Egypt s Supreme Administrative Court Denies Constitutional Rights to Bahá í Religious Minority

Transcription

1 From the SelectedWorks of Karlijn Van der Voort November 17, 2007 Egypt s Supreme Administrative Court Denies Constitutional Rights to Bahá í Religious Minority Karlijn Van der Voort Available at:

2 EGYPT S SUPREME ADMINISTRATIVE COURT DENIES CONSTITUTIONAL RIGHTS TO BAHÁ Í RELIGIOUS MINORITY By Karlijn van der Voort * 1. Introduction Although Egypt recently obtained a seat on the UN Human Rights Council, 1 a body dedicated to the protection of human rights worldwide, and a US ally in the war on terrorism, 2 the denial of human rights remains an ongoing daily challenge for members of religious minorities in Egypt. This short note examines a recent court ruling that effectively outlaws Egyptian citizens who are members of the Bahá í Faith. On 16 December 2006, the Egyptian Supreme Administrative Court ruled in favour of the appeal of the Egyptian government against an earlier ruling upholding the right of the Bahá ís not to be falsely identified on their government-issued identity documents. 3 The original action had been brought by a Bahá í couple from Alexandria, Husam Izzat Musa and Ranya Enayat Rushdy, who sued the Ministry of Interior after their identity (ID) cards were confiscated when they requested that their daughters names be added to their passports. The controversy arose after the introduction of a new computerised system for the issuance of ID cards which had been programmed to accept only three entries the space reserved for religious affiliation: Islam, Christianity or Judaism. Members of religious minorities used to be able to obtain identity cards with a dash in the space for religion or, in a few cases, with the name of their religion stated. Under the new system, renewal or the issuance of new ID cards has become impossible for adherents of other faiths, who additionally risk having their existing identity cards confiscated. Moreover, the government application for the identity cards warns that the provision of false information is considered forgery of official documents and is legally punishable according to the articles of the penal code. Adherents of other minority faiths are therefore being placed in the paradoxical situation of having to declare themselves as Muslim, Christian or Jew, while facing the threat of imprisonment for falsifying official documents. 4 Possession of an official identity card is an essential requirement for all citizens in Egypt. ID cards are required for all administrative matters such as obtaining a driver s license, opening a bank account, registering children in schools or being admitted to a government hospital. * Karlijn van der Voort works as a defence attorney in international criminal law for the law firm of Knoops & Partners Advocaten in Amsterdam, the Netherlands, and is a member of the Dutch Bahá í Community. The availability of sources in the English language is sparse, and many of the relevant documents have only been translated by the Bahá í International Community. 1 UN General Assembly 61 st Session, Human Rights Council Election (17 May 2007), URL: See also BBC News, Belarus Loses UN Human Rights Bid, 17 May 2007, URL: See also Toronto Star, Despite Abuse, Egypt Joins Rights Council, 18 May 2007, URL: 2 J.E. Noyes, Egypt s Law of Intolerance, Daily Journal (US), 13 March 2007, 1. 3 Adv. Abdu l-majid Al Anani v. Mr. Husam Izzat Muhammad Musa, Mrs. Rania Inayat Abdu Rahman Rushdi, et al., and in the case of the Minister of the Interior et al. v. Mr. Husam Izzat Muhammad Musa and Mrs. Rania Inayat Abdu Rahman Rushdi, Application nos and of 52 J. H., State Council (First Section), 16 December 2006 ( the judgment ). English text of the judgment can be found on URL: the Arabic text can be found on URL: 4 J.-F. Bourque, Non-Citizens in Their Own Country, (2007) May-June The Geneva Post Quarterly 31, at 33, /17/2007 1

3 They are also used for personal identification with respect to police random stop and inspect powers. As one NGO has commented, Without this card, an Egyptian citizen has no official identity and becomes, in effect, a non-person, unable to live a normal life. 5 The three young children of the Bahá í couple cannot attend school as a direct result of the underlying court case. 6 The original ruling of the lower Administrative Court of 4 April 2006, which was reversed on appeal, had relied upon existing precedents under Islamic law to show that traditionally Muslim countries have incorporated non-muslims citizens without any of them being forced to change what they believe in. The lower Administrative Court held that since Egyptian law requires all citizens to carry an identity card bearing their religious affiliation, it is not inconsistent with Islamic tenets to mention the religion on this 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 thus he does not enjoy a legal status to which his belief does not entitle him in a Muslim society. It concluded that members of the Bahá í religious community, even if their faith is not recognized as a religion, have every right as citizens to be identified as Bahá ís on official documents. Accordingly, the Administrative Court ordered the government to give identity cards and birth certificates to the plaintiffs on which the Bahá í Faith is stated as their religion. 7 The decision immediately sparked heated debate within Egypt. Despite its widespread acclamation by Egyptian human rights organisations, several influential Islamic groups, including scholars at Al Azhar University and representatives of the Muslim Brotherhood, vehemently protested the court s ruling, urging the Government s appeal. This present note analyses the appeals judgment while also placing the ruling in an historical and international perspective. 2. Egypt s Legal Approach towards Bahá ís The most recent developments in Egypt s treatment of the Bahá í community trace their origins eighty years back. On 10 May 1925, the Appellate Court of Beba, Beni Suef province, Upper Egypt, held that three Muslim women whose husbands had converted to the Bahá í Faith, should be forced to divorce their husbands. The court held that: God sent His Messenger and Prophet, Muhammad, as a blessing to the world. This blessing He put in the form of the religion of Islam, the last of the heavenly religions. It has abrogated all other religions and can be repealed by none, until the world shall perish ( ). To depart from Islam is heresy and ( ) religious law states that heresy dissolved the contract of marriage. 8 5 Oral Statement of the Bahá'í International Community to the 61st Session of the Commission on Human Rights Geneva, 14 March 22 April 2005; 6 See Noyes, supra note 2, at 1. 7 Decision available in English at and Arabic at 8 Bahá í International Community, History of the Bahá í Community of Egypt, URL: 11/17/2007 2

