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"Right to Know the Truth" as a Constitutional Right, and the
Constitutional Issue of "Crimes Against Humanity and Genocide"*
http://azadalik.wordpress.com/2012/09/18/right-to-know-the-truth-as-a-constitutional-right-and-the-constitutional-issue-of-crimes-against-humanity-and-genocide/
by Azad Alik
Levent Köker**
As work began on the text of the new constitution, political parties
began to announce their proposals on rights and freedoms and their
proposals began to be discussed in earnest in the public sphere. One
of the most noteworthy proposals on rights and freedoms--an area of
such central importance to any constitution--came from the Peace and
Democracy Party (BDP)[1] in the form of a "right to learn the truth."
In their words: "Everyone has the right to learn the truth, to access
substantive information about the country's history, and to request
that documents and information about this history be made public,
including from government archives. There is no statute of limitations
on genocide or crimes against humanity".[2]
We should note one thing right away: The BDP's proposal has a symbolic
value related closely to the kind of state that must be envisioned by
the new constitution. If Turkey's new constitution is not to continue
down the path of every "nationalist" constitution before it (including
1961) in remaining loyal to the goal of "constructing a Turkish
nation-state", then it will have to enable society to develop a
healthy relationship with its own history. This issue is of central
importance in the attempt to establish a modern democratic Turkish
society with a new constitution sensitive to differences between
social groups, be they based on ethnicity, religion, confession or
belief, gender or sexual orientation, class, or something else.
Aside from its symbolic importance, we must also reflect seriously on
the fact that the proposal creates a new category of constitutional
rights, i.e., the "right to learn the truth." The first reason why
this is important is the legal value of the "right to learn the truth"
as a constitutional right. Assuming that any constitutional right or
freedom, to be meaningful in a concrete way in the administration of
positive law, must contain a principle that can ultimately be
considered by a court of law, we must ask whether the "right to learn
the truth" actually meets such a definition. As the BDP proposal
includes a recognition of every person's right to access material in
the state archives, it also means that the free exercise of this right
may not be blocked or restricted under the guise of "state secrets" or
on other grounds by using measures like the temporary or indefinite
closure of archives.
How can this right become meaningful within the context of positive
law? First, the constitution would have to state clearly that the
proposed "right to learn the truth," like all other basic rights and
freedoms, would be binding for all state institutions in the absence
of another law to the contrary. I believe that, in order for this
right to be able to be contested in a court of law, such a clause is
absolutely necessary, especially given a judicial culture in Turkey
that prioritizes state interests. Second, it must also be established
clearly in the constitution that, other than the general restrictions
on basic freedoms, the "right to learn the truth" is not to be
restricted for any reason, including on grounds of "state secrets" or
any similar-sounding justifications seeking to preserve the existence
and survival of the state.
The second clause of the BDP's proposal states that "there is no
statute of limitations on genocide or crimes against humanity." It is
interesting that this rule should be tied to the "right to know" in
the same article of the BDP's proposal. This statement would act as a
constitutional guarantee that, even as information about an
ever-changing, ever-expanding "past" is revealed, acts which could be
considered "genocide or crimes against humanity" will always remain
open to investigation. While this is important because it would give a
constitutional status to articles 76 and 77 in the current Turkish
Penal Code[3], it is not proposing something that is, in essence,
entirely new.
Nevertheless, there are several things that could be done with respect
to the issue of genocide in the new constitution. The first that comes
to mind is the addition of a statement in a new preamble stressing
that the new constitution was created with a collective conscience
that condemns in the broadest terms all crimes against humanity
experienced in this society's history on the basis of basic
differences like ethnicity, religion, confession, belief, gender, and
sexual orientation, and one in which remaining apathetic about such
crimes is no longer possible. In addition to this symbolic statement,
the inclusion of a constitution-level reform to strengthen hate-crime
laws by "forbidding the denial of genocide (and crimes against
humanity)" ought to be considered. It is imperative that Turkey
recognize the parallel between the criminalization of genocide-denial
and hate-crime reforms among the world's most advanced democratic
societies, most notably in Europe, of which Turkey is historically a
part. In a society where discrimination on the basis of any and all
social categories (particularly ethnicity, religion, and belief) have
been the cause for enormous pain and suffering at the hands of the
state, the importance of a right to learn the truth is certainly
great. But what is at least as important as the right to learn the
truth is the elimination of the ever-spreading phenomenon of "denying
the past" that stands as a mental barrier to learning the truth.
