THE DISCRETIONARY RIGHT OF THE JUDGE TO USE A RELIGIOUS FATWA
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Abstract
The law gives the trial judge the right to issue fair and appropriate rulings that are consistent with the provisions of the law when there is a case before him. This right is consistent with Article 1 of the amended Iraqi Law of Evidence No. 107 of 1979, in which the court has a role in cases not stipulated in the law. Thus, it is left to the discretion of the judge. Therefore, the judge in charge has the right to seek the assistance of a religious fatwa when there is no legal text related to the dispute presented in front of him. The first article does not oblige the judge to seek the help of a specific doctrine, especially in cases of halal and haram (permissible and forbidden according to an Islamic religious point of view) that require knowledge of Islamic jurisprudence. As for the non-Muslim cases that are difficult for the judge to comprehend their rulings due to the diversity and multiplicity of religions and sects, the judge should ask non-Muslim religious references to know the jurisprudential ruling on the dispute in order to issue an appropriate ruling on the case presented before him.
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References
Article (1/F1) of Personal Status Law No. (188) of 1959, as amended.
Article (2) of the Iraqi Civil Law No. (40) of 1951 stated (there is no justification for diligence in the source of the text).
Article (1/F2) of the Personal Status Law No. (188) of 1959.
dr. Salam Abdul Zahra Al-Fatlawi, dr. Nabil Mahdi Zwain, Al-Wajeez in explaining the Iraqi Personal Status Law No. (188) of 1959 and its amendments, 1st edition, Dar Al-Salam Legal Library, Al-Najaf Al-Ashraf, Iraq, 2015, p. 9.
dr. Haider Hussein Al-Shammari, dr. Safaa Mutib Fajah and others, the principle of referral to Islamic jurisprudence (a comparative study in Arab family legislation), a research published in Al-Qadisiyah Journal of Law and Political Science, No. 2, Vol. 11, p. 8.
See Article (2/First) of the Constitution of the Republic of Iraq 2005. It corresponds to the text of Article (2) of the Constitution of Egypt 2019, and the text of Article (2) of the Constitution of Jordan 1952 amended on 2016.
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Resolution of the Court of Cassation (4) No. (227) dated 20/5/1962, quoting: Dr. Ahmed Al-Kubaisi, Al-Wajeez in explaining the Iraqi Personal Status Law, previous source, p. 10.
Article (30) of the Civil Procedure Law No. (83) of 1969 stipulates (no court may refrain from ruling on the pretext of ambiguity in the law or missing or incomplete text, otherwise the judge will be considered abstaining from realizing the right).
Decision No. 3001 / Personal Status / 2008 dated 28/9/2008, referred to: Dr. Aqil Majeed Taha and Abdullah Muwaffaq Ali, The Impact of the Shari’a fatwa on adapting the Civil Case, a research published in Steps for Human and Social Sciences, Issue 3, Vol. 1, 2022, p. 11.
Article (2 / F1) of Personal Status Law No. 188 of 1959, as amended.
Kindly see: the text of Article (12), (20) of the Law No. (32) of 1947 regulating religious courts for Christian and Jewish denominations. Quoted from: Dr. Ahmed Al-Kubaisi, Al-Wajeez in Explanation of the Iraqi Personal Status Law and its Amendments, Part 1, The Legal Library, Baghdad, 1990, p. 11.
Article (33) of the Civil Procedure Law No. (83) of 1969, as amended.
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Article (3/F2) of the Personal Status Law No. (1) of 2000
Appeal No. 12 of 67 BC Personal Status - Session 5/26/2001.
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Fatwa Law No. (60) of 2006.
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Article (2/F16) stipulates: (Sharia courts look into everything related to personal status among Muslims) of the Sharia Procedure Code No. (31) of 1959 and its amendments until 2016.
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The Chief Justice Department’s website
https://sjd.gov.jo/Pages/viewpage.aspx?pageID=163, date of visit 4/3/2023, at 9:00 am.
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Article (299) of the Civil Procedure Law No. (83) of 1969.
The text of Article (309): (1- The annulment of the marriage deed, as well as the arguments considered as provisions such as the arguments related to the replacement of endowments and permission for the consensual division, if it is not appealed against by the concerned parties, then the judge must send the file as soon as possible to the Court of Cassation to conduct cassation audits 2- The provisions and arguments mentioned in the previous paragraph shall not be enforced unless ratified by the Court of Cassation) of the Civil Procedure Law No. (83) of 1969. See: Mohammed Saeed Al-Saadawi, the procedural legal regulation of cases of halal and haram, research published in the Journal of Educational and Human Sciences (Study in Iraqi Law), No. 3, 2020, p. 75.
See: Dr. Abd al-Mun’im Abd al-Wahhab al-Amer, The extent of the legitimacy of the placement of an illegitimate son in Iraqi law, an article published in the Journal of In-depth Legal Research, issue. 39, p. 65.
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Article (3/F1) of the Personal Status Law No. (1) of 2000.
dr. Ahmed Al-Mahdi and Ashraf Al-Shafi’i, The Case of Lineage, 1st Edition, Dar Al-Adalah for Publishing and Distribution, Cairo, Egypt, 2006, p. 14.
d. Mahmoud Arafat Mustafa, Explanation of the Personal Status Law for Muslims and Non-Muslims, 1st edition, Part 3, The Constitutional Center for Printing and Publishing, Cairo, Egypt, without a year, p. 460
Abu Hanifa: Al-Nu’man bin Thabit, the imam of the Hanafi school, and the creator of the famous school of thought, the jurist, the mujtahid, the investigator, one of the four imams, he was born in the year 80 AH. 767 AD. The caliphs wanted him to be a judge, but he refused, and he was imprisoned in that until he died, and he died in the year 150 AH - 767 AD. Quoted from: Ismail, Shaaban Mohammed, Fundamentals of Jurisprudence
Its history and its men, 1st edition, Dar Al-Marikh, Riyadh, without a year, p. 43.
The Fatwa Department was established in the Hashemite Kingdom of Jordan in (1921 AD). Since its foundation, it relied on the Hanafi school of fatwa, which was in effect during the days of the Ottoman era, and the mufti used to answer people’s questions, whether they were related to worship, transactions, or personal status, And appointed next to every judge a mufti in large and small cities, and the judge used the mufti to solve social problems, and the mufti referred to the judge matters that did not fall under his jurisdiction, which needed evidence and witnesses.
Fatwa Law No. (60) of 2006.
The text of Article (2 / F 1): (The provisions of this law apply to the issues dealt with in these texts in their terms and meanings, and there is no justification for diligence in the source of the text) of the Jordanian Civil Law No. (43) of 1976.
The Chief Justice Department’s website
https://sjd.gov.jo/Pages/viewpage.aspx?pageID=163, the date of the last visit 3/22/2023