The new Code "sees the removal of the clause that defines the man as head of the family, giving equal status to the woman," the NGO went on to explain.
After seventy-five years the new amendment to the Civil Code establishes the principle of equality of males and females in the family. The change brings the 1926 Civil Code into closer alignment with the Constitution of 1924 declaring the full equality of citizens, regardless of race, religion, and sex.
Women are no longer forced to sustain the contradiction of being secondary to men in the family sphere where they are deemed to require special protection while being considered equal in the public sphere where they are expected to shoulder full responsibilities.
While as might be expected, most secularists favoured this major step forward toward gender equality, the religious from various walks of life did so as well. Professor Bekir Karliga, Director of the Department of Philosophy and Religious Sciences in the Faculty of Theology at Marmara University, is just one of many scholars from Turkey's theological faculties throughout the country who affirm that the amendment is in keeping with Islam. Dean of the Faculty of Theology at Istanbul University and widely respected public theologian, Yasar Nuri Ozturk, known not to mince words, cuts to the quick, "The amended Civil Code is more Qur'anic than traditional fiq (jurisprudence)."
There is, however, a minority of secularists and religious who oppose this assertion of equality. These are the ultra-nationalists and Islamists, who claim the change is against Islam and Turkish tradition. The fault-line then does not run along a religious-secular axis but constitutes a split between liberals-cum-progressives and reactionaries.
Secular modernity and the mirage of equality
For many it may be astonishing, not that gender equality is enshrined in law, but that it happened only now. Turkey was presumed to have it all. It was widely believed that the equality of women and men was part and parcel of Turkey's 1926 Civil Code, the first secular code regulating personal status and family relations in a Muslim country.
It was lauded by progressives of the day as a modern state-of-the- art code bringing liberation to women. And, the Civil Code, handed down from on high, did go a long way. It ended polygamy and gave equal divorce rights to both spouses. The Turkish move appeared radical in its day. Indeed, it was.
Two years earlier, Egyptian women, at the beginning of their pioneering feminist movement, demanded simply curbs on men's free practice of polygamy and the ability for women to annul a failed marriage. Although they did so within the framework of Egypt's Muslim Personal Status Code their cautious demands by sound religious arguments fell on deaf ears.
Because the 1926 Civil Code was secular and Western (it was based on the Swiss Code), and modern it was thought to be egalitarian. (Though as it turned out the Swiss, French, etc. lagged behind Turkey in granting equal suffrage to women.) Certainly, Ataturk and the new Republic heralded the Civil Code as emblematic of the secular/Western/modern equation and implicitly gender equal. Religion was the other.
Surprises were in store, however: 1) that the nexus of secular/modern/Western did not equal gender equality, 2) that Islam does not equal gender inequality, and 3) that (the old relic) patriarchy, the patron of hierarchies and foe of equality, was lurking in the shadows of modern Turkey.
Unraveling and rude awakening
By the 1980s things started unraveling. It began when a new generation of young women who moved beyond the legacy of state feminism to create a feminism of their own (for which they had their wrists slapped for turning their backs on their Kemalist mothers and Republican heritage).
These new-wave feminists made a disquieting discovery: the much-touted Civil Code, albeit modern, secular, and Western, was not egalitarian. Women in the West, however, had no illusions that gender equality was inherently part of the secular/Western/modern equation. How then to explain one of the strongest waves of feminism underway at the time in America and Western Europe?
In reading the Civil Code for themselves, Turkish feminists saw in black and white that the male spouse was legally enshrined as head of family. As legal heads men could determine the location of the family home, make major decisions about children (overriding wives in case of disagreement), and deny permission to their wives to work.
Narli: Under the husband's name
Property jointly acquired after marriage did not belong equally to the two spouses and was not equally divided upon dissolution of a marriage. Often, in practice, the wife's prior property or her own inheritance was merged into the family property registered under the husband's name as sociologist Nilufer Narli pointed out.
Moreover, a wife's labour in the household and family was not construed as having any economic value. The legalised male headship of family secured a continuing place for patriarchal authority and power in modern Turkey and carried serious practical, psychological, and physical implications for women.
Long-time activist and prominent lawyer Canan Arin recalled, "When I started law school in the 60s it was obvious to me that there was no equality in the family." Under Turkish law the mentally deficient or insane and the married woman were construed as beings to be protected. Erin laughed, "I used to joke the that women were crazy if they wanted to get married." Quite! The only equal female citizens in Turkey were unmarried and sane.
