Closing Statement of the 2nd Conference of Hammurabi Organization for Human Rights about the Freedom of belief, concerning the Discussion of the Legal Amendments related to Non-Muslim Iraqis in the framework of Civil Status and Personal Status Laws
Baghdad- Oil Cultural Center
Sat./ Dec., 15, 2012
Hammurabi Organization for Human Rights, in collaboration with the Christian Solidarity international Organization, and under the slogan “ toward enhancing the freedom of beliefs in Iraq” has held its Second conference for discussing the law amendments concerning the non-Muslim Iraqis within the frame of the Civil Status and Personal Status Laws with the participation of more than (75) Iraqi figures including Muslim, Christian, Sabians and Yazidi clergymen, Judges, Advocates, academics, researchers, experts and activists in the field of human rights.
The conference, held in the Oil Cultural Center on Sat., 15/12/2012, tackled in its first session the discussion of the research paper presented by the advocate Mahir Saeed on the Civil Status Law No. 65 for the year 1972 amended and the provisions of articles 21, 20 of it which affects non-Muslim Iraqis and contradict the Constitution in the freedom of religion and equality principles undertaken by the Constitution in many of its articles. The conference also has dealt with the recommendations issued by the first conference held in Alqoosh on the Ninth of November 2012, attended by more than 25 Christian figures of seculars and clergies and advocates, researchers and activists of the Christian society.
The recommendations in Alqoosh conference stressed on two basic points, first: the hurrying of amending the article 21, Para. 3 of the Civil Status Law, which stipulates “The minor children shall follow In religion who have embraced the Islamic religion of the parents” and they all agreed that it should be “ Children shall stay in their original religion provided that they shall be given the right of choosing their religion at the legal maturity”, Second: “ forming committees to study the mechanism of the agreement on a unified personal status law for all Iraqi Christians depending on two drafts prepared in advance by Christian experts and advocates”.
Afterwards, the conference, in its second session, has tackled a research paper presented by advocate Yaqoub Yousif on the Personal Status Law No. 188 for the year 1959 amended, and in light of it, the participants have discussed the possibility of formulating personal status laws concerning the non-Muslims or working on carrying amendments on the prevailing law, and the meeting also studied the essence of the necessary amendments on the prevailing Personal Status Law to fit non-Muslims Christians, Sabian Mandeans and Yazidis and other.
The meeting also discussed the negative impacts and results that have been caused by the prevailing Personal Status Law on Christians, Sabian Mandeans and Yazidis, in particular article 21, Para. 3 according to which the minor children are registered Muslims pursuant to one of the parents becomes a Muslim and marking that in their civil records without minor’s awareness,
This has and still is a problem that hundreds of Christian, Sabian Mandeans, Yazidis families and non-Muslims in general have suffered from.
The participants stressed that considering the minor to be a Muslim contradicts the provisions of the prevailing laws since he is legally incompetent, thus he is not allowed to perform legal procedures, because the Iraqi Civil Law, in its forty sixth articles, considered the minor who has not reached the legal maturity (18) to be incompetent. Deeming the minor as a Muslim is contrary to the legal rule stipulating that “there is no compulsion in religion”.
The participants discussed the prevailing Personal Status Law, particularly the provisions of the second article of it which indicates effectiveness of the law on all Iraqis except those who are exempted by a special law and since non-Muslims in Iraq have no special law organizing their personal Affairs , therefore the texts of this law are applied to them in all its provisions relating to competency, marriage, separation, disobedience, marital house, obedience house, alimony, child custody, will execution, inheritance provisions, while on the other hand, for example but without limitation, the will provisions in the church laws for Christians differ from those in the prevailing Personal Affairs Law, and also concerning inheritance provisions and the method of inheritance division according to the Islamic law provisions. And the issue of that the Muslim can inherit the non-Muslim while in reverse is not allowed the matter which contradict the Constitution, article 14, which emphasizes that “ All Iraqis are equal before the law without discrimination because of gender, race, nationality, origin, color, religion, sect, belief or opinion”
The participants has showed although the Court of Personal Affairs seeks the guidance of the church courts of each community whenever is necessary, however this happens in limited cases such as divorce cases and also in the application of the article 16 provisions of the Courts Declaration No. 6 for the year 1917 concerning the referring to one of the religious authorities.
