The Emergence of Islamist Official and Unofficial Laws in the Erdoganist Turkey: The Case of Child Marriages

Abstract

Religion in the hands of authoritarian governments can prove to be an effective political instrument to further their agenda. This paper attempts to explore this aspect of authoritarianism with the case of Turkish family laws under Erdoganist Islamist legal pluralism. The paper analyzes the AKP’s government’s attempts at pro-Islamist legislation, fatwas produced by Diyanet (Turkish Directorate of Religious Affairs) and by pro-government right-wing religious scholars to explore the changes that have occurred, both formally and informally, in the largely secular family laws of the Republic of Turkey in the last decade. By focusing on the age of marriage, this paper tries to understand the impact of Islamist legal pluralism and unofficial Islamist laws on the formal legal system as well as the social implications of this plural socio-legal reality, particularly for vulnerable groups such as the poor, refugees, children, and women. The trends demonstrate the informal system’s skew towards Islamism, patriarchy and disregard for fundamental rights. This Islamist legal plurality almost always operates against the women and underage girls, which creates profound individual and social problems. The paper concludes by pointing out the critical issues emerging in the domain of family law due to the link between the growing power of Islamist legal pluralism and its political instrumentalization by the Justice and Development Party (AKP).

1. Introduction

Turkey’s ruling authoritarian Islamist party, the AKP’s (Justice and Development Party) use of religion as a political tool has been previously studied by various scholars (Adak 2020; Mutluer 2018; Öztürk and Sözeri 2018; van Bruinessen 2018; Korkut 2016; Öztürk 2016; Yilmaz 2018a, 2021a). These researchers have primarily focused on the instrumentalization of Diyanet (The Directorate of Religious Affairs) by the AKP to act as a political projectile for the party to serve as its defence and religious officiator. All these studies have laid down foundational work on the growing influence of Diyanet (Yilmaz and Albayrak 2021) in Turkish politics. However, there is a need to understand that Diyanet is not the only religious institution that has been politicised (Yilmaz 2019a, 2021b). The AKP has cultivated a close relationship with independent da‘wah (religious cause, propagation, missionaryism) groups and right-wing religious authorities as well.

This study attempts to understand this changing relationship between religious institutions and the AKP to draw a picture of the larger framework in place to support the AKP from an ideologically conservative and authoritarian Islamist standpoint. This paper takes this discussion forward in the context of legal pluralism with regards to family laws, and expands the understanding of the state and mosque relationship built between the AKP and religious far-right forces beyond Diyanet.

In order to understand this complex mesh of linkages, the study looks at the Islamist legal pluralism of the AKP in the context of family laws to understand how this phenomenon has impacted this core ambit society, given that, since their early election campaigns, Erdogan and his party have stressed the creation of a ‘strong family’ of the ‘New Turkey’. This facet of social life is likely to have been greatly impacted by the AKP constructed parallel legal system in defiance to the Kemalist designed secular laws.

This paper looks at family laws in Turkey and the changing trends during the AKP’s successive governments. The AKP has used Islamist ideals to propagate a narrative of conservatism around the issue of family. The Turkish President Tayyip Erdogan has aired his controversial opinion on family issues by discussing a range of topics from ‘prohibiting’ birth control to the ‘drawbacks’ of career-oriented women, all the while maintaining the need to keep this domain in line with conservate values (Kocamaner 2018; The Guardian 2016a). Turkish state during the AKP tenures have created an environment of patronage between conservative foundations using welfare provisions. This has promoted AKP policies to further build a “strong family” narrative in Turkish politics and society (Kocamaner 2018; Yazıcı 2012; Korkut and Eslen-Ziya 2011).

This interest in the institution is not a novel one. Modern nation-states have used laws to govern the family for centuries. Post-revolution China is an eminent example where, until this date, the state determined the legal limit for the number of offspring a family can have (Zhang 2017). Another example is the debate surrounding polygamy and same-sex marriages, which states decide to permit and outlaw depending on the political mood of the region (Kramer 2020; Mos 2020; Franke 2006). In many societies, this tone is defined and imposed by the state, which is supported by religious belief systems and cultural values in place. Turkey, during the last century, has been through a rapid transformation. From being at the pinnacle as the Muslim caliphate it embarked on a highly ambitious project to detach with its Muslimhood and ‘modernize’ under a regime of secularization, today finds itself in a process of reconciliation with its past, yet faces the issue of growing conservatism and pro-violence Islamist populism (Yilmaz and Erturk 2021a, 2021b; Yilmaz et al. 2021a, 2021b). In this context, the country is no stranger to the struggles between faith driven narratives, progressive values, and state priorities.

The legal ambit has been at the heart of this struggle. Like many Muslim countries, it is not a novel experience to have one formal legal system in place and an informal system existing outside the state courtrooms. The former harbours the constitutional values in its laws, and in Turkey, this is heavily influenced by the secular Swiss Legal Code that has been in place since the Kemalist era (Yilmaz 2016). The latter is not recognized by state but holds value for the people who believe in it (Yilmaz 2002, 2003, 2005, 2014a, 2014b). While the AKP has not been able to dismantle the constitution-inspired secular family law system, it has, over the years, strengthened the pre-existing legal pluralism of Islamist ideals (Yilmaz 2018a, 2019a, 2019b). Thus, the fundamental and private institution of the family is inspired by the present governments with an informal channel that is connected to the unofficial Islamist laws.

