Source: “AKP’nin ‘İnsan Hakları Torbası’nda LGBT’lere Yine Yer Yok!,” (“Yet Again, No Place for LGBT people in the AKP’s ‘Human Rights Blanket Bill!’,”) Kaos GL, 05 December 2013, http://kaosgl.org/sayfa.php?id=15333
The conservative authoritarian Justice and Development Party (AKP) has not given up its perception of and complicity in the killings, evictions, and unemployment of LGBTI individuals as “a method to fight homosexuality.”
It turns out that the legislative aspect of what the Prime Minister Erdoğan announced as “the struggle against discrimination and hate crimes” was in fact nothing but a change in a single article of the Turkish Penal Code.
The public in Turkey and international institutions such as the United Nations, the Council of Europe, and the European Union have been urging Turkey to proceed with two comprehensive and crucial legislative programs: the Anti-Discrimination Law and the Hate Crime Law.
Information pertaining to these regulations, which were expected to be treated separately, has appeared in the media as of today. If these two human rights issues are “legislated” in such a way, a great opportunity will be misused in providing “human rights, democracy and rule of law.”
No Protection Against Hatred and Discrimination Based on Sexual Orientation and Ethnic Identity!
Sexual orientation/gender identity and ethnic identity are two fundamental prejudices that are much more prevalent and are experienced much more violently in Turkey than, for instance, Islamophobia. However, they will not be among the categories protected under the law – contrary to the advice of international and local institutions and, more importantly, contrary to urgent social need.
It seems that the authoritarian conservative AKP prefers the struggle against homosexuality, which it “does not approve,” over the struggle against discrimination and violence. Furthermore, it has not given up on its perception of and complicity in the killings, evictions, and unemployment of LGBTI individuals as “a method to fight homosexuality.”
AKP is being complicit to the hate crimes that are perpetrated in the most violent ways in Turkey by not including “sexual orientation, gender identity” and “ethnic identity” in the new legislation! One might argue that only the current protections in the constitution were taken as grounds in terms of legislative practices. Wrong! When it comes to human rights, the political and judicial structures must always interpret the constitution’s relevant articles in a way that would extend it to more groups; in fact, that is their obligation within the framework of human rights law.
The Blanket Bill of Human Rights
If the law passes as submitted, it will cause a lot of disappointment in terms of its quality and its judicial methodology apart from these two “deadly” shortcomings in the categories under protection.
The AKP’s “mastery in creating a blanket bill of laws” is revealed in this crucial human rights statute: these two interrelated issues that must be addressed separately, will be dodged with an additional article to the Turkish Penal Code’s Article 122!
However, Turkey’s academics and non-governmental organizations have been waiting for years for the AKP to legislate draft laws that abide by international standards and principles. The attitudes and expectations of the United Nations, the Council of Europe, and the Organization for Security and Co-operation in Europe, all of which Turkey is a participating member, are quite clear about these two issues.
We will see how the European Union will react to this incomplete and ideological draft as the government continues to request the commencement of talks on fundamental rights for Turkey’s European Union membership process.
The legal struggle against discrimination and prejudice cannot be reduced to a single penal code article. If this occurs, the authority and position of institutions responsible for the execution of the anti-discrimination law in the fields of education, healthcare, employment, shelter, and others will be left undefined.
The public administration needs to watch over the issues of discrimination and hate crime using an interdisciplinary framework, maintain statistical data, and produce relevant policies. In democracy, discrimination cannot be solved with “payback justice.” Within the framework of “corrective justice” and human rights, these laws refer to comprehensive social policies that enable the prevention of, and compensation for, victimization, the identification of the interrelations between various forms of discrimination as well as of their autonomous characteristics, and the production of policies oriented towards the public as well as private entities.
The contemporary anti-discrimination statute is so far from the penal code approach that, in these cases, even the principle of “presumption of innocence” works in reverse, forcing the alleged perpetrator to prove that s/he is innocent rather than pushing the victim to prove her/ his injury.
To oversimplify, the anti-discrimination law provides the context to regulate access to and use of rights, freedoms, and services. Hate crime laws, on the other hand, usually include criminal offenses, committed with “a prejudiced incentive” and physical assaults against an individual and properties. As such, the organizations and councils functioning through these laws are different as well. On the other hand, whether the arrangements regarding hate speech is legal, regulatory, or ethical is a topic for another discussion.
The AKP’s tendencies towards human rights and pluralist democracy are motivated by its own interests rather than by principles. This leads to injustices in other fields related to equality as it does in this case. Turkey is in for a rough patch if the delegation and distribution of duty-authority among Turkey’s Human Rights Institution, The Ombudsman Association, and the anticipated Anti-Discrimination Council, the Hate Crimes Council, and the Committee For The Prevention Of Torture would be a product of such a political will.