Therefore, in my opinion, it is necessary to simultaneously reform the
laws governing hate crimes and introduce laws dealing with those who
deny the fact that genocide or crimes against humanity could have been
a part of this country's social and political history. For this
reason, we ought to consider a corresponding addition to the BDP's
proposal.
This is what an expanded version of the BDP's proposal might look like:
"Everyone has the right to learn the truth, to access substantive
information about the country's history, and to request that documents
and information about this history be made public, including from
government archives. In the absence of a law or other regulation to
the contrary, this right shall be respected and implemented by all
executive, judicial, and other state bodies and shall not be
restricted on any grounds or in any way. The denial of genocide and
crimes against humanity constitutes a hate crime whose typical
features and penalties shall be regulated by law. There is no statute
of limitations on genocide or crimes against humanity."
----------------------------------------------------------------
* This piece ir reprinted with the permission of TESEV and is taken
from its Constitutional Reform Monitoring website
http://anayasaizleme.org/
**TESEV Constitutional Reform Monitoring Project Consultant and
Professor of Law at Atılım University, Ankara
[1] A left-leaning party known for representing Kurdish interests. -Trans.
[2] http://bdpblog.wordpress.com/2012/07/27/anayasa-uzlasma-komisyonununa-sundugumuz-maddeler/
[3] These articles of the Turkish Penal Code define "genocide" and
"crimes against humanity" as well as specify that no statute of
limitations shall apply to them. -Trans.
Constitutional Issue of "Crimes Against Humanity and Genocide"*
http://azadalik.wordpress.com/2012/09/18/right-to-know-the-truth-as-a-constitutional-right-and-the-constitutional-issue-of-crimes-against-humanity-and-genocide/
by Azad Alik
Levent Köker**
As work began on the text of the new constitution, political parties
began to announce their proposals on rights and freedoms and their
proposals began to be discussed in earnest in the public sphere. One
of the most noteworthy proposals on rights and freedoms--an area of
such central importance to any constitution--came from the Peace and
Democracy Party (BDP)[1] in the form of a "right to learn the truth."
In their words: "Everyone has the right to learn the truth, to access
substantive information about the country's history, and to request
that documents and information about this history be made public,
including from government archives. There is no statute of limitations
on genocide or crimes against humanity".[2]
We should note one thing right away: The BDP's proposal has a symbolic
value related closely to the kind of state that must be envisioned by
the new constitution. If Turkey's new constitution is not to continue
down the path of every "nationalist" constitution before it (including
1961) in remaining loyal to the goal of "constructing a Turkish
nation-state", then it will have to enable society to develop a
healthy relationship with its own history. This issue is of central
importance in the attempt to establish a modern democratic Turkish
society with a new constitution sensitive to differences between
social groups, be they based on ethnicity, religion, confession or
belief, gender or sexual orientation, class, or something else.
Aside from its symbolic importance, we must also reflect seriously on
the fact that the proposal creates a new category of constitutional
rights, i.e., the "right to learn the truth." The first reason why
this is important is the legal value of the "right to learn the truth"
as a constitutional right. Assuming that any constitutional right or
freedom, to be meaningful in a concrete way in the administration of
positive law, must contain a principle that can ultimately be
considered by a court of law, we must ask whether the "right to learn
the truth" actually meets such a definition. As the BDP proposal
includes a recognition of every person's right to access material in
the state archives, it also means that the free exercise of this right
may not be blocked or restricted under the guise of "state secrets" or
on other grounds by using measures like the temporary or indefinite
closure of archives.