This study explored the focal debates on the institution of the family through fatwas¹ issued by the AKP supporters and Diyanet on this subject. By focusing on the age of marriage, this paper tries to understand the impact of Islamist legal pluralism on the formal legal system as well as the social implications of this pluralism, particularly for vulnerable groups such as the poor, refugees, children, and women.

For this study, I have used a mixed methods design to gather the primary and secondary data available on legal pluralism, unofficial laws, fatwas and practices in relation to family laws in Turkey. The fatwas by Diyanet and media outputs of right-wing pro-AKP religious leaders are the primary source of data for the qualitative data and its analysis. I further make use of secondary quantitative data from various official statistics, research reports, and academic research sources related to various issues to inform the study on the latest shifts in demographical trends of Turkish family life.

2. The Law on the Age of Marriage

The age of marriage is one of the most contested topics in the Muslim faith. The Quran remains silent of the issue and the sunnah² and hadith³ are at times contradictory. Different madhhabs (Islamic legal schools) have various ages that are deemed fit for marriage. Before the Kemalist era, the reforms under the Ottoman Family Laws Ordinance (OFLO) of 1917 legally declared 9 years of age for women and 10 years of age as for men as ‘marriageable’, with the permission of the parents. Without parents’ permission, these ages were set as 17 and 18. Before this ordinance, the guardians of the child had the liberty to decide their child’s age of marriage according to their customs and beliefs (Yilmaz 2016, p. 110).

Turkey is a unique Muslim majority country in the sense that it has not adopted sharia law or its aspects neither in its constitution nor in its legal systems. This paved way for a lot of progressive laws at the time, as the civil code of 1926 addressed the issue of child marriage through its provisions. However, the top-down implementation of this system, especially in regions with low literacy and strong traditions of marrying-off children after puberty, was highly challenging. The Ottoman law and transitions were well ingrained in rural pockets and, as the 1927 census showed, more than 85% of the population lived in rural areas, out of which only less than 10% of the population was literate (Shorter 1985, p. 429). In such a context, it was not surprising for legal pluralism to flourish, as the ‘western laws’ were viewed in conflict with the religious and traditional values of the people. For decades, it was a common practice for families to marry off children through a religious ceremony of nikah⁴ under the officiation of a mufti and later legally solemnize the marriage when both reached the legal age of marriage. However, over time this practise has faded away but not totally disappeared (Temel 2020, p. 69).

Following the loss of World War One and end of Ottoman rule in 1919, this sharia-inspired law was abolished and replaced by the Swiss legal code, modified to the Turkish cultural context in which, rather than 18 years, the age of 17 was declared for man and, rather than 17, girls could be married at the age of 15 years (Temel 2020, p. 71; Lipstein 1956, p. 17). The new Civil Code of 2001 replaced the Swiss Legal Code-inspired Turkish Civil Code of 1926 and declared the minimum age of marriage at 17 years for both men and women (Yilmaz 2016, 2019b).

There are stringent deterrents in place to ensure these laws are abided by. For instance, marrying a person before the minimum legal age is considered a sexual assault against children (if one party is aged under 15 years) and the person committing this offence is fined and can get around 8 to 15 years in prison, notwithstanding the presence of consent of the couples and approval of their parents.⁵

However, there have been provisions in place where marriage for minors at the age of 16 is allowed. These are cases that require special permission of the court due to their ‘exceptional’ circumstance, such as teenage pregnancy, elopement, cohabiting as wife and husband, and deflowerment.⁶ Moreover, despite the strict rules and punishments, a small proportion of people are able to bypass the punishment because of the legal system’s power to grant solemnization of child marriage due to what they might consider “extraordinary conditions” and “for compelling reasons” (Yüksel-Kaptanoğlu and Ergöçmen 2014, p. 1710).

3. Bypassing the Law

Data trends from Turkey’s eastern and south-eastern regions show that child marriages are still taking place. In most cases, these are never reported and official bodies are unaware of their occurrence. Most families conceal these occurrences because of penal consequences and also because annulment of marriage is a highly stigmatizing incident in the society. The legal system also creates an air of uncertainty of the issue, discouraging families to come forth. For instance, in one case a marriage was approved by the court, later to be cancelled by the Court of Cassations because of lack of substantial reason to give approval.⁷ Generally, the legal system does not solemnize a child marriage until there is a valid reason. In recent years, a religious solemnization of a marriage between a 17 year-old boy and 14 year old-girl was termed as a “sexual assault” on the minor, and the ‘groom’ was handed out a jail sentence of 8 years and 6 months, and the accused’s father and father-in-law were also handed out jail terms for 4 years 4 months because of the “help and aid” they provided; this judgment was upheld by the Court of Cassations (CNN Turkey 2018). However, the lengthy court proceedings lasted 7 years, which meant the girl was a woman who had already passed legal marriage age and had children from the union, although these circumstances did not affect court’s judgement. However, there was a different approach taken with another case where the Courte of Cassations overruled a decision of a court of first, as it approved the marriage of a 16-year-old woman on the ground of living together as husband and wife (Cumhuriyet 2014). Thus, this variable attitude of the legal system has not helped in the total eradication of the practise of child marriage, and estimates suggest that there are around eight thousand cases (Ilkha 2019).

There is no doubt that the provisions of the legal system have had a positive impact in discouraging child marriage in Turkey, but field research and surveys, despite showing an encouraging decline, warn of the prevailing practise in rural areas that have seen severe lapses in human development. The nexus of poverty, lack of outreach, strong connection with traditions, and lack of education have been attributed to intersectional factors, and led a remarkable portion of the marriages to be considered as “child marriage”, according to the international standards. The facilitation of these marriages is made possible by Islamist legal pluralism, as the muftis can ordain a religious marriage under this parallel legal system.

