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Turkey: Bill Authorizing Muftis to Perform Civil Marriages and Amending Civil Registration Rules

(Oct. 2, 2017) On July 25, 2017, the Turkish government submitted draft legislation to the Grand National Assembly (Turkey’s parliament) containing a controversial provision that would grant muftis – Sunni civil servants employed in the country’s Directorate of Religious Affairs (Diyanet) – the authority to perform civil marriages. (Mahmut Bozarslan, Bill Allowing Turkish Muftis to Perform Civil Marriages Stokes Concern, AL-MONITOR (Aug. 9, 2017); Nüfus Hizmetleri Kanunu ile Bazi Kanunlarda Degisiklik Yapilmasina Dair Kanun Tasarisi [Draft Law on the Amendment of the Population Services Law and Some Other Laws] (Draft Law) (July 25, 2017), T24.)  At present, muftis do not have that authority; at the request of a marrying couple, they can only perform a religious marriage, which the state does not recognize and under which no rights are given to the spouses. (Bozarslan, supra.)

Municipal officials, ship captains, and the elected village heads (mukhtars) are the government representatives authorized to conduct civil marriages; no clergy members of any faith have that authority. (Id.) While “the majority of civil Turkish marriages also seek the blessings of a religious figure,” clergy-conducted religious weddings in themselves lack legally binding status. (Pinar Tremblay, Why Turkey’s Brides Are Doing a Disappearing Act, AL-MONITOR (Sept. 6, 2017).) This would change if the bill is adopted, although the draft legislation only permits state-registered muftis, not representatives of other faiths, to perform civil marriages. (Bozarslan, supra.)

Possible Impetus for the Legislation

According to one news report, there are two pragmatic reasons, important for the continued sway of President Recep Tayyip Erdogan, behind the introduction of the bill. First, the “thousands of imams, muftis, and vaiz (preachers)” trained and certified during the last decade under the aegis of Erdogan’s Justice and Development Party (AKP) governments need employment; second, there is an increased demand for application of Islamic law in everyday life due to the spread of Islamic education. (Tremblay, supra.)

Details of Proposal Augmenting Mufti Authority

The relevant provision of the bill on muftis’ authority to officiate at civil marriages would amend article 22 of the Civil Registration Services Law. The article currently states:

(1) The Ministry [of Interior] shall take all necessary measures to ensure that marriage procedures are carried out within the framework of civil registration and citizenship services. (2) Marriage officer: the mayor of a municipality that has a mayor or the civil servant assigned to the task, or the village head in villages.  The Ministry can assign the marriage officer authority and tasks to provincial civil registration and citizenship directorates, civil registration directorates, and foreign representative offices.  If one of the spouses is a foreigner,… the municipal marriage officers and civil registration officers are authorized to carry out the tasks.  (Nüfus Hizmetleri Kanunu, Law No. 5490 (Apr. 25, 2006, as last amended Apr. 29, 2017), MEVZUAT; translation by author.)

The proposed revision is to item (2) above, which would change the second sentence to read: “… The Ministry can assign the marriage officer authority and tasks to provincial civil registration and citizenship directorates, civil registration directorates, foreign representative offices, and provincial and district muftis offices.” (Draft Law, art. 22(2).)

Current Law on Civil Marriages Versus Religious Ceremonies

Article 174 of the Turkish Constitution cites the principle of civil marriage as one of the fundamental laws of reform that date back to the founding of the Turkish Republic; it directly refers to article 143 of the Civil Code, which states that a religious marriage ceremony cannot be held before a civil one. (Constitution of the Republic of Turkey, Grand National Assembly of Turkey website; Türkiye Cumhuriyeti Anayasasi [Constitution of the Republic of Turkey] (Oct. 18, 1982, as last amended effective Apr. 27, 2017, by Law No. 6771); Türk Medeni Kanunu [Turkish Civil Code], Law No. 4721 (Nov. 22, 2001, as last amended effective May 15, 2014), MEVZUAT; see also Ela Anil, Canan Arin, Ayse Berktay Hacimirzaoglu, Mehves Bingöllü, & Pinar Ilkkaracan, The New Legal Status of Women in Turkey, WOMEN FOR WOMEN’S HUMAN RIGHTS 9 (Apr. 2002).)