How can this right become meaningful within the context of positive
law? First, the constitution would have to state clearly that the
proposed "right to learn the truth," like all other basic rights and
freedoms, would be binding for all state institutions in the absence
of another law to the contrary. I believe that, in order for this
right to be able to be contested in a court of law, such a clause is
absolutely necessary, especially given a judicial culture in Turkey
that prioritizes state interests. Second, it must also be established
clearly in the constitution that, other than the general restrictions
on basic freedoms, the "right to learn the truth" is not to be
restricted for any reason, including on grounds of "state secrets" or
any similar-sounding justifications seeking to preserve the existence
and survival of the state.
The second clause of the BDP's proposal states that "there is no
statute of limitations on genocide or crimes against humanity." It is
interesting that this rule should be tied to the "right to know" in
the same article of the BDP's proposal. This statement would act as a
constitutional guarantee that, even as information about an
ever-changing, ever-expanding "past" is revealed, acts which could be
considered "genocide or crimes against humanity" will always remain
open to investigation. While this is important because it would give a
constitutional status to articles 76 and 77 in the current Turkish
Penal Code[3], it is not proposing something that is, in essence,
entirely new.
Nevertheless, there are several things that could be done with respect
to the issue of genocide in the new constitution. The first that comes
to mind is the addition of a statement in a new preamble stressing
that the new constitution was created with a collective conscience
that condemns in the broadest terms all crimes against humanity
experienced in this society's history on the basis of basic
differences like ethnicity, religion, confession, belief, gender, and
sexual orientation, and one in which remaining apathetic about such
crimes is no longer possible. In addition to this symbolic statement,
the inclusion of a constitution-level reform to strengthen hate-crime
laws by "forbidding the denial of genocide (and crimes against
humanity)" ought to be considered. It is imperative that Turkey
recognize the parallel between the criminalization of genocide-denial
and hate-crime reforms among the world's most advanced democratic
societies, most notably in Europe, of which Turkey is historically a
part. In a society where discrimination on the basis of any and all
social categories (particularly ethnicity, religion, and belief) have
been the cause for enormous pain and suffering at the hands of the
state, the importance of a right to learn the truth is certainly
great. But what is at least as important as the right to learn the
truth is the elimination of the ever-spreading phenomenon of "denying
the past" that stands as a mental barrier to learning the truth.
Therefore, in my opinion, it is necessary to simultaneously reform the
laws governing hate crimes and introduce laws dealing with those who
deny the fact that genocide or crimes against humanity could have been
a part of this country's social and political history. For this
reason, we ought to consider a corresponding addition to the BDP's
proposal.
This is what an expanded version of the BDP's proposal might look like:
"Everyone has the right to learn the truth, to access substantive
information about the country's history, and to request that documents
and information about this history be made public, including from
government archives. In the absence of a law or other regulation to
the contrary, this right shall be respected and implemented by all
executive, judicial, and other state bodies and shall not be
restricted on any grounds or in any way. The denial of genocide and
crimes against humanity constitutes a hate crime whose typical
features and penalties shall be regulated by law. There is no statute
of limitations on genocide or crimes against humanity."
----------------------------------------------------------------
* This piece ir reprinted with the permission of TESEV and is taken
from its Constitutional Reform Monitoring website
http://anayasaizleme.org/
**TESEV Constitutional Reform Monitoring Project Consultant and
Professor of Law at Atılım University, Ankara
[1] A left-leaning party known for representing Kurdish interests. -Trans.
[2] http://bdpblog.wordpress.com/2012/07/27/anayasa-uzlasma-komisyonununa-sundugumuz-maddeler/
[3] These articles of the Turkish Penal Code define "genocide" and
"crimes against humanity" as well as specify that no statute of
limitations shall apply to them. -Trans.