The attendees studied a number of legal texts that need to be reconsidered that disagree with the rights of the citizenship, equality, freedom of religion and personal rights and touches the Christians, Yazidis and Sabian Mandeans, such as article 17 of the prevailing Personal Affairs Law which stipulates “ A Muslim can marry a woman from the people of the book (Christian, Jewish or Sabian) while a Muslim woman can not marry a non-Muslim” and also article 18 of the said law which stipulates “ Embrace of Islam by one of the spouses before the other one is pursuant to the Islamic Law concerning the continuity of marriage or the separation between the spouses” . When, for example, the husband embraces Islam, the woman can stay on her religion if she was of the people of the Book, while if she is Yazidi, she must convert to Islam because the Yazidis are not considered of the people of the Book according to the law. But if the wife embraces Islam, the husband is able to choose separation or Islam.
In the last session, the attendees summarized their objective and responsible discussions, interpositions by the following opinions and recommendations:
What concerns article Twenty First, Para 3:
The participants, based on the right of citizenship and the principles of justice, equality and freedom of religion ensured by the Iraqi Constitution, have stressed the following recommendation:
The necessity of the handling quickly, the problem of forcing the minor to embrace Islam outside of their will after one of their parents converts to Islam, by cancelling Para 3 of article Twenty First or by amending it like this: “the minor children shall stay in their original religion, and if they wish to choose later, they will be given that right after the legal maturity”
And they agreed that the handling should be by two options
Judicial Handling: since the Iraqi Constitution has ensured equality and freedom of belief, the participants stressed following the short way by taking an appeal action against non-Constitutional Para 3, article 21 of the Civil Status Law, in the Federal Court.
Legal Handling: the participants has asked the government and parliament to submit a suggestion or an amendment draft for the aforementioned article to be approved within the parliament’s plan and agenda concerning the amendment and approval of the laws that conflict with the constitution and the democratic shifts in the country.
And the participants agreed to continue, with these two mechanisms, the dialogue activities between Christian and Muslims (Sunni and Shiite), Sabian Mandeans and Yazidis religious authorities and jurisprudents to support handling the problem from an accurate scientific religious point of view, and they also asked that these activities should be joined by a supporting and backup campaign led by the civil society organizations and the activists in the field of human rights toward finding solutions.
Regarding formulating Personal affairs Laws for Non-Muslims:
The detailed opinions and discussions resulted in two proposals:
The first: calls for formulating a special law for non-Muslims of Christians, Yazidis and Sabian Mandeans to judge their personal status and formalities, and the justifications of this opinion supporters come from the view of the execution of the justice and the provisions of Article (41) of the constitution which grants this right and also their admission that there are Jurisprudence bases and provisions with Christians, Yezedis and Sabians which are different than the provisions of the prevailing laws especially in the will, inheritance ,Alimony,childcare,adoption,marriage and divorce and others..
The second opinion: It is preferred to consider amendments in the prevailing law of Personal affairs No. 188 for the year 1959 amended, specially the articles that non Moslem communities suffer from. The justifications of this opinion are to adopt a unified law for all Iraqis which will contribute to strengthen national unity. The applications of article (41) of the constitution in their eyes cause social discrimination and an unstable situation in the personal affairs in Iraqi Society.
After discussing and researching these two opinions, and on this side, the attendee resolved on the following recommendation:-
The addition of a special Chapter for non-Moslems to the prevailing law stipulating the rules and provisions related to personal affairs of non Moslems in the matters regarding the family, marriage, divorce, childcare, provisions of inheritance , estate, will, adoption and others, after being adopted by non Moslem scholars and religious jurisprudents and Legal experts.
The Conference was closed with a short statement delivered by the President of Hammurabi Organization for human rights in which he thanked the excellencies and the religious clergy of Moslems,Christians,Mandean Sabians, and the representative of Mr. Martin Coplar, the special representative of the United Nations Secretary General in Iraq and the Representative of the Vatican Embassy in Iraq, members of the Diplomatic Corps, and local, International Organizations, he also expressed thanks to the representative of the Ministry of Human Rights, the judges and men of law ,professors, academics, and researchers in Iraqi Universities and activists of International and local Civil Society Organizations .
He expressed special thanks to the Christian Solidarity International Organization in its support to the conference ,stressing that Hammurabi Organization will follow up and according to its available resources the recommendations emanating from this conference to lay them out before the decision makers of the Government and legislative and Judicial Organizations to find objective and fair solutions.
At the end he expressed gratitude to the media who covered the activities of the conference and all who participated toward its success.
Hammurabi Organization for Human Rights
Baghdad on 15/12/2012