Data also shows that there is a gender dimension to the issue. Girls being married under the age of 18 years (international standards) are disproportionally higher than under-aged marriages for boys and, in most cases, the partner of the “child brides” are grown men (UNICEF 2020). The Turkish Statistical Institute (TurkStat) reported that in 2019, 73.126 girls between the ages of 16 and 19 got married, while the figure for boys at the same age interval stood at 8.411 (Turkish Statistical Institute 2019).

The primary reason for these unions is poor socio-economic conditions combined with the prevalence of socio-cultural factors that encourage early-age marriages. Girls living in poverty-stricken homes are highly vulnerable as parents marry them off to relieve the financial strain, with the hopes that the new household would be better able to provide; in such circumstances, a man much older than the girl is chosen because he can also provide the bride’s family with some monetary provision as a ‘bride price’ (Türkiye’de Evlilik Tercihleri 2015). In addition, a multitude of factors, in addition to the income of the family, play a role, such as customs, values, literacy level and religious beliefs (Türkiye’de Evlilik Tercihleri 2015). There is strong evidence that, in regions with low literacy, the occurrence of child marriages is higher, as data from the government in 2011 shows that more than 40% of illiterate children marry underage, while this rate decreases sharply as the literacy level enhances (Beşpınar and Beşpınar 2017, pp. 121–22). This correlation between literacy and child marriages also explains why these instances are more prevalent in south-eastern and central-eastern Anatolia. A respective 4.9% and 4.2% of the children marry under the age of 14 compared to 1.6% in the Aegean and 2.1% in the Mediterranean regions (Beşpınar and Beşpınar 2017, pp. 121–22).

Despite the presence of cases in various pockets around Turkey, the statistical picture at large shows a gradual decline in the practise. TurkStat on 6 July 2020 stated that the rate of girl children marriages decreased in 2019 to 3.1% from 8.1% in 2009. For male children, this figure was 0.4% in 2009 and 0.2% in 2019 (Turkish Statistical Institute 2020). Yet, this report cannot be seen as a full success, as figures of marriages below 16 years old were not included in the data.

According to the TurkStat data, the ratio of married women aged 20 to 24 years old who were married for the first time before the age of 18 decreased from 8.2% in 2010 to 5.1% in 2019. The figure for the boys in the same interval did not change much; 0.3% and 0.2% respectively.

Outside sources such as the U.N. Population Fund’s (UNFPA) Turkey representative Zahidul Huque stated that the average child marriage ratio for girls under the age of 18 is 28% in Turkey. One out of three marriages are realized during the period of childhood. He also argued that 20,000 families have applied to the court to get permission for the marriage of their daughters in 2011 alone (UNFPA 2020, p. 31).

These findings are further backed by the Turkey Marriage Preferences Study, which was conducted in 2015. According to this report, the ratio of married couples without an official marriage was 7.7%. The ratio of married couples who married with only religious marriage was 7.4%. The ratio of the early marriages who have been married based on the court’s permission was 15.5%. Thus, when we add all these numbers, we can reach the ratio of total early marriage, which can be confirmed as 30.6% (UNFPA 2020, p. 31).

In contrast with the earlier state-released report, another dataset is in line with the non-state data sources. The Ministry of Family, Labour and Social Services in 2011 and 2016 contrarily indicated a slight rise in the child marriages. According to the 2016 data, the total number of first marriages occurring below 18 years old accounted for the 28.2% of total marriages, increased from 28% in 2011, while the figure for male children remained almost the same: 5.7% and 5.6%, respectively. Surveys of the Hacettepe University also noted this change. According to Demographic and Health Survey of 2013, 0.2% of 1.572 women aged 15–19 said that they married before the age of 15. This figure rose to 1.1% of 1163 women at the same age interval in 2018 (Republic of Turkey Ministry of Family, Labour and Social Services 2018; Hacettepe University Institute of Population Studies 2013).

Undoubtedly, the TurkStat failed to cover the whole scope of the issue of child marriage. Given that most victims of crime are “child brides”, data from the hospitals of minions giving birth also sheds light on the situation. According to the data, in 2014, 436 female children under the age of 15 years old gave birth, and this figure dropped to 142 in 2019. For the 15–17 age interval, however, the number is far higher: 20.682 in 2014 and 9.714 in 2019. This data is not a complete picture of the issue. For example, many religious marriages or second marriages remain a secret, and most parents also refrain from officially registering the birth of their child due to the fear of the legal process. This misconstrues the actual depth of the issue of child marriage.

Canan Güllü, the head of Women Associations of Turkey, reaffirmed the issue of missing data on births by minor mothers. She has also pointed out that obtaining such data is no longer possible compared to before, as the hospital-maintained records of pregnant female children used, which were necessarily given to gain free maternity care are not available, as they no longer provide details in order to avoid being prosecuted. Field research is needed to get the right figures, but fieldworkers have reported a visible increase in teenage pregnancies as a consequence of child marriages (DW 2019a). Civil society organizations working to end child marriages challenged official bodies on these grounds for a more thorough investigation into the issue (Hacaloğlu 2020).

