Wikipedia had been blocked in Turkey
ever since April 29, 2017, allegedly because of content in which Turkey was
described as a state sponsoring terrorism. The Turkish Constitutional Court
(TCC) recently lifted the ban on Wikipedia and a surge of, in my view,
unwarranted optimism has now sprung out of nowhere both among international and
Turkish circles following the case closely. I fail to share this optimism. Even
Gönenç Gürkaynak, the attorney representing Wikimedia Foundation, the chief complainant in
the individual application case against the Turkish government alleging a
violation of its right to free speech, was guarded in his tweet about the outcome of the Court’s
decision. “I should not have needed to go to the Constitutional Court nor the
ECtHR in a matter like this,” Mr. Gürkaynak tweeted.
By all means, the lifting of the ban
on Wikipedia is something to be happy about. But the timing and content of the
TCC’s decision, when especially read through the political context in which it
was handed down, do not give much reason to celebrate. In this blogpost, I
flesh out the reasons why the TCC’s decision lifting the ban on Wikipedia must
not occasion much optimism, but should rather provide an opportunity for
strategic reflection for those committed to the daunting task of bettering the
state of fundamental rights, and particularly speech-related rights, in Turkey.
Here are 4 salient reasons for caution.
1. The ruling was not unanimous, with 6 justices dissenting
The Court currently has 16 members,
which is a temporary anomaly. After Serdar Özgüldür, who was a military court
judge prior to his appointment – the practice of which has ended with the 2017
amendments to the Constitution – retires, the vacancy left by his retirement
will not be filled. That will stabilize the composition of the Court to having
15 members. But until then, the Court will continue to deliberate sensitive
cases like this as a panel of 16. And out of that 16, 6 have dissented,
reasoning that the blanket ban on Wikipedia was consistent with the requirement
that infringements on fundamental rights be “necessary in a democratic society”.
6 out of 16 is not a numeric figure to be dismissed briskly.
What is more, 5 of the 6 dissenters
are President Erdogan appointees to the Court. Erdogan appointees cannot be
said to have a shared and robust constitutional vision. However, with the
exception of Prof. Dr. Yusuf Şevki Hakyemez, a constitutional law
scholar appointed to the Court by Erdogan who sides with the “liberal half” of
the Court, other Erdogan appointees virtually always tend to side with the
government in cases with heightened political significance to the government
and its critics.
In an earlier post, I suggested that the opposition could find some
solace in the fact that Erdogan may not be considered to have packed the court
for at least two reasons. First, he does not have the numbers yet. Only 6 out
of the 16 (soon 15) members are his appointees. Second, and far more important,
Erdogan appointees do not appear to have a written-in-stone kind of
constitutional vision that enables them to side with the executive all the
time. Some of his appointees, as frequently in the case of Justice Hakyemez for
example, join many of the “liberal” decisions of the Court. Thus, I still stand
by my initial proposition. The accuracy of my argument will ultimately be tested
if and when Erdogan loses an upcoming election, because only under a new
executive (and also legislature) with a different political ideology will we
have the opportunity to see if the Court upholds most policy decisions taken by
that new executive (in which case it will not be possible to speak of an
“Erdogan capture of the Court”).
In the end, packed or not packed, 6
members of the Court have disagreed with their colleagues lifting the ban.
Unsurprisingly, the same 6 members were all among the 8 dissenters in the
recent TCC case ruling that the government violated
petitioners’ freedom of expression by prosecuting and penalizing members of the
Turkish academia who signed the “Peace for Academics” declaration for allegedly
spreading terrorist propaganda.
All of these 6 members of the Court
have been recently appointed. Under current law, of the 6 dissenters in the
Wikipedia decision, the most senior is expected to retire in 2024, others in
2026, 2027, 2028, 2031 and 2031, respectively.
2. The content of the joint dissenting opinion cowritten by the dissenters raises concerns
Legal arguments are countered with
legal arguments, regardless of the fact that one’s legal arguments can be (and,
in my opinion, inevitably are) reflective of one’s own political ideology.
Perhaps most frustratingly, the dissenting opinion in the Wikipedia case does
not read as a legal opinion. In other words, as I tried to articulate under
(1), that there are dissents in this case, 6 of them to be precise, is alarming
in and of itself. To add insult to injury, the content of the
jointly-authored dissenting opinion is equally alarming.
Conspicuously, there is not even a
single precedent invoked in the dissenting opinion. While the majority opinion
references and, to a large extent, meaningfully discusses Turkish and European
Court of Human Rights (ECtHR) precedents, the dissent fails to mention any.
That, in turn, raises concerns as to whether the dissenters have succeeded in
articulating their disagreement with their colleagues in the majority on
Substantively, the dissent keeps
repeating two points in aid of the government: (i) that Wikipedia was initially
contacted by the government to remove specific content, and was given time (4
hours) to do so, and that the government banned the entire website only after
Wikipedia remained silent about the government’s initial request. The dissent
seems to want to argue that because the government gave Wikipedia some time, it
had been gracious enough… The opinion dodges the actual and more relevant
question of whether the government’s request to Wikipedia to remove certain,
however specific, content from the website was a violation of Wikipedia’s right
to free expression in the first place. (ii) Second, the dissenting justices
state that at the time of the government’s request back in 2017, it
might have been reasonable to ban Wikipedia, because content in Wikipedia
alleging the Turkish government to have been involved in the Syrian war by
allegedly supporting terrorist forces such as ISIS spinoffs might have been
especially dangerous for Turkish national security at that specific time.
