Abstract
The Iraqi legal corpus on filiation consists of a set of rules that are a mix of traditional law and modern law. Inspired by Islamic law in general, the Personal Status Code of 1959 expressly recognizes two grounds for establishing filiation, namely valid marriage (firash) and acknowledgment of filiation (iqrar). The Code of Evidence of 1979 is more modern, allowing the court to expand its investigations by resorting to DNA tests and testimony (bayyina). In this respect, the lenient conditions under which case law admits the existence of a valid marriage significantly facilitate the establishment of filiation. The child who does not enjoy legal filiation under the conditions mentioned previously, designated as majhul al-nasab, is nonetheless entitled to a certain degree of protection with regard to civil status and nationality. Furthermore, the Iraqi legislature has created an institution called affiliation (damm), which allows an orphan or a child of unknown filiation to be linked to a family in a definitive manner, even though adoption is formally prohibited. This institution can create a filiation link that is similar to that which results from an adoption, and can therefore be considered a true functional equivalent of adoption.
Harith Al-Dabbagh is an associate professor of comparative and private international law at the University of Montreal in Canada.
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Notes
- 1.
Preamble of the Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption. Full text available at www.hcch.net/en/instruments/conventions/full-text/?cid=69 (accessed February 5, 2019).
- 2.
See Ancel and Molines 1980, passim.
- 3.
Combined second to fourth periodic reports of States parties due in 2011, submitted by Iraq to the Committee on the Rights of the Child, December 2, 2013, doc. CRC/C/IRQ/2-4, para 58.
- 4.
According to statistics from the Ministry of Planning and Cooperation in 2016, reported by Radio Rudaw, www.rudaw.net/arabic/middleeast/iraq/270720166 (accessed February 5, 2019).
- 5.
Draft Statement of H. E. Minister of Human Rights to discuss the Child’s Reports in Geneva (Iraq), http://tbinternet.ohchr.org/Treaties/CRC/Shared%20Documents/IRQ/INT_CRC_STA_IRQ_19299_E.pdf (accessed February 5, 2019).
- 6.
Concluding observations on the combined second to fourth periodic reports of Iraq, March 3, 2015, doc. CRC/C/IRQ/CO/2-4, para 52.
- 7.
Local media often report children or newborns found in public places, on sidewalks or in front of mosques. See, for the case of an infant girl abandoned in a vacant lot, www.hjc.iq/view.4030/ (accessed February 5, 2019).
- 8.
Such a presentation is quite common in foreign-language (English and French) works on Islamic law. See, for example, Abu-Sahlieh 2008, esp. pp 178 et seq.
- 9.
This statutory pluralism reflects the well-known tradition of the personality of the laws that goes back to the founding of the Islamic city.
- 10.
See the Explanatory Memorandum (al-asbab al-mujiba) annexed to Personal Status Code No. 188-1959.
- 11.
Explanatory Memorandum of the Personal Status Code, para 1. The objective was to put an end to the existence of separate Sunni and Shiite courts applying distinct rules.
- 12.
- 13.
The Code contains ninety-four articles. Its relative brevity, in comparison with the previous 1947 draft (177 Articles), is justified by the following remark in the Explanatory Memorandum: ‘The committee has tried to bring together in this Code the most important general principles governing personal status, leaving it up to the judge to refer to the Sharia treatises in order to extract the specific rules that are the most compatible with the provisions of this law, since the committee found it impossible to integrate into this corpus all issues of personal status.’
- 14.
This is the selection method known as talfiq, which consists in creating a kind of synthesis of various solutions. On this technique, Sourdel 1997, p 48.
- 15.
The desire to restore Shiite personal status reappeared after the US invasion in 2003. A draft law on Jaʻfari (Shiite) personal status was written in 2011, but remained unsuccessful.
- 16.
- 17.
This set of reforms was triggered by Law No. 35-1977 on the Reform of the Legal System, which is a framework law aimed at laying down guidelines for reforming the legal system in a way that is consistent with the building of a modern socialist state.
