Trust in the rule of law

Jan Böhmermann read out a poem about Recep Tayyip Erdogan on late night TV. The poem was of poor taste and made ridiculous sexual allegations. In an interesting twist, Böhmermann discussed in the programme itself whether the statements were acceptable, making it clear that they were not. The joke was thus not only on the Turkish president, but just as much on trying to define narrowly what satirists may and may not do.

The TV show caused an uproar in the Turkish government which turned to its counterpart in Berlin, demanding that public prosecutors start investigations. According to an outdated law, insulting a foreign head of state is a criminal offence in Germany, but to investigate the matter, the prosecutors need the government’s mandate.

After some deliberation with cabinet ministers, Merkel decided to give the prosecutors the go-ahead as demanded by Ankara. Some ministers declared they disagreed with Merkel, and the German media are now hotly debating whether Merkel has applied the Turkish government’s idea of freedom of speech to German television. She has not done so. The discussion is overblown. I’d like to raise several points:

• Merkel did not find Böhmermann guilty of any wrongdoing. Doing that is not her job. She allowed judicial institutions to consider his case, which is in line with the rule of law.
• It bears repetition that judicial issues must not be decided according to the whims of the top leader. The judicial branch of government should handle them, not the executive. Merkel has displayed trust in the institutional order. Her stance makes sense in confrontation with an authoritarian leader whose tendency to grandstanding and solitary decisions is well known.
• Since Erdogan has also accused Böhmermann of libel, prosecutors were in a position to investigate anyway. Libel can be punished by the courts, though the law permits harsher punishments for insulting a foreign head of state.  
• It is most unlikely that Böhmermann will be sentenced harshly. Freedom of expression is a very important principle of Germany’s constitutional order. It is in this light that prosecutors and judges will consider an old law that has not been applied for decades and is rooted in a pre-democratic past.
• Merkel has announced that the federal government plans to change this outdated law in coming months. The parties that support her coalition are set to implement reform, so in the future Böhmermann could not possibly be found guilty of insulting a foreign head of state. This announcement matters in a judicial sense because courts are required to consider not only written law but also lawmakers’ intention. It is inconceivable that they will sentence someone to prison for an offence that, according to the vast majority of the members of the Bundestag, should no longer be an offence. A symbolic fine is possible, but it would not seriously affect Böhmermann’s life.

Merkel has thus not let Böhmermann down, as some critics now argue. What she did was express faith in the rule of law. She also used the occasion to say that she is worried about the rule of law and media freedom in Turkey, admonishing Erdogan to observe European standards. The subtle subtext is that she is sure Böhmermann will not be made to suffer and that it is not up to the head of government to decide what is acceptable satire and what is not.

Finally, it is worth mentioning that Erdogan does not look strong in this case. He looks insecure and timid. The leader of a nation of almost 80 million people should not be impressed in any way by what is said in a less-than-serious TV programme, whether in a foreign country or at home. He seems to think his authority might suffer because of a comedian’s tasteless poem, and that means he doesn’t believe his authority has much substance beyond threats of repression.

It is certainly true that Merkel did not want to antagonise Erdogan, not least because she is cooperating with him in regard to refugees. If her critics in Germany are really worried about human rights, that cooperation is what they should monitor closely. The EU assumes that refugees’ human rights are protected in Turkey, but organisations such as Human Rights Watch claim that is not so. This is an issue that really deserves public attention. Obsessing about a German TV personality’s freedom of expression, which is not really in doubt, while ignoring the fate of masses of refugees beyond the Mediterranean Sea is a distorted and rather ethnocentric approach to human rights.