In addition to socio-economic factors, it is also important to remember that family courts in Turkey are also playing a critical role in this increase. In 2019 alone, courts approved the marriage of 11,446 16-year-old children, and the extent to which the legal criteria was implemented in those cases is unknown (Hacaloğlu 2020). Despite a positivist legal system in place, the court cases show that authorities are not immune from biases. Female children have been married when they were 16 years old through religious ceremony (imam conducting the nikahı) and, when they became pregnant, the couples applied to the courts to legalize their marriage under the pretext of “extraordinary conditions” or “compelling reason”. This digression by the legal system has violated the spirt of the civil code and encouraged people to use opt for an informal parallel and later translate it into the official legal system; in essence, it is an instrumentalization and legitimization of the religious nikah (Arsalan 2018, p. 7; Erkan 2018). The lower courts systems are more prone to making these deviations (Arsalan 2018, p. 7).

In 2018, a court of first instances dismissed an indictment about a Syrian man who married a 13-year-old girl on the grounds that the man did not know the official law and the girl child gave her consent to the marriage (Evrensel 2018). Only a small fraction of these ‘legalized’ child marriages ever reaches the Court of Cassation or the Supreme Court to be overruled.

Despite the progressive laws implemented by the Kemalist, both the legal channels and informal practices have preserved the practise of child marriage as Turkey remains the region with the highest rates of child marriages in the European Union (EU) (UNICEF 2021; Girls not Brides 2021; Sozcu 2018). The EU’s 2020 Turkey progress report noted:

“Child, early and forced marriages remain a source of concern, as does discretionary mitigation in court cases of violence against women, possibly mirroring sexist prejudice and victim blaming. […] Overall, there is a lack of political commitment to address gender equality issues, and a growing reluctance to use the term ‘gender equality’ in official documents. The most recently published national action plan on gender equality was published for 2008–2013 and has not been renewed since” (European Commission 2020).

Linking back to the issue of poverty the influx of Syrian refugees is speculated to be one contributor to this change in trends. A UNHCR survey from 2014 showed that Syrian refuges displaced by war have been known to marry as early as 13 years old (Bolak 2017). Ezgi Yaman, highlights the gendered dimension, secretary general of ECPAT, claimed that a large number of girls form this vulnerable group are forcefully ‘sold’ into marriage. A newspaper interview Yaman drew a grave picture, “We have heard of cases where Syrian families are selling their daughters to marry—either formally or informally—Turkish men. Sometimes to be a second or third wife of a man. This is to get rid of them. To have one less plate at the table. The families are also getting money to help them pay for rent. We heard several cases where the family couldn’t afford to pay the rent to the landlord, so they say: ‘We are giving you our daughter’” (Oppenhime 2020). Nur Burgan, a Syrian gender researcher with the Center for Civil Society and Democracy in Gaziantep, reaffirms these worrying trends and further sheds light on the precarious condition of these girls. She found that underage girls are usually taken as second wives by Turkish men, which devoids them of legal recognitions as wives of the concerned citizens, depriving them of due rights under the legal processes as polygamy is outlawed in Turkey (Nawa 2017).

At this stage, it is highly worrying that the legal system has loopholes that has facilities this crime and it is of particular concern with Turkey’s Islamist and conservative drift that has prevailed for a decade with its foreseeable lasting impacts.

4. Fatwas for Child Marriages

The AKP has fostered an environment where Diyanet and pro-Erdogan right-wing religious scholars have reignited the debate on the age of marriage from the perspective of Islam. Various fatwas have been issued by Islamist authorities in the last ten years concerning the issue.

In 2018, Diyanet made a controversial entry concerning marriage age on its official website. Met with much condemnation, its definition started “approving child marriages” as it cited Islamic sources supporting the idea, “while it is possible for a woman to marry without presence of her guardian when she reaches puberty it is better if her guarding also be present”. The further description stated that, under Islamic law, men and women reach puberty at the ages of 12 and 9, respectively, and that men become entitled to be a father while the woman is pregnant (Ertuk 2018). To derail the heavy criticism as a consequence of its controversial statement, the follow-up remarks were made by Diyanet: “marrying girl children before they are able to take responsibility to become a mother and have a family and before they reach psychological and biologic maturity does not comply with Islam which requires consent and free will in solemnization” (Diyanet 2018). Consequently, the Diyanet also closed the online glossary altogether and condemned child marriages in a Friday sermon (Bakhromjon 2020). The Friday sermon denounced the practice: “it is unacceptable to marry a girl who is not mature enough to comprehend meaning of having a family, being a wife and mother”. Yet, it maintained that the cause of this practise is mainly illiteracy and irresponsibility, though justified by religion (Bakhromjon 2020). Despite Diyanet’s attempts to retract its pro-child marriage stance, the institution’s local officials including muftis and imams harbour pro-child marriage views on the issue. In 2017, mufti of Hatay conducted a seminar for parents of Imam Hatip High School students in which he suggested that Quran and the Prophet bestowed upon parents the responsibility to marry their children when they reach puberty (Yenicag Gazetesi 2017). Responding the critics, the Mufti said he did not mention a specific age, but that he meant “age of marriage” (CNN Turkey 2017).

Diyanet has felt pressure to condemn the practise and act against its imams, that initiate these nikahs due to the evident rise in these cases, as one report observes: “Turkey has seen a hike in religious conservatism in recent times, and fears are that Islamic and sharia-like teachings will supplant more secular views of governing” (Washington Times 2018). Even the highly centralized Diyanet has struggled at the grassroots, as the imams are “in between” as “they feel obliged not to act against the law but unable to reject locals” requests for solemnization of underage marriages, particularly in rural areas and villages (Hacaloğlu 2020).