- 18.
The law introduces significant restrictions on the powers of guardians and imposes a supervisory regime to protect the rights of protected persons (minors, incapable adults, absent and missing persons).
- 19.
Articles 32–33 of Civil Status Act No. 65-1972 and Articles 25–29 of its Implementing Decree No. 32-1974 (nizam).
- 20.
Articles 29–41 of Social Welfare Act No. 126-1980.
- 21.
For example, Articles 381–388 of Criminal Code No. 111-1969 deal with crimes relating to filiation, the protection of minors, family abandonment and the endangerment of children and the elderly.
- 22.
Article 29(1) of the 2005 Constitution states that ‘the State shall guarantee the protection of motherhood, childhood and old age, shall care for children and youth, and shall provide them with the appropriate conditions to develop their talents and abilities.’
- 23.
For more details, see Al Dabbagh 2005, pp 265 et seq.
- 24.
With the exception of the Kurdistan region, which has had its own Court of Cassation with similar functions since 2007.
- 25.
See, for example, for a statement of reasons referring to ‘constant case law:’ Court of Cassation, December 13, 1987, case no. 573/civ./1987, www.hjc.iq/qview.10/ (accessed February 27, 2019).
- 26.
Article 1(2) PSC. The whole of Islamic law, and not a determined school, thus constitutes the common pool from which it is necessary to draw where there are gaps. This can be seen as a sign of the legislature’s desire to free the judge from the yoke of rites (madhahib).
- 27.
Article 28 Code of Judicial Organization No. 160-1979 (COJ). The personal status court is the only court in the country where such a condition is required.
- 28.
Article 49 Juvenile Protection Act No. 76-1983.
- 29.
Article 33 COJ.
- 30.
Article 36 COJ prohibits the recruitment of judges or public prosecutors who did not graduate from the Judicial Institute.
- 31.
Filiation 2007.
- 32.
Qur’an Sura 25, verse 54: ‘It is He Who has created man from water: then has He established relationships of lineage and marriage: for thy Lord has power (over all things).’ (The Holy Qur-ān: English translation of the meanings and Commentary (1990) (Translated by Ali Y) King Fahd Holy Qur-ān Printing Complex, Medina).
- 33.
Khallaf 1990, p 176.
- 34.
This unanimity results from the combination of two verses in the Qur’an (Sura 46, verse 15 and Sura 31, verse 14). Linant de Bellefonds 1973, p 34.
- 35.
Court of Cassation, September 11, 1971, appeal no. 261/plen. ass./1971, Al-Nashra al-Qada’iyya no. 3 of 1971, p 72.
- 36.
Mughaniyya 1998, p 363.
- 37.
Article 332 Qadri Pasha Code (unofficial codification of Muslim law on family and inheritance according to the Hanafi school, written by Muhammad Qadri Pasha in Egypt in 1875).
- 38.
Al-Khatib et al. 1980, p 201.
- 39.
Opinion of the Council of State, June 5, 1961, no. 85/8, Majallat Diwan al-Tadwin al-Qanuni no. 1 of 1961, p 40.
- 40.
Article 10 PSC requires, under criminal penalty, the registration of marriages in a special register kept by the personal status court. However, Article 11 of the same Code allows for the marriage that has not abided by the legally required forms to be proven by acknowledgment (iqrar) made by one of the spouses with the consent of the other.
- 41.
Federal Court of Appeal of Dhi Qar, January 8, 2015, appeal no. 3/perso/2015, http://iraqld.hjc.iq/ (accessed February 27, 2019).
- 42.
In Islam, marriage is a consensual and private contract concluded by the consent of the parties in the presence of two witnesses. Linant de Bellefonds 1965, pp 39 et seq.
- 43.
Al-Khatib et al. 1980, p 203.
- 44.
In contrast with the Hanafi fiqh, the Iraqi Personal Status Code makes no distinction between a void marriage (zawaj batil) and a defective marriage (zawaj fasid). The two terms are therefore synonymous and refer to marriages in which one of the conditions for validity is absent (Article 6 PSC).
