Whistleblowers and secret recordings in Turkey

While Turkey was chairing the Council of Europe’s (CoE) executive arm, the Committee of Ministers, for six months from Nov. 2010 to May 2011, Foreign Minister Ahmet Davutoğlu pledged that Turkey would implement long-delayed reforms, which had been a source of criticism from various bodies of the 47-member CoE, ranging from judicial reforms to acceding to a number of required conventions.

In fact, I was the one who asked him about these criticisms late Friday night on Jan. 29, 2011 when he made a stopover in Strasbourg on his way from London to Turkey. Although most of the staff had left the CoE headquarters for the night, Davutoğlu dropped by to congratulate the newly elected Parliamentary Assembly of the Council of Europe (PACE) president, Turkish deputy Mevlüt Çavusoğlu. In response to my question, Davutoğlu said that the Turkish government will take every criticism seriously and will work with the CoE to improve democracy, human rights and the rule of law in Turkey.

Yet, in a number of areas, Turkey has failed to make the necessary adjustments to its shortcomings on the very values championed by the CoE. I will take up one issue in particular that causes huge concern for us as media professionals these days: The lack of a whistleblower law in Turkey. Only a little over two months after Turkey assumed the chairmanship in the CoE, the Committee of Ministers gathered at the meeting of the foreign ministers’ deputies on Jan. 19-20, 2011, and welcomed the suggestions made by the PACE on the protection of “whistleblowers” in its report numbered 1916 and dated 2010. It even suggested a framework convention on whistleblowers in Europe.

However, the call for Turkey to adopt a national whistleblower law has fallen on deaf ears in the Turkish capital. The importance of adopting such a law has become much more critical against the background of proposed changes made to the Turkish Penal Code (CMK) by the governing Justice and Development Party (AK Party). According to the sugarcoated reform articles, adopted at the parliamentary Justice Commission last week and currently sitting on the General Assembly agenda for debate, there are harsher penalties, of two to five years in prison, envisioned for journalists who report on secretly-taped voice recordings posted online by whistleblowers. As if we do not have enough troubles with the media freedoms in Turkey, this latest attempt is yet another major regress on our increasingly precious freedom rather than progress as the government would like us to believe.

It would have been a relief if this government had adopted laws similar to the 1989 Whistleblower Protection Act (WPA) in the US or the 1998 Public Interest Disclosure Act (PIDA) in the UK. But the AK Party government has no intention of drafting such a law, fearing that whistleblowers may disclose illegal or improper government activities. I do not know who made secret voice recordings that revealed vicious plots being cooked up in the military or other bureaucratic circles, but I suppose we all should congratulate these anonymous heroes for exposing conspiracies in the government and sounding the alarm in order to stop misdeeds in the beginning stages. If internal channels for checks and balances work smoothly in government as they are supposed to, then maybe we do not need whistleblowers, but they rarely do in Turkey.

It is obvious that there are whistleblowers out there wishing to remain unknown for fear of reprisals, discrimination and persecution because we do not have the necessary protection in legislation for them. They are afraid their warning will simply be disregarded by their superiors and be covered up. They probably think by disclosing these recordings they are serving the public interest by helping to raise accountability and transparency in an EU-candidate country.

Now with these draft changes, the Turkish government wants media professionals to stick their heads into the sand, and pretend that these scandalous recordings have never made it to the World Wide Web? How stupid is that? They are dressing this restriction with privacy concerns in an attempt to camouflage what is really happening behind closed doors. Once the information has made it into the public domain, the media cannot turn a blind eye to these newsworthy recordings especially when public interest clearly outweighs privacy concerns. For example, if a four-star general is talking about the mayhem he is going to unleash in Turkish society during a private gathering with his comrades, and one of those officers, who has a clear conscience, makes a recording on his mobile phone of the conversation and posts it online, I will definitely be motivated to report that in my paper, ethically and with professionalism.

Now I understand the predicament of New York Times executive editor Bill Keller who wrote an excellent summary on Jan. 26, 2011, on how the paper decided to use the WikiLeaks cables. He wrote that “While we assumed we had little or no ability to influence what WikiLeaks did, let alone what would happen once this material was unleashed in the echo chamber of the blogosphere, that did not free us from the need to exercise care in our own journalism.” I think that is a very balanced view of a journalist approach to the source material provided by leakers and whistleblowers. But if these new changes to legislation are passed in Parliament, many reporters will risk landing in jail to serve a minimum of two years for just simply reporting on something that is readily available in the Internet.

What is worse than having no whistleblower law in Turkey is the bureaucratic tradition of going after whistleblowers and leakers. We do not know, for example, who sent a luggage full of sledgehammer coup documents to the small independent daily Taraf in 2010, but the military immediately launched a probe into who leaked the information to the paper rather than going after the coup plotters who were clearly not serving their countries. These suspects were out to assassinate non-Muslim minority leaders, bomb major mosques in İstanbul or provoke a war with neighboring Greece, over the Aegean, in order to oust the popular government amid the chaos.

We have so many examples like this in the recent history of this country where the government agencies simply turned a blind eye to the substance of scandalous recordings, but focused on finding who leaked the information to expose their wrongdoings. That is why the CoE is urging its members including Turkey to adopt a law to protect whistleblowers from reprisals and backlash. In a report prepared by the PACE Committee on Legal Affairs and Human Rights, the European human rights watchdog said that the CoE attaches great importance to whistle-blowing, especially when it comes to the protection of journalistic sources, which is linked to the protection of whistleblowers when a disclosure is made public.

It noted that “once the disclosure has been made to the media, the journalist should have the right to protect his or her sources. If a whistleblower cannot make a disclosure internally because he or she reasonably fears that such action would result in internal sanctions or that the internal disclosure would not have the desired effect, and therefore decides to use the media as an external avenue to ‘blow the whistle,’ then he or she should benefit from indirect protection in the form of the journalist’s protection of sources.”

When asked, Turkish officials say that the witness-protection law, which was adopted in 2008, functions like whistle-blower law especially when a particular situation calls for it. The law does not offer protections, however, to whistleblowers or journalists who publish stories using whistleblowers as confidential sources in Turkey. The CoE is very clear on that, saying the witness protection laws in Turkey “may not take the place of a broader law covering the protection of all different aspects of whistle-blowing.”

The organization even lambasts Turkey for not properly defining the term “whistle-blower,” which leads to a wider problem when whistle-blower protection is confused with witness protection laws. The difference between a witness in need of protection and a whistleblower is that the latter will not necessarily wish to, or need to appear in a court of law, considering that whistle-blowing measures are designed to deter malpractice in the first place or to expose it at an early stage, the report underlined.

In the old days, when the military’s supremacy over the civilian government existed, the generals used to threaten the media saying that some news reports aim to undermine relations between officers and their subordinates and therefore constitute a crime carrying a jail sentence of up to six years according to Article 95 of the Military Penal Code. Now that the military’s influence has waned, the civilian government is threatening us with jail sentences using new legislative changes. If changes become law, Turkey will risk becoming in violation of Article 10 (freedom of expression) of the European Convention on Human Rights (ECHR). Considering that Turkey is already a number one violator of the convention articles in recent consecutive years, the new changes will simply reinforce its place. I guess the current government would not mind that.

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