The Egyptian decision : an analysis (3/3)

Not to let the suspense be to intolerable, here's the last (but not least, and the longuest) post on this Decision.

In the two previous posts we saw that the first decision, even if better, was still far from granting real religious liberty in Egypt, that the Court accepted parts of the appeal on really fallacious arguments by a most probably biaised Government Commissioner, and that it had really no other choice than to dismiss all procedural arguments brought by the administration.

It has to be mentioned, that politically, reversing this decision only on procedural reasons would have been a bad idea from the stand point of the Court, as the case would probably (comparing with the French system again) have been sent back to a first instance court without any control over the material aspects of the new decision where as now lower Courts need to have a strong will and courage to fight against a Supreme Court ruling.

So the court went into a specific legal argumentation letting aside almost all material legal arguments raised by the appellant.

Material arguments

The material argumentation of the Court goes as follows…lawyers (and non lawyers), please sit down, such a legal nonsense it just unbelievable…

The order of the arguments is reorganized here for the sake of clarity. The decision follows the « historical » way (which makes it even less convincing). Unless otherwise mentioned, all the facts mentioned are taken from the text of the decision…

• today, religious freedom is protected by Article 46 of the present constitution (since 1971 according to a rapid « googling ») which reads as follows: “the state guarantees the freedom of belief and the freedom of practice of religious rites”. Fine, quite general, BUT…

• exactly the same provision is to be found in the article 34 of the Constitution of 1964. Nice, what’s the point ? Just wait…

• exactly the same provision is to be found in article 43 of the Constitution of 1958. Cool…so what ? Just wait…BECAUSE,

• in article 43 of the Constitution of 1956 the said provision read as follows : “The freedom of belief is absolute and the state protects the freedom of the practicing of religious and belief rites in accordance with the customs observed on condition that they do not violate the public order and morals.” You begin to see the point. But it is not yet finished…

• this provision was to be found initially in article 12 and 13 of the Constitution of 1923. From the « travaux préparatoires » and the wording of the provisions at this time, it appears that the protection of religious liberty was only to be granted to the three heavenly religions (Islam, Christianity and Judaism).

Such a nice history…from the evolution (bottom-up in the bullet points), it appears that with the time the protection of religious liberty has increased. And the Court even acknowledges this.

« It is clear from the above that all Egyptian constitutions guaranteed the freedom of belief and the freedom of religious rites, as they constitute fundamental principles of all civilized countries. Every human being has the right to believe in the religion or belief that satisfies his conscience and pleases his soul. No authority has power over what he believes deep in his soul and conscience. »

This statement is really nice, could be read in France, the US or anywhere else...

But now it comes…rub your eyes, pinch yourself to be sure you’re not dreaming (it’s a legal nightmare), and read…

« As to the freedom of practicing religious rites, this has the limitations that were explicitly mentioned in previous constitutions and were omitted in the present constitution, i.e. the condition of respecting the public order and morals. »

« This omission does not mean the purposeful forfeiting of this stipulation and the permitting of the practice of religious rites even if they violate the public order and morals. The legislature considered that this stipulation is self-evident and a fundamental constitutional provision that must be observed without express mention. »

So, what the Court is basically saying is that, every one has the right to believe. But, in 1923, it appears from the discussions around the writing of the Constitution that only the three main religions had to be protected. In 1956, this discussion element is not any more to be found, only the condition of respecting public order and morals stayed in the text.

In 1958, this last condition was NOT taken again, which was confirmed in 1964 and in 1971.

BUT, this is was just an omission (three times in a row during 13 years…they have certainly slept all this time…) because it is self-evident and a fundamental constitutional provision…

A law student conducting such a legal interpretation would probably be given the worst possible mark ever in its whole life! Interpretating a 1971 provision in the light of discussions about a 1923 provision which is no longer worded in the same way and has been replaced four times of which three times without any limitation...It's simply unbelievable...

Now, the Court had to prove that the Baha’i Faith by its mere existence is not respecting public order and morals. Here we go for a festival:

• "the Baha’i belief – as unanimously concluded by the Muslim “imams” as well as the rulings of the Supreme Constitutional Court and the Supreme Administrative Court – is not among the recognized religions, whoever follows it from among the Muslims is considered apostate “Murtad""

Quite interesting !

