Access to public information in Erdoğan's Turkey

A detailed and unique analysis of the right to access information in Turkey, where not only this right is not being upheld, but also the freedom of expression is heavily violated

(Originally published by Bianet, media partner of the ECPMF project)

In Western democracies, to have an opinion and to be able to express it is considered normal. This fundamental human right generally known as “freedom of expression” embraces also the right to obtain information, that is, to get access to a wide variety of information referring, in defense of the public interest, also to the activities of the government.¹

The right of the citizens to access to information is connected to freedom of expression as defined in Article 19 of the Universal Declaration of Human Rights of 1948. However, the connection was not immediate and it was open to legal interpretation for some time.² Since the year 2000 national parliaments have legally defined it as “Right to Information” establishing that governments must inform the public about the operations they have carried out (proactive access) and reply to requests for information regarding these operations (reactive access).³

As with every other right, the right to access information is not without limits. Exceptions to the right to access information come as a series of obstacles, from national security to protection of privacy. These could be considered to make sense and to be necessary, but in practice they become important limitations in the application of this right. As in many political realities in the world, these exceptions to the right to information appear before the Turkish citizens and the press in the form of a violent, tough, rigid resistance, often limiting individual rights and even the right to life.⁴

Post-truth

The expression “post-truth”, that has recently become known, is directly connected to the public’s right to access to information.⁵ The neo-liberal policies which, to the detriment of large social sectors, aim at completely eliminating obstacles to capitalism, also represent a serious threat to governments’ legitimacy. We are in a period in which the number of things hidden from the general public are probably on the increase in order to “overcome” similar concerns. The more the political and economic⁶ authorities begin to overstep the limits of legitimacy, the further they move away from sharing the truth while hiding and distorting it in the same time.

It is sufficient to remember the whistleblowers who brought to light how much information had been hidden and subsequently distorted, mainly by global powers under the leadership of George W. Bush and Tony Blair, starting with the intervention in Iraq in 2003, in order to get active approval. The Wikileaks documents which caused a stir throughout the world in 2011 demonstrated that the secret affairs conducted by the governments were seriously problematic and proved once again the importance of being able to access public information.⁷

I’m not sure if the whistleblowerscan be considered journalists of the new times, but in those countries considered as the cradle of the profession, journalism has always been considered an important resource for the right of access to government information. Journalists have been given a privileged position in accessing to government information (journalist’s privilege).⁸

However, even in those countries where democracy is well-established, today as yesterday it can’t be said that this privilege is always without problems. In a country like Turkey, journalism has never risen to a position of privilege but rather the authorities would seriously like to have it under their control and journalists from the opposition often risk their lives. Today more than ever…

The gateway to access information in Turkey and those standing on the threshold

In the Middle East, Turkey is an “unsettled democracy”⁹ looking to the West, which has for some time been producing legislation necessary for its accession to the European Union. In this process, one of the rings bound to freedom of expression is the Bill No. 4982 on the Right to Know, enacted on 24 October 2003, which came into force on 24 April 2004.¹⁰

This law “is intended to regulate the procedure and the basis of the right to information according to the principles of equality, impartiality and openness that are required in a democratic and transparent government." One of the rights recognised by this bill is implemented by the Prime minister’s communication centre (BIMER), which citizens can use as a channel to present their requests. The number of these is constantly increasing.¹¹

However, the central organism responsible to inform the public should be the Parliament, where public policies are discussed and decided. Parliamentary debates, resolutions and questions are all important information for journalists trying to lift the veil of secrecy that hide public policies.¹³

But these attempts rarely go beyond a few numbers which are normally prepared by the government’s bureaucracy and which actually hide the heart of the question. Also the percentage of timely answers to written parliamentary questions presented by MPs to the assembly’s presidency is rather low.¹⁴

For example, the answer to the parliamentary question presented on 27.6.2016 by the member of the main opposition Republican People’s Party (CHP), Ahmet Akin, proves that only 7.82 percent of the 841 parliamentary questions presented to the 26th legislature have received an answer within the limits of time, while 53.42 percent have received no answer at all. The greatest number of unanswered questions are those aimed at the Prime minister (946) and at the Home affairs Minister (589).

