TURKEY: RULING PARTY STILL WORKING OUT "ARTICLE

C O N F I D E N T I A L SECTION 01 OF 03 ANKARA 000714

SIPDIS

SIPDIS

E.O. 12958: DECL: 04/16/2018
TAGS: PGOV PHUM PREL OSCE TU
SUBJECT: TURKEY: RULING PARTY STILL WORKING OUT "ARTICLE
301" DIFFERENCES

REF: ANKARA 59

Classified By: Acting Political Counselor Kelly Degnan, reasons 1.4 (b)
,(d)


1. (C) Summary: As a bill to amend controversial Turkish
Penal Code Article 301 (criminalizing insulting
"Turkishness") inches its way toward the floor of Turkish
Parliament, Turkey's ruling Justice and Development Party
(AKP) members remain divided on the key issue of who should
review cases to screen out baseless prosecutions. AKP
members submitted a bill last week vesting the president with
that authority, after months of delay and debate over the
issue. Parliament Speaker Koksal Toptan and Justice Minister
Mehmet Ali Sahin assert that presidential review would
undermine the apolitical nature of the Presidency and place
an unmanageable administrative burden on the office. They
suggest giving the role to the Justice Minister. PM Erdogan,
who prefers the president hold the authority, responded the
Justice Minister would infuse a political dimension into a
supposedly objective process. Justice Committee Chairman
Ahmet Iyimaya is pushing a compromise -- placing review
authority in the Speaker's office. Meanwhile, opposition
party leaders are mounting an aggressive media campaign that
questions the patriotic bona fides of anyone attempting to
change Article 301. Amending 301 is a key part of AKP's
revitalized EU reform package. Erdogan's challenge is to
unify his party around a practical compromise that can
withstand divisive opposition tactics and move this
long-delayed legislation forward. End summary.

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Speaker Moves Amended Article 301 Forward
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2. (SBU) Speaker Toptan moved a bill amending Article 301 to
the Justice Committee on April 14. The main changes include
changing "insulting Turkishness" to "explicitly insulting the
Turkish nation, the State or the Government of the Republic
of Turkey, the Parliament, the Judiciary, the Military or the
Security organization of the State." The bill reduces the
maximum penalty from three years to two years imprisonment
and eliminates the provision increasing punishment if the
crime is committed abroad. The AKP-introduced bill makes
Article 301 prosecutions subject to the authorization of the
president. The Justice Committee is reviewing the draft, and
will send a revised version to the floor next week.

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Divisions Remain Within AKP
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3. (SBU) The debate over who should have screening authority
that has divided AKP and delayed introduction of a bill for
months resurfaced with the bill's introduction. Iyimaya
explained that a screening mechanism is critical to reign in
ultra-nationalist lawyers who have been the driving force
behind Article 301 cases. According to recently released MOJ
statistics, over the past five years prosecutors opened 6075
cases under Article 301 (and its precursor Article 159) that
led to 745 convictions, he noted.


4. (U) Justice Minister Sahin consistently has argued that
the MOJ should be vested with screening authority. Speaker
Toptan gave tacit support to Sahin's view when he recently
told reporters that authorizing the president would put the
apolitical Presidency in a difficult position. Though
Turkish press speculates President Gul agrees, Gul has
avoided speaking publicly on the issue, saying only, "the
decision is up to Parliament." PM Erdogan responded that the
Justice Minister, as a political figure, is ill-suited for
screening duty, noting AKP decided to give the president
review authority after lengthy discussion at several group
meetings.


5. (SBU) Iyimaya told us he plans to push the compromise
solution of vesting the authority in the Speaker's office.
He has consistently maintained that the Speaker is best
positioned for this duty. AKP Vice Chairman Dengir Mir Firat
echoed the need to reach a compromise when he told reporters
April 11 that AKP would amend the bill if the opposition
parties agreed to give the authority to the Justice Minister.