Apart from Diyanet, other state institutions under the AKP government have propagated the idea as “the Islamic law” over the secular law. In 2016, a video published on 8 March, or Women’s Day, reportedly featured a part of a wedding ceremony of a teen girl under the title of “tradition.” This was an attempt to normalize the praise as part of a traditional and religious custom by the Ministry on social media (Sozcu 2016). Moreover, in 2018, an opposition lawmaker Ali Şeker accused the Ministry of National Education of distributing a textbook that promoted child marriages amongst children of the Imam Hatip High Schools. The textbook, entitled “Fiqh Reading”, similarly suggested that everyone can make a decision on their own to marry once they reach puberty (T24 2018).

In such conditions, as already discussed above, the legal system has shown a bias towards the issue in some cases. In 2015, a judgement by the Constitutional Court gave way for religious-only marriages. This is a critical issue for child marriages, as the private (outside the state civic court) practise of religious-only marriages will legitimizing the already existing misuse of the official law in many cases of child marriages (Hurriyet 2015a, 2015b).

5. Islamist Religious Voices on Child Marriages

The AKP has cultivated a close relationship with Islamic movements and as a result these are increasingly tolerated and consequently find growth in social, political, and economic life. Rather than challenging the secular law, these groups work without the parallel legal system, where traditional Muslim law and fatwas of the leaders of these movements usually conflict with the official arrangements. There is, however, no data on the subject at hand. Therefore, I used examples from media reports to highlight the pro-child marriage fatwas of some of these right-wing groups.

In September 2020, leader of a religious sect known as Uşşaki Tarikatı topped the headlines for sexually abusing a 12-year-old girl child who was the daughter of a member of the sect. The reports also discussed how the father of the abused was offered money to stay silent on the issue (Veryansintv 2020). The reported cases, albeit very few, show that the child abuse and child marriages that take place within the closed religious communities usually remained covered, or were “resolved” within the group with the perpetrators going unpunished (T24 2020).

A child abuse scandal revolving around pro-AKP Ensar Foundation also highlights the issue, as news reports surfaced that the Ensar Foundation in Karaman had reports of abuse of ten children during 2012–2015, while some sources claimed the numbers to be as high as 45 children. The media was banned from reporting the issue, the sale of the abuse was covered up for years, and the culprit was dissociated from the foundation. The Minister of Family and Social Affairs Sema Ramazanoğlu was quite dismissive of the case, stating: “this incidence has happened once, so it doesn’t justify blemishing an institution which is renowned for its services” (Istanbul Gercegi 2016). The sexualization of children, seen by them as ‘marriage ready’, is a highly problematic issue. Abuse gets legitimized in the eyes of those who commit it because Islamic movements have been giving fatwas in support of early marriages.

In 2015, Nureddin Yıldız, a columnist for the Islamist Milli Gazete, stated that in Islam even children as little as 6 years old can get married. Citing both Quran and hadiths he claimed, “for those who believe Quran there is no specific age of marriage” (Evrensel 2015). A prosecutor demanded 28 months in jail for the columnist of a secular newspaper for criticising Yıldız’s scandalous statements (Durden 2017). Hayrettin Karaman, who has a credible reputation as a professor of Islamic law in the eyes of the AKP leaders, and columnist for ring-wing Islamist Yeni Şafak, also put forth fatwa on this issue. Close to Diyanet’s initial stance on the age of marriage, Karaman suggested that, whilst Islam does not order forceful underage marriages, the Hanafi school of thought, which is the one that predominates in Turkey, gives children the right to marry without the consent of their parents when they reach puberty (Karaman 2009).

A trickle down on sexualization of childhood and children is evidently visible. According to the Ministry of Justice’s data, in 2019, 28,360 child abuse lawsuits were opened, and this figure recorded a 50% increase since 2015 (Altunkaya 2020). In 2019, The Economist reportedly ranked Turkey as the 18th country (among 60 spots) with a score of 56.7 out of 100 in the index for child safety. The reasons for this ranking were explained by talking about the strong legal support for children and safety but the country’s poor performance in a holistic manner, which has paved way for underage marriages (Altunkaya 2020). Tarık Fazıl Önel, a lawyer registered at the Ankara Bar Association, informed that in July 2020 he sorted the judgements of the 14th Criminal Division of the Court of Cassations (Yargıtay) for just one month and 990 out of 1000 judgements were about child abuses (Kronos 2020).

The digression of Diyanet and right-wing Islamist scholars have met with criticism from a large part of society when it comes to the issue of child marriage. However, the increasing frequency of such fatwas and their boldness is worrying amidst the rise of this practise in a century when such an occurrence should not occur at all.

6. Covering-Up of the Child Marriages and Pregnancies

As briefly discussed earlier, most child marriages in Turkey go unreported due to the legal consequences. This has recently led to a number of cases where the state and other private individuals have gone to great lengths to suppress the growing number of “child brides” in particular.

