Burçak Ünsal
Last updated: 29 March, 2015

“I expect from those who assume the rhetoric of ‘rule of law’ and ‘democracy’ to refrain from these legislative activities”

The people of Turkey have gotten used to having their fundamental rights, economic rights, civil rights, and criminal provisions enacted in the omnibus bills, which amend hundreds of provisions in many irrelevant pieces of legislation at one go. The omnibus bill is a legislative method that has been criticized and condemned as a detrimental threat to the parliamentary system as well as the legislature and fundamental rights.

In the small hours of Friday, March 27th, 2015, the Justice and Development Party (“AKP”) government enacted yet another Omnibus Bill, which introduces draconian internal security and Internet restrictions and allocation of discretionary funds for the President:

Discretionary funds to a “non-executive” President for intelligence and defense services:

Under the Turkish Constitution, the President is not an executive body of the state and does not directly take or implement decisions pertaining to the government. (Yet, the budget for the President is so enormous that a “1000-room palace” could be built for the President last year). Allocating discretionary funds to the President for concealed intelligence and defense services and for state security is therefore unconstitutional. This provision came as a surprise to all, as it was not in the original text of the Omnibus Bill, but introduced into the law as a last minute proposal by the Minister of Interior.

Almost martial law for public demonstrations:

The omnibus bill empowers the police to detain up to 48 hours without a judge’s order and denying the detained audience with a judge; to wiretap communication up to 48 hours without a judge’s order; to stop and “strip” based on mere suspicion. Also the imprisonment sanctions reached horrific extents such as four years in prison to even partially covering face at public demonstrations.

The enacted omnibus bill also chains the Internet and Internet users:

Internet access is acknowledged as a fundamental right by the United Nations and the European Union. Although Turkey has been condemned by the European Court of Human Rights directly due to Law No. 5651 (“Internet Law”) and its implementations, the government’s hard grip on Internet has become so tight that freedom online is about to be suffocated.

With the new provisions introduced in the Internet Law by Article 16 of the Omnibus Bill:

* The Prime Minister or the relevant Minister may demand from the Telecommunication Agency to remove the content and/or restrict access to the content which they believe to threat national security, public order, public health or prevent crime.

* The Agency has to implement the decision immediately, but no longer than four hours. The Agency has to seek approval of a judge of a first instance criminal court within 24 hours.

* If it is technically impossible for the access provider to remove the specific content or restrict access to the specific content, the entire web based service (such as YouTube or Twitter) will be banned.

* Those who retweet, repost or otherwise share the content will be prosecuted for the same crime along with the content provider.

These provisions are contrary to the Turkish Constitution and will surely be challenged.

How can someone who retweets a tweet or shares a Facebook post possibly know that the content constitutes a crime? Hundreds, if not thousands, of people, journalists, academicians and artists are prosecuted for defamation and slander merely because they use their constitutional right of expression and political speech!

The Prime Minister, or any other minister for that matter, is not a judge or a court to decide whether online content constitutes a crime. Prescription of criminal content and restriction of freedom of expression can only be done by financially and legally independent courts based on clearly defined laws.

Web services such as Twitter and YouTube, which provide billions of pieces of information, cannot be entirely banned just due to any single content.

I expect from those who assume the rhetoric of “rule of law” and “democracy” to refrain from these legislative activities, for both the economic and humanitarian development of Turkey.