According to the report on Parliamentary activity for the period from 17 November 2015 to 30 September 2016, overall 8,469 written and 563 verbal questions were presented. The authorities answered 2,767 of the former and 51 of the latter. In thisparliament year, 15 motions have been presented for parliamentary discussion, along with 14 questions, 1,221 proposals for parliamentary enquiry and 2 proposals for parliamentary investigations, but so far none of them have been discussed.¹⁵

Along with the questions raised by the MPs, there are also those raised by the public. According to the parliamentary report on the 26th legislature, the highest number of requests from the public was received by the Petitions Committee, the Human Rights Enquiry Committee, and the Committee for Equal Opportunities. During this period the first of these Committees received 1,922 individual requests and 1,608 collective requests, the latter underwritten by 31,163 people (p. 128). The Human Rights EnquiryCommittee received 1,761 requests of which 1,431 were examined, and which were mostly regarding detainees and convicts (p. 137).

With the constitutional amendment of 2010, and in alignment with the guidelines for accession of Turkey to the EU, a new constitutional institution has been added to help the access of citizens to information: a "civic mediator which came into force after the publication of the official gazette No.28338 of 29 June 2012 with the relative Law No.6328, which established the institutional role of civic mediator or Ombudsman linked to Parliament and having an autonomous budget. With the concept of justice based on human rights, it has the function of studying and analysing the adherence to the principles of justice and of equity of all actions and operation of the administration and to issue related recommendations.” This Ombudsman began receiving complaints on 29 March 2013.¹⁶ According to data received for 2015, the Ombudsman managed to answer 86 percent of complaints.¹⁷

Hundreds of examples would prove that these changes acknowledging the right of citizens to information on administrative procedures in practice do very little. One case was widely covered by the opposition media and in particular the left-leaning ones. In 2011, during a protest as the Prime minister was visiting a small village in Northeastern Turkey, demonstrators were massively sprayed with tear gas and a teacher, Metin Lokumcu, died. A citizen wanted to know how much tear gas was used by the security forces. The authorities did not give a clear answer, which means that the public administration did not recognise the right of the citizens to the information requested. The citizens thus decided to go to court. The police did not even answer to the injunction from the court, stating it was a “state secret”. This even though the Administrative Court had already ruled that the information was not a state secret. Therefore, important information on the excessive force used during the demonstration resulting in a death was hidden from the public.¹⁸

Another good example is the persistence with which the public was not allowed to receive information as to whether the current head of state had respected all the conditions necessary to hold that position. One of the requirements to become the President of Turkey is to hold a degree. Since May 2016, the opposition press began circulating the news according to which Recep Tayyip Erdoğan would not hold a four-year degree. The opposition parties made much of this information, gathering wide support from public opinion to try to stop Erdoğan from becoming president. Even though they presented strong proof their claims have been ignored.¹⁹

Journalists kicked out and sent to fill the prisons

Journalists are undoubtedly considered the most important actors in the use of the right to access information. But because of the characters of the traditional political system in Turkey, they often need to move away from official pathways and even if they do find the information they are looking for, the increased number of decisions for secrecy emphasise the problem of access to information.

In order to discuss the problems encountered by journalists in the access to information, one should distinguish different levels. First of all, the story of journalism in Turkey is strictly tied to the political, social and economic story of the country. One of the reasons why it is necessary to mention this bond is the fact that in this capitalist country using the model of Western democracies, journalism is not seen to be autonomous either from the journalist's point of view or from the reader's one. When an active consensus has not been possible, Turkey has always turned to the use of force. The government has always been ready to silence journalists using various methods, mainly obliging them – or the owners and executives of the media - to choose a political side, including them somehow in the mechanisms of power.

The neo-liberal policies of the ‘80s lived a so-called “golden period” during the years of the AKP government (2002 to present). Today the biggest obstacles facing journalists’ access to information is not direct restrictions, but indirect ones which can lead to prison. Even the simplest form of journalism that is critical of the government can lead to unemployment, to being faced with expensive trials or to struggle in jail with unbelievable conditions.

Our laws are not so bad. We have laws which are on a par with those of Western democracies, we have organisations, institutions and control mechanisms comparable with theirs. However because of a particular form of illegality, journalists tend to completely abandon their role of informing the public.

The government was not satisfied with the current regulation on the internet and its own law enforcement. So, on the 6 February 2014 it instituted a new body with legal status, the Internet Providers’ Union (Erişim Sağlayıcıları Birliği), through which it began blocking access to web sites it didn't like in a faster way. The function of the Providers’ Union is to communicate to providers the decisions made to block access to illegal topics that are not included in the list²⁰ referred to in Article 8 of the Bill No.5651 on the regulation of publications on the web and the fight against crimes committed through these publications. The general secretary of this Union can afford to make statements such as: “Social media are a commercial business and therefore they don’t fall within freedom of expression”.²¹ This statement was published by a partially state run information body, but there is no authority which discusses, criticises or publicly condemns such an absurdity, nor is there an authority that could remove this incompetent person from his position.

