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TURKEY - DOUBLE STANDARD IN THE TURKISH JUSTICE SYSTEM

A group of lawyers protesting the decision of the İstanbul Bar Association to ban headscarved lawyers on Aug. 3. (PHOTO SUNDAY’S ZAMAN, Mehmet Ali Poyraz)

By Professor Hilal Elver - University of California, Santa Barbara

12 August 2012 - In the last few years, violence against women has been one of the major social problems that has preoccupied Turkey’s public agenda.

The government and civil society organizations have worked together to initiate a series of legal remedies. As a first step, the Turkish government signed and ratified an international agreement on the prevention of violence against women and a new national law, the Protection of the Family and Prevention of Violence Against Women Law (No. 6284), came into force on a very meaningful day, March 8, International Women’s Day. This law provides several protective measures to women and other family members. Government institutions are responsible for offering a wide range of protective and preventive measures to safeguard women from violence. Impressively, these measures are more comprehensive than those in the law’s Western models. Therefore, we should congratulate civil society organizations, the individuals involved and Parliament for this joint effort.

A first glance at the title and the language of the law gives the impression that protection is only given to women, but this law could be appealed to by anyone, even other family members if they are subject to violence.

Moreover, the law’s definition of “violence” is very broad, including not only physical, but emotional and economic forms. Furthermore, the law provides very flexible implementation rules so that its protection could be sought either by judicial institutions or by law enforcement. In a case of emergency, even people other than the actual victim, such as neighbors or relatives, can seek protection for the victim under the law.

Law open to abuse

However, like many other laws, this law could be used and abused by people who are actually not in danger or subject to violence, but are trying to gain an unjust upper hand in divorce cases. Apparently, in big cities lawyers are using this law in divorce cases as an easy way of gaining their clients’ sole access to the family home without showing evidence of violence. In this case, preventive measures in particular, such as restraining orders against alleged perpetrators of violence, will prevent such people from entering their home for up to six months.

These days, especially in big cities, judges generally give a restraining order without demanding any evidence, based solely on the request and testimony of a person who claims that he or she is subject to violence or in danger of violence. This interpretation of the law is somewhat understandable given the daily news in Turkish newspapers full of murder cases in which the victims are mostly women. However, this method of implementation is completely against the principles of due process. No legal system can give such a right to a one party that would interfere in another person’s rights without any evidence. Such decisions interfere in the other party’s legally protected constitutional rights. In Western countries, the United States for instance, a judge never gives a restraining order without significant evidence. This method of implementation is obviously against the intention of the lawmakers. Moreover, after huge support and a celebratory introduction of the law, there is still no regulation to correct such misinterpretation and no training programs for the law enforcement members or for judges.

Turkey is not all about its big three cities. Rules that have a significant impact on our social and family structure should be taken seriously and necessary training and information must be within the reach of whole country. Generally speaking, women subject to violence have also no economic or social power to access such modern laws. Despite the law, ongoing violence against women indicates that even such progressive laws cannot be a remedy for the vulnerable: they only become another tool for wealthy, upper-class family fights. It is unfortunate that very likely this law will not survive too long if the government institutions cannot find a balanced solution to it.

Besides this law, there is another justice and women’s rights issue that at first glance seems to be irrelevant to our discussion: According to various bar association regulations female lawyers cannot wear headscarves in courtrooms. There are, however, a few lawyers who, against series of obstacles, wear headscarves while actively working as lawyers. These lawyers had to hire a lawyer without a headscarf in order to defend their clients in hearings and present their arguments in front of judges. Let’s imagine such a scenario: A woman is subject to violence, and she has a lawyer who wears a headscarf. Rights given to a client cannot be defended by her female lawyer because of her headscarf. While giving modern, progressive protection to a woman who is subject to violence, the same legal system does not allow a female lawyer to practice her most natural right to defend her client in a courtroom.

A war against headscarved interning lawyers

In another instance, recently, the İstanbul Bar Association waged a war against interning lawyers who wear headscarves. According to an interim regulation, lawyers cannot come to court buildings with “dirty clothes, blue jeans or a headscarf.” Using this rule, the bar administration sent warnings only to lawyers who wear headscarves reminding them of this rule and then denied their access to training programs. None of the people who wear blue jeans or dirty clothes received any warning.

If the Turkish legal system is committed to protecting women from violence, how is it possible the same legal system can deny certain female lawyers access to courts or training programs? Isn’t it true that the bar’s rules create discrimination against female lawyers who wear headscarves, or, using the language of the new law, “create economic violence against women” because these lawyers have to hire a “ghost lawyer,” unjustly causing them an extra financial and emotional burden?

If the concept of “violence against women derived from being a woman” is applicable in both the public and private sphere, how do we interpret the rules of the bar association? If the principles of secularism are raised here too as a shield for discriminatory acts, as they have been in every headscarf ban decision, can we say a woman who does not wear a headscarf represents a certain type of religious and ideological view? If this is wrong, it is also wrong to assume that a lawyer with a headscarf represents a certain type of ideology or religiosity. Objectivity must be indicated in a deeper way than artificial dress codes. Moreover, lawyers, unlike judges, do not directly represent the state. Therefore there is no reasonable argument for appealing to secularism in this issue. Another argument, this time about the distinction between service giver (lawyer) and service receiver (client), is considered an artificial distinction in many Western legal systems, such as that of the United States.

Recent relaxed implementation on headscarf use in educational institutions has given the impression that there is no longer a headscarf ban in Turkey. There is certainly no constitutionally protected right for women to wear a headscarf. It is only about the current government’s verbal and regulatory promises. Moreover, this false and temporary solution gives the impression to many young females who wear headscarves that they will have free choices in their professional life after graduation. This certainly does not hold true in the real world. Secular women’s rights organizations should now pay their dues to their religious sisters after having received full support from them during the legal battle over the prevention of violence against women. It is time to give them a hand, too.

If our intellectuals and journalists are questioning why women’s participation in the labor force in Turkey is much lower than in other countries, they should at least remember such barriers against religious women at every level of professional organizations and employment opportunities. The chairman of the İstanbul Bar Association criticized intellectuals who do not support his ideas as “genetically deficient intellectuals” in an interview on July 15 in the Cumhuriyet daily. The question is how he would explain such a double standard and discrimination against women who wear headscarves as the leader of an association that supposedly protects and preserves justice for “all” of his fellow lawyers.