Putting a Dent in a Law Against Insulting Turkishness
By SABRINA TAVERNISE; Sebnem Arsu contributed reporting from Izmir and Istanbul.
25 January 2008
IZMIR, Turkey -- When Atilla Yayla, a maverick political science professor, offered a mild
criticism of Turkey's first years as a country, his remarks unleashed a torrent of abuse.
''Traitor!'' a newspaper headline shouted. His college dismissed him. State prosecutors in this
western city, where he spoke, opened a criminal case against him. His crime? Violating an
obscure law against insulting the legacy of Mustafa Kemal Ataturk, Turkey's founder.
''I need thoughts to counter my ideas,'' Mr. Yayla said. ''Instead they attacked me.''
Turkey's government has taken on the issue of free speech and is expected as early as Friday
to announce a weakening of a law against insulting Turkishness, an amendment that is
considered a key measure of the democratic maturity of this Muslim country as it tries to
gain acceptance to the European Union.
But while that law, called Article 301, is known to many in the West -- Orhan Pamuk, the
Nobel Prize-winning Turkish novelist, was prosecuted under 301 -- it is just one of many
laws that limit freedom of expression for intellectuals in Turkey. The law under which Mr.
Yayla was prosecuted, for example, dates from 1951 and is not even part of the penal code.
While the change in Article 301 is likely to stop the wanton application of that law, the single
most common statute used against critics of Turkey's official line, the government was
unable to remove it from the books completely, as liberals here had wanted.
The reason goes to the heart of the state of Turkey today: Despite its booming economy, gay
pride parades and ambitious European aspirations, a large part of Turkish society is deeply
conservative. When it comes to free speech, many Turks support the limitations.
As nationalism has been rising in Turkey in response to the broad changes sweeping society,
so have the number of court cases against writers, publishers and academics. The European
Union, in a report in November, said the number of such people prosecuted almost doubled
in 2006 over the year before, and rose further in 2007.
In all, about 39 articles limit free expression in Turkey, though only 13 are commonly used,
said Zafer Gokdemir, a rights lawyer who has represented defendants in these cases since
1995.
The laws are deeply damaging, liberals argue, because they block society's thinkers from
asking the difficult questions needed to overcome a painful past.
Turkey was born fighting for its life against European powers that were carving it up at the
end of World War I. It was left defensive, with low self-esteem and weak institutions, and a
deep-seated insecurity lingers.
But unlike Russians who were cynical about the Soviet state, most Turks strongly believe in
their system. Nationalist taboos on questioning official history are held in place as much by
society as by Turkey's controlling state.
The legal complaints, for that reason, emerge from the most insecure part of society: a
nationalist, sometimes violent fringe, whose political backers are the staunchly secular old
guard. With vast power, but limited public accountability, that old guard is not unlike senior
Soviet apparatchiks. The heart of this class works in the military, an elite institution in
Turkey, and in the judiciary.
In Turkey's court system, any private citizen can file a complaint, requiring prosecutors to
investigate, and a vast majority of the freedom of expression cases begin that way. An
ultranationalist lawyer who started the case against Mr. Pamuk, Kemal Kerincsiz, said in an
interview that he had gotten about 50 cases opened since 2005.
Mr. Yayla's speech, in 2006 at a youth conference in Izmir, drew eight complaints, including
one from the Izmir Bar Association, according to his lawyer, Nalan Erkem. Mr. Yayla's
argument -- that the early years of the republic were less democratic than the period after
Turkey became a multiparty system, and that Ataturk's monopoly on public images would be
perplexing to Europeans -- ''had no basis in science,'' said Huseyin Durdu, a Turkish patriot
lawyer and a complainant.
Asked what would happen if the law were rescinded, Mr. Durdu looked stricken.
''People would be insulting each other,'' he said, in an immaculate office in downtown Izmir,
a small bust of Ataturk on the wall behind him. ''It would be conflict and chaos.''
Mr. Yayla, for his part, said he was simply trying to provoke a thoughtful discussion on the
monopoly of political symbols.
''Of course we need to have Ataturk statues, but there are other people in Turkish history,
and they deserve statues, too,'' he said by telephone.
In a surprising twist, Turkey's class of religious Muslims -- deeply despised by the secular old
guard primarily because it is considered a serious threat to the old guard's power -- has
pushed to weaken the laws. President Abdullah Gul has said that Article 301 has been as
damaging to Turkey's reputation as ''Midnight Express,'' a 1978 film about an American drug
smuggler brutalized in a Turkish prison.
The old guard, which professes to stand for Western values but in fact is deeply suspicious
of the freedoms they would bring, deftly places obstacles in the path of the religious class by
invoking the specter of extremism.
Mr. Yayla, who cites John Stuart Mill and John Locke, is harder for the old guard to trip up.
Indeed, Mr. Yayla's speech was so scholarly that the only thing his critics found to charge
him with formally was referring to Ataturk as ''this man.'' (For reference, in the Turkish
Constitution, he is described as the ''immortal leader and unrivaled hero.'')
The prosecutions result in suspended sentences, fines, closings of publishing houses, but
rarely jail time. Even so, they have chilled free speech. Public trials go for months and draw
leering ultranationalists. Last year one turned lethal when a nationalist teenage gunman killed
Hrant Dink, a Turkish-Armenian journalist.
Mr. Yayla is now in self-imposed exile in Britain, even though his job in Turkey was
reinstated. Before leaving, he moved around with a bodyguard.
The convictions that sometimes do carry jail time are often against Kurds. An arsenal of laws
relating to the charge of terrorism is aimed at Kurdish writers, publishers and artists.
''When you use the word Kurd or Kurdistan, you are conducting terrorist propaganda, no
matter what you are saying,'' said Ahmet Onal, a Kurdish publisher of 270 books, for which
he has stood trial 27 times and served prison terms twice.
The issue of Kurds is delicate because Turkey has been warring with a militant fringe of its
Kurdish population since the 1980s, and the lines between expression and revolt are blurry.
For years the old guard refused to acknowledge its Kurds as a distinct population.
Many Turks say European countries should be more understanding of Turkey, a far younger
state than many, with bigger problems. European democracy is a ''thornless garden,'' said
Umit Kocasakal, a lawyer.
Besides, he says, Europeans have similar laws restricting speech. Articles 90A and 90B in
Germany prohibit disparaging the state, its symbols and constitutional institutions, and
Article 290 of the Italian penal code prohibits vilifying the republic and its military.
But application in Europe is extremely rare. In Italy the only punishment is a fine.
The laws in Turkey may be frustratingly tenacious but besides the amendment, the
government is fighting back in its own way. It detained more than 30 ultranationalists with
shady ties to the old guard on Tuesday in an operation that thrilled liberals. Among those
detained was Mr. Kerincsiz, who had opened the cases against Mr. Pamuk and Mr. Dink.
Mr. Yayla spends his days reading in Britain. He says it feels good to pore over pages about
the possibility of free societies in Muslim countries. Despite Turkish liberals' fight with the
rigid, dying old guard, it is the new religious class that seems certain to determine the future
of democracy in Turkey, and Mr. Yayla says he wants to be prepared.
''I am an individualist,'' he said. ''I believe in the value of human beings. I don't like insulting
people. I can usually make my point without it.''
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