�I.� The Region and Its History
���� ���������� Islam reached Central Asia only twenty years after the death of the Prophet Mohammed, and the region has played a pivotal role in Islamic history and politics.� During the Middle Ages, Islamic art and philosophy flourished in the kingdoms of Khorasan, Bukhara, Herat, and Samakarand. Meanwhile a Turkish Central Asian dynasty, the Ottomans slowly conquered the Christian Byzantine Empire. In 1453, the Ottomans took possession of Constantinople. They became the leaders of the Muslim world, ruling for four centuries an empire that swept from the Balkans to the borders of Iran. When the Ottoman empire finally collapsed after World War I, the Turkish republic that took its place became the first and only Muslim government to replace sharia law with a secular legal code that encompassed family law.� During the same period, the heart of the Central Asia fell under Russian domination.� Toward the end of the twentieth century, however, Islamic rebels in Afghanistan expelled the Soviet Union from their country, helping to destroy the Soviet empire and bring about an Islamic revival in Central Asia.
��� ����������� The history of Central Asia is the history of nomadic tribes who periodically have invaded and conquered the area, and the sedentary, farming peoples who have resisted and absorbed them.� Central Asia’s nomadic culture was established by around 1700 B.C.�� Since the dawn of recorded history, Persians,� Huns, Chinese, Mongols and as Arabs of the Umayyad dynasty in Damascus (Rashid 1994) have overrun the region.� The Arab conquest was part of Islam’s early expansion.� By 651 AD, Arab forces had taken control of the city of Merv.� The Arabs began an extensive conversion and settlement process; over 50,000 Arab families relocated to Merv in the years following the conquest.�� By 713, Arabs ruled most of Central Asia from the kingdom of Khorasan, which included what is today western Afghanistan, northern Iran and Turkmenista.� One of the most important Muslim dynasties was the Persian Samanid dynasty, whose capital was at Bukhara.� Islamic art, culture and science thrived under the Samanids until the invasion of Mongol warlord Ghengis Khan in 1220.� The Mongols captured Bukhara, burned it to the ground and killed over 30,000 Muslims.� The region survived a handful of subsequent invasions and changes of control until the end of WWI, when a communist Russia eventually conquered Central Asia and the Caucasus and divided the region into Soviet republics (Lapidus 1991: 303-333).
As a result of constant invasions and conquerers, Islam in Central Asia has developed a distinct presentation.� The majority of Muslims in Central Asia belong to the Sunni Hanafi sect, the most liberal of the four Sunni schools of throught.� In fact, Hanafi Muslims constitute approximately 90% of the population in Afghanistan, a country now in the midst of fundamental Islamic control (Rashid 2000).� The Hanafi are not only liberal in terms of Islam; they are traditionally tolerant of other religions.� Throughout history,� Christians, Hindus, Sikhs, and Jew have played important roles in the culture and politics of the region (Rashid 2000).
��������������� Today Muslims represent a majority in the region, although a very small majority in some countries. �Afghanistan contains the largest percentage of Muslims, with 99 percent of its 27 million professing Islam.� Turkey, with only a slightly lower percent of Muslims, has a much larger population of some 65 million� Uzbekistan’s 25 million people, Tajikistan’s 6 million, Turkmenistan’s 5 million,� and Kyrgyzstan’s 5 million all are about over 75% Muslim, with significant Russian and Eastern Orthodox populations of between 10 and 20%.�� Kazakstan has the most religiously diverse population, with its 15 million people almost evenly divided between Muslims and Christians. Muslims make up about 12 percent of the Republic of Georgia’s population. They also form a majority in the Caucausian republics of Azerbaijan, Dagestan, and Chechnya. (All population figures are based on mid-2000 estimates from the Population Reference Bureau.)
