CYIL vol. 11 (2020)

ABDULLAH ALDMOUR

CYIL 11 (2020)

Introduction Since its creation as an independent State in 1946 1 , Jordan has formed a heterogeneous legal system in which the plurality of legal orders coexists, especially in the matters of personal status which encompasses all legal issues pertaining to the person in society. 2 According to the provisions of the Constitution, the legislative and judicial autonomy is widely recognized to the religious communities. Shari’a Law is applied within the framework of the personal status of the Muslim community and enforced through the Muslim religious courts ( shari’a courts ) subject to the State control. In contrast, the tribunals of the other religious recognised communities, mainly those of the Christian councils of Christian communities (majālis al- ṭ awā’if al-masī ḥ iyya) are the competent jurisdiction to decide over all matters of personal status of the Christian communities. 3 Thus, the religious courts deal only with the personal status subject-matters such as marriage, divorce, inheritance, the child custody etc. This system obviously coexists with the system of the civil courts. The civil courts exercise their jurisdiction in respect to civil and criminal matters in accordance with the law in force, and they have jurisdiction over all persons in all matters, civil and criminal, including cases brought against the government. The civil courts include the magistrate courts, the courts of the first instance, the courts of Appeal, the administrative courts, and the Court of Cassation (the highest court in the country). This legislative and jurisdictional plurality was therefore reflected in terms of laws related to the personal status, the foreigners, the nationality, and the rules on conflict of laws. These main elements present many points of tangency with several particular aspects in the present and does not fail to influence neither the resolution of the private international disputes nor the domestic one. Nor do other branches of law, private international law as a primarily branch of domestic law should not escape form the validity requirements of the constitutional norms, particularly those related to the fundamental rights. 4 Consequently, it would not be without interest, that this article could only claim to explore partially, to examine certain aspects of private international law from a constitutional perspective, particularly those related to the relationship between the Constitution and private international law in Jordan. More precisely, the aim of this article is to establish whether Jordan’s private international law would pass the test of constitutionality. Naturally, in most cases, foreign parties are not familiar with the Jordanian legal system and while this article focuses solely on Jordanian law, the findings of this article will, it is hoped, serve practitioners in other legal cultures by providing some insights, will help them 1 Transjordan was established in 1921, under the British mandate, by the declaration of Prince Abdullah1 after the collapse of the Ottoman Empire in 1916. The British mandate had ended on 22 March 1946, according to which the Transjordan was declared independence and become officially the Hashemite Kingdom of Jordan. 2 Article 99 of the Constitution of 1952 divides the courts in Jordan divided into three categories: Civil, Religious and Special courts, see Article 99 of the Constitution. 3 “Qānūn majālis al– ṭ awā’if al–masī ḥ iyya,” Law no. 28 of 2014, Official Gazette , No 5299 (September 1, 2014), 5140. 4 RIGAUX, François , Droit constitutionnel et droit international privé. Mélanges en hommage à Michel Waelbroeck , Bruxelles, Bruylant (1999):111-137.

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