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A few months ago, the journalist Asu Maro published a new collection of interviews with Tuğrul Eryılmaz, an outstanding journalist of the ‘68 generation in Turkey and who has witnessed the last 40 years of Turkey’s press while working at numerous newspapers and journals. I’d like to begin with some a few of Eryılmaz’s lines from the book, which explain the function of the press:

“…wherever there is power, you must be suspicious… Because as long as journalists are on the side of the voiceless and oppressed, they act as a fourth power. You take risks… you always take the side of the powerless against the powerful. That is the only way to be a journalist… “

There are several “factors”, “principles” and “recommendations” in Eryılmaz’s definition of journalism and he firmly believes in the necessity of being suspicious “wherever there is power”.

And: Isn’t he right?

One factor concerned with press freedom is the issue of ”distance”. The natural consequence of distance is suspicion. Another of the principles in Eryılmaz’s description is to be on the side of “the oppressed and powerless who have no voice”.

Journalists who maintain a distance between themselves and power will inevitably be on the side of the voiceless. Undoubtedly, this is bad news for those in today’s pro-government media in Turkey, who believe they are functioning as journalists while being propped up by financiers and the powerful; the general public refers to the media outlets they work for as “pool media”. Rather, and for than serving freedom, the pro-government media choke it. What “press freedom” properly means is a press whose core function is to correctly inform the public and stand on the side of those who need freedom as much as air and water – “dissenters” and “the oppressed”.

The freedom and importance of the press in a democratic system is intertwined with the concept of constitutional rights, among numerous other areas. This connection relates both to press freedom itself as a constitutional right and to the press as the “fourth estate”, as described by Eryılmaz.

The concept of the press as the “fourth estate” is one of the phrases most widely used to explain the media’s value and impact. Like the balance among the legislature, executive and judiciary branches, a free and honest press is seen as one of the monitoring and braking devices preventing the concentration of power.

In today’s Turkey, the newspapers, journals and TV stations that make up the “pool media” generally share the same headlines and content. Without doubt, this uniformity constitutes an abuse of the fourth estate and an attempt to gradually render it non-functional. Citizens getting their news from the pool media and those gleaning information from the Internet appear to be living in two different countries, which is one of the explicit reasons for the current polarization in Turkey.

Indeed, in Turkey it is the opposition or alternative press that deserves the title of the “fourth power”. The rest of the press acts as a tool assisting the concentration of the other three powers in one hand and helping to dispose of the democratic principle of separation of powers by either ignoring or distorting reality.

I wrote above that press freedom was closely related to the “cluster of rights” written in the constitution. To be sure, this “cluster of rights” is not just concerned with regulations on press freedom. In constitutional law, there is a criterion applied to assess the sphere of influence of basic rights and freedoms: the” dual nature of rights”. In the words of Yavuz Sabuncu, author of “Introduction to the Constitution”:

“…For a right to be guaranteed by the constitution from the point of view of the individual means that, at the same time, an area important for society as a whole must be protected…rights and freedoms such as press freedom, property and inheritance law, scientific freedom or freedom of contract protect areas of rights that prevent the degradation of the individual-state relationship and emphasize objective and institutional elements…”

According to this “dual nature” definition, press freedom as a constitutional right cannot be considered in isolation. The principle of press freedom concerns the press on an institutional level, it concerns those working for the press on an individual level and, subsequently, it also concerns several related rights, including primarily freedom of thought and expression. Therefore, taking into account all the other areas of rights affected by freedom of the press and the envisaged restrictions, it clearly functions as the guarantor of a democratic political power model. The value of the fourth power in a democratic system, as outlined above, should be understood within the context of the “complementary” nature of rights from a constitutional point of view. Therefore, press freedom as stated in Article 28 of the current (1982) Turkish constitution cannot be discussed separately from freedom of thought and belief in Article 25.

For an example of the importance of press freedom to other rights, we need look no further than the recent construction of Istanbul’s third airport. As I write this article, over 20 workers are in detention for taking action, along with hundreds of other workers, to secure their rights. If there had been a free press, fulfilling its raison d’etre in a democratic society, these workers would not be in detention. Every assessment of press freedom inextricably relates to whether or not other basic rights and freedoms are recognized. Citizens whose right to honest news coverage has been obstructed cannot even be sure of the quality of their daily bread. It’s that simple.

Constitutional history of press freedom in Turkey

Even though press freedom had a place as far back as the Ottoman-Turkish constitutions, it’s a tragedy that it has never enjoyed an adequate degree of protection in Turkey.

According to the Article 12 of the first Ottoman-Turkish constitution in 1876, the press was “free within the constraints of the law”. However, as this constitution was conferred by decree, it contained no protection for basic rights. Bearing in mind that Sultan Abdulhamid II sent his parliament “on holiday” in 1878 and didn’t recall it for 30 years, it would be wrong to attach too much value to the press freedom mentioned in this constitution.

