Judge dismisses draft “amendment” to Personal Status Law, calls for withdrawal

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[size=52]Judge dismisses draft “amendment” to Personal Status Law, calls for withdrawal[/size]

[size=45]Judge Salem Rawdan Al-Moussawi decided on the draft “amendment” to the Personal Status Law in Iraq, while calling on the legislative, executive and judicial authorities to seriously stop its passage.[/size]
[size=45]Al-Moussawi said in a preliminary reading that “I have reviewed a leaked draft of the draft amendment to the current Personal Status Law, via social media, and to understand what is included in it with a preliminary view related to the legal aspects without the Sharia view, I present the following:[/size]
[size=45]1- The beginning of the proposal states that the amendment grants Iraqi men and women the right to choose the sect (Shiite or Sunni) whose provisions apply to them in matters of personal status.[/size]
[size=45]2- I say to the one who proposed the project that what should be done at the present time is to grant the spouses the right to choose the doctrine that will regulate their marriage contract and their personal status later on. If they choose the Jaafari doctrine, the court will put the following phrase in the field for the due date of the deferred dowry (upon demand and facilitation), but if they choose the Hanafi doctrine, the court will put the following phrase (at the closest of the two dates).[/size]
[size=45]3- These two phrases are what determine the doctrine that regulates the contract, and in judicial work we infer it from these two phrases. In fact, all government departments, including some security and military institutions, have recently requested a marriage contract for their members to know their doctrines through these two phrases.[/size]
[size=45]4- The evidence is through the legal ruling of these two phrases, because the Jaafari school of thought permits a woman to request her deferred dowry during the marital life, provided that the condition of financial means is met by the husband, while the Hanafi school of thought does not permit this, but rather the woman is entitled to her deferred dowry upon the occurrence of divorce or the death of the husband, or whichever is closer to that, called the closer of the two terms (death or divorce).[/size]
[size=45]5- This choice entails that marriage, divorce, waiting period, retraction of the gift in divorce by khul’, inheritance, and others shall be in accordance with the provisions of the school of thought chosen by the spouses when concluding the marriage contract, which is what is currently in effect under the current Personal Status Law. This is not a judicial interpretation, but rather in accordance with a text in paragraph (2) of Article (1) of the current Personal Status Law, which states the following: “If there is no applicable legislative text, then the rule shall be made in accordance with the principles of Islamic Sharia that are most appropriate to the texts of this law.” This is a text that the judiciary must act upon.[/size]
[size=45]6- As for the subject of inheritance, Article (90) of the applicable law obliges the judiciary to take into account the Sharia provisions on inheritance when there is no text in the law, and in accordance with the following (taking into account the above, the entitlement and shares shall be distributed to the heirs by kinship in accordance with the Sharia provisions that were in effect before the enactment of Personal Status Law No. (188) of 1959, as shall be followed in the remaining provisions of inheritance).[/size]
[size=45]7- It must be noted that the articles of the Personal Status Law with all their details related to marriage, divorce, birth, death, wills and inheritance do not exceed (91) articles, while these topics have the breadth of life, because they regulate the conditions of a person from the moment of his conception until the moment of his death and even after his death in the distribution of his estate. This breadth is not accommodated by the provisions of the applicable law, which made the legal provisions of the school of thought according to which the contract was organized a source of judicial rulings. When searching in judicial rulings, you will find that all of these rulings were based on the jurisprudential provisions of the school of thought according to which the contract was organized.[/size]
[size=45]8- The inevitable question is why the amendment if what it seeks is available in the current text?[/size]
[size=45]A. Suppose some answers, including that some texts have taken one school of thought rather than another, I say in response to this statement that the legal principles included in the law have their sources in Islamic Sharia jurisprudence, and the law took Jaafari jurisprudence in several issues, including triple divorce, which it considered one divorce, the daughter’s inheritance, the sister’s inheritance, and other basic rulings, and it took from the Hanafi school of thought in some others. During the years of the law’s operation, no legal problem appeared in the judicial rulings issued by the judiciary.[/size]
[size=45]B. However, if the answer is that every person is free to choose to activate the text of Article (41) of the Constitution, which states (Iraqis are free to adhere to their personal status according to their religions, sects, beliefs, or choices, and this shall be regulated by law), then work in accordance with this constitutional text is in place, and every person is free to choose the sect that regulates his marriage contract and the consequences resulting from it, in accordance with what was mentioned above.[/size]
[size=45]“In short, I believe that the Iraqi people need laws that strengthen their unity and reinforce their bonds against attempts at division and fragmentation of the social fabric. I sincerely call on those who have issued the proposal to retract it. There is great hope in the legislative, executive and judicial authorities to seriously stand up to passing it, because the majority of the Iraqi people cannot be reduced to the opinion of a minister or a group of honorable representatives who appoint themselves as guardians of this majority of the people. If they are sincere in their intentions, I believe that they should submit the project to a referendum and determine the opinion of the people instead of making a decision alone and returning to the abhorrent dictatorship that confiscates the opinion of the majority. The Personal Status Law differs from all laws, whether those that regulate the form of the state or those related to the economic aspect, because these laws do not deal with everyone, but rather with a specific group or a specific time or place, while the rules of personal status affect every citizen, whoever he is and in any place, from the moment the sperm is formed in the mother’s womb until his death and even after death. These The importance must be taken into account when dealing with such laws.”[/size]
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