The Egyptian decision : an analysis (2/3)

Before continuing an analysis of the Egyptian decision (to be found here) let's use the opportunity to wish a happy Naw-Ruz to all readers, hoping that this new year will see this blog continuing it's life with more contributors :-)

Brief recall : the previous post concentrated on the history of the case, and on a short comment on the first instance decision noting that it was better than nothing, but still not a real sign of religious liberty. Now we’re turning towards the actual decision.

Arguments raised to support the appeal

The first argument raised were procedural ones claming that the lower court « did not seek the state commissioners’ views after the admission of the altered requests of the defendants ».

Another similarity with the French proceedings. Under French administrative proceedings a claimant has to raise both what are called internal and external legality arguments. If he raises just one of both type, he will all the proceedings long be able to add new arguments to each category.

Typically the first category contains procedural arguments, the second one, material argument (violation of any relevant rule).

If he forgets to raise say an argument of internal legality in the beginning, he will never again be able to raise such an argument during the proceedings.

As a consequence, plaintiffs just file any such argument, even obviously not standing, just to be able later on the complete their claim if they find new arguments to claim for illegality.

The State Commissioner (Commissaire du Gouvernement) intervenes in the proceedings, but is in principle not a party (neither claimant nor defendant) to the proceedings, he is (in France at least) an independent judge who’s job is to make proposals to the Court as to how a specific case can be solved in law. He does not represent the State which is the other party (defendant) to the proceedings.

Here the argument was to say that the State Commissioner was not given a chance to react to the change of legal strategy by the claimants in the first instance (the baha’is).

Other material arguments raised were that the appealed judgment based it’s ruling under an abrogated law of civil status the new law taking into account the amendment to article 2 of the Constitution stating that « the principles of Islamic shari’a are the primary source of legislation ».

A last argument was to state that :

« the judgment under consideration ignored the unanimous view of the scholars (fuqaha) and the formal opinions (fatwa) issued by competent authorities concluding that the meaning of the freedom of belief is that the individual has the freedom to embrace his like of the fundamentals of any belief, under the condition that his embracing of such a belief does not imply interference with the public order of the state or its stability; [and thus also ignored that] Baha’ism is excluded from divine religions and that its practice infringes on the established order of the state, and therefore it should not be inscribed for children because this is against the public order. »

Interestingly, the Court did not answer all of these arguments, at least on the material assessment of the case the « legal » argumentation went to quite a different way.

The Judgment of the Court

Procedural arguments

As to the interest of the first (private) appellants requested for their appeal to be admitted, the court states that the interest of a private person in appealing the first instance decision is drawn from the fact that « such an act implies recognition of the Baha’i religion contrary to
the established opinions of scholars and to those opinions included in fatwas emanating from competent authorities, as well as to the provisions of the Constitution. »

Legally speaking, it is amazing that the contradiction of the judgment to the Constitution (which obviously under rule of law can justify an appeal) comes after established opinions of scholars and fatwas about the fact that the baha’i faith is not a religion.

In any case, as the Shari’a takes its legal legitimacy from the modified article 2 of the Constitution (see above) and not the other way around, at least legally speaking, this is a first legal clue for the bias in the reasoning of the Court.

It continues : « It is probable also that such an act may also have effect on him, [and] his family members, as a result of proselytizing activities that harmfully target the Muslim religion. »

No comment. For a religion in which any form of proselytism is forbidden, and which is anyway forbidden from being organized in Egypt, it seems that the little number of baha’is in Egypt are frightening the establishment. One may wonder why!

Too much of a bias would have been too evident, so the court had no other choice than to dismiss some of the claims (but only procedural ones) brought by the administration.

The administration argued there was no negative decision, and that the claimants (the baha’is), should have brought their plea to a civil status committee. The Court answers, that according to law, the refusal or desistance from making a decision is a negative decision, and that the said committee had no competence whatsoever over such matters, dismissing the claims of the administration. Taking another standpoint would have been legally allmost impossible!

Similarly, the Court stated that the first instance Court was under no obligation to seeking the State Commissioners’ view after the plaintiffs’ changed their position (see first post). If making a parallel with the French system again, this is quite normal as the State Commissioner is not a party as such in the proceedings and is thus not harmed by the fact that he could not answer new claims so long as the State representatives could answer.

So the appearance of independence is saved, now the real legal fun can begin…but this will be for the last (but not least…) post.

(to be continued…maybe tomorrow...)