Abstract
Golan-Nadir explores the second case study, the case of Turkey, which reveals an intriguing political phenomenon, namely, the ability of institutional designs to endure over time despite diverging preferences of the majority of the population. The Turkish Case—Turkey’s Formation of Secular State Institutions—begins with the examination of the Turkish institutional formation at state building (1923), while indicating that since statehood the Turkish marriage policy has been governed by a secular monopoly, which allowed civil marriage as the only statutory option. It shows it was initiated as part of the secular revolution at state building. Finally, the chapter demonstrates the legislative stagnation on marriage policy in the seven decades since Turkey established a democratic political system, as reflected through TBMM law-making and other parliamentary procedures.
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Notes
- 1.
See in Mango (2011). Ataturk. Liverpool: Hachette UK.
- 2.
This means making religious marriage legal, and grant couples who conduct such marriage equal rights to civilly married couples.
- 3.
- 4.
Quoted in Atatürk’ten Düşünceler by E. Z. Karal, 1981, p. 59.
- 5.
A war of independence which was initiated and led by the Jacobin military elites, to be later joined by the peripheral elites and the mass public in Anatolia.
- 6.
- 7.
The Sheikh Sait Rebellion (Turkish: Şeyh Sait İsyanı) was a Kurdish rebellion aimed at reviving the Islamic caliphate. It used elements of Kurdish nationalism to recruit supporters. It was led by Sheikh Said and a group of former Ottoman soldiers also known as ‘Hamidiye’. The rebellion was carried out by two Kurdish sub-groups, the Zaza and the Kurmanj (Olson, 2005).
- 8.
Although Turkey since Atatürk’s time has undergone both a major transition from a single-party regime to a democratic multiparty system and several episodes of military intervention in the political process, all the five institutions have survived intact and none of them has never been seriously questioned.
- 9.
The religious law forming part of the Islamic tradition.
- 10.
In the context of Sunni Islam, ulama are regarded as the guardians, transmitters and interpreters of religious knowledge, of Islamic doctrine and law.
- 11.
Diyanet İşleri Başkanlığı also Directorate of Religious Affairs, is an official state institution established in 1924 in article 136 of the Constitution of Turkey by the TBMM as a successor to the Shaykh al-Islam after the abolition of the Ottoman Caliphate. As specified by law, the duties of the Diyanet are “to execute the works concerning the beliefs, worship, and ethics of Islam, enlighten the public about their religion, and administer the sacred worshiping places”. The Diyanet drafts a weekly sermon delivered at the nation’s 85,000 mosques and more than 2,000 mosques abroad that function under the directorate. It provides Quranic education for children and trains and employs all of Turkey’s Imams, who are technically considered civil servants.
- 12.
The Welfare Party (Turkish: Refah Partisi, RP) was an Islamist political party in Turkey. It was founded by Ali Türkmen, Ahmet Tekdal, and Necmettin Erbakan in Ankara in 1983 as heir to two earlier parties, National Order Party (MNP) and National Salvation Party (MSP), which were banned from politics.
- 13.
Interview with author’s assistant (in Turkish), 13 October 2016.
- 14.
The 1926 Civil Code, law No. 743, available: http://www.oruchukuk.net/743sayiliturkkanunumedenisi.htm
- 15.
Begins with article No. 82.
- 16.
Interview with author’s assistant (in Turkish), 8 September 2015.
- 17.
The Civil Servants’ Act No. 657 of 14 July 1965 i.e. "Law for State Officials" regulates Public Employment in Turkey. Basically, all employees working for the state are regulated within the law, including Imams and civil marriage clerks. According to Turkish notification to World Trade Organization (WTO), the law deals with service, appointment, promotion requirements and features of civil servants in addition to their rights and responsibilities while acting as a civil servant. See at: http://www.wipo.int/wipolex/en/details.jsp?id=11090
- 18.
