FREEDOM, DUE PROCESS, AND GROSS CONTRADICTION

“It is clear that the freedom of expression and opinion is a fundamental right, the mother of all rights.” ~ Abid Hussain, Speech in Sri Lanka, 1999, UN Special Rapporteur on the Freedom of Information

RFE/RL is carrying a report which says that South Kurdistan, Hewlêr in particular, has become the center of a Kurdish cultural renaissance. This is excellent news, especially for Kurdish intellectuals in the region who have much less freedom, and in many cases suffer persecution, for expressing Kurdish culture.

There is a problem, however, which is that South Kurdistan is not as free as it should be when it comes to intellectual or cultural pursuits, as the arrest and detention in communicado of Dr. Kamal Sayid Qadir shows. There is background information on Dr. Kamal’s situation by Piling here. I noticed this comment:

The KRG explains that Kamal Sayid Qadir, has insulted publically Barzani : these insults were not political critics but an offence forbidden by the Kurdish law : it is in fact illegal to insult someone or his family, whoever the victim could be, President or “lambda” citizen. So, Kamal Sayid Qadir should be judged, as any anonymous people, in Hewlêr.

It seems to me as if this law were picked up from the discarded Article 158 of the old Turkish Penal Code (which was later discarded in the new old discarded Turkish Penal Code), in which it was clearly a violation of law to insult “the President of the Republic face-to-face or through cursing [. . .] 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.”

In this case, I would ask for a definition of the term “insult,” because I can see much abuse of free speech coming through such a law. It would be better instead to enforce laws regarding libel or slander, with strict legal definitions of the terms. Otherwise, a chill will descend on South Kurdistan which may result in a long-term, deep freeze of the right of free speech, the mother of all rights.

Amnesty International reports that Dr. Kamal was arrested for publishing internet articles critical of the KDP leadership. This makes me wonder if South Kurdistan picked up on another aspect of Article 158 of the new old Turkish Penal Code, which calls for an increase in punishment by one-third if the means of “insulting” the Turkish president is done in the media. Maybe an additional increase in time or, in lieu of that, a large fine will be imposed because the crime was committed abroad?

In addition, the conditions of Dr. Kamal’s arrest should not lead anyone to believe that he will receive a just trial in that portion of South Kurdistan ruled by the KDP, in light of the fact that he is being held incommunicado. To be held incommunicado means that one is held by the authorities without any contact with the outside world or even with the acknowledgement that one is being held. Since there is no due process of law apparent here, how is anyone to believe that any trial of Dr. Kamal will also follow any due process? This, in addition to the violation of Dr. Kamal’s right to free speech, is a mark of a totalitarian regime, not one of a free and open democracy.

The whole idea that these “Turkish” laws exist in South Kurdistan, in addition to the total lack of due process, is a very depressing one, especially given that the Barzanî tribe is enforcing them. This was the tribe that did so much for Kurdish freedom in the South and this was the tribe that suffered the slaughter of 8,000 of its men by the Saddam regime at one blow, some 500 of which were recently returned for a proper burial in Barzan. This is the gross contradiction of the Kurdish people’s struggle for freedom. All of those who have died in the struggle have died for what? For the adoption and application of the discarded penal code of the Kemalist regime to the north?

Perhaps Serok Barzanî needs to make less frequent visits to Ankara.

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