عنوان مقاله [English]
One of the innovations of the Family Protection Act adopted in 2012 is the identification of the competence of supreme religious authorities in family and personal status disputes for religious minority communities. Before this act, the judiciary addressed family and personal status disputes of religious minority groups, and there was no specific, independent authority for this purpose. By specifying the “supreme authorities of religious minorities” for addressing Hisbah and personal status disputes, Article 4 of the Family Protection Act created an innovation in the Iranian legal system; however, it raised numerous ambiguities and questions.
This article seeks to answer the following questions: Was Article 4 of the Family Protection Act intended to negate the competence of family courts? Is it an obligation or an option (a choice) for religious minority communities to refer to the supreme religious authorities? What is the duty of family courts in handling family and personal status disputes of religious minority groups? Should all decisions/votes made by the supreme religious authorities of religious minority communities be approved by the courts regardless of their content, or is there an issue of judicial oversight? In cases of public order concerns, how should they be interpreted, and can an individual file a complaint with the official judiciary if being dissatisfied with the ruling? Can they be deprived of this right?
According to the results of the present paper, Article 4 of the Family Protection Act does not negate the competence of family courts, and the supreme religious authorities of minority communities have concurrent jurisdiction with family courts to handle family and personal status disputes. However, the lack of a specific and predictable legal procedure may jeopardize the protection of the civil rights of religious minority communities, particularly women and children. In the implementation of Article 4 of the act, to achieve judicial independence for the People of the Book, a precise, well-considered, and balanced legal procedure specific to religious minority communities should be established to ensure that the legitimate interests of families within these minority communities are protected. Another solution may involve reverting to the previous system, where exclusive jurisdiction over family matters is vested in family courts, with the consent and input of the supreme religious authorities of religious minorities concerning religious issues.
Considering the discussed challenges and ambiguities, it appears that the innovation introduced by Article 4 of the Family Protection Act may jeopardize principles of fair procedural justice in sensitive matters like Hisbah and personal status affairs. One potential solution could involve reverting to the previous system and restricting the authority of supreme religious authorities of religious minority communities to just providing religious opinions on religious matters, similar to what exists for religious minority groups. As a minimum solution for better procedural justice for religious minorities, these communities are suggested to have the choice to refer their disputes to the courts or the supreme religious authorities. These authorities are suggested to adhere to the procedural rules of the relevant court. In cases of non-compliance of the supreme authorities with these rules, in their enforcement role, the courts are recommended to act more strictly to ensure procedural equality between the parties.
21. مؤسسۀ آموزشی و پژوهشی قضا (1393). شیوۀ رسیدگی به دعاوی مربوط به احوال شخصیه و امور حسبی ایرانیان غیرشیعه در محاکم قضایی