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Opposition Parties Remain Firmly Opposed
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6. (U) Nationalist Action Party (MHP) and Republican Peoples'
Party (CHP) members remain firmly opposed to any changes to
Article 301. MHP leader Devlet Bahceli accused AKP of
amending 301 as part of its strategy to gain EU support to
bolster its precarious political situation in the face of the
closure case pending against it. Amending Article 301
revealed AKP as politically bankrupt, Bahceli said. MHP
Deputy Group Chairman Oktay Vural told reporters AKP's bill
seeks to give the president authority to allow citizens to
insult the Turkish nation. CHP Deputy Group Chairman Hakki
Suha Okay said the amendment would violate the Constitution
by requiring the President to interfere with the judiciary.


7. (U) MHP has started an active campaign against amending
Article 301 -- distributing leaflets, starting an Internet
website, advertising on billboards and launching a website
called "Who is Disturbed?" -- www.kimrahatsiz.com. The site
contains a series of doomsday videos. One shows footage of
the graves of fallen Turks to the strains of a famous
patriotic song. Bahceli's voice declares, "We are a big
family with a single heart. We are Turkey." Another video
criticizes "lobbyists, accomplices, and so-called
intellectuals," and states, "Wake up Turkey because now is
the time to be unified."


8. (U) Pro-Kurdish Democratic Society Party (DTP) members
continue to favor abolishing Article 301 entirely. At DTP's
most recent parliamentary group meeting, Group Chairman Ahmet
Turk called AKP's bill "an attempt to deceive the EU." Turk
said DTP would rather "abolish this article as a whole since
it led to the murder of Hrant Dink."

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Lawyers, Academics Criticize Current Draft
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9. (U) Lawyers and academics have focused their criticism on
the screening provision. Istanbul University law professor
Adem Sozuer reiterated the argument of many that the problem
rests with the interpretation rather than language of Article

301. "Whether the President allows a case to proceed or not,
Turkey will be shaken. The most appropriate method is for
prosecutors to get it right," he said. He added that such a
system would place an undue administrative burden on Turkey's
top official. Galatasaray University's Law Professor Umit
Kocasakal said he prefers a French-style method that would
allow the allegedly insulted institution to decide whether a
case should be opened. Ankara University Professor Baskin
Oran argued in a recent column that AKP was attempting to
redirect criticisms to the Presidency to evade a backlash
from nationalists and appease civil society. He called on
AKP to abolish Article 301.

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Journalists Skeptical of Proposed Changes
--------------

10. (C) Some journalists prosecuted under Article 301 see
AKP's proposed changes as cosmetic. "Turkish Daily News"
columnist Burak Bekdil, sentenced to a fine and five years'
probation for labeling the judiciary corrupt, told us
changing "insulting Turkishness" to "explicitly insulting the
Turkish nation" would still leave room for "ad hoc
prosecutions." Reducing the maximum penalty is meaningless
because courts always reduce sentences to a fine and
probation in 301 cases -- an effective mechanism that allows
the government to stifle speech without imposing jail
sentences. Bekdil said allowing the president to screen
cases would be an unconstitutional interference in judicial
matters, would create a conflict of interest if a defendant
allegedly insulted the president, and would not allow
defendants the opportunity to defend themselves and clear
their names.


11. (C) "Today's Zaman's" Lale Sariibrahimoglu, recently
acquitted of violating Article 301 by allegedly "insulting"
the military, predicted the proposed changes would not end
persecution and suppression of free speech because numerous
other offending articles will remain on the books.


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12. (C) Comment: After months of promises and delays, AKP
took the first step towards reforming one of Turkey's most
controversial laws, spurred in part by pressure from EU
members and the pending closure case. Amending 301 is a key
part of Erdogan's revitalized EU reform effort but the
continuing divide within AKP, opposition party heat, and
public apathy, indicate just how difficult changing this law
will be. Erdogan's challenge -- one he has clearly not yet
accomplished -- is to unify his party around a practical
compromise that can withstand divisive opposition tactics and
move the long-delayed legislation forward. End comment.

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