In 2018, mass evidence of the state institution’s attempt at hiding child marriage emerged when Turkish daily Hurriyet revealed that Kanuni Sultan Süleyman Hospital, a state hospital, had accepted 115 adolescent pregnant girls, 38 of which were below the age of 15 and 39 were Syrians immigrated to Turkey, between 1 January and 9 May 2017, but did not disclose the underage pregnancy to the authorities as the law requires (Hurriyet 2018a, 2018b). According to report, social worker Iclal Nergiz, who acted as a whistle-blower, was ‘transferred’ soon after. Despite having knowledge of this case, the prosecutor’s office at Istanbul did not probe the case further and it was only after intense public pressure that the Minister of Family and Social Policies, under the charge of Fatma Betul Sayan Kaya, began investigation (Hurriyet 2018a, 2018b). According to the Ministry of Health, via its own investigative report, 158 children were treated by the Kanuni Sultan Suleyman Hospital between 1 January and 9 May 2017, and 124 of them were not reported to the official bodies. According to a report in 2016, another 260 minors, 64 of which were below 15 years old, visited the hospital to give birth (Hurriyet 2018a, 2018b). However, there are claims that the number of pregnant children was 250 while in the whole year 450 underage children gave birth at the hospital (Zeyrek 2018). The whistle-blower social worker estimated that about 450 to 500 pregnant children were treated at the hospital each year (Tremblay 2018). She further claimed that: “what she revealed is only tip of the iceberg and the situation is the same in the whole country” (Yilmaz 2018b).

An opposition politician has summed up how the Ministry of Health has facilitated and adapted itself to this social reality of growing child marriages:

“In 2008, the Ministry of Health issued a circular asking all hospitals to report all pregnancies below the age of 18. But the following year, the Ministry issued a new circular this time requiring hospitals to report all pregnancies below the age of 15 and only the cases when there is evidence of physical violence for the ages of 16 and 17. However, in 2016 the Ministry of Justice distributed a circular noting that it is a legal obligation to report all pregnancies below 18 years old to the judicial authorities, So, the Ministry of Health should send a similar circular to the hospitals to end the ongoing negligence” (Kerestecioğlu 2018).

Consequently, the Ministry of Health has made it easier for hospitals not to report all pregnancies, even those below 15 years old. The Ministry of Health has said in 2018 that all childbearing individuals under the age of 15 must be reported the authorities, but it did not explicitly mention the pregnancies at the ages of 16 and 17 that involve no physical violence complaint. This is why a good portion of underage pregnancies remain unreported. The Turkish Statistical Institute reported 293 childbearing individuals below the age of 15 for the year 2016 and 266 for 2017 (Turkish Statistical Institute 2020). However, the Ministry reported 64 such cases for 2016 and 38 for 2017 for only the Kanuni Sultan Süleyman Hospital in Istanbul. Field workers have given even higher numbers, as one of the medical researchers recorded 300 underage pregnancies in just a period of six months in 2015 at an Ankara hospital (Tremblay 2018). Pinar Icel Cepe, the secretary-general of the Health and Social Services Employee Union, also reported that some hospitals have opened separate maternity wards for minor pregnancies due to high numbers of underage pregnancies: “Everyone knows, but no one wants to speak about it”, she suggested (Tremblay 2018).

There are sources that link this issue back to the increasing occurrence of “child brides” taken from Syrian refugees by Turkish men. A survey by the Hacettepe University conducted in 2018 showed that 39% of the Syrian children at the adolescence age (15–19) either already became a mother or are pregnant to their first baby, while the figure is 20% for the ages of 15–17 (Türkiye Nüfus ve Sağlık Araştırması 2018). One civil society member working with the vulnerable children confirmed this grave reality: “we estimate a minimum of 2000 deliveries of mothers who are younger than 17 annually in Istanbul. Probably 500 are Syrians. There are also hundreds of cases of abortions and quite a few are incest. I fear that several of 115 cases would be incidents of incest” (Tremblay 2018).

Child marriages are on a rise in Turkey. Whether it is from the influx of refugees, poverty, rise of Islamism, or a combination of all these factors. The worrying part is that the State’s instructions have actively tried to coverup this grave reality as it spreads from rural Anatolia to metropolitan cities such as Istanbul and Ankara.

7. The Legal Attempt to Get Amnesty for Sexual Abuse and Child Rape

The penal code of 1926, despite its ‘secular’ outlook, was patriarchal in many aspects. It had allowed for an amnesty for sexual abusers and child rapists if they married the victims. This provision was ousted by the new penal code in 2005, which was a consequence of the EU accession talks, and featured pro-child protection laws and a penal code that imposed fines and punishments for rapists and abusers.

In line with its transition from ‘Muslim Democrat’ to ‘Islamite populist’, the AKP has attempted to bring back this amnesty for rapists. On 17 November 2016, six MPs of the AKP tabled a surprise motion that would amount to an amnesty for perpetrators of sexual abuse of minors, who committed their crime before 16 November 2016. The motion stated that if victim marries the offender, and if the act was committed without “force, threat, or any other restriction on consent”, the rapist would be granted amnesty (Erturk 2016). Of course, this motion was met with heavy criticism from all sides of civil society (Hacaloğlu 2016). UNICEF also issued a warning to the Turkish Assembly on the issue: “it would create a perception of impunity in favour of perpetrators of such child rights violations [directed to the Turkish MPs the statement processed] “do their utmost in ensuring that all girls and boys in Turkey are better protected from all forms of sexual abuse, exploitation, including child marriage and other forms of harmful practices” (UNICEF 2016). Gauri van Gulik, Amnesty International’s deputy Europe director, said the proposal could give “the wrong message and could lead to further abuse. It is impossible … to guarantee that there was in fact full and informed consent of the girl, not just of her family” (The Guardian 2016b). Mass rallies were also instigated in front of the Turkish Grand National Assembly with slogans that read “rape is a crime against humanity” and “rape can’t be legitimized”. A petition on change.org urging the authorities to block the legislation has received over 600,000 signatures (The Guardian 2016b).

