BY TAHA AKYOL
MILLIYET- Article 301 will be changed. I consider this positive for two reasons. Firstly, in legal terms, the limits of freedom of thought will expand. In the law, the terms `Turkishness' and `Republic' will be replaced by the `Turkish nation' and `Turkish Republic,' and thus elements of the crime of insult will become more concrete. Secondly, in political terms, filing charges under 301 will be subject to prior authorization, and so certain cases creating PR problems for Turkey will be avoided. Let's ask ourselves: Did the cases against novelist Orhan Pamuk and the late Hrant Dink benefit anyone? Did they really protect the Turkishness or the republic, or did they on the contrary damage Turkey's reputation? The need for prior authorization is meant to prevent this. From now on, no cases can be filed without considering the political consequences.
But the problem is: Who will give this prior authorization? Will it be the justice minister, as in the past? Or will it be the president, as is now proposed? The ruling Justice and Development Party (AKP) wants it to be the president. But Parliament Speaker Koksal Toptan disagrees, believing the person in his post should have the authority. All over the world, justice ministers belong to a party and they have political responsibilities. But, constitutionally, Turkey's presidents don't belong to a party, as they are neutral. So should a justice minister belonging to a party or a neutral president approve charges under 301? Here, the term `neutral' seems to be key. I've always argued that prior authorization should be needed and that a Cabinet minister or the president should exercise this. But after debate and further thought, I think Toptan is actually right.
Here, the president's neutral character or the justice minister's character as a person belonging to a group has no legal standing, because the prior authorization won't try to determine whether a crime was actually committed or not. The judicial branch will decide this, but the prior authorization is political, and will consider whether filing charges is politically appropriate. The principle of the separation of powers requires that this process should not be judicial, but political. It also fits the system's logic better to have the decision made by the Justice Ministry. This was the situation in Turkey until 2004. The prior authorization process is like this in Western countries as well.
The claim that giving this authority to the president would be unconstitutional is a serious one. The Constitution enumerates the president's authorities, and the Constitutional Court might overrule attempts to give him more authority. Similarly, the Constitution spells out Parliament's authorities, and the court has ruled against it being given more authority. What's more, there should be a balanced decrease in presidential authority, and providing him with new powers would not be right.