Sunday, March 18, 2007

The Egyptian decision : an analysis (1/3)

This posts will deal with the Egyptian Supreme Administrative Court ruling with deprived Egyptian baha'is from their basical citizen rights (i.e. having valing ID cards and birth certificates) because of the obligation to mention a religion (either Muslim, Christian or Jew) and the impossibility to indicate Baha'i instead. For further information.

The precise analysis of the decision of the Egyptian Supreme Court is quite interesting specially for a French lawyer as it appears that Egyptian public law and procedure was strongly inspired by the French one beginning with the name of the Court : State Council (Conseil d’Etat).

The complete text of the decision can be found here.

As the decision is quite long (10 pages) the analysis will be posted in three different posts, which is quite good as the most interesting will be the last one … ;-)

In short, the decision is an appeal of a lower court decision which obliged the Egyptian States to issue ID cards and birth certificates mentioning the religion of the bearer being baha’i. The Supreme Administrative Court reversed the judgment.

Two appeals were launched against the decision. The first one appears to be a private appeal, the second one governmental.

The structure of the decision is directly inspired of the structure and the writing style the French administrative Supreme Court gives its decisions. It begins with a synthesis of the previous proceedings, recalling the origin of the case, and the decision under scrutiny.

Arguments raised by the baha’is

From the history of the case, it seems to appear that the claimant changed their legal strategy during the course of the proceedings.

First, they argued that the fact for the administration to refuse to give them back their passports and ID cards after they requested for the names of their daughters to be added would violate the Constitution and the Universal Declaration of Human Rights.

Further, they apparently modified their claim to get the annulment of the negative decision about the refusal to issue them ID cards mentioning their religion as being « Baha’i » as well as the refusal to issue birth certificates for their daughters also mentioning the religion.

A negative decision, if inspired from the French system which really seems to be the case, exists when the administration fails to answer a request within a certain time frame (two months in France). If the administration does not grant the decision or the action asked for, this negative decision can be challenged before a court to verify whether the administration was under an obligation or not to take a decision or a specific action.

Obviously, the action asked for was to issue ID cards and birth certificates mentioning the religion as being baha’i. Not taking this action would violate the Constitution and the Universal Declaration of Human Rights, was the claim.

Interestingly, and with a look on a later development, new arguments could now be drawn asking for the issuance of ID cards and birth certificates mentioning five dashes in places of any religion.

The decision under scrutiny

The previous court decision rescinded the negative decision stating that :
“existing authoritative reference books on Islamic jurisprudence indicate that Muslim lands have housed non-Muslims with their different beliefs; that they have lived in them like the others, without any of them being forced to change what they believe in; but that the open practice of religious rites was confined to only those recognized under Islamic rule. In the customs of the Muslims of Egypt this is limited to the peoples of the Book, that is Jews and Christians only.

The provisions of the shari’a [Islamic jurisprudence] require a disclosure that would allow to distinguish between the Muslim and non-Muslim in the exercise of social life, so as to establish the range of the rights and obligations reserved to Muslims that others cannot avail [themselves] of, for these [rights and obligations] are inconsistent with their beliefs.

Thus, the obligation prescribed by the Law of Civil Status no. 143 of 1994 concerning the issuance of an identity card to every Egyptian on which appears his name and religion and the same on birth certificates is a requirement of the Islamic shari’a.

It is not inconsistent with Islamic tenets to mention the religion on a person’s card even though it may be a religion whose rites are not recognized for open practice, such as Bahá’ism and the like.

On the contrary, these [religions] must be indicated so that the status of its bearer is known and so he cannot enjoy a legal status to which his belief does not entitle him in a Muslim society. It is not for the Civil Registry to refrain from issuing identity cards or birth certificates to the followers of Bahá’ísm, nor it is up to such Registry to leave out the mention of this religion on their identity cards.”
Quite interesting. If the result would have been factually positive, with respect to the effect (authorizing baha’is to have ID cards etc…) this would still not really have been what could be called a « positive » move with respect to the motivations.

As the Court states : The religion must be indicated so that the status of its bearer is known and so he cannot enjoy a legal status to which his belief does not entitle him in a Muslim society.

Quite a far way still towards true religious liberty. In another well known country for human rights defenders, baha’is are currently being registered, most probably not for noble purposes like giving them normal citizen rights for example.

To set the context again. Baha'is do not necessarily ask for the official recognition of the baha'i faith, they want to be treated as normal citizens and thus to get ID cards etc...not to be fired from their jobs, to get access to elementary public services etc...

No mention at all of the religion would be fine with the baha'is.

Anyway, this decision has been overturned…

(to be continued…)

1 comment:

Phillipe Copeland said...

Thanks for the analysis, I look forward to the rest of it.