The term democracy describes a form of government in which the legitimacy to rule (kratos) is bestowed upon the people (demos) of a state, who exert it with a direct or indirect system of representation through free elections.
Since the second half of the 20th century, the democratic axiom has been the subject of in-depth analyses denoting its nature as a problematic criterion, an “essentially contested concept” able to acquire different meanings according to the social and cultural context in which it develops, without losing its primacy as a key term in the domain of social sciences.
Besides the academic debate over the inner connotation of the principle itself, a non-negotiable value is universally considered as essential in connoting a government as a democratic one — the leading position and the active role of all citizens — unavoidable requirements, not only for the establishment of a state, but with regard to its advancement as well. As underlined by Professor Larry Diamond from Stanford University in his book “The Spirit of Democracy,” “For democratic structures to endure, they must listen to their citizens’ voices, engage their participation, tolerate their protests, protect their freedoms and respond to their needs.”
Nowadays, the majority of states all over the world are ruled according to the democratic paradigm and its key elements. Despite this achievement, a political setback is observable in the so-called modern democracies, where the very same rights enshrined in national constitutions are constantly violated by ruling classes.
Turkey, since the Gezi Park events, well represents one of those states drifting away from the idea of being ruled by popular sovereignty and respecting the mandate set by constitutional provisions. The measures adopted by the government when facing 2013’s civil unrest over İstanbul’s urban development plan have to be seen as forerunners of a single-party autocratic tendency embraced by the administration in confronting dissidents. Previously reached achievements in human rights and in the fields of active citizenship were suddenly erased once people started to show disapproval and raise their voices.
Two years later, civil rights are still under threat: New legal strategies have been enacted to silence citizens’ demands, targeting the tools through which it would be possible to express one’s own dissent. Fundamental freedoms are crumbling under increasingly restrictive domestic laws that are in clear conflict with constitutional provisions; furthermore, recently adopted regulations are simultaneously challenging international agreements ratified by Turkey in terms of the respect of fundamental rights. It is worth remembering that the Turkish Republic is a founding member of the UN, the Organization for Security and Cooperation inEUrope (OSCE), a member state of the Council of Europe (CoE) and a candidate country to the EU.
Being a part of these supranational organizations means accepting and sharing the same will in advancing human rights and the same concern in their protection. Several human rights must be respected in order to comply with the obligations originating from the above-mentioned memberships, but a few of them need to be considered indicators of the status of democracy in a country.
In the judgment Handyside v. the United Kingdom (1976), FoE was described by the European Court of Human Rights (ECtHR) as “one of the basic conditions for the progress of democratic societies and the development of each individual.” Universally accepted as one of the central tenets of modern political ideologies, its enjoyment is subordinated to governments’ will and censorship. Nowadays, after the advent of social media, the Internet and mass communication, states are confronting a new shape of the FoE, discussing whether the right should be granted with the same protection in its online and offline form or not.
Acknowledging the hazardous lack of precise guidelines, the international community adopted countermeasures to prevent violations of the right. In 2012, following a report of the UN Special Rapporteur on Freedom of Expression, the United Nations Human Rights Council approved the resolution on “The Promotion, Protection and Enjoyment of Human Rights on the Internet.” The UN declaration highlights that the right to freely express online is already within UDHR’s and ICCPR’s Article 19. Following the UN’s example, in 2014, the Council of the European Union ratified EU guidelines on FoE, both online and off, stressing member states’ obligations to promote and enforce the liberty. Despite these international guarantees, a state’s constriction is still applicable to online content, grounding government censorship on the necessity to protect national security (ICCPR Article 19, §3, Clause 2).
Turkey well represents a case study in breaching the rightful enjoyment of FoE. The protection granted by the Constitution and supranational agreements is clashing with the domestic Internet legislation, Law No. 5651, strengthened by the aim to protect the security of the country. Since its adoption in 2007, the bylaw has been subjected to several amendments, progressively narrowing the boundaries of FoE, harshly targeting online content, and limiting and infringing rights related to concepts of citizenship and net-citizenship. Opinions expressed online usually turn into grounds for criminal charges instead of being considered a critical inhabitant’s participation in democratic development, breaking the constitutional right to disseminate personal beliefs.
A notable outcome of curbing FoE online resolves into a lack of protection for what is usually considered a corollary of the provision enshrined in the UDHR’s Article 19: Freedom of information (FoI). As well as FoE, FoI is considerable as an evolving right.
Citizen journalism and net-based journalism, as well as social and independent media, are contributing to the creation of an autonomous personal right strictly related to FoE. According to recent ECtHR case law, Article 10 of the ECHR implicitly provides a positive obligation for all members to ensure the liberty of receiving and imparting information as a fundamental right. The responsibility of the state would consist in nurturing and furthering this freedom, removing any obstacles that would lead to censorship or a monopoly on information.
Irrespective of the obligations descending from ratified international agreements and its position as an EU candidate member, Turkey is using its Internet Law to annihilate the aforementioned freedoms: The postulate of Article 8/a of the regulation has ambiguous boundaries, clearly violating the elementary criteria of any democracy that is based on the rule of law.
Blocking citizens’ ability to participate in the current political situation, censoring personal accounts and websites, and filing legal complaints based on personal views expressed on social media are all actions that are leading Turkish authorities far from those who could help them enhance the country’s democratic process: their own citizens.
Roberto Frifrini
source: Today’s Zaman