Legal Practices and Institutions
� ������������� Over the last two hundred years, Turkey has introduced a series of legal reforms unique in the Muslim world.� As early as 1839, the Ottoman Sultan Abdulmecid instituted a reform charter known as Tanzimat or “Reorganization.”� Under his reforms, women�s education was seen as crucial to the development of Turkish society, and women were encouraged to continue their education (Arat 1998).� In 1870, the Ottoman government issued a new civil code administered in state rather than sharia courts.� Ottoman women had the right to testify in court.� They could also enter contracts independently and to pursue defaulters in court.�
��� ����������� Kemal Ataturk, the founder of modern Turkey, made a far more radical break with traditional Islamic law in 1917.� His government adopted a new European system of personal law. Among other changes, the new law abolished polygamy and gave women the same rights to divorce and inheritance as men. In 1926, the Ataturk regime formally abolished the sharia.� As a� result, Turkey has a fully secular legal framework,� taken directly from Swiss civil and Italian penal codes (Arin 1997).�� Turkish women were given the right to vote and the practice of veiling was banned.�� Women were also given the same judicial rights as men, such as that of witnessing (Arat, 1998).� In 1930, Turkish women gained the right to vote and to run for election in municipal elections.� The right was extended to national elections in 1934 (Arat, 1998.)� More recently, the government scrapped laws naming husbands the head of their families.
�� ������������ Decades later, the Turkish public remains divided over the role of Islam in public life.�� In the 1990s, the Turkish Welfare Party won several election victories by promising to a greater role for Islamic law. In 1997, more than 8000 women protested in Ankara to oppose Prime Minister Erbakan�s support for reintroducing some parts of sharia to Turkey’s legal code (Women�s International Network News 1997).
������ �������� The twentieth century was a period of intense secularization for the rest of Central Asia, too. Once the Soviet Union had gained control of the region in the 1920s, it embarked on series of anti-religious drives. Here, as in other parts of the Islamic world, colonizers used the alleged degradation of women under Islamic law as a justification for their assault on the local culture.� Sharia law was abolished; polygamy and the bride price were made illegal. In 1923, in Azeribaijan, sharia was denounced as a legal code for family law, and new state family courts were set up to rule over divorces and custody of children (Heyat 2000). During Soviet rule, all but a handful of Central Asia’s 24,000 mosques were modified into clubs and community centers, the pilgrimage to Mecca was banned, and the printing and distributing of the Koran was prohibited (Mohammadi 1994).� However, a significant number of unofficial mosques continued to function.� In northern Tajikistan, for example, over 200 “unofficial” mosques were in operation during the Soviet period (Poliakov 1992).�
��� ����������� �Since the former Soviet Central Asian republics gained independence in 1991, mosques have been reopening at the rate of ten per day.� Nevertheless, none of the countries have taken any serious steps to restore Islamic law. Their governments speak the language of secular democracy, but most practice some form of authoritarianism. Islam is encouraged, but Islamic parties are not.�� For example, in Uzbekistan,� President Islam Karimov went on a pilgrimage to Mecca in the early 1990s, but now views devout Muslims as a threat to Uzbekistan�s unity.� In fact, he closed the main mosque in eastern Uzbekistan in 1995 (Economist 1998).� The country of Kryrgyzstan was originally� hailed as the �Switzerland of Central Asia,� although it has not been able to maintain a peaceful and democractic system (Koychnev and Brudnyi 1993).��
���� ���������� �Afghanistan is the only country in the region today whose legal framework is based on Islamic law� Prior to 1925, the country, like its Central Asian neighbors,� was governed by sharia (Rashid 2000).�� In 1925, Afghanistan eneacted its first civil legal code.� Afghanistan’s practice of Islam historically was a tolerant one.� Ninety percent of Afghanis belong to the Hanafi Sunni sect. (Rashid 2000). The country also contains a large Shia minority, the Hazaras.� However, the Soviet Union’s traumatic invasion of the country in 1979, and the devastating civil war that followed its ejection in 1989, radically altered the historical Afghan interpretation of sharia.�� The ruling Taliban (“students of Islam”) who emerged in 1994 mostly belong to the Pashtun people who have historically dominated Afghanistan.� The Pashtuns account for about 40% of Afghanistan�s population.� They follow a tribal code known as Pashtunwali; there is a blurry line between Islamic law and Pashtunwali in Afghanistan.� The Taliban’s leaders were educated in the madrassas, or Islamic schools, of Pakistan.� In every region they have seized power, their first act has been to ban women from public places, jobs and institutions.� The most important court in the country is now the Kandahar Islamic Supreme Court, because of its proximity to the Taliban leader, Mullah Omar.� The court appoints Islamic judges, Qazis, and assistant qazis in the provices. A parallel system exists in the Afghan capital of Kabul� where the Justice Ministry and the Supreme Court of Afghanistan are based. According to Attorney General Maulvi Jalilullah Maulvizada, Afghanistan’s legal revolution is not yet completed.� “All the laws are being Islamicized.� The laws repugnant to Islam are being removed.� It will take us several years to get through all of them.” (Rashid, 2000, p. 103)
���� ���������� �All of the countries of Central Asia and the Caucasus who formerly belonged to the Soviet Union have signed and ratified the UN Convention on the Elimination of all forms of Discrimination against Women (CEDAW) (UNICEF 1999).� Afghanistan signed CEDAW in 1980, but has never ratified it.� Turkey was the first country in the region to become a party to the convention, ratifying it in 1985.
