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WikiLeaks: 2008-12-15: 08BAGHDAD3926: HJC Rejects Effort to Reform Personal Status Law

by WikiLeaks. 08BAGHDAD3926: December 15, 2008.

Posted: Monday, December 30, 2013 at 01:10 PM UT


Viewing cable 08BAGHDAD3926, HJC REJECTS EFFORT TO REFORM PERSONAL STATUS LAW

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Reference ID Created Classification Origin
08BAGHDAD3926 2008-12-15 16:52 CONFIDENTIAL Embassy Baghdad
VZCZCXRO6695
PP RUEHBC RUEHDE RUEHIHL RUEHKUK
DE RUEHGB #3926/01 3501652
ZNY CCCCC ZZH
P 151652Z DEC 08
FM AMEMBASSY BAGHDAD
TO RUEHC/SECSTATE WASHDC PRIORITY 0872
INFO RUCNRAQ/IRAQ COLLECTIVE PRIORITY
C O N F I D E N T I A L SECTION 01 OF 02 BAGHDAD 003926 
 
SIPDIS 
 
E.O. 12958: DECL: 12/15/2018 
TAGS: PHUM KIRF PGOV KJUS IZ
SUBJECT: HJC REJECTS EFFORT TO REFORM PERSONAL STATUS LAW 
 
REF: BAGHDAD 3006 
 
Classified By: Deputy Political Counselor Steve Walker for reasons 1.4 
(b) and (d). 
 
1.  (C)  Summary:  The Higher Judicial Council (HJC) has 
rejected a Ministry of Human Rights (MoHR)-drafted amendment 
that would have abrogated a provision in the 1972 Personal 
Status Law that requires minors to convert to Islam if one of 
their parents converts to Islam.  The MoHR had sought the 
amendment because Iraqi Christians must convert to Islam in 
order to legally divorce.  Under the current law, children of 
the divorced couple become Muslim.  The HJC, relying on 
Islamic Shari'a law and reasoning that neither the law nor 
the Constitution can violate Shari'a, held that the 
MoHR-drafted amendment would be unlawful and 
unconstitutional.  The 1972 law is a primary issue of concern 
for religious minorities in Iraq, who claim that that law 
infringes on their freedom of religion.  End Summary. 
 
------------------------------ 
AMENDING 1972 CIVIL STATUS LAW 
------------------------------ 
 
2.  (U)  The Civil Status, or Personal Status, Law of 1972 
stipulates that all minor children born of a marriage between 
two non-Muslims automatically become Muslim if one of the 
parents converts to Islam.  This is an issue for Iraq's 
Christians, because Iraqi courts will only issue a divorce 
decree if the marriage's dissolution is acknowledged by the 
Church, which does not allow divorce.  (Note:  Iraqi 
Christians must be married in a religious ceremony before 
they can be married in a civil court.  End Note.)  Christians 
wishing to end their marriages may either seek an annulment 
from religious authorities, or convert to Islam, which has no 
prohibition against divorce.  When they opt for the latter, 
their children become legally Muslim.  Most Iraqi Christians 
see the existing law as an infringement of their rights and 
freedom of religion. 
 
3.  (C)  There have been efforts to revise the Personal 
Status Law. In September, Non-Muslim Endowments Office 
Director Abdullah Al-Naufali told us his office had drafted a 
new personal status law that would offer greater protections 
for Christians (reftel).  This law has not yet been submitted 
to the cabinet for approval (after which it would go to the 
parliament). Minority Parliamentarians have complained about 
the 1972 law and have discussed proposing their own version 
of a Civil Status law. 
 
4.  (C)  Minister of Human Rights Wijdan Salim asked for a 
legal opinion from the Higher Judicial Council (HJC) that 
would effectively amend the law in favor of her Ministry's 
position.  On June 30, the Ministry of Human Rights (MoHR) 
sent a letter to the HJC proposing to amend the text of 
Article 21/3 of the Civil Status Law Number 65 of 1972 to 
remove the forced conversion of children to Islam if one of 
their parents converts to Islam in order to get divorced. 
The proposed amended text to the existing law by the MoHR 
read, "A minor shall keep his current religion until he 
reaches 18 years of age in spite of the fact that one of his 
parents has converted to Islam; at that time he shall be 
allowed to choose whether to remain within his original 
religion or to switch to Islam; his Civil Status document 
shall then be changed in case he embraces Islam."  (Note:  In 
May, Chaldean Patriarch Cardinal Delly asked Minister Wijdan 
to support a new law that would guarantee the right of minors 
to retain the religion they have at birth until the age of 
18, at which point they would be free to choose any religion 
they wish.  End Note.) 
 