Feminist activists begin the long haul
Inequalities breed contempt and violence. Feminists fought at once the legalization of gender inequality within the folds of the Civil Code and its personal and social consequences. They mounted a campaign against violence of women, fighting some of the worse excesses of patriarchal muscle: wife beating and public harassment of women.
Meanwhile, on the road to reforming the Civil Code reform, women collected (in 1984) 100,000 signatures demanding gender equality in the family. The following year (1985) Turkey signed the Convention for the Elimination of Discrimination against Women, CEDAW, which on the face of it looked good. But the state submitted qualifying reservations that signaled official attachment to inequalities in the family and allegiance to the traditional privileges of patriarchs.
In detailing patriarchal privileges it was not ready to legally dismantle, the state inadvertently strengthened the feminists' argument, as feminist scholar and lawyer Shaeen Sardar Ali has shown in her recent book Gender and Human Rights in Islam and International Law: Equal before Allah, Unequal before Man? I n 1999 (the year before the Beijing plus-five meetings in New York) Turkey rescinded its reservations to CEDAW.
During the 1980s and 90s Turkish women were building apparatus that served their activism: NGOs, the Women's Library, women's studies courses and centres, journals, networks. The Purple Needle campaign, the Purple Roof Vakfi (a shelter for battered women), Women for Women's Human Rights, Ka-der, the Flying Broom Association, the Women's Rainbow Platform. The long battle was launched. Women's activism was working.
The patriarchal scaffolding was falling. In 1990 a Constitutional Court decision was won declaring that women no longer needed permission from their husband to work. In 1997 a constitutional amendment stipulated that women could keep their maiden names after marriage.
This was a legal right that women in other Muslim countries had retained, but was forfeited in Turkey in emulation of Western practice. Second-wave feminists in the West meanwhile had campaigned for the legal right to retain their maiden names if they choose, following (albeit unconsciously) common Muslim practice.
Two heads are better than one
Now it's legal. Marriage between equals who co-head the family. When asked their views, men from all walks of life replied that their wives were already equal, or more than equal. Hyberbole raises suspicions, and more than equal is not equal, but never mind. Equality on the lips is comme il faut and that's a good thing.
For many men and women of the middle and upper strata have been pulling their weight to keep the family going, something those of more modest means have always done. In these times of worsening economic hardship, this is becoming more and more necessary.
Yasar Nuri Ozturk told me, "It is not working -- the man as head of the family. In practical terms this is not the reality for the majority. The reality is cooperation. And once you have cooperation you have equality." Functional equality leading to legal equality. Seems logical.
The law finally catching up with social and economic realities? Almost. If men did not like their legal toppling as head of family, they were not about to show it. Except for egalophobes happy to flaunt their heavy allegiance to patriarchy. Anyway, there are different ways to have or retain power.
Division of spoils, spoiling the division
While achieving equality at the top of the family was a lofty peak scaled there is still more of the mountain left. And, women are going to the mountain. The package of amendments to the Civil Code that the Turkish parliament voted for last 22 November included a provision for the equal division of assets by the two spouses upon divorce.
However, less that two weeks later, on 3 December, parliament voted down the joint marriage property division scheme for all current marriages and those enacted in 2002. The amendment would apply only to marriages effected in 2003. Seventeen million already-married women will be excluded lamented the Chair of the Women's Rights Enforcement Center at the Istanbul Bar Association, Filiz Keresticioglu.
Ah, the limits of equality! The equality debate has now shifted from headship of family to money and property. This nitty-gritty is where the notion of equality, and its practice, is being tested and the terrain of the fight ahead. Now there is a glaring contradiction within the Civil Code itself. The equality of the two spouses expressed in dual headship of family is dismantled on the altar of assets.
Feminist lawyer Arin is bothered on two levels: the moral and the legal. She explains, "If we proceed with the revised property regime amendment there will be three categories of women:
1) Those regulated by the 1926 Code,
2) Those regulated by the new law,
3) Those subjected to both (joint property acquired from 2003 being regulated by the new law and everything else by the 1926 law)." For already married men and those tying the knot this year, it is having your equality cake and eating it too. For women, this is difficult to swallow.
Feminist activism round two, widening the ranks?
But having common indigestion does not necessarily mean working together. In the past secular and religious women activists have operated on two tracks. Not only were secularists' eyes opened to the limits of republican equality but religiously-identified women discovered that the Qur'an-endorsed gender equality they thought they would achieve through their Islamist political work proved illusory.
Sociologist Nilufer Gole was one of the first to detect that some of these disaffected women were on the verge of acknowledging a feminism of their own as they grasped that their fundamental rights as Muslim women were being hi-jacked by political Islam.