Today it is almost impossible to provide correct information on the attacks in the Turkish cities on the South-Eastern border (with a Kurdish majority) and in the main cities. If the information is somehow spread through social media, a ban is immediately published forbidding the publication of the news in any public place. If a media decides to publish it, it could be faced with a penalty, a block could be placed on the social media accounts and sometimes the journalists and the users of the social media accounts could be arrested and detained. 

Since the state of emergency installed after the failed coup of 15 July 2016, bans and violation of rights have increased exponentially.²²

The protests in Gezi Park in 2013, the corruption scandal of 17-25 December, the massacres which are claimed (or not) by the Islamic State and the PKK (the Kurdistan Workers' Party) and the 15 July 2016 failed coup are all used as justification for the suspension of human rights, including the right to information. The “ban on the circulation of news” which was imposed after each attack made it impossible for those outside of the political power to accede to information on such important facts.²³

But it does not end here. When someone gives the public a drop of information they run the risk of severe penalties. For example, after July’s failed coup the daily Özgür Gündem, the voice for the fight for freedom of the Kurds since 1994, was raided by the police and all those in the building including the publishers were battered and arrested.²⁴

Aslı Erdoğan and Necmiye Alpay, who were part of the advisory committee for the daily, were kept in prison for months. It is a way of sending a message to all those who sympathise with the Kurdish media. Also the journalists and the rights activists who, for a day, became senior editors in solidarity with the daily, ended up in court and in prison accused of “propaganda for a terrorist organisation” (referring to the PKK).

The daily Cumhuriyet, one of the few critical and alternative voices to the ever-growing pro-AKP media, has on one hand suffered fiscal sanctions, on the other the staff, from the director to the barman, ended up in prison accused of being linked to “terror" actions. They are facing accusations of facts not considered crimes, bogus charges and imprisonment lasting months…

We are talking about a country governed by a President who gets angry at a journalist's questions and replies that he is asking “a traitor’s questions”²⁵ and uses the crime of contempt to silence the opposition. So one needs either to be very optimistic or partisan to talk about the rights of access to information for journalists.

All these conditions completely devoid from effectiveness the legal texts protecting the right of the public to information, the right of access to information and of freedom of expression in Turkey. Texts in which the word “democracy” is widely used. All that remains is the hope of a great number of people, readers and watchers who, in spite of everything, defend their own lives and the future of their children, without the use of empty expressions, and who want access to information not because it is allowed by law, but for real necessity²⁶ together with the precious work of journalists, fragile but strong in spirit, who continue to do their work to keep hope alive.

 

Notes:

[1 ] Information of public interest is not limited to the activities of public authorities, but also include those not considered as public, for example, the activities of private companies. However, in many countries access to information is regulated by law and is limited to public institutions such as the government. See Mazhar Siraj, “Exclusion of Private Sector from Freedom of Information Laws: Implications from a Human Rights Perspective”, Journal of Alternative Perspectives in the Social Sciences, 2010, 2/11, p. 211-226.

[2 ] On this subject see for example: Eric Barendt, “Freedom of speech in the media”, Freedom of speech, Oxford University Press, 2nd edition, 417-50.

[ 3] It is possible that the public administration, faced with conflicting interests in society, finds it must work in a non public form in the preparatory phase, in accordance with the principle of objectivity; or rather, if the public administration does not supply information at a proactive or reactive level, this obviously does not always mean they want to hide suspicious actions. See,C. Soykan, 2006, Bir insan hakkı olarak bilgi edinme hakkı, Y Tezi, Ankara Ü.

[ 4] The popular uprisings which started in Seattle in the USA and then appeared in Spain in 2011 with the movement of the Indignados, the various Arab uprisings, the protests of Gezi Park, etc. can also be seen as an awe-inspiring response by ordinary citizens to the loss of legitimacy of the governments.

[ 5] The definition of post-truth proposed by the Oxford Dictionary in 2016, is "Relating to or denoting circumstances in which objective facts are less influential in shaping public opinion than appeals to emotion and personal belief.” Alison Flood, “'Post-truth'. The Oxford Dictionary also declared it was the word of the year, The Guardian, 15.11.2016.