For one, the idea that the government and Turkish national security might have
been especially susceptible to such content on Wikipedia in 2017 is mere
speculation for which the dissent fails to provide any concrete and factual support.
For another, even if the dissent’s speculation were accepted, the relevant
question it still dodges is whether the Turkish government has remained
equally susceptible to the content on Wikipedia since 2017. In other words, the
dissent fails to speak on the issue of whether the ban which was perhaps once a
necessity from a Turkish national security perspective (again, mere speculation
unless grounded in evidence) remained as such through the end of 2019.
3. The TCC’s decision came very late
The Wikimedia Foundation applied to
the TCC on May 9, 2017. The decision of the Court was announced on December 26,
2019. Critics have reasonably asserted that the timing of the decision was
noteworthy. Indeed, Wikipedia had already applied to the ECtHR in May 2019, obviously frustrated by the TCC’s
unwillingness to take up the case.
For better or worse, Wikipedia’s
application to the Strasbourg Court seems to have expedited the Turkish Court’s
handling of the matter. Skeptics would argue, fearing a declaration by the
ECtHR that the TCC has even partially lost its ability to act as an effective
domestic remedy, the TCC, upon learning that the petitioners had applied to the
ECtHR, decided to consider Wikipedia’s case which had been before the TCC for
more than 2 years. Put in other words, if the case would have indeed been
considered by the Strasbourg Court, which would undoubtedly have issued a
judgment finding a violation of Article 10 of the European Convention on Human
Rights on freedom of expression, the ECtHR would also have had occasion to
comment on the TCC’s failure to timely adjudicate the matter. And that could
have potentially resulted in a declaration finding the TCC’s failure to timely
adjudicate the case an indication of its deficiency to act as an effective
domestic remedy for alleged violations of the Convention. Perhaps The TCC,
realizing that this had become a possibility with Wikipedia’s taking the matter
before the ECtHR, expedited the process and finally adjudicated the matter. I
must stress that I do not and cannot confirm the factual accuracy of this
narrative, but I feel obliged to report it as a not implausible explanation for
the TCC’s delayed decision. It is not impossible that the delay was occasioned
by more mundane reasons having to do with, for instance, workload.
If the motivation to preserve the
TCC’s institutional reputation as an effective domestic remedy for Convention
violations played any role in pushing the TCC to finally consider Wikipedia’s
individual application, which it indeed might have, this points to an awkward
position in which the TCC may find itself in the near future (if it already
hasn’t): to avoid retribution from the Turkish government, the TCC
strategically delays consideration of politically salient cases such as
Wikipedia’s, but when confronted with potential “retribution” from the
Strasbourg Court in the form of a possible declaration on its effectiveness as
a domestic remedy within the Turkish legal system, the TCC finally gives in and
considers the case. Perhaps for the TCC, the Wikipedia decision is a win-win
after all: it avoids harsh political backlash by delaying, but ultimately
rendering, a government-unfriendly decision and it also avoids judicial rebuke
from the ECtHR by considering the delayed case when it appears that the ECtHR
might start taking a look at it.
For Turkish citizens though, the TCC’s
reputational calculus has a dire cost, in this particular case, a ban on one of
the world’s most frequented websites for more than 2 years. This is, above all,
why the TCC’s decision is no cause for celebration.
4. The TCC’s decision was implemented with a significant delay
The TCC announced its decision to lift
the ban on Wikipedia on December 26, 2019. But the block was lifted by Turkish
authorities only on January 15, 2020. Why the nearly 3-week delay? The answer
is that the Turkish bureaucracy, backed up by the government, is using what can
only be described as “legalistic” defenses to delay as much as possible what
they consider to be unwelcome decisions by the TCC. Their argument is that for
the Court’s decision to have effect, the actual judgment (as opposed to the
mere announcement) must be issued, which happened in this case via the
publication of the Court’s judgment in the Official Gazette.
To be sure there is a legal argument to be made in the government’s defense. After all, Article 153/4 of the Constitution provides: “Decisions of the Constitutional Court shall be published immediately in the Official Gazette, and shall be binding on the legislative, executive, and judicial organs, on the administrative authorities, and on persons and corporate bodies.” It is not implausible to infer from the text that the Constitution presupposes publication in the Official Gazette as a prerequisite for a Constitutional Court decision to have binding effect. At the end of the day, though, it is a choice to interpret the quoted provision in this way. Not delaying execution of TCC judgments by implementing them as soon as the TCC announces them, without waiting the reasoning behind the decision to be published, is also a choice, and arguably a choice that bespeaks respect for the authority of the TCC. Alas, the Turkish bureaucracy and politicians have been adamant in their legalistic interpretation and consequent delay of implementing TCC decisions for some time.
The Turkish government surely did not and should not emerge with an unsullied reputation from the Wikipedia saga that has played out in the Turkish legal and political scene since 2017. But nor should the Turkish Constitutional Court, which has delayed consideration of the case for too long. Instead, the Turkish people who have denounced the ban from the very beginning and condemned it in the court of public opinion should – not to mention many who had been circumnavigating the block using mirror URLs anyway (myself included)!