Gender of the Constituent Power of the Turkish Constitution of 1921

Zülfiye Yılmaz and Barış Bahçeci

Bilkent University and Izmir University of Economics

According to the mainstream narrative in the scholarly debate in Turkey, the Turkish Constitution of 1921 envisaged a secular, modern and consequently more democratic social order through the abolition of the monarchy and the caliphate. The strong legitimacy of the Turkish Grand National Assembly (TGNA) was derived from the robust popular support for its liberation agenda. The fundamental concepts that the representatives predominantly referred to from the opening moment of the TGNA were the nation, national sovereignty, and the abolition of the privileged status. However, a neglected aspect regarding the legitimacy of TGNA, which is the constituent power of 1921 Constitution and ordinary legislative power, is its all-male composition and gendered perception of the law while drafting the Constitution and establishing the constitutional order afterwards.  

Since there was a well-established and determined women’s rights movement on the Ottoman-Turkish land since 1860’s, we believe that this exclusion was problematic. Despite the democratic orientation of the Constitution and the prevalence of the ideology of national sovereignty over monarchy in the parliament, this lack of equal representation in the formation of republican institutions will be interrogated in the present article. We will suggest an alternative narrative on the constituent power of 1921 and the TGNA as legislative power between 1920-1924 in light of the neglected history of women’s struggles for constitutional rights in Turkey. In doing so, we will refer to the official minutes of the TGNA to support our arguments regarding the gendered perception of the nation in the TGNA.  

1. The Legitimacy Question of Constituent Power of 1921  

There is no other constitutional development in Ottoman-Turkish history as highly debated as the Constitution of 1921, and the republican spirit it carried over the course of a century. While constitutionally limited sovereign powers are deemed necessary, and constitute the raison d’être of modern constitutional law, a limited imperium is also a sine qua non condition for the egalitarian recognition and fulfilment of human rights. The Constitution of 1921 paved the way towards equal citizenship instead of servitude. However, in the process of structuring the newly established nation-state, the majoritarian and exclusionary approach towards equality of men and women in political and social status needs to be reconsidered.  

Between 1920 and 1924, Turkey fought an independence war and founded its Republic. The 1921 Constitution was drafted by the TGNA and entered into force on the 20th of January 1921. As an example of its uniqueness, TGNA was comprised both by the MPs from the dissolved Ottoman Parliament (following the invasion of the Ottoman capital Istanbul on 16th of March 1920) and newly elected members. TGNA’s politically dualistic nature highlights one dimension of its constituent essence. In the scholarly literature in Turkey, there is little debate regarding the source of legitimacy of the TGNA, since it is assumed that the source of legitimacy predominantly came from the "local congress powers” organized around Associations for the Defense of Rights (Müdafaa-i Hukukuk Cemiyetleri). The exact number of members in the constituent assembly also plays a role in this debate. But there is one undeniable fact that is hardly addressed: there were no female representatives in the first assembly.   

The all-male composition of the TGNA is often justified through comparative examples because at the time few countries in the world recognized women's suffrage rights. In our view, this justification erases the active role that the women’s rights movement had in Turkey since the second half of the 19th century. Additionally, a new feminist generation educated at university (İnas Darülfünunu) emerged after 1914, and their position in the family was partly empowered due to the enactment of Family Law Decree (Hukuk-ı Aile Kararnamesi), which modestly reduced male domination in favor of women and restrained polygamy in accordance with the will and consent of the women between 1917-1919. During the independence struggle, women shared the burden of war responsibilities, and were organized around the Women’s Association for the Defense of Rights (November 1919) which led them to appear more in the public space and to bear family responsibilities on behalf of men at war. After war, building on almost 50 years of growing awareness and experience in public life, women continued to fight for equality in the public arena. Nevertheless, they were excluded from the TGNA and thus they were not allowed to take part in drafting process of the 1921 Constitution. As suggested by Easton, the political demands may constitute a central variable and reveal themselves as inputs which empower or diminish the legitimacy of a political system. This lack of representation as a constitutional subject also affects the life cycle of a constitution. We argue that the legitimacy of the constituent assembly of 1921 and that of the following reforms regarding the status of women was deficient due to gendered implementation of national sovereignty and the gendered notion of the nation.  

2. The Perception of Equality in the Turkish Grand National Assembly   

As reported in official assembly minutes, the TGNA subjected women to equal treatment only as far as war obligations were concerned. The demands for women’s equality, voiced by a few members in the assembly, were doomed to fail. During the parliamentary meetings on a draft bill on local communal administration, when some members called for the equality in voting, the conservatives accused them of disrespecting the Sharia law, and labeled them as “feminists” and “effeminate”. When one member (Tunalı Hilmi Bey) stated that Azerbaijan already recognized equal vote, the majority of members (composed by opponents and supporters of Mustafa Kemal Atatürk, “the founder of the Republic”)  rejected the equality claims in order to “save the country” from communism (Minutes from 15.11.1921).  

