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!

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...)

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…)

Religious Plurality in Society : Some Thoughts Pertaining to Legal Policy

Abstract of the Young Legal Scholar Lecture given by Dr. Emanuel Towfigh

To continue the discussion on the topics that were adressed at the conference.

Following the very interesting discussions still going on, about loyalty to the Government and fighting for rights, this subject bears a lot of potential debates.

One of the most insistent smouldering conflicts in Western societies is associated with the increasing degree of religious plurality. At the turn of the millenium the subject of religious plurality became something of a vogue, with a great deal of attention being devoted to it by academics working in a wide range of disciplines.

Particular interest was roused by the intensifying conflict between the "enlightened" or "Western" world, on the one hand, and the "Islamic" world, on the other, especially in the sphere of (global) politics. Latent antagonism flare up with grim regularity, serving as a painful reminder of the unresolved conflict and preventing our societies from attaining real peace and stability.

The complex of the themes relating to plurality in society, to the state and religion, will undoubtely concern us for some time to come and our ability to secure social stability in the long term will very much depend on a satisfactory solution for this problem being found.

Against this background the presentation considered from a Baha'i perspective the question of how religious plurality in society should be dealt with - even though the Baha'is themselves have neither a clergy no special items of obligatory clothing such as a kippa or headscarf, and although they, as "exotic" but well-integrated individuals, very seldom give cause for worrying about how to deal with religious plurality.