Seclusion of Women / Purdah
Practices of purdah vary greatly among Central Asia’s many ethnic groups.� The pre-Soviet Kazaks had no tradition of veiling or seclusion.� On the other hand, in the Islamic city of Bukhara,� women were routinely secluded or completely veiled in public (Chatterjee et.al. 1997).� Traditionally, Tajik women were also characterized by almost total seclusion, due both to cultural and Islamic norms (Harris 2000).� However, this trend changed throughout Central Asia with Soviet control.� The Marxist-Leninist government encouraged the �liberation� of women from the home and into the productive sphere, particularly in the urban areas.� In fact, in the 1930s, leadership in Moscow ordered all women to burn their veils (Mohammedi 1994).� Women were given legal equal access to employment, family law and social support provisions under Soviet rule.� Girls were required to attend school.� By the end of the Soviet period, 96% of Central Asian girls were literate, while 90 percent of adult women worked outside the home.
� ������������� In the last ten years, Islamist movements have sought to revive seclusion as an ideal for women.� In direct response to the Soviet pressure to bring women out of the home, many Central Asian Muslims have come to regard veiling and the statement of anti-Russian nationalism.� For example, in Uzbekistan, veiling has recently become common.� Women who follow the opposition Wahabi movement have recently discarded the traditional and colorful Uzbek dress for full body white veils as statements of recapturing religious/national identity (Rashid 1994; Chatterjee et.al. 1997).� In Tajikistan, women are encouraged to abandon Western-style clothes, which are associated with the Soviet Union.� Islamist groups are also promoting partial or full veiling and voluntary seclusion (although no serious move has been made to make seclusion mandatory in Tajikistan).� Public opinion among the Tajiks is not strongly opposed to veiling, although men in particular have voiced opposition to seclusion.� In an already fragile economy, few families can afford to support themselves on only the economic contributions of men (Harris 2000).� Seclusion of new brides is still common in Central Asia, although this practice is not a result of Islamic prescriptions, but rather an enforcement of a woman�s fragile status within her new husband�s family (Bastug and Hortacsu 2000).
��������������� The Taliban in Afghanistan has legally institutionalized the most rigid seclusion of of women known to the region.� Upon taking control, the Taliban closed all girls� schools, effected complete segregation of the sexes in the medical field, outlawed makeup and mandated wearing of the burga for all women in public, even non-Afghan women (Rashid 2000).� Men are not exempt from these strict laws; most forms of entertainment have been banned and men are now required to maintain long beards or risk imprisonment (Rashid 2000).� Though Islamic law requires four witnesses to convict a person of adultery, the government does not prosecute families who execute women suspected of having sex outside marriage in “honor killings.”