The secular and religious women I spoke with had similar reactions to the new Civil Code. Both lauded the equal headship of the family of the husband and wife. Both were unhappy with the modified property regime. Secular and religious activist women's work ahead is cut out for them. They agree on two major tasks: 1) disseminating the new legalization of equal headship of family to women throughout the country and 2) fighting for the application of the joint property division amendment to all Turkish women.
Under the new law women are no longer construed in law as a "protected category." Equally in charge, the two spouses are now both equally protectors of each other. If you think this sounds Qur'anic you are right, viz. "Believers, male and female, are protectors (awliyat) of one another" (9:71).
How do you sever the idea of mutual protection or support from its material base? Underlying the revised Civil Code is the assumption that both spouses pull their weight. Historically it has been the predominant practice for husbands and wives to pool goods and services.
Under the terms of the new revisions if one spouse is not earning, or cannot earn, the earning partner provides for the other as well as for any children. The new Code recognises the economic value inherent in the unpaid labour of women in the family. The logic would be that if you build and amass together, you should be equal in dividing the joint wealth in the case of divorce.
With the battle pitched and the stakes high, will women build a broad collective movement? In Turkey, where secularism is the official state ideology, and "secular" and "religious" are highly marked and politicised categories, can women pull together? Secular and religious women have each founded their own NGOs and continue to be engaged in a number of parallel projects. Sibel Eraslan, a lawyer, who as the former head of the Women's Section of the defunct Islamist Refah Party, played a major role in bringing the party to power, went on to take a more independent activist route.
She and other women who have recently created the Istanbul Women's Law Office will run seminars for women on the new Civil Code one week after the revised Civil Code was passed. Last November, Women for Women's Human Rights, headed by veteran activist and practicing psychologist Pinar Ilkarracan, ran a workshop for social workers on the meanings and applications of the revised Civil Code. These women agree with Dicle Kogacioglu, student of the sociology of law, that, "The problem of practice is at least as big as the problem of revising the law."
Wondering about the possibilities for women activists to broaden their ranks, I asked Eraslan who is religiously identified, but no longer connected with Islamist politics, and who has contacts among secular women, if she and others like her would work with secular women. Her answer in the form of a question belied an uneasiness. "Ask them if they would like to work with religious women."
When I posed her question to secular women they answered rather lukewarmly that they had no objections. Yet, if there is wariness between women on both sides (and both sides do have their own issues), there is also an increased sense that widening the ranks and pulling together is critical for women in the next round. There are also a number of "cross-over women," who transcend the secular-religious divide. Perhaps their number will grow as women see it more urgently in their interest to do so. Certainly elsewhere the middle ground is growing.
Secular code delivers religious equality
Turkey made a big step forward toward the realization of gender equality with its new joint headship of family amendment for which it deserves a bravo. But can this be a model for others? Some Muslims dismiss the very thought with a flick of the wrist (quite literally, as I witnessed the other day) scoffing: "They're secular." End of story.
It is reductive and irresponsible to claim, as many reflexively do, that because Turkey (with its 97 per cent Muslim population) has officially adopted secularism as state policy that it is therefore un-religious, anti-religious, or ignorant of Islam and that its laws are necessarily in contradiction with the Islam.
Theologian Yasar Nuri Ozturk insists that Turkey's state secularism saved Islam by disentangling religion from the grip of the state, whose business is governance.
It also does not follow that because a personal status code calls itself a Muslim Personal Status Law, explicitly claiming grounding in the shar'ia, that it necessarily optimally translated into statutory law the highest principles of the Qur'an.
The famous late 19th- and early 20th- century Egyptian Islamic reformer and Grand Mufti Sheikh Mohamed `Abduh understood this. Many contemporary religious scholars also understand this, including respected Islamic exegetes Asma Barlas Aziza Al-Hibri, Fatima Naseef, Rifaat Hassan, and Amina Wadud. The intense perennial debates and reformist efforts directed toward the Muslim Personal Status Codes in various Muslim countries vividly confirm this as well.
The absurdity of the knee-jerk equating of "secular" with good and "religious" with bad, or the converse of equating "religious" with good and "secular" with bad is increasingly bothering people. They resent the fundamental illogic and negative fall-out.
They object to the seemingly relentless politicization of the "secular" and "religious" with the corollary that they are monolithic, frozen, exclusionary, and polarised categories. Internationally respected scholar of Islamic religion and law, Abdul-Ahi Al-Na'im in a clear reasoned voice articulates the complex enmeshment of the secular and religious in Islam (din wa dunya).