In order to undergo a religious marriage ceremony, the couple must document that the official ceremony has been conducted. (Anil et al., supra, at 11; Türk Medeni Kanunu, arts. 142 & 143.)  Violation of this rule is considered a crime under article 237 of the Penal Code, which stipulates that both the person who conducts such a ceremony without verifying that the official ceremony has been concluded and the couple involved will be punished.  (Anil et al., supra, at 12; Türk Ceza Kanunu [Turkish Penal Code], Law No. 5237 (Sept. 26, 2004, as last amended Aug. 25, 2017), MEVZUAT.)

Some Other Draft Amendments to the Civil Registration Services Law

The draft legislation incorporates a number of other amendments in addition to the one concerning muftis. For example, in regard to family registers, it provides that each person must have a single record kept in electronic format in the family register, and records related to other persons and events will be associated with that individual’s ID number.  The Ministry of Interior will be the authority managing the register.  (Tarik Kurban, Amendments to Civil Registration Services Law: Draft Law Is Now at the Parliament, Güzeloglu Attorneys at Law website (last visited Sept. 19, 2017).)  Custody and guardianship information will be added to family registries, with information on the circumstances requiring the custody or guardianship to be maintained only in electronic form.  (Id.)

In regard to children, the draft provides that birth notifications may be made at the health centers where the birth occurs, along with birth registration offices and foreign representative offices.  If there is no parent or guardian, the birth notification is to be made by the child’s grandparents, his/her adult siblings, or any persons who live with the child.  The draft also provides that the name given to the child must comprise no more than three names and not contain any abbreviations.  (Id.)

Other draft provisions are on citizenship and residency.  The draft law would amend the Turkish Citizenship Law to indicate that “the basic principles applicable to the acquisition of Turkish citizenship shall be determined by the Ministry of Interior in consideration of the views of relevant public institutions and organizations.”  (Id.)  Foreigners seeking to acquire Turkish citizenship would be permitted to be outside Turkey for a total of nine months (instead of the current six) of the residence period required for the application.  (Id.; Turkish Citizenship Law, Law No. 5901 (May 29, 2009), European Union Democracy Observatory on Citizenship website.)  A foreigner who is granted a residence permit would be registered in the foreigners’ registry with an ID number given him or her by the Ministry of Interior.  The Ministry would be authorized to provide an ID number regardless of whether or not the foreigner holds a residence permit, except in the case of members of diplomatic missions.  (Kurban, supra.)

Reactions

Asli Pasinli, Chair of the Diyarbakir Bar Association’s Women’s Rights Center, expressed concern that the bill would take away from women “many of the rights they have acquired over the years through the constitutional principles of secularism and the civil code’s equality provisions.” (Bozarslan, supra.)  She fears the provision on muftis, if adopted, would not only facilitate religious marriage but also underage marriages; “[t]he muftis are religious authorities.  Giving them the right to conduct a civil ceremony will increase their role and influence in the civil life,” she stated.  (Id.)  Pasinli also criticized the draft provision permitting babies who are not born in a hospital to be registered at the registry office by a declaration from parents, because she contends such a practice would make protecting children from abuse and underage marriage more difficult, as such cases are often learned about through hospital doctors.  (Id.)

Mufti Zahit Ciftkuran opined that who conducts the ceremony is not as important as whether there are any loopholes in the law for underage marriage; therefore he urged careful review of the draft law. (Id.)  AKP ministers, for their part, however, “fervently deny that the law would change anything aside from facilitating civil ceremonies for all Turks, as the marriage procedures and requirements, including age limits, will remain untouched.”  (Id.)