells us that everyone has certain rights and freedoms, and it goes on to list these rights and freedoms, with each one followed by a punchline. The general pattern is as follows: Everyone has this right. UNLESS. . . and when you read something like “unless,” or “the exercise of this freedom may be restricted by. . . ” or some similar wording, then you know that the punchline is coming. For example:

C. Freedom of Communication

ARTICLE 22. (As amended on October 17, 2001)

Everyone has the right to freedom of communication.

Secrecy of communication is fundamental.

Unless there exists a decision duly passed by a judge on one or several of the grounds of national security, public order, prevention of crime commitment, protection of public health and public morals, or protection of the rights and freedoms of others, or unless there exists a written order of an agency authorised by law in cases where delay is prejudicial, again on the above-mentioned grounds, communication shall not be impeded nor its secrecy be violated. The decision of the authorised agency shall be submitted for the approval of the judge having jurisdiction within 24 hours. The judge shall announce his decision within 48 hours from the time of seizure; otherwise, seizure shall automatically be lifted.

Public establishments or institutions where exceptions to the above may be applied are defined by law.

Another example:

VIII. Freedom of Expression and Dissemination of Thought

ARTICLE 26. (As amended on October 17, 2001)

Everyone has the right to express and disseminate his thoughts and opinion by speech, in writing or in pictures or through other media, individually or collectively. This right includes the freedom to receive and impart information and ideas without interference from official authorities. This provision shall not preclude subjecting transmission by radio, television, cinema, and similar means to a system of licensing.

The exercise of these freedoms may be restricted for the purposes of protecting national security, public order and public safety, the basic characteristics of the Republic and safeguarding the indivisible integrity of the State with its territory and nation, preventing crime, punishing offenders, withholding information duly classified as a state secret, protecting the reputation and rights and private and family life of others, or protecting professional secrets as prescribed by law, or ensuring the proper functioning of the judiciary.

The formalities, conditions and procedures to be applied in exercising the right to expression and dissemination of thought shall be prescribed by law.

For those who are interested in freedom of the press, here is a little nugget to savor:

X. Provisions Relating to the Press and Publication

A. Freedom of the Press

ARTICLE 28. (As amended on October 17, 2001)

The press is free, and shall not be censored. The establishment of a printing house shall not be subject to prior permission or the deposit of a financial guarantee.

The state shall take the necessary measures to ensure freedom of the press and freedom of information.

In the limitation of freedom of the press, Articles 26 and 27 of the Constitution are applicable.

Anyone who writes or prints any news or articles which threaten the internal or external security of the state or the indivisible integrity of the state with its territory and nation, which tend to incite offence, riot or insurrection, or which refer to classified state secrets and anyone who prints or transmits such news or articles to others for the above purposes, shall be held responsible under the law relevant to these offences. Distribution may be suspended as a preventive measure by the decision of a judge, or in the event delay is deemed prejudicial, by the competent authority designated by law. The authority suspending distribution shall notify a competent judge of its decision within twenty-four hours at the latest. The order suspending distribution shall become null and void unless upheld by a competent judge within forty-eight hours at the latest.

No ban shall be placed on the reporting of events, except by the decision of judge issued to ensure proper functioning of the judiciary, within the limits specified by law.

Naturally they don’t ban the reporting of events. It’s a democracy! They simply forbid, under pain of detention with its attendant torture or disappearance or conviction and long imprisonment, the presence of journalists from any area in which events are happening that don’t reflect so favorably on the Turkish state. Such was the action of the state in the 1930s, during the Dersim rebellion and, more recently, during the PKK uprising in the 1980s and 1990s. The state does not want anyone to report what security forces are doing because then they’d have to prosecute you under something like Article 301 of the Turkish Penal Code for “denigrating Turkishness.” It doesn’t occur to them that butchery on the part of the Turkish security forces, in itself, denigrates Turkishness!

For an excellent criticism of the Turkish constitution I suggest a read of this paper: Cannibal Democracies, Theocratic Secularism: The Turkish Version . The main point of the paper deals with the question of the secularism of the Turkish state, but it is highly instructive of the nature of the constitution itself, as well as its drafting and interpretation. An additional commentary from a symposium at the Cardozo Law School should also be read.

In addition, the 1991 Anti-Terror Law is a good read. Just keep in mind it is never applied to those who perpetrate Turkish state terror, especially within Turkish-occupied Kurdistan.

What does all this have to do with Roj TV, Orhan Pamuk and the Armenian Genocide? Everything. These laws and this history of law are the result of a way of thinking that fears freedom of speech and sees any statement of truth as “denigration” of the State. Roj TV uses a language of a people who have not existed in the eyes of the Turkish state until Turgut Ozal finally said the dreaded K-word in public. In spite of the fact that Turkey is still scrambling to prove “terrorist” connections to Roj, nothing has yet been proven. As a matter of fact, anything Kurdish is automatically assumed to be “terrorist” by the Thought Police.

Not long ago, Orhan Pamuk made a statement of fact regarding the Armenian genocide in an interview with European media. As a result, he is accused of “denigrating Turkishness” and, according to Article 301, if convicted, he will receive an increase in punishment by one-third because he made a true statement of fact outside the “territorial integrity” of the Turkish state. In other words, for exposing the dirty laundry for all the world to see, Orhan Pamuk embarassed a state that has been in denial of its own slaughters, first of Armenians and then of Kurds :

During an interview with a Swiss journalist in 2004, writer Pamuk, in response to a question, said, ‘One million Armenians and thirty thousand Kurds were killed here,’ to emphasize that the subject of Armenian emigration is a sensitive one.

Sensitive? That is an understatement. That article by BIA News also mentions Hrant Dink, also in trouble for mentioning Armenian identity. I think it is very interesting that Turkish identity feels so threatened by other identities, even to the point of categorizing them as “sub-identities.”

The Turkish judiciary also attempted to ban a conference on the Armenian genocide in Istanbul in September. Resourceful and brave Turkish historians managed to pull it off anyway, in defiance.

Here we have a dysfunctional democracy whose hypersensitive nationalism is enshrined in law and enforced with a vengeance throughout the world. The revelation here centers on the issue of identity. In the old Turkish Penal Code, Article 159, which I quoted earlier and which gives “a ‘moral personality’ [. . . ] to abstract concepts like ‘Turkishness,'” we see the insecurity of the foundation of the Turkish Republic. The insecurity belonged not only to the Ottomans who instigated and carried out genocide against Armenians, but also to those who shaped the Republic we see today, because this ideology is the one that also made “Kurdishness” a crime. It continues to make “Kurdishness” a crime, which it now tries to hide it under a superior Turkish identity. But the fact remains that one cannot speak about other identities or express one’s own identity without facing the wrath of the Turkish judiciary.

Armenians have a state now. They have a place to freely express their identity and defend it, should it become necessary to do so. Kurds need the same and for the same reasons. The Turkish reign of terror, as manifested in its occupation of Kurdistan and cloaked under a thin pretence of democracy, must come to an end.

And with that, ladies and gentlemen, I am in violation of Article 28 of the Turkish constitution as amended on October 17, 2001. But I’m sure they’ll be able to apply Article 301 to me also.


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