To determine if the idea of the joint headship of family is in keeping with Islam, as detractors allege it is not, let our starting point be an examination of Islam's position on gender equality- cum-gender justice Is the Islamic religion against equality and justice? Let us check this out.
The Qur'an is the basic reference. The Islamic scripture affirms fundamental equality of all human beings in many ayas (verses). The holy book addresses biological difference indicating that such difference does not mean inequality. Instead of diffidently listening to the tired old patriarchal pontifications that intruded into Islam, endless postponing the enjoyment in practice of Islam's message of equality and justice, why not pay attention to the fresh non-patriarchal voices of gifted new exegetes trying to access the promised egalitarian fruits?
Such voices, whom many recognise as voices of Islamic feminism, arise from women who, through their scrupulous interpretations of the Qur'an, demonstrate how verses have been erroneously read to indicate male superiority and domination of women. For example, the often-cited verse 34 of Surat al-Nisa' (Chapter of the Woman). The new exegetes cogently demonstrate how patriarchal interpreters have attached misleading meanings to key words, taken verses out of context, and made normative that which is specific and contingent.
The new exegetes stress that the Islamic principle of tawhid (the one-ness of God) does not permit subordination of some human beings to others; all human beings have agency to free ability to do good or otherwise.
Asma Barlas writes, "One of Islam's most radical moves against patriarchy is to displace (her emphasis) the rule of father/husband in favour of God's Rule." She emphasises, " the primacy and inviolability of God's Rights/Rule, [which] holds that submission to God, not fathers (patriarchy in the traditional sense), defines moral agency. It is for the same reason that the Qur'an does not valourise husband as ruler's guardians over women, or as heads of household." The revised Turkish Civil Code, secular as it is, reflects this Qur'anic egalitarian and just vision. Perhaps, this will make us re-think "the secular."
In Turkey it was not religion that obstructed the full expression of gender equality in the Civil Code but a tenacious patriarchy that wove itself into the secular-modern-Western equation. Religion had nothing to do with it; it was out of the official picture. We have to be as alert to patriarchy sporting secular clothes as to patriarchy disguised in religious clothes. We have to extirpate patriarchy equally from the secular and the religious, the two dimensions of the single whole of which Al-Na'im speaks.
Why can't patriarchalists of whatever stripe come clean and admit in public what they are and that they enjoy the pleasures of patriarchy's power and perks? It is disingenuous to hide behind Islam or use the religion as a scapegoat. If it is wrong to think that Islam endorses equality and justice, have the courage to come forth and say so.
And, if you think we, as women, are too benighted to enjoy full equality rather than a truncated equality under the umbrella of protection, if women are too backward, uneducated, ill- equipped, etc, instead of bragging about your shining gender statistics on days like 8 March just tell this to the world. At least, let us celebrate honesty, and don't drag religion into it.
What lessons does the revised Turkish Civil Code hold? Can it serve as a model for other Muslims? For those in countries with old, long- established Muslim Personal Status Codes, let us just dangle the question mark. Let us look elsewhere. What about the Muslims in South Africa who live in a country with a state-of the-art Constitution and Bill of Rights, and who at this very moment are still deliberating the pros and cons of establishing a communal Muslim Personal Status Law.
The majority of Muslims in this world live quite Muslim lives un-regulated by the apparatus of Personal Status legislation, and many think this is the optimal way to practice Islam, adhering unencumbered the Qur'an as their guide. But if the South African Muslims opt for their own Muslim Personal Status Code will they construct a code that matches the level of gender equality-cum- gender justice built into the secular law of their land? Will they write into their code the equal headship of the two spouses in the family, reflecting and assisting the enjoyment of the highest Qur'anic principles, or will they go for a drubbed- down version of gender equality-cum-justice? Will those, who were put in the terrible cauldron of inequality and injustice and with consummate courage successfully fought to win and build a just new society, now arrive at the optimal arrangements for ensuring justice and equality among themselves as Muslims?
The Turkish Code shows that principles of Islamic equality and justice can be embedded in secular law. Some are asking can Muslim Personal Status Law do the same and where are the precedents? What South African Muslims opt for will apply to their own community but the signal will go out into the wider umma. Will they take their co-religionists along the road to full equality and justice as they had previously done for their compatriots?
Turkey has shown what can be done. We should give credit and take heed. We will now watch to see if Turkey will take the next step forward on the new and rockier terrain and apply all Civil Code amendments equally to all. Their co- religionists elsewhere will be watching. But more than watching, will Muslims elsewhere emulate that which deserves to be emulated?
* Al-Ahram Weekly Online, 7 - 13 March 2002, Issue No.576 http://www.ahram.org.eg/weekly/2002/576/fe4.htm