- 45.
Court of Cassation, February 23, 2010, appeal no. 22/enlarged chamber/2010, www.hjc.iq/qview.1649/ (accessed February 27, 2019).
- 46.
Al-Khatib et al. 1980, p 202.
- 47.
Article 97(2) Civil Code.
- 48.
Al-Khatib et al. 1980, p 204.
- 49.
Court of Cassation, July 20, 2009, appeal no. 2979/perso/2009, cited by Alwan 2011, pp 38–39.
- 50.
By the testimony of two men, or one man and two women, attesting to the birth of this child from the union with her husband (the judge, however, having the power to freely asses the probative force of the testimonial evidence).
- 51.
‘That such a child could be born to such a father,’ to quote the exact words of the text.
- 52.
See, for example, Federal Court of Appeal of Dhi Qar, December 27, 2016, appeal no. 275/perso/2016, http://iraqld.hjc.iq/ (accessed February 27, 2019).
- 53.
Linant de Bellefonds 1973, p 25, who notes that acknowledgment of filiation ‘is not, in Islamic law, simply declarative of right, the husband does not confine himself to confessing the circumstances of the birth, which will, in turn, entail the legal presumption. He assigns to himself the paternity of a child without having to establish the existence of a marriage at the time of the birth, and without even having to prove that this birth is legitimate.’
- 54.
Opinion of the Council of State, July 6, 1977, no. 83/1977, quoted by Al-Karbasi 1989, pp 104–105.
- 55.
Article 351 Qadri Pasha Code. In this case, only maternal filiation will be established.
- 56.
Linant de Bellefonds 1973, p 52.
- 57.
See Personal Status Court of al-Kahla’ district, June 24, 1992, case no. 71/perso/1992, http://iraqld.hjc.iq/ (accessed February 27, 2019).
- 58.
Sura 24, verses 6 and 7.
- 59.
Article 335 Qadri Pasha Code.
- 60.
Article 336 Qadri Pasha Code.
- 61.
Al-Salim and al-Nuʻaymi 2010, pp 71–72.
- 62.
Being a modern and secularist code, Iraqi Criminal Code No. 111-1969 completely deviated from the notion of hudud, the cornerstone of Islamic criminal law.
- 63.
As we have observed, when the child makes the iqrar, it is valid only with the assent (tasdiq) of the person concerned (father or mother).
- 64.
Court of Cassation, June 9, 1988, appeal no. 4940/perso/1988, www.hjc.iq/qview.52/ (accessed February 27, 2019).
- 65.
Court of Cassation, April 7, 2016, appeal no. 2316/perso/2016, http://iraqld.hjc.iq/ (accessed February 27, 2019).
- 66.
Al-Salim and al-Nuʻaymi 2010, pp 71–72, who criticize this position.
- 67.
Court of Cassation, November 11, 2008, appeal no. 1992/perso1/2008, Al-Nashra al-Qada’iyya no. 6 of 2009, pp 10–11.
- 68.
Personal Status Court of Kadhimiya, March 14, 2006 (unpublished).
- 69.
Court of Cassation, February 10, 2009, appeal no. 124/plen. ass./2008, Majallat al-Tashriʻ wa-l-Qadaʼ, www.tqmag.net/body.asp?field=news_arabic&id=896 (accessed February 5, 2019).
- 70.
Sura 33, verse 5.
- 71.
Court of Cassation, June 30, 2011, appeal no. 2901/1st perso/2010, Majallat al-Tashriʻ wa-l-Qadaʼ, www.tqmag.net/body.asp?field=news_arabic&id=1335 (accessed February 5, 2019).
- 72.
Court of Cassation, May 29, 2011, appeal no. 159/plen. ass./2010, Majallat al-Tashriʻ wa-l-Qadaʼ, www.tqmag.net/body.asp?field=news_arabic&id=1315 (accessed February 5, 2019).
- 73.