Despite the widespread condemnation, initially the AKP advertised the proposal as a silver bullet to resolve the custom of underage marriages and urged that the provisions were only applicable to offences offenders and victims who experienced this before 11 November 2016. An AKP MP argued, “There are people who get married before reaching the legal age. They just don’t know the law”, and argued that this would “get rid of this injustice” (The Guardian 2016b). Termed as a “reality”, the allegations of decriminalizing rape were brushed aside: “were not rapists or sexual aggressors” (The Guardian 2016b). Furthermore, Ayşe Kesir, an AKP parliamentarian, justified and trivialized the consequences of the amendment by saying it would only be applicable to 3000 families who were supposedly pre-identified before the motion was floated, and that it was a way to provide equity to young girls who had willingly run away with their lovers and had children. She further added that jailing these men would not help the social institution of the family as they had children now (Tremblay 2016). It is unclear why this motion was so specific, although there are speculations that it was designed to provide amnesty to some AKP members. However, the AKP withdrew the proposal amidst rising criticism.

It was an unusual withdrawal of the party. A pro-AKP columnist claimed that women’s strong opposition and the lack of broader support led Erdoğan to repeal the proposal (Selvi 2016). However, another columnist, Murat Yetkin, claimed that Erdoğan’s momentary unwillingness to alienate his far-right ally the Nationalist Movement Party (MHP) at a point where he was planning the presidential system referendum (T24 2016). These speculations are true as the agenda has not been dropped by the party and, in 2019, a pro-AKP press reported that the party was working and was determined to combat early marriages through a draft bill that targeted judicial reforms (IHA 2019). In 2020, Mor Çatı Women’s Shelter Foundation shared the draft bill on Twitter and warned that “a legal basis is being formed to expose girl children aged 13 years and above to sexual attack and forced marriage violence” (Mor Cati Vakfi 2020). Although the bill has not surfaced to the floor, there is an air of concern regarding its resurfacing. At this stage, with the presidential system in place, and with MHP by its side, it seems that the AKP will be able to pass this bill in the assembly.

It is noteworthy to understand that pro-AKP media and figures have played a critical role in providing a highly conductive environment to Erdogan’s Islamism. In 2016, at the peak of the debate around the bill, the pro-AKP press launched a propaganda campaign to defame the opposition’s voices as ‘enemies of the family and Islam’ as well as rapists and fascists. Islamist daily Yeni Akit published a first page newspaper in defence of the proposal with the headline “CHP, enemy of the family” in which it attacked the Kemalist Republican People's Party (CHP). “Opposition of CHP, which undertakes spokesmanship of deviant homos, to the bill has revealed once again shabby face of their mentality” (AKIT 2016). Star Daily also took a similar tone by accusing CHP of embracing rape and the CHP declared men with a religious marriage as rapists (Aksay 2016).

More recently, in 2020, Erdoğan ordered his aides to draft a bill on child marriages while discussing legal reforms (Güler 2020). Even before the bill made it to the parliament for discussion, the pro-AKP used its narrative of victimhood of women and children. The state-run media house The Anadolu Agency published an article about a woman who married at the age of 14 with the headline “The woman who married early hopes that the victimhood of her family would end” (Özgüven 2020). Various columnists urged the opposition to listen to “victims of early marriage” and, as they contradicted the penal code, and felt that, for victims of the Kemalsit-installed system: “there is no provision in the penal code preventing having sexual intercourse and minor pregnancies, but if two teens make a ‘mistake’ by getting married it is deemed a crime” (Kaplan 2020). Another pro-AKP voice, Kutluk Özgüven, commended minor pregnancy on-air while on the Islamist Akit TV. He felt that 12–17 years is the “ideal age” for childbearing (Internet Haber 2020).

There pro-AKP Islamist voices are active year-round on various issues pertaining to family laws, especially marriage. Abdurrahman Dilipak, in 2019, criticised the law prohibiting underage marriages in his Islamist column: “while cohabitation of gays and lesbians is tolerated as matter of individual and contemporary choice, the state’s intervention in the early marriages is unacceptable” (YURT 2019). In January 2020, an Islamist professor linked earthquakes in Turkey to banning of child marriages. He remarked that: “provoking jealousy of God is not a word from literature. AIDS, Ebola virus, Australia, China provoked jealousy of God and faced torture of the God. God forbid, let’s not provoke jealousy of the God by legalizing adultery and homosexuality, calling marriages at the ages which the God made halal rape and breaking up happy families. There is not much time” (Bir Gun 2020). On similar lines, another professor retweeted a message from a woman (a victim of under-aged marriage), and complained about the imprisonment of her husband: “the officials have not made a move against this oppression for a long time. Let me tell you that the God will send us a big disaster” (Cumhuriyet 2020).

While no legal change has yet occurred to provide amnesty to rapists and child abusers, there is a growing concern around this issue, as it has constantly resurfaced in the AKP’s agenda despite the 2005 reforms (DW 2018, 2019b). Critics have sounded alarm over the concern that the mere discussions on a legal arrangement to acquit child abuse convicts has a rippling impact of swaying legal judgements and reshaping the courts’ approach to sexual abuse cases. An example of this was evident in a 2019 judgment issued by the Court of Cassation. In that case, the judgment of a lower court was upheld that had acquitted a man who married to a 12-year-old girl child on the grounds that he did not know her exact age. At that time, the girl had given her consent to marriage and, consequently, the couple had decided to officially solemnize their religious marriage (Guneri 2019). This decision was upheld despite its evident support for laying down precedent for the legalization of early marriages and acquittal of child abusers (Bir Gun 2019).

