Baskın Oran
Dec 15 2017

Turkey should take a lesson from Greece

There are two lessons in minority rights that Turkey should learn from its neighbour Greece.

The first lesson has been given by Greece since 1923, and the second, more important one, has been given in the past few days.

The first lesson is that, just two years after we signed the 1923 Treaty of Lausanne, we violated Article 42/1 and we continue to do so. Greece, on the other hand, applied this most significant clause to its Muslim-Turkish minority with great diligence.

The article states: "The Turkish Government undertakes to take, as regards non-Muslim minorities, insofar as concerns their family law or personal status, measures permitting the settlement of these questions in accordance with the customs of those minorities". Article 45 says that Greece will apply the same to Muslim minorities in its own country.

This article introduces a "positive right" to minorities. A reminder: positive rights are not given to the majority, only to minorities. We will return to this at the end of the piece, because this is the second lesson given by Greece.

Turkey, at the end of 1925, told non-Muslims: 'The Civil Code comes out next year, and now your church wedding does not replace official marriage. You will waive your rights granted at Lausanne and you will marry in the municipalities. Whoever desires can go to the church and have a ceremony.”

Turkey had no right to say that. Because members of a minority or their communities cannot waive the provisions granted by an international treaty signed by eight states, such as the Lausanne Treaty. Article 37 of the Lausanne Treaty declares that these provisions are protected as a whole and "(...) no law (...) and no official action [s]" can prevail over them.

The result was as follows: the Jews immediately succumbed to this violation of Lausanne. The Armenians complied after much resistance. The Greeks, after much resistance also, complied because Greek community leaders and journalists were arrested and were not released without a "resignation" to the fact.

Greece never violated Article 42/1 and Islamic family law was applied to this minority in terms of: 1) Marriage 2) Divorce, 3) Children's custody, and 4) Inheritance.

This brings us to the second lesson that emerges from this.

Hatice Molla Salih and her husband from Komotini, in Western Thrace where the exceptions apply, had a discussion: “We do not have children. If one of us dies, our property will go to others. Our relatives will come like vultures to claim a share of the inheritance.” Because, according to Islamic Law, inheritance goes not only to children and spouses but also to brothers.

As a result, they made a will with a notary in 2003.

After 44 years of marriage, her husband died in 2008. Salih (67) won in court, thanks to the will, but the Greek Court of Cassation disagreed: “You are a Muslim of Western Thrace,” it said. “We asked the mufti who stated that the testament you made at the notary according to Article 42/1 of the Lausanne Treaty is invalid under Islamic law. You will share the inheritance according to Islamic law.”

The process in the Greek courts has not been completed, but the case has been open for eight years and Salih has applied to the ECHR. There, she will win for sure, because she has not been given the right to choose herself, and also because Islamic law, which does not recognise the will of the individual, is against the basis of the European Human Rights Convention as applied by the ECHR.

Seeing what will happen, on Nov. 24, Prime Minister Alexis Tsipras announced that he would issue a new law: Whoever wishes will from now on indicate in his or her will that he or she chooses civil law for the distribution of his or her inheritance, or will indicate that he or she chooses Islamic law, retaining the right to change this statement at any time. Wills made up to the present day will also become valid.

Greek Education Minister Kostas Gavroglu suggested that those wishing to live by Sharia law would have to opt-in.

At the moment, some members of the minority oppose the long-delayed and at the same time so modern initiative by Tsipras. In this way, they ingratiate the muftis to them, as well as Turkey’s ruling Justice and Development Party (AKP) and the Consulate-General of Komotini. Moreover, they will be highly esteemed in this introverted Muslim community. But their first aim is to support the “we defend Lausanne and minority rights” argument.

Talking about the muftis, the elected (but not officially recognised) mufti of Komotini, Ibrahim Şerif, objected to the judgments of Islamic law, which granted the legacy to the brothers of the wife, and demanded that the inheritance be shared according to the civil law. Everyone knows that in the minority.

Millet, one of the newspapers published in Western Thrace, wrote: "Tsipras admits it: the rape of minority rights begins”. According to the news, "one of the leading lawyers in the minority”, Ercan Ahmet said: "What good news does Tsipras give? Already minority individuals can choose between Islamic law and civil law”. This "leading lawyer" probably has not heard of the decision of the Greek Court of Cassation.

İlhan Ahmet, a member of parliament from Rodopi, said: "It is not possible to unilaterally remove Islamic law by the government's decision." However, no right is to be removed, but on the contrary, there is an additional right: the right to choose.

But what is even more interesting is that Salih’s lawyer, Ayhan Şakir, who opened the case and won in the Court of Cassation, said: "It is contrary to Lausanne to issue a law without the consent of the minority". He became a lawyer, but he has not heard of the above, namely international law.

Maybe it was not his interest. In Western Thrace, they explain, his mother and aunt were the sisters of the deceased husband of Salih. In other words, if Islamic law is applied, they will take a share of the heritage, but if the will is applied, they will not.

Of course, what disturbs him most is that the new law that Tsipras has prepared will be retroactive.

The second and main lesson Greece has given today to Turkey is, if I have to repeat it:

Any exception to contemporary law, for which mankind has struggled for ages, can be introduced only to the benefit of a minority. This "positive right" is called democracy. If these rights are granted to the majority, then it is called a "parallel law" and a state with multiple legal systems is a nightmare.

Christian Greece has granted the Muslim minority in Western Thrace the right to choose. However, in Turkey, "mufti marriage" was not recognised as a choice because, if there was such a choice, who would opt for the civil law in a country where 99 percent of the population is Muslim?

Besides, AKP rule, based on the argument of this "large majority", will move forward, and is already moving on:

First, there will be a change of the working hours on Fridays in accordance with the prayer times. Then, Friday will become a holiday instead of Sunday. Already, "Black Friday" in the shopping malls has been criticised because Friday was called “black”.

Then divorce in court will be replaced by a simple “I divorce you" statement for which the Turkish Directorate of Religious Affairs has already issued a fatwa.

Of course, in the meantime, while the ban on non-Muslim minorities marrying in their places of worship, applied at the end of 1925, continues in Turkey, the first official mufti marriage was witnessed personally by President Recep Tayyip Erdoğan.

Last-minute news: The Supreme Council of Religious Affairs Office declared that a husband can divorce his wife by phone, fax, letter, SMS and internet.

This news is very important, because the Religious Affairs Office, in the end of this fatwa has as references İbn Kudame (1147-1223) and İbn Abidin (1784-1846) and so we learn that the telephone, fax and internet had been invented during that era and, of course, by Muslims.