Court of Cassation, February 25, 2013, appeal no. 329/enlarged chamber/2012 (unpublished). The final judgment by the Personal Status Court of al-Adhamiyah issued after cassation is available on the Facebook page https://ar-ar.facebook.com/permalink.php?story_fbid=1621057334792749&id=1492673717631112.
- 74.
Al-hayʼa al-madaniyya al-muwassaʻa, which corresponds to the mixed chamber in the French system.
- 75.
Etymologically, the root of the term laqata means picking up, recovering, grasping or taking something that has fallen to the ground. The abandoned newborn is considered as such because his or her rescue is required from a religious point of view. Al-Razi 1986, p 251.
- 76.
Al-Kubaysi 2010, p 204.
- 77.
Sujimon 2002, pp 359–360.
- 78.
See Articles 356–358 Qadri Pasha Code.
- 79.
Al-Kubaysi 2010, p 205.
- 80.
Article 361 Qadri Pasha Code.
- 81.
Article 362 Qadri Pasha Code.
- 82.
Court of Cassation, August 24, 1978, appeal no. 1556/perso/1978, Majmuʻat al-Ahkam al-ʻAdliyya no. 3 of 1978, p 69.
- 83.
Law No. 123-1979 on the First Reform of the Juvenile Act No. 64-1972.
- 84.
Juvenile Protection Act No. 76-1983.
- 85.
Khallaf 1990, p 176.
- 86.
Even though the Iraqi scholarship advocates a one-year delay, the court practice still seems to be aligned with the maximum duration of pregnancy of two years as adopted by the Hanafi school. See Al-Kubaysi 2010, p 198.
- 87.
Court of Cassation, February 15, 2012, appeal no. 7/interest of the law/2012, Majallat al-Tashriʻ wa-l-Qadaʼ, www.tqmag.net/body.asp?field=news_arabic&id=2215 (accessed February 5, 2019).
- 88.
Court of Cassation of the Kurdistan Region, April 7, 2010, appeal no. 99/perso/2010. For critical commentary, see al-ʻAgayli RH, www.tqmag.net/body.asp?field=news_arabic&id=1833 (accessed February 5, 2019).
- 89.
On the other hand, with regard to the mother, filiation is established by birth alone, regardless of the nature of the relationship between the child’s parents.
- 90.
Court of Cassation, March 16, 1976, appeal no. 239/perso/1976, Majmuʻat al-Ahkam al-ʻAdliyya no. 1 of 1977, p 91.
- 91.
Court of Cassation, September 17, 1985, appeal no. 2309/perso/1984-1985, cited by Al-Mashahadi 1989, pp 259–260.
- 92.
See Sect. 5.4.1.
- 93.
Court of Cassation, September 19, 2012, appeal no. 197/perso/2012, www.hjc.iq/qview.1831/ (accessed February 27, 2019).
- 94.
Personal Status Court of Kadhimiya, March 14, 2006 (unpublished).
- 95.
Law No. 193-1970.
- 96.
The law was amended in 2005 to allow Iraqi mothers to pass on their nationality to their children, thereby lifting Iraq’s reservation to Article 9(2) of the Convention on the Elimination of All Forms of Discrimination against Women.
- 97.
Article 40(1) Civil Code.
- 98.
Article 19 of the Births and Deaths Registration Act No. 148-1971.
- 99.
Article 28 of the Decree (nizam) on Civil Status No. 32-1974.
- 100.
Al-Musawi 2016.
- 101.
Personal Status Court (for Muslims) or Personal Property Court (for non-Muslims), depending on the case.
- 102.
Article 32bis Civil Status Act and Articles 300–301 of the Code of Civil Procedure No. 83-1969.
- 103.
Article 32(2) Civil Status Act and Article 45 Juvenile Protection Act No. 76-1983.
- 104.
For a judicial application concerning a 47-year-old woman of unknown parentage, see Al-Musawi 2016.
- 105.
- 106.