There are some signs that local opposition has led the Taliban to moderate some of its strictures.� After UN protests, theTaliban retracted a ban on local women working for international NGOs(Kim 2000).� Further, the degree to which the Taliban has been able to enforce restrictions on women�s education seems to depend on local custom.� In the resisting northeast, a large Tajik population continues to support education for girls. The Swedish Committee for Afghanistan estimates that 16,000 girls have access to primary education in the country�s six northern provinces (Kim 2000).� Outside the rebelling areas, he UN estimates that 10,000 girls are also attending some form of classroom education in Kabul;� A few classes are even being held in mosques (New York Times 2000).� “When Pashtun tribal elders demanded education for girls, Taliban governors did not and could not object. (Rashid 2000).
�� ������������ In response to the Taliban’s restrictions on females working outside the home; northern women have founded the Afghanistan Women�s Association now has over 3000 members and is organizing home-based crafts projects for women to gain economic self-sufficiency (Kim 2000).� The Taliban�s strict seclusion laws are unfamiliar to some of Afghanistan’s peoples.� For example, prior to the Taliban, Hazara women in central Afghanistan constituted 12 of the 80 member Central Council of the main regional political party However Taliban officials have told reporters that if they compromised on their rules affecting women, they would lose the support of their followers, who consider the strict seclusion a women a matter of Islamic principle (Rashid 2000).
��� ��������������� Seclusion and veiling in Turkey is discouraged, and even illegal in some contexts.� Turkey historically had loose rules regarding women’s seclusion. In Ottoman times, women had access to public markets (although their husbands had the right to appropriate any income they earned.) The Ataturk regime prohibited the use of headscarves or veils in state buildings and institutions, as well as in Turkish universities (Holland 1999). With the rise of Islamist movements in the 1980s, women’s participation in the workforce has fallen.� In 1970s, 38% of Turkish women were in the workforce; by 1995, this number had declined to 31% (Zeytinoglu, 1998).� Voluntary veiling based on principles of Islamic dress also has been on the increase in the last twenty years. University students have been among the most fervent suporters (Ilyasoglu, 1998).
�� ������������ Honor killings are punishable by death in Turkey, but they continue to happen in poor regions such as the country’s Kurdish-dominated eastern and southeastern provinces. Judges in cases involving honor killings come under huge social pressure to reduce the sentences in the light of what is regarded as “provocation,” (Zaman, 2000).�
Family in the Region
��������������� Traditional Turkish families in Central Asia are patrilineal and patrilocal.� Families are part of lineages with established authority and responsibilities.� Lineages are also clan based, with clear understanding of clan allegiances for mutual aid and defense (Hortacsu and Bastug 2000). Family patterns in both historical and modern Turkmenistan are also patrilineal and patrilocal (Bastug and Hortascu 2000).� In fact, claims to Turkmen ethnicity are exclusively traced through fathers.�
��������������� In Turkey, the early 20th century push toward Westernization weakened clan identities and the extended family.� The Family Names Act of 1935 required the adoption of a family surname.� Lineage or clan surmames were banned, and families were forced to adopt a family name (Vergin 2000).� In general, the Western-style nuclear family was held up as an idealized model (Kadiyoti, 1988.)
��������������� Scholars generally agree that in theory and tradition, the region of Central Asia and the Caucasus is patrilineal and patriarchal.� However, the effects of economic and political instability, with the accompanying processes of urbanization and increased poverty, have made it difficult for families to remain true to tradition.��� In environments where sons often have more social and economic status than fathers, and economic pressures require women to supplement family incomes, traditional patriarchy is hard to maintain.� The family nonetheless remains the most important institution in the region – the group most people turn to for security and help.
��������������� Under Soviet rule, the central marriage code was designed to establish equality between spouses, secularize marriage and make divorce simple and accessible to both partners.� Social benefits were connected with a woman�s employment status, not her marital status.� Most of the countries in Central Asia and the Caucasus have maintained most of these legal provisions (UNICEF 1999). Nevertheless, many Central Asian families still expect to arrange their daughter’s marriages. A 1992 study of rural and urban residents revealed that 30 percent of brides did not know their grooms before marriage (Barbieri, Blum, Dolkigh, and Ergashev 1996).