There is undoubtedly a change in the mood of the judicial system and society when it comes to the issue of child marriage, rape, and child abuse. The conception of the norm is being re-shaped by the AKP’s constant attempts at bringing forth Islamist bills and regulations. With the support of a pro-AKP media, a propaganda machine that is backed by right-wing pseudo religious experts, there is trend of normalization of these issues in some conservative pockets of society.

8. Conclusions

Mustafa Kemal Atatürk’s attempt at the social engineering of Turkey from an Ottoman monarchy into a modern republic achieved mixed success. The Swiss Legal Code adopted to bring legal modernity to Turkey’s family laws was not fully accepted. Whereas today, Turkey has embarked on a new re-engineering process. An opposite of the former, the Erdoganist (see in detail Yilmaz 2021a) perspective seeks to Islamise society at its core to create for itself an environment where its Islamist, populist authoritarianism thrives. While the process is again a top-down one, there is also growing evidence that, with the help of the previously marginalized groups, the party has initiated an Islamist re-engineering. While Turkey remains divided on choices between Kemalism, Erdoganism, and liberal democracy, the AKP has created an environment where Islamist, after nearly a century, have found opportunities to challenge and transform the secular structures and policies of the state. The institution of family has become a forefront of this debate between the Islamist and secular sections of society in Turkey. This study is an attempt to understand how legal pluralism has been instrumentalized by the AKP in the domain of family law as part of its greater project of creating an Islamist ‘New Turkey.’

The data and reports presented in this study demonstrate several things about the political change in Turkey. Firstly, looking at family law and its modern history, it is clear that ‘western imposed’ legal systems were not accepted by everyone. With isolation from state policies, these pockets became hubs of Islamist ideology. Like a seed of desert flower laying dormant, these conservative and Islamist pockets preserved the Islamist legal thought until conditions again allowed it to flourish. In a sense, the AKP has not reinvented Islamism or Islamist legal mentality, the party has just expanded what had previously been retracted under the Kemalist system. In a sense, this study also highlights the limits of the Kemalist design of family laws. With a blanked forced imposition, it isolated many who felt that this ‘western’ idea was in contradiction to their faith. The years of oversight on issues such as child marriage are also a testament of the mediocre performance of the Kemalist governments in terms of its writ of wholistically implementing family laws.

This brings us to the second contribution of the study. It showed how the legal pluralism that has always existed in Turkey is increasingly becoming part of the mainstream under the rule of the AKP. Under political conditions created by the AKP, the Islamist legal pluralism of co-existence of secular official laws and unofficial Islamist laws has been intensified and transformed into a direct contender of the secular formal legal system.

Thirdly, this study shed light on the issue of the politicization of family laws under a populist party through legal pluralism. While Diyanet has been studied by several authors over the past decade, there was a gap regarding the theoretical substantiation of the AKP defending its anti-systemic behaviour and instrumentalization of state agencies such as Diyanet. This study showed that there is a two-way relationship between Diyanet and legal pluralism. While the former uses the latter to grow its sphere of influence, it is Islamist legal pluralism that also gains mainstreaming thought, and Diyanet’s acceptance of it was a theological framework. In essence, state institutions, despite being part of the state, are shown to support and embrace a parallel legal system in opposition to the formal laws regarding family. By doing so, while the AKP cannot make outright changes to the constitutional framework, it can however create an environment wherein the transformation can be gradually achieved. This focus of family law provides a microstudy of the AKP’s use of both formal and informal institutions to support its conservative populist agendas.

Fourthly, this study is an important contribution to Islamism as well. Today in the larger scheme of things, especially since 9/11, radical militant Islamist are studied with quite some interest. However, the case of modern family laws and their erosion by the Islamist legal pluralism draws attention to a more worrying strain of Islamism. Through this process, Islamism hurts its own society and compromises relations with other countries.

Women, children, and refugees are the main victims of this trend. A retraction from the EU process has only limited space for vulnerable children and women seeking assistance, and in cases where the legal system supports them, the narrative is being set that seeking help is not the right way, but rather that endurance is the way to preserve ‘family values.’

The Erdoganists’ constant efforts to re-engineer through Diyanet and its right-wing allies shows the possibility of Islamist legal pluralism finding its way in the formal legal system. Even if the party does not remain in power, the power has radicalized Diyanet and has given encouragement to the Islamists, which could reap grave results for the future of the institution of the family, where patriarchal ideals would surface.

Funding

This research received no external funding.

Institutional Review Board Statement

Not applicable.

Informed Consent Statement

Not applicable.

Conflicts of Interest

The author declares no conflict of interest.

Footnotes

Notes

1. A fatwa is a nonbinding legal opinion on a point of Islamic law given by a qualified jurist in response to a question posed by a private individual, judge or government (Yilmaz 2020).

2. The traditions and practices of the Islamic Prophet, Muhammad, that constitute a model for Muslims to follow.

3. A record of the words, actions, and the silent approval of the Islamic Prophet Muhammad.

4. An Islamic marriage that is a legal contract between a man and a woman

5. Article 103 of Civil Code 2001.

6. Article 124 of Civil Code 2001.

7. Y2HD 28. 04. 1986, E. 4269-K. 4463.

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