The terrorist organization forced women in the conquered territories to marry its fighters. As these marriages are not recognized, the children who are born to these unions are at risk of being deprived of their rights and subjected to stigmatization. See UN Human Rights 2017.
- 107.
The Hammurabi Code and the Sinaitic Legislation (1904) (Translated by Edwards C) Watts & Co., London, pp 60–61.
- 108.
Sulayman 1987, pp 262 et seq.
- 109.
Sura 33, verse 40.
- 110.
The word orphan (yatim) and its derivatives are quoted in twenty-three Qur’anic verses, e.g. Sura 2, verse 220; Sura 4, verses 2, 10, 36; Sura 93, verse 9.
- 111.
Such care being not regulated by law but part of social practices of charity, no statistics are available on the number of children living in their extended families or religious communities.
- 112.
Articles 29–42 Social Welfare Act No. 126-1980.
- 113.
There are only 23 state houses, 4 in Baghdad and 19 in the governorates.
- 114.
Vagrant child, homeless, with no means of support or who has run away and has no guardian. Articles 24–25 Juvenile Protection Act.
- 115.
Article 28 Juvenile Protection Act.
- 116.
These causes include war, forced displacement, poverty, rural depopulation and unemployment. Hasan 2014, pp 1113 et seq.
- 117.
With the exception of Tunisia, the only Arab country that expressly allows adoption (Law No. 58-27 of 1958 on Public Tutorship, Unofficial Tutorship and Adoption).
- 118.
Opinion of the Council of State, September 23, 1962, no. 94/9, Majallat Diwan al-Tadwin al-Qanuni no. 1 of 1963, p 104.
- 119.
Articles 38 and 39 Civil Code.
- 120.
Al-Dawudi 1983, p 30.
- 121.
Juvenile Delinquents Act No. 44-1955.
- 122.
Act No. 132-1979 Amending the Juvenile Act No. 64-1972.
- 123.
For more details on this evolution, see Al-Dawudi 1983, pp 28 et seq.
- 124.
The term young child (saghir) is defined by Article 3(1) of the Juvenile Protection Act No. 76-1983 as being one who has not reached the age of nine. The age of civil majority is, however, 18 years old (Article 106 Civil Code).
- 125.
Article 39 of the Juvenile Protection Act No. 76-1983.
- 126.
Al-Dawudi 1983, p 38.
- 127.
Court of Cassation, July 22, 1990, appeal no. 80/enlarged chamber/1990, quoted by Al-Mashahadi 1998, pp 9–10.
- 128.
Interview with Judge Sayma’ Naʻim, Al-Qada’ no. 7 of May 2016, p 2, www.hjc.iq/upload/pdf/no_7.pdf (accessed February 27, 2019).
- 129.
Article 55 Juvenile Act No. 64-1972 (repealed).
- 130.
In this sense, Al-Dawudi 1983, p 52.
- 131.
Law No. 3-1994 Ratifying the Convention on the Rights of the Child. For more details, see Al-Dabbagh 2017a, pp 86–89.
- 132.
In this sense too, see ʻAbd al-Latif 2008, p 64.
- 133.
The previous laws (No. 44-1955 and No. 11-1963 (repealed)) provided for shared religious identity between the child and the applicants. This condition was no longer mentioned in the law in force.
- 134.
Al-Dabbagh 2017a, p 111.
- 135.
- 136.
Article 40 of the Juvenile Protection Act.
- 137.
Article 41 of the Juvenile Protection Act.
- 138.
Article 42 of the Juvenile Protection Act.
- 139.
Mahmud 2002, p 31.
- 140.
Circular of the Ministry of Finance No. 21519 of November 1, 1981, quoted by Al-Dawudi 1983, p 42.
- 141.
Article 43 of the Juvenile Protection Act.
- 142.
Article 74 PSC.
- 143.
See al-Iftayhat 1998, p 52.
- 144.
Article 72(1) PSC allows the testator to revoke his will in writing.
- 145.