[ 6] These two can only be separated analytically. In the concrete practice of real life the capitalist state cannot become state without an agreement with the capitalists and vice versa. They obviously are also forced to reach an agreement with broader sectors of society, who are excluded from power, and in my opinion their exclusion from “information" comes from this agreement.

[ 7] G. Adaklı, 2011, “Wikileaks versus Kapitalizm”, Bianet.

[ 8] Compare, for example: Kenneth C. Creech, “Issues in information gathering”, Electronic media law and regulation, Routledge, p. 327-338.

[ 9] Eric Jan Zürcher, Modernleşen Türkiye'nin Tarihi, trad. Y. S. Gönen, İstanbul: İletişim, 7a stampa, 2000, p. 321.

[ 10] Previously the right to information was under the form of “right to petition” regulated under the article 74 of the 1982 Constitution and the Bill No.3071 on the use of the right to petition based on the above mentioned article of the Constitution.

[11 ] TRT Haber, “BİMER'e 2016'da yapılan başvurular 2015'e göre yüzde 62 artarak 1 milyon 729 bin 952'ye yükseldi”, (19.1.2017)

[12] At this point it is important to remember that official data could be misleading both concerning sharing public policies with the public and their application and concerning the replies to the requests for information by the citizens. Even this table, although it gives information on the access to information, uses a technicality which may conceal the information content.

[ 13] On the basis of what I have understood from journalists I know in Turkey, journalists rarely ask to receive information. One of the differences between western democracies and Turkey is found in this issue. In the West there is a wide range of manuals describing tricks for overcoming the reluctance of public administrations to give information. For example, see: Access Info & n-ost, A guide for on how to Access government information, 2014.

[14 ] In January an MP from the CHP, Didem Engin presented a parliamentary question regarding soldiers (Turks) who were kidnapped by the Islamic State. It was not processed. He then made a request for information, but did not get an answer. Birgün, “Hükümet 'El Bab'ta neler oluyor' sorusundan rahatsız”, (13.1.2017).

[15 ] TBMM, 26. Dönem 1. Yasama Yılı Yasama, Denetim ve Yönetim Faaliyet Raporu, 2017

[16 ] https://www.ombudsman.gov.tr/hakkimizda/ (Retrieved: 6.2.2017)

[17 ] https://www.ombudsman.gov.tr/contents/files/kdk-2015-yillik-rapor.pdf (Retrieved: 7.2.2017)

[18 ] Mesut Hasan Benli, “Danıştay, Bilgi Edinme Yasası kapsamında devletin elindeki biber gazı miktarını öğrenmek isteyen vatandaşa verdiği 'devlet sırrı' yanıtını kabul etmedi”, Radikal, , 2 Ağustos 2013.

[19 ] Sözcü, “Erdoğan’ın diploması ile ilgili şüphelerin kaynakları!”, 3.6.2016. “ÜNİVDER’den Erdoğan’ın Diploma Meselesine İlişkin Açıklama”, Bianet, 8.6.2016.

[20 ] Incitement to suicide, sexual exploitation of minors, facilitating the use of drugs, procuring of substances bad for the health, obscenities, prostitution, providing places and possibilities for gambling, crimes against Atatürk. https://www.ihbarweb.org.tr/

[21 ] Arife Yıldız Ünal ve Ayşenur Sağlam, “Sosyal medyada "sahte hesap" uyarısı”, 24.12.2015, (in Turkish). 

[22 ] For detailed information on press, radio, television and press agencies closed because of the state of emergency see: Feray Salman ve Aysel Ergün, “Kapatılan basın, yayın, radyo, televizyon ve haber ajansları”, Bianet, 9.1.2017, (in Turkish).

[23 ] To access update information on forbidding publication: RTUK and Hurriyet (in Turkish). 

 

[24 ] Aylin Kaya, “Özgür Gündem Genel Yayın Yönetmeni Zana Kaya: Tarih gösterdi, gerçekleri halka ulaştırmanın yolu tükenmez”.

[25 ] Hürriyet, “Erdoğan: Biz güdülen bir hükümet değiliz”, 2.8.2006.

[26 ] Brian Stelter from CNN, defended a similar optimistic vision in a debate on the problems of journalism. The journalist claims that since Donald Trump was elected they are receiving a mass of emails from readers and television viewers saying: “We do not endorse attempts to delegitimise the press, we need you” and they add: “we refuse discussions on post-fact and post-truth. People continue to follow… This country is starved of information.” Shan Wang, “The boundaries of journalism — and who gets to make it, consume it, and criticize it — are expanding”, 1.2.2017.