��������������� In traditional Turkish culture, marriages are almost always arranged, with the purpose of forling alliances between clans.� Women, upon marriage, become part of the husband�s clan; their status within the family depends on the number of male children they bear and their skills in performing expected duties as wife, mother and daughter-in-law (Hortacsu and Bastug 2000).�� Although many marriages today are based on mutual consent of spouses, paternal consent is still a requirement, maintaining a semblance of the tradition of arranged marriages (Bastug and Hortacsu 2000).�
��������������� � One component of Turkey’s civil family code requires that valid marriages require a civil ceremony, and that both bride and groom enter marriage consensually (Imamoglu 2000). As the German scholar Wiebke Walther has written, Turkey’s experience shows that “a body of law cannot simply be transplanted to a country where it is not part of the tradition.”�� Although the law theoretically does not recognize marriage ceremonies performed by imams, since 1933 and the present time, the Turkish government has had to pass at least eight “amnesty laws recognizing the legitimacy of such unions (Walther 1993: 232). Approximately half of marriges in Turkey are still arranged, despite the long-standing legal code (Imamoglu 2000).� A study in Turkey in the early 1990s estimated that 56% of marriages in Turkey are still arranged by families (Hortacus and Oral 1994).� Under Turkish law, a man who abducts a woman from her family recieves a lesser sentence if he agrees to marry her. In the case of rape, men face more severe penalties if the woman is a virgin (Y. Arat 1998).
��� ����������� The Turkish state supports the traditional role of women in the home.� If a woman leaves her job within a year of marrying, she is entitled to severance pay (Zeytinoglu, 1998).
�� ������������ Under the Turkish Criminal Code, husbands do not have a right to beat their wives, but domestic violence is only a crime if the beaten partner complains. The maximum punishment for domestic violence is 30 months, but most convicted abusers are sentenced to seven days or less.� A 1988 study found that 45% of Turkish men think a husband has a right to beat his wife if she disobeys him.� A similar 1991 study in Istanbul showed that 49% of women thought that cases exist where a woman deserves to be beaten by her husband.� Some forty percent of the women in the same study reported being beaten by their husbands (Y. Arat, 1998).
� ������������� Marriage ages in the region vary, although in some areas of the former Soviet Union, there seems to be a move toward younger marriage age in urban areas, a phenomenon in reverse to that f many other Islamic communities. The Soviet Union set the marriage age for girls at 18.�� In the capital of Dushanbe, many girls are now married at 15 or younger, where girls in rural areas are often not married until ages 20-22 (Harris 2000).� In Kazakhstan, the legal age for girls is set at 17, although similar to Tajikistan, early marriages are on the increase (Economist 1997).� Marriage age was set in Azeribaijan in 1923 at 16 for girls and 18 for boys (Heyat 2000).� In her discussion of Tajikistan in particular, Harris explains this pattern as a result of either economic necessity or concern for virginity, or a combination of both.
Studies in Central Asia and the Caucasus suggest that domestic violence has increase in the post-Soviet era.� In 1997, 25% of women in Azerbaijan reported regular beatings and prohibitions against leaving the house alone.� In Tajikistan, 23% of women reported physical domestic abuse.� Hospital admission records in Kyrgyzstan indicate that domestic violence injuries requiring medical attention are also increasing (UNICEF 1999).
Dowry and brideprice
��������������� Brideprice is customary in Central Asia, particularly for those living in rural areas.� In Turkmenistan, the brideprice usually consists of animals, money and goods, and is delivered by the groom�s father to the bride�s father before the wedding.� Turkmen marriages also require both indirect dowry paid by the women in the groom�s family to the bride and traditional dowry paid by the bride�s family to the bride (Bastug and Hortacsu).