One of the changes made in 1909, following the establishment of what is known in Turkish history as the Second Constitutional Era (starting in 1908), was an amendment to Article 12 to specify that the press “…must on no account be subjected to any kind of supervision and inspection before publication”. In other words, the reforms forbade pre-publication censorship.

Fast forward now 102 years. In 2011, investigative journalist Ahmet Şık’s book ‘The Imam’s Army”, which investigated the structure of religious sects within the Turkish state apparatus, was seized before going to print. This seizure, so long after the 1909 amendment, was a meaningful indicator of current press freedom in Turkey (not to mention the fact that the prime minister at the time equated Şık’s books with materials for making a bomb).

The 1921 constitution was a special text put together in Anatolia under the conditions created by the Turkish War of Independence. This brief constitution didn’t mention press freedom. Article 77 of the first constitution of the Turkish Republic in 1924 enshrined press freedom in law but was mostly the same as Article 12 of the 1909 reformed constitution.  However, one notable feature of the 1924 constitution was that while it foresaw the need for enshrining press freedom in law, it did not include the principle of requiring that any restrictions be established by law. As a result, in situations where there is no constitutional court, legal changes related to the press can be enacted through the elimination of constitutional guarantees. Neither the one-party (1931 Press Law) nor multi-party eras (1950 Press Law) were particularly resplendent times for press freedom.

Turkey’s 1961 constitution brought with it some guarantees with Articles 23 and 27 relating to the press. However, it’s worth recalling that no matter how much the 1961 constitution opened up a free space incomparable to the previous period, Articles 141 and 142 of the previous Turkish Penal Code, criminalizing certain ideologies such as communism and anarchy, remained like a sword of Damocles poised over the press and all matters of thought.

A portion of the freedoms in the 1961 constitution was reversed with amendments following the March 12, 1971, military memorandum. The coup in September 1980 swept away the remaining crumbs of freedom. The 1982 constitution includes press freedom and the related restrictions in Articles 28 to 32. Regardless of all the changes that have been made on paper from 1982 to the present day, the spirit of the text has hardly been affected.

Press trials as part of an integral political problem

To reiterate the reality: The clauses of any constitution are lifeless. It is interpretation and evaluation that breathe life into them. Interpretation is carried out by judicial bodies, in some situations by order and doctrine. Public order or general morality and the grounds for restrictions, such as domestic and international security, are recognized in Western democracies as well. However, while in other countries the peaceful actions of hundreds of thousands of citizens are not considered to be a violation of the principle of public order, in Turkey a handful of dissenters gathered together is seen as just that. The problem is not the existence of the principle of “public order”, but rather the way this principle is interpreted. The activity of interpretation is also related to whether or not there is a democratic political system in place.

This all leads to the fact that constitutional provisions are only one of the issues concerning press freedom in Turkey. The manner in which the other provisions for basic rights in the current constitution are executed and interpreted is extremely indicative as is the implementation of extraconstitutional legislation, such as the press law and the anti-terrorism law, the latter with its ever-controversial definition of terror. The deepening authoritarian approach increasingly experienced over recent years renders it impossible to tackle the issue of press freedom in Turkey as a purely constitutional or legislative matter. This is about more than positive law. At the moment, those at the helm of the state describe journalists who still have no legal judgement made against them as terrorists – a clear abrogation of the constitutional principle of presumption of innocence. And those same officials comfortably assert that journalists in Turkey are not inside because of their journalistic activities. Such actions are not new in Turkey. Previous political figures such as the leader of the 1980 military coup, Kenan Evren, and iconic neoliberal politician Turgut Özal, who was elected prime minister in 1983, also exhibited similar tendencies. It spells the end of the rule of law when the reason for a person’s arrest and detention is described as if it were a final judgement.

It’s worth keeping in mind that all lawsuits mentioned here are politically motivated, and politically motivated cases are born of the political conditions of the time. It hasn’t been long since large numbers of military personnel and civilians were given heavy prison sentences after being charged as coup plotters. A short time after their convictions, the lawsuits collapsed. It’s also worth seeing the press trials of recent years, especially that of Cumhuriyet, not as a purely judicial matter, but as part of an integral political problem.

While the concept of press freedom and the rulings of the European Court of Human Rights (ECtHR) support the journalists, who have been charged in Turkey, their trials show no sign of abating. The trials of those accused of “insulting the president”, a charge which is contrary to ECtHR rulings, are especially farcical.

In short, discussion of press freedom can only become meaningful when considered together with other basic rights and freedoms and alongside all facets of the political order. To put it another way, the debate about press freedom cannot ‘simply’ be a judicial one in situations where the principle of ‘separation of powers’, which acts like a trivet over the constitution, has been blown apart. This is not the way it should be. The struggle for press freedom should not be left to artfully choke in arguments over legal technicalities.

Views expressed in this article are those of the author and do not necessarily reflect the views of the International Press Institute.