The Central Civil Registration System (MERNIS). The proclamation of the Republic of Turkish in 1923 brought significant changes to the way civil registries are maintained. In 1928, following the acceptance of the Latin alphabet, Arabic letters and numbers were abandoned in the maintenance of the registries. In 1934, last names were granted to each family and individual, abolishing the practice of appellations. It was not until 1972, however, when the introduction of Law No 1543 and its successor Law No 1587 paved the way for the modernization of the civil registration system in Turkey. The amendments made to the abrogated Law No 1587 envisaged that "The Ministry of Interior shall be empowered to ensure the transfer of family registries to registries kept in electronic form and to facilitate carrying out civil registration acts using these registries, to provide measures ensuring the security and privacy of the registries kept in electronic form, to repel the civil registries kept in paper form, to determine the civil registration offices empowered with issuing, registration and safekeeping of reference documents, to decide on the use of electronic signature in all kinds of civil registration acts carried out in electronic form, and to meet the requests for information from the records kept centrally in electronic form by the public institutions and the work flow in the headquarters and the districts in the scope of the principles and procedures to be determined within the completeness of civil registration services.” See at General Directorate of Population and Citizenship Affairs (Nüfus ve Vatandaşlık İşleri Genel Müdürlüğü) website:https://www.nvi.gov.tr/ministry-of-the-interior/the-central-civil-registration-system
- 19.
Interview with author’s assistant (in Turkish), 12 May 2016.
- 20.
Interview with author’s assistant (in Turkish), 6 May 2016.
- 21.
The code failed to keep up with the times. Moreover, until the 1961 Constitution, there was no higher law demanding total equality between the sexes. Both the 1961 Constitution and the present 1982 Constitution contain articles which make gender equality a constitutional principle, but in Family Law most provisions of the Civil Code remained unchanged. A few provisions were amended by the legislator, for example: legitimate and illegitimate children gained equal status (1990); and the wife could retain her own surname (1997) (see in: Örücü, 2004).
- 22.
Some choose to avoid the law and conduct only religious marriage, which is considered illegal by the Civil Code.
- 23.
1926 Criminal Code (amen. 1936) Amended article: 11/06/1936 - 3038/1 md.
- 24.
The Turkish Criminal Code was enacted in 1926, amended in 1999 and 2005, and consolidated in 2015.
Regarding marriage policy: Article 230, Section 8: ‘Offences against Family Order: Polygamy, fraudulent marriage and religious marriage.’ The law passed by the TBMM on 26 September 2004, and published in the Official Gazette 25611 on 12 October 2004, entering into force on 1 June 2005. ARTICLE 230 (1) Anyone who, although already married, undergoes a marriage ceremony with someone else shall be sentenced to imprisonment for a term of from six months to two years. 2) Anyone who, although not married, undergoes a marriage ceremony with someone else in the knowledge that the person is already married, shall be sentenced in accordance with the above paragraph. 3) Anyone who undergoes a marriage ceremony while concealing their real identity shall be sentenced to imprisonment for a term of from three months to one year. 4) The limitation period in respect of the above offences shall become operative as from the date on which the annulment of the marriage becomes final. 5) Anyone who holds a religious marriage ceremony without a civil marriage shall be sentenced to imprisonment for a term of from two to six months. However, if a civil marriage is carried out, any public legal proceedings, sentences and other consequences thereof shall be cancelled. 6) Anyone who performs a religious marriage ceremony without seeking a document verifying that a marriage contract has been concluded in accordance with the law shall be sentenced to imprisonment for a period of two to six months. Available at: http://www.legislationline.org/documents/action/popup/id/6872/preview
- 25.
In Turkish: Turkiye Buyuk Millet Meclisi—TBMM.
- 26.
Since the restrictive Civil Code was implemented coercively, very few efforts to alter it were evident. Thus, this research examined more kinds of parliamentary records in the Turkish case study. This is conducted in order to reveal more of the TBMM discourse on marriage policy.
- 27.
Based on the Grand National Assembly of Turkey official archive: https://www.tbmm.gov.tr/develop/owa/tasari_teklif_sd.sorgu_baslangic
- 28.
Includes 65 TBMM sessions.
- 29.
Except the major modification in the Civil Code in 1982, which was a part of an officially organized process to prepare Turkey for entering the EU.
- 30.
A new draft was completed by 1998, and it received approval through the various parts of the Turkish lawmaking mechanisms. It was referred to the TBMM by 57th Turkish government headed by Prime Minister, Bülent Ecevit, in 1999, and further referred by the TBMM to the Parliamentary Commission of Justice in 14 January 2000. The Commission finalized the draft of the new code in 21 June 2001, after one-year discussions. The General Assembly of the TBMM passed the new Civil Code in 22 November 2001, and it came into force on 1 January 2002. The 2002 Civil Code, Available at: http://www.tusev.org.tr/userfiles/image/turkey%20tr%20civil%20code%20provisions.pdf
- 31.
Retrieved from the Grand National Assembly of Turkey official Website (19 February, 1980). See: https://www.tbmm.gov.tr/tutanaklar/TUTANAK/MM__/d05/c014/mm__05014047.pdf
- 32.