��� ����������� The Soviets prohibited brideprice and dowry, but enforcement of the prohibition was rare, and the practice remained strong.� In Kazakhstan, brideprice, known as kalym, has come out into the open� in the post-Soviet era.� According to Kazak custom, the groom makes the bride’s family a gift of livestock. Kazak women sometimes bring some of their family’s livestock into the marriage. The husband and his family may not inherit this bridewealth, but only the children of the marriage� (Economist 1997).� In Tajikstan, the average kalym price grew by 300 percent in the 1980s (Poliakov 1992:� 55). Similarly, in Turkey, the baslik (paid by the father of the groom to the father of the bride) has been repeatedly declared illegal.� However, the practice remains common among rural families (Vergin 2000).� Depending on their looks or wealth, some girls can fetch as much as $50,000 (Zaman, 2000).
��� ����������� The Turkish civil code makes no distinction between men and women in applications for divorce (Arin 1997).� Divorce by repudiation, even among devout Muslims, is rare in Turkey, and is only used as a last resort (Vergin 1985).� As early as 1916, Turkish women were granted legal rights to ask for divorce.� In the case of polygyny, the first wife may ask for her marriage to be dissolved.� In this case, the husband is legally required to pay the mehr for the first wife (Vergin 1985).
��� ����������� �Soviet civil codes required equal ownership and distribution of marital assets upon divorce.� Most states in Central Asia and the Causasus have maintained these legal codes upon independence from the USSR (UNICEF 1999). Kazakstan, in any case, had a long tradition of giving equal rights to men and women in the case of divorce.� In the Soviet era, Uzbekistan’s civil code did not discriminate between men and women with regard to divorce.� But in recent years, Uzbek legislators have been making divorce more difficult for women to obtain.� Uzbek courts have refused to grant divorce petitions from women who have not received permission from their local authorities. Additionally, courts have barred women whose husbands do not agree to the divorce from any claims to marital property (Human Rights Watch� 2000).
�� ��������������� Afghanistan follows strict Islamic divorce procedures.� Interesting, both the marriage rate and the divorce rate has dropped in the region since 1989.� In the Caucasus, the marriage rate has dropped by 49% and the divorce rate has dropped by 57%.� In Central Asia, the numbers are not as dramatic, although still a decrease; the marriage rate has dropped by 31% and the divorce rate by a much smaller 7% (UNICEF 1999).��� Researchers explain these declines as a result of economic hardship.� Families are finding it much more difficult to finance dowries in the current economic conditions, a factor that inevitably delays or cancels marriages (UNICEF 1999).� ��
��������������� Polygyny was officially banned in Kazakhstan in 1920, but the practice continued and has increased in recent years.� Polygyny in Kazakhstan particularly takes the form of taking an woman over the age of 25 as a second wife (Economist 1997).
��������������� Turkey first restricted polgyny in 1917, restricted by requiring the consent of the first wife to any subsquent marriage of the husband .� The practice was banned completely with the adoption of the Turkish Civil Code in 1926 (Arat 1998).� It still happens on rare occasions, but generally only among the urban rich (Vergin 1985) and in rural areas (Zamanm 2000).� The second wife is called the kuma, and is married in a religious ceremony conducted by the imam.� The kuma has no legal rights under Turkish civil law.
Custody of Children
��������������� In most former Soviet states, women are provided maternity leave by the state, ranging from 126-180 days of 100% salary leave, and extended parental leave for 2-3 years which can be taken be any relative acting as the primary caretaker and funded by a state stipend (UNICEF 1999).� Due to state economic hardships, the Republic of Georgia has abandoned extended parental leave. �In addition, the state pays women a family allowance for each child under 16, whether or not the woman is married.� This allowance is transferable to another person if the mother is not the primary caretaker (Saktanber and Ozatas-Baykal 2000; Moghadam 2000).� Regardless of length of maternity and parental leave, maternal custody of children is codified, recognized and funded by the state.
��������������� In Turkey, in the case of divorce or a spouse’s death, women are generally awarded custody, both by custom and when courts decide (Arin 1997).
��������������� In 1876, constitutional reform in Turkey gave women equal inheritance with male siblings (Arat 1998).� Under the Turkish Civil Code, women are legally guaranteed rights of inheritance, in cases of both the death of a parent or the death of a spouse (Arin 1997).
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