Traces of repressive criminal law; the “Censorship Law”

The Constitutional Court (AYM), in a decision published in the Official Gazette, quietly released the reasoning for its ruling on the constitutionality of the crime of “publicly disseminating misleading information,” found in Article 217/A of the Turkish Penal Code, which is known to the public as the censorship law. In the decision reached by a majority vote, a total of six members, including Constitutional Court President Zühtü Arslan, cast dissenting votes. In his dissenting opinion, President Arslan emphasized that the use of the law poses a serious threat to freedom of expression, using the phrase, “throughout history, the great justification of those who suppress thought has been the truth.”

As President Arslan also noted in his dissenting opinion, if one is to speak of a democratic social order, this requires that words which are disturbing or considered incorrect by a segment of society must also be protected under the requirements of freedom of expression. Otherwise, the scenarios that will unfold are clear. It could lead to the prevention of the dissemination and sharing of information in society that is disliked or found disturbing by a certain segment, on the grounds that it is contrary to the truth.

In this case, it must be stated with regret that the concept of “democratic social order” included in Article 13 of the Constitution will continue to lose its meaning day by day. Suppressing those who do not think like oneself under the guise of a claim of ‘reality’ or ‘truth’ regarding the coexistence of different views and thoughts is the greatest consequence of the politicization of the judiciary.

As is known, the judiciary has a structure that is highly suitable for being used as an effective tool in intervening in social problems and determining the fate of political conflicts. For this reason, political powers have always been very eager to use the judiciary for their own goals or calculations.

This is where serious distortions occur in the judiciary when it is turned into a tool and moves away from its primary goal of justice, becoming politicized. In other words, a politicized judiciary means that the judiciary is being used for the purpose of political pressure and liquidation.

This problem is more visible in the field of criminal law. Because when criminal law is instrumentalized and a repressive criminal law approach is made dominant, it becomes easier to target and suppress opposition segments or non-governmental organizations in society.

This is exactly how, with the addition of the crime of “publicly disseminating misleading information” to Article 217/A of the Turkish Penal Code—which the government calls a “regulation to combat disinformation” and the opposition calls a “censorship law”—a segment of society can be targeted and suppressed through a repressive criminal law approach.

In other words, the Constitutional Court has decided with a political ruling that a provision, which is clearly contrary to the principles of Criminal Law and has been used outright to suppress the freedom of expression since the moment it entered into force, is in accordance with the Constitution.

There can be no situation more dangerous than for judicial institutions in a country to make decisions not according to the general principles of law and legal customs, but according to public opinion, political references, the sensitivities and suggestions of politicians, political leanings, or the satisfaction or objections of administrators. Because this situation means that there is no legal security in that country, and legal security cannot be ensured. If there is no legal security, if justice cannot be provided through law, nothing in that country will go right. In this respect, if you want to understand what kind of state a state is, it will be sufficient to look at the text of the legal rules in force in that state and the way they are applied.

The latest decision of the Constitutional Court is clear evidence that the government in Turkey has established a guardianship over the judiciary. At this moment, it is not even difficult for the author of these lines to be detained for the crime of “publicly disseminating misleading information” under Article 217/A of the TPC. This is the kind of arbitrariness this ban has paved the way for. No one should have any doubt that in the coming period, this article of law will again descend upon the heads of the opposition as a stick.