Constitution under threat: Türkiye’s new ‘influence espionage’ law

As Türkiye celebrates the 101’st anniversary of its Republic, the definition of a “democratic, social state based on rule of law,” enshrined in the first three articles of the Constitution, remains fundamental to its founding principles. These three articles form the cornerstone of the constitutional order and are safeguarded against any proposal for change. However, the “influence espionage” article added to the amendment of the “the Notary Law and Certain Laws,” submitted to the Parliament on October 18, directly threatens Türkiye’s fundamental attributes. Article 16 of this omnibus proposal harbors significant risks that could erode Türkiye’s nature as a democratic rule of law and undermine fundamental rights such as freedom of expression.

Within this law proposal, a new crime, termed “influence espionage,” has been introduced. This regulation uses abstract concepts like “state security” and “political interests” to suppress constitutional rights and democratic oversight. Notably, the term “political interest” lacks a clear legal definition and represents a quest to shield government interests under the guise of “state benefit.” Thus, this regulation becomes a step toward rendering government power immune to criticism.

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Core principles under threat with “influence espionage”

The new law proposal jeopardizes the definition of Türkiye as a “democratic, social state based on rule of law,” which is protected by the first three articles of the Constitution. The proposed regulation could lead to deviations from a democratic structure grounded in popular sovereignty, with “political interests” of the state cited as justification. As the Constitutional Court has emphasized in past rulings, the principles of legal certainty and legality are essential to democratic societies. These principles ensure that citizens feel secure in their relationship with the state and are protected in their rights.

However, this law proposal limits individual freedoms under vague concepts like state security and political interest, weakening the principle of governance based on the people’s will. The concept of political interest, concealed under the label of “state security,” seeks not to protect the state but to safeguard the political interests of the current administration. This move is contrary to a governance approach based on the people’s sovereignty, violating the foundational principle of a democratic rule of law.

A violation of the principle of legality in crime and punishment

The proposed regulation of “influence espionage” also contradicts one of the most fundamental legal principles: the legality of crime and punishment. The Constitutional Court has repeatedly stated that crimes and punishments must be clearly defined by law. Yet, abstract terms like “state security” and “strategic interests” in this proposal make it challenging for individuals to foresee which actions might be deemed criminal.

This ambiguity opens the door to arbitrary applications, significantly undermining the rule of law. Defining crimes and punishments with such vague language erodes citizens’ trust in the state and stifles freedom of expression and the right to information. Individuals may refrain from researching or sharing information in the public interest for fear that their actions could be criminalized under such abstract justifications. This scenario creates a “chilling effect,” as identified by the European Court of Human Rights.

From popular sovereignty to state strategic interests

Another concerning aspect of the law proposal is the phrase “in line with the state’s strategic interests.” This phrase paves the way for prioritizing state strategic interests over popular sovereignty. However, it remains unclear how these strategic interests will be defined. Granting wide discretion to judicial authorities to determine what constitutes a threat to state strategic interests could lead to arbitrary decisions in practice.

This ambiguity directly targets members of the press. Journalists who wish to present information in the public interest may censor themselves out of fear that their reporting might be perceived as contrary to “state strategic interests.” This undermines the public’s right to access information. When freedom of expression is under pressure, the pillars of democracy weaken, and a governance model based on popular sovereignty is shaken.

Intervention in democracy and the erosion of public trust

This legislative proposal, which threatens Türkiye’s status as a democratic rule of law, will also harm the trust relationship between the people and the state. The February 6 earthquake notably highlighted deficiencies in state institutions, with civil society organizations and individuals mobilizing on social media stepping in where official institutions fell short. This process exposed a decline in public trust and a lack of democratic accountability. Yet, regulations like “influence espionage” weaken democratic oversight, further eroding public trust.

Democratic societies function based on the people’s trust in the state. However, this law appears to protect the political interests of those in power, not the trust the public has in the state itself. This situation leads to a further erosion of trust, weakening the foundations of democracy.

Türkiye’s duty to uphold Its democratic structure

According to Atatürk’s definition of “liberal political democracy,” the Republic of Türkiye should be grounded in a people-centered administration and freedom-based democracy. This law proposal represents an intervention against this governance model based on popular sovereignty. To maintain Türkiye’s status as a rule of law, such regulations that restrict individual freedoms must be opposed, and the principles of the rule of law, democratic values, and constitutional rights must be preserved.

The principle of a democratic, social rule of law, which forms the foundation of the constitutional order, cannot be rendered ineffective through such regulations. The Republic of Türkiye should not be distanced from being a liberal democracy; it should be carried forward with a governance approach rooted in popular sovereignty and freedom of expression.

Defending democracy and the Constitution

Regrettably, it must be stated that this regulation of “influence espionage” is a blow to the constitutional order, enacted by a parliamentary majority with a majoritarian mentality. The definition of a democratic rule of law, safeguarded by the first three articles of the Constitution, is being eroded and rendered ineffective by this law proposal. Türkiye faces the risk of being distanced from a rule of law based on the will of the people and transformed into a state shaped according to the political interests of those in power.

This law proposal is a direct and destructive intervention in Türkiye’s democratic foundations. Regardless of ideology, all political parties, civil society organizations, and citizens must defend their democratic rights and freedoms, uphold the rule of law and the constitutional order, and demand that this proposal be withdrawn.