See, for a recognition of this rule, Article 2 of Moroccan Law No. 15-01 of 2002 Relating to the Care (kafala) of Abandoned Children (Dahir No. 1-02-172 of 2002), stating that ‘kafala does not give rights to filiation or succession.’
- 146.
Mughaniyya 1998, p 370.
- 147.
ʻAbd al-Latif 2008, p 68.
- 148.
The conditions for validity of recognition, as we have already mentioned, are unknown filiation, a sufficient age difference and the approval of the beneficiary, if he is of the age of discernment.
- 149.
Article 44 of the Juvenile Protection Act provides that ‘recognition of the filiation of a child of unknown parentage shall be done before the Juvenile Court, in accordance with the Personal Status Code.’
- 150.
Article 24(2) Decree on Civil Status No. 32-1974.
- 151.
Court of Cassation, December 27, 1979, appeal no. 663/plen. ass./1979, Majmuʻat al-Ahkam al-ʻAdliyya no. 1 of 1980, p 37.
- 152.
The child keeps the name of his biological parents, but if these parents are unknown, as in the case of a foundling, the Qur’anic verse (Sura 33, verse 5) orders that he be treated as a brother in faith or as a friend. He must be given a name that does not deceive society into believing he is the biological child of the kafil.
- 153.
Federal Supreme Court (UAE), April 5, 2010, appeal no. 79/pen./2010, www.eastlaws.com (accessed February 5, 2019). In this case brought before the United Arab Emirates courts, two underage Iraqi girls were arrested in front of a hotel and suspected of prostitution. Their mother was interrogated. A DNA test revealed that this mother was not the biological mother of the two girls. She was therefore arrested and charged with using a falsified Iraqi passport bearing the names of the minor girls to enter the UAE with the children. While admitting that she was not the girls’ biological mother, she stated during her interrogation that she had adopted the two girls in Iraq after having taken them from an orphans’ home with her husband, and therefore that she held a regular passport issued in Baghdad. Before the court, she categorically denied any fraud or falsification of documents to enter the country. On the question of how her passport identified the children as her own daughters, the woman claimed that she had attached the girls to her filiation by ‘adoption’ and therefore that they were named after her deceased husband under Iraqi law. Following the trial, the Emirati Federal Supreme Court released the woman. The Court was not called upon to recognize the Iraqi adoption in the UAE or to pronounce on its validity, but to rule on the existence of a criminal offense relating to the use of forgery. To this end, it stated that ‘although adoption (tabanni) is illegal (muharram) in Sharia, it is nevertheless practiced under conditions in some Muslim countries. It follows that the adoptee is affiliated to the adopter and enjoys all the rights and duties of the legitimate [biological] child such as inheritance and patronymic name …’
- 154.
Istihsan, or the principle of preference, is a process of rational reasoning used in particular by the Hanafis. Inasmuch as the child found is of unknown filiation and it is in his or her interest to have an established parentage, the fuqahaʼ then alter the legal principles.
- 155.
- 156.
Article 46 Juvenile Protection Act.
- 157.
See e.g. Testamentary Act No. 295-1298 issued on July 8, 1998, by the Personal Status Court of Mosul, quoted by Al-Iftayhat 1998, p 52. This is the will approved by the court to institute an affiliated child as heir for one-third of the estate.
- 158.
According to the previous law (Juvenile Act No. 64-1972), if the biological father of the child appeared, he had the possibility of claiming the child before the court, which had then to cancel the affiliation and order the child’s reintegration with his father (Article 60). The new law discards this solution, which placed the child in a precarious and unpredictable situation and was a source of litigation.
- 159.
Al-Dabbagh 2017b, p 213.
- 160.
ʻAbd al-Latif 2008, p 71.
- 161.
- 162.
Karim 2004, pp 257–258.
- 163.
- 164.
Sura 33, verse 5.
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Al-Dabbagh, H. (2019). Iraq. In: Yassari, N., Möller, LM., Najm, MC. (eds) Filiation and the Protection of Parentless Children. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-311-5_5
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