Another member alleged that women had extensive rights in public life, including the right to property. For him, “Women can be useful during wars according to sharia law. Since the war is over, they had to step back from public space”. He also believed that women would not in fact demand or want these political rights even if the parliament attempted to recognize them (M-15.11.1921). By contrast, when it came to tax issues the assembly seemed to hold a different view on equality. The proposition to exclude women from some taxes based on the fact that they were dependents of their husbands was rejected on the basis of equality between women and men (M-17.04.1922). Seemingly, they were equal in obligations rather than rights.  

The same patriarchal angle persisted after the independence war. When the First Parliament (1920-1923) decided to revise the law on parliamentary elections in 1923, one member who had defended voting rights for materfamilias in 1921 claimed that “political equality should be earned instead of being granted and they would reclaim and take it when they need it” (M-03.04.1923). 

There is also a mismatch between the discourse of members and the historical evolution of women’s movement in the country. Already during the Ottoman Empire, women had continually been in search of their own voice, which in essence meant the liberation of women. For instance, it was 1923 when Saadet Hanım, writing in a newspaper argued that men and society in general always justified their position using the argument of the so-called differences between man and woman arising from “nature”. For her, men never had to struggle for any freedoms, and exploited this myth and abusively institutionalized this fictional dualism through law. She believed that women should not be treated as commodities neither at home nor at work and that only a unified class-based struggle was the path to liberation. The women of the epoque believed that the ideal of a “popular government” (halk hükümeti) would be better represented if there were at least two female members in the assembly. This political consciousness led them to establish the first political party of the Republic in June 1923: The Women’s People’s Party. The main idea behind this initiative was that “A republican order could not discriminate against women or men”.   

Following the proclamation of the Republic on the 23rd of October 1923, the top-down modernization reforms were accelerated. The women’s initiative for the political party was blocked by the Ministry of Interior after 8 months of delay in February 1924. Yet, three hundred women organized a congress in Istanbul in 1924 while the parliament was drafting a bill on the revision of Ottoman Decree on Family Law. This congress opposed the Sharia provisions and demanded a secularist and egalitarian approach to marriage. Indeed, the women’s determination to push for a modern code recognizing equal marriage rights persuaded Mustafa Kemal (Atatürk) to draft the Turkish Civil Code which entered in force in 1926.  

3. Conclusion 

The Constitution of 1921 remained in force until 1924. Although without provisions on rights and freedoms, it proposed a prospective design for society in the light of its ideal of secular popular sovereignty. However, even though according to the majority in the TGNA, women were part of the nation and the nation was indebted to them, that debt did not have to be paid with political rights. This patriarchal perception of nation undermined the legitimacy of the constituent power of 1921, as well as that of the modernization reforms of the Republic concretizing the Constitution voted in the parliament. The TGNA’s understanding of equality was as if there were no women’s rights movement in Ottoman-Turkish era, and the women had not fought and continued to fight for their rights. Following the rejection of their initiative for a political party, women turned to the Turkish Women’s Alliance, an association led by prominent feminist Nezihe Muhiddin. For the next decades, it was through this organization that women actively defended their rights with reference to democratic and egalitarian republican values.  

The equality demands of women across the world symbolize only one dimension of the comparative history of the fight for constitutional rights. The key aspect, intrinsic to the ethos of those battles, is the recognition of women as stakeholders with equal agency as men. Women’s political and juridical exclusion during this important period of Turkey’s constitutional history constitutes not only a historical injustice, but also rejection of their capacity as constitutional subjects.  This was one of the key aspects of neglect in the narratives on the Constitution of 1921 and continues to be so in present constitutional law debates. This legacy of struggles, however, continues to provide legitimate ground for women to fight for equal rights. Considering the recent controversy over the presidential decision on withdrawal from Istanbul Convention on prevention of domestic violence, women’s struggle for an equal society is more vital and constitutive in Turkey than the patriarchal values of the TGNA. 

Zülfiye Yılmaz is an Assistant Professor at Bilkent University, Faculty of Law.

Barış Bahçeci is an Associate Professor at Izmir University of Economics, Faculty of Law.

Suggested Citation: Zülfiye Yılmaz and Barış Bahçeci, Gender of the Constituent Power of the Turkish Constitution of 1921, IACL-AIDC Blog (23 March 2021) https://blog-iacl-aidc.org/centenary-of-the-turkish-constitution/2021/3/23/gender-of-the-constituent-power-of-the-turkish-constitution-of-1921