• "principles and tenets confirm this declaration by their variance with the principles of the Islamic religion as well as their contradiction to all the heavenly religions."

Obviously !

• "They absolutely and totally forbid the Jihad that is provided for in the Islamic shari’ah, because they want people and nations to submit to their executioners without any resistance, in return for poetic and sweetened words calling for the establishment of a world government, which is the main purpose of the Baha’i movement. This is one of the secrets of their ties with the colonialists old and new, who embrace and protect them."

I think the « and new » may address the US…the “old” obviously Israël ;-)

Just to remember that when Baha’u’llah arrived in Haifa, it was Palestine and he arrived there after having been exiled by…Muslims!

I have the feeling not to have read the same baha'i writings as the Egyptian judges...

• "Furthermore, they made up a “shari’ah” for themselves in accordance with their beliefs which forfeits the provisions of fasting…"

[I only selected kind of a “best-of”]

« For this reason, the legislator promulgated Law no. 263 of 1960 concerning the dissolution of all existing Baha’i Assemblies and centers in the country and forbade at the same time individuals, establishments or bodies to perform any of the activities that these Assemblies and centers used to perform. »

« This is the law that was brought before the Supreme Court under no. 7 of 2 J. C. on allegations of being unconstitutional, which case it was decided on 1st of March 1975 was unfounded and to be dismissed. This ruling is binding upon all the authorities of the state. »

At least one point which is legally speaking difficult to question. The Supreme Court ruled that way…

"In addition, that court also ruled that the said law does not violate the Universal Declaration of Human Rights adopted by the General Assembly of the United Nations on 10/12/1948 and which Egypt signed, because this declaration, despite its guarantee in Article 18 to give everyone the right to freedom of thought, expression and religion, [provides that] “this latter right should be understood within the limits of what is recognized i.e. what is meant by religion is one of the three religions: Islam, Christianity and Judaism”.

For the sake of remembrance article 18 of the mentionned declaration goes as follows…

« Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance. »

Personally I read nothing in there to limit this right…

A purely legal point. Interestingly the Universal Declaration is invocable under Egyptian Law. French judges consider it as not self-executing and thus not invocable. They refer mainly to constitutionnal guarantees, the European Human Rights Convention and sometimes the International Covenants of 1966.

To come back to our subject, I would be delighted to discuss with Egyptian judges how they would explain to Hindus, Buddhists, Zoroastrians…that they are not protected under Article 18 of the Universal Declaration of Human Rights…what ever!

Concerning the baha’is, one could also wonder why a religion that is not protected under the Universal Declaration of Human Rights is regularly mentioned by the General Assembly and the Human Rights Council of the United Nations notably because of the situation in Iran (and maybe soon because of the situation in Egypt).

From all this, it follows, according to the Court, that the Baha’i Faith as such violated public order and morals.

Considering that the legal provisions regulating the information to be provided on official papers are considered part of the public order, “no data that conflict or disagree with it should be recorded in a country whose foundation and origin are based on Islamic shari’ah."

Thus…the claim of the baha’is asking for their religion to be mentioned on their official papers is unfounded.

Amazing how flawed this decision is. Under rule of law, the Government should bear the burden of proof whether or not a specific behavior threatens the public order. Nothing in the decision is said about the Government proving anything except invoking contradictions to Islam.

With respect to the material merits of the case, and except the obedience to a Supreme Court ruling, the legal argumentation is just a succession legal nonsense the justifications of which barely hide the deep motivations (contradictions with Islam, alleged support of “colonialist” powers).

No explanation on how these allegations (even if they were to be true), concerning a few thousands of baha’is (in a country of near to 79 millions) may trouble public order and morals without even be organized, and ignoring the fact that baha’is are obedient to their Government and thus did effectively dissolve all their administration…

A wonderful example of how you can state almost anything with the appearance of being legal…and a strong appeal to pay permanently attention not to enter similar bias ourselves.

This really illustrates the importance of the baha’i position not to mix up political and religious power, to keep the state administration separate from the religious administration.

The “New Legal World Order” baha’is are working for has safeguards against this kind of nonsense!