Retrieved from the Grand National Assembly of Turkey official Website (28 March 1995), pp. 337–338. See: https://www.tbmm.gov.tr/tutanaklar/TUTANAK/TBMM/d19/c082/tbmm19082091.pdf
- 33.
Retrieved from the Grand National Assembly of Turkey official Website (26 March 1996). See: https://www.tbmm.gov.tr/develop/owa/tasari_teklif_sd.onerge_bilgileri?kanunlar_sira_no=499
- 34.
The Panel Code orders 6 months to 2 years imprisonment.
- 35.
Retrieved from the Grand National Assembly of Turkey official Website (14 January 2013). See: https://www2.tbmm.gov.tr/d24/2/2-1171.pdf
- 36.
Retrieved from the Grand National Assembly of Turkey official Website (12 February 2014). See: https://www2.tbmm.gov.tr/d24/2/2-2005.pdf
- 37.
Retrieved from the Grand National Assembly of Turkey official Website (4 February 2014). See: https://www2.tbmm.gov.tr/d24/2/2-1996.pdf
- 38.
Retrieved from the Grand National Assembly of Turkey official Website (16 January 2014). See:https://www.tbmm.gov.tr/develop/owa/tasari_teklif_gd.onerge_bilgileri?kanunlar_sira_no=147910
- 39.
Milliyet, 8 July 1984.
- 40.
Retrieved from the Grand National Assembly of Turkey official Website (7 May 1985), p. 137. See: https://www.tbmm.gov.tr/tutanaklar/TUTANAK/TBMM/d17/c016/b095/tbmm170160950137.pdf
- 41.
Retrieved from the Grand National Assembly of Turkey official Website (11 December 2004). See: http://www2.tbmm.gov.tr/d22/7/7-1780c.pdf
- 42.
Retrieved from the Grand National Assembly of Turkey official Website (6 December 2001), p. 443. See: https://www.tbmm.gov.tr/tutanaklar/TUTANAK/TBMM/d21/c078/tbmm21078032.pdf
- 43.
Retrieved from the Grand National Assembly of Turkey official Website (23 May 2005). See: https://www2.tbmm.gov.tr/d22/7/7-5133c.pdf
- 44.
Office responsible for Youth and Sports.
- 45.
Retrieved from the Grand National Assembly of Turkey official Website (6 April 2009). See: https://www.tbmm.gov.tr/tutanaklar/TUTANAK/TBMM/d23/c058/b044/tbmm230580440566.pdf
- 46.
Retrieved from the Grand National Assembly of Turkey official Website (6 January 2010). See: https://www.tbmm.gov.tr/tutanaklar/TUTANAK/TBMM/d23/c058/b044/tbmm230580440568.pdf
- 47.
Retrieved from the Grand National Assembly of Turkey official Website (10 October 2013). See: http://www2.tbmm.gov.tr/d24/7/7-32670s.pdf
- 48.
The Deputy Prime Minister of Turkey is the official Deputy of the Head of Government of Turkey. Conventionally, all of the junior partners in a coalition get one deputy, and they are ranked according to the size of their respective parties.
- 49.
Until it was repealed by Constitutional Court in 1996, adultery (it is considered adultery only if married couples are involved) was a criminal offense with the punishment of 3 months to 6 years.
- 50.
Retrieved from the Grand National Assembly of Turkey official Website (1 November 2011). See: http://www2.tbmm.gov.tr/d24/7/7-0173sgc.pdf
- 51.
Retrieved from the Grand National Assembly of Turkey official Website (15 November 2012). See: http://www2.tbmm.gov.tr/d24/7/7-3665sgc.pdf
- 52.
Retrieved from the Grand National Assembly of Turkey official Website (1 April 2014). See: http://www2.tbmm.gov.tr/d24/7/7-38021c.pdf
- 53.
Retrieved from the Grand National Assembly of Turkey official Website (4 March 2014). See: http://www2.tbmm.gov.tr/d24/7/7-38338c.pdf
- 54.
Retrieved from the Grand National Assembly of Turkey official Website (22 January 1989), pp. 148-149. See: https://www.tbmm.gov.tr/tutanaklar/tutanak/tbmm/d18/c030/b105/tbmm180301050149.pdf
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Golan-Nadir, N. (2022). The Turkish Case: Turkey’s Formation of Secular State Institutions. In: Public Preferences and Institutional Designs. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-84554-4_7
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