----------------------- 
HJC DENIES AMENDING LAW 
----------------------- 
Q----------------------- 
 
5.  (C)  Minister Wijdan gave PolOff a copy of the HJC's 
response, which rejected the proposed amendment as unlawful, 
on November 16.  It was signed by Chief Justice Medhat 
al-Mahmoud.  Minister Wijdan told PolOff on December 2 that 
she is considering publicizing the HJC response and 
contrasting it with an opposing Islamic Shari'a 
interpretation that would approve the amendment. 
 
6.  (C)  After reviewing Islamic Shari'a law, the Iraqi 
Constitution, International Agreements, Iraqi Law, and 
previous court decisions, the HJC ruled that the proposed 
amendment would be unconstitutional and violate Islamic law. 
The inquiry into this question was undertaken by the HJC's 
Studies Committee of the Judicial Supervision Commission, 
which is headed by Judge Qahtan Sadoon Muhammad.  The 
six-member committee unanimously agreed on the decision. 
 
7.  (C)  First reviewing Islamic Shari'a law, the committee 
 
BAGHDAD 00003926  002 OF 002 
 
 
writes that, "The minor follows the better of the parents' 
religion(that is Islam," and, "A Muslim may not apostate 
from his religion, and whoever converts out of Islam...shall 
be asked to repent, otherwise he shall be killed."  The 
decision quotes the Quran and the Prophet's Hadith in coming 
to this conclusion.  (Note:  Under all schools of Islamic 
law, apostasy is impermissible and punishable by death.  End 
Note.) 
 
8.  (C)  The committee then takes the position that the Iraqi 
Constitution must be interpreted consistently with Shari'a, 
since the Constitution states that, "Islam is the official 
religion of the State."  Likewise, the ruling says that laws 
may not violate Shari'a, and it rejects as unlawful a 
Ministry of Justice letter from 1988 that grants permission 
to minors who had been forced to convert to Islam to return 
back to the original religion.  The committee referenced 
several Court of Cassation rulings that do not allow for 
converted Muslims to return to their original religions. 
 
9.  (C)  Regarding international agreements and conventions, 
the committee generally agrees that Iraqi law and Shari'a are 
given a higher priority than international agreements.  The 
committee reasons that the freedoms granted in the 
International Covenant on Civil and Political Rights (ICCPR) 
are restricted by the individual country's laws.  They quote 
Article 18/1, "Everyone shall have the right to freedom of 
thought, conscience, and religion.  This right shall include 
freedom to have or to adopt a religion or belief of his 
choice."  However, the committee reasons that the freedoms 
guaranteed by the ICCPR can be limited by law consistent with 
article 29(2) of the Convention. 
 
10.  (C)  The committee also highlights that while Iraq 
endorsed the Convention on the Rights of the Child in 1994, 
it lodged a reservation on the "freedom of religion for the 
child" because this provision contradicts Shari'a.  The 1994 
law that accompanied endorsement of the convention states 
that Iraq cannot apply provisions of a foreign law if they 
contradict the "public order or morality" in Iraq. 
 
------- 
COMMENT 
------- 
 
11.  (C)  The HJC's ruling is a disappointment.  If made 
public and not overruled by an appeals court or other 
religious authorities, it will likely lead Iraq's minorities 
to question the GOI's commitment to protecting the freedom 
and rights of all religions.  Post will follow up with NMEO 
Director Al-Naufali on status of his draft personal status 
law.  Post will also continue to encourage minority 
Parliamentarians to draft new legislation guaranteeing the 
protection and rights of all ethnic and religious minorities. 
CROCKER

 



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