4 One of the unintended consequences of the ruling was to establish the independent nature of the Bahá í Faith as an entirely distinct religion from Islam, which ultimately contributed to the wider recognition of the Faith by government authorities. 9 Interestingly, this 1925 judgment held that No Baha i can be regarded a Muslim or vice-versa, even as no Buddhist, Brahmin, or Christian can be regarded a Muslim or vice-versa. 10 Until 1960, the Bahá ís lived in Egypt as a tolerated community. In that year, Law 263/1960 was decreed, banning all Bahá í institutions and community activities. Since then, the Egyptian Bahá í community has been deprived of all rights as an organised religious community. Although Law 263 did not criminalize adherence to the Bahá í faith as such, it has created the opportunity for security agencies to subject Bahá ís in Egypt to harassment, discrimination and detentions. 11 The following year, a presidential decree stripped Bahá ís of all legal recognition. 12 This decree is still in force. 13 In 1983, the Supreme Administrative Court ordered the Interior Ministry to issue national identification cards for all citizens. At the time, the Ministry adopted a de facto policy of either allowing Bahá ís to identify themselves as such or to insert other or a dash on the entry for religious affiliation. It was not until 2004 that the Ministry of Interior reinstated the policy of forcing Bahá ís to identify as Muslim, Christian or Jew (depending on the origin of their family names) in order to obtain official documents. 14 Law 143/1994 requires all citizens to obtain an identification card from age 16 onwards. As one 2006 report indicates: [T]he constitution provides for freedom of belief and the practice of religious rites, although the Government places restrictions on these rights in practice. Islam is the official state religion and Shari'a (Islamic law) is the primary source of legislation; religious practices that conflict with the Government's interpretation of Shari a are prohibited. Members of non-muslim religious minorities officially recognized by the Government generally worship without harassment and maintain links with coreligionists in other countries; however, members of religious groups that are not recognized by the Government, particularly the Baha'i Faith, experience personal and collective hardship. ( ) The Government also continued to deny civil documents, including identity cards, birth certificates, and marriage licenses, to members of the Baha i community, which numbered 500 to 2000 persons. 15 ( ) 9 Ibid. 10 See Bourque, supra note 4, at 49, where he discusses the Egyptian court case of Egyptian Initiative for Personal Rights (EIPR), Court Ruling in Favor of Egyptian Baha is a Victory for Freedom of Religion, Press Release 6 April 2006, URL: 12 Ibid. 13 U.S. Department of State, International Religious Freedom Report 2006, Egypt, URL: 14 See EIPR, supra note See U.S. Department of State, supra note 13. In the previous years, the U.S. State Department had issued similar human rights concerns about Egypt s policy towards the Bahá í community. See for instance in 2002, U.S. State Department, Egypt: International Religious Freedom Report, 7 October 2002, URL: and 2004, U.S. State Department, Egypt: Country Reports on Human Rights Practices, 28 February 2005, URL: 11/17/2007 3

5 Police, often on public buses, conduct random inspections of identity papers, and those found without their identity card are regularly detained until the document is provided to the police. Some Baha is without identity cards frequently stay home to avoid police scrutiny and possible arrest. 16 In the year 2003, Al-Azhar s Islamic Research Center issued a legal opinion on the Bahá í Faith, condemning Bahá ís as apostates. After the lower Administrative Court had granted two Bahá ís the right to state their religion on their ID cards, the Islamic Research Center issued a report stating that the Bahá í Faith was a heresy. This legal opinion reflected a 1985 opinion by the same Center, accusing the Bahá ís of working in support of Zionism and imperialism, and accusing them of being apostates. 17 The Bahá í Faith has been located in Haifa/Akko since Bahá u lláh s exile there in By that time, Bahá u lláh was incarcerated in the Ottoman penal colony of Akko, Palestine, which is currently Israeli territory. When the state of Israel was founded in 1948, things took for a worse for the Bahá ís in Egypt. During the 1950s and 60s, the general idea developed in Egypt that the Bahá í Faith was a disguised instrument of Zionism The Appeal On appeal, the Egyptian government argued that the lower Administrative Court s judgment had violated the law, the Egyptian Constitution and Islamic Shari a. The government argued, moreover, that the apprehension for himself, the members of his family, his relatives and the society at large concerning the effects of systematic proselytism actively deployed for the purpose of the christianization and judaization of Muslims under the name of Baha ism ( ) is inadmissible in Islam, the seal of the religion of God. 19 The government asserted that the judgment under consideration had misinterpreted and misapplied the law, violated the right of defense, drew the wrong conclusions and was insufficient in reasoning. It held that the case law on which the impugned decision was based was abrogated. This case law was based on a law predating the 1980 Constitution, which had been amended with the provision that that the principles of Islamic shari a are the primary source of legislation. Law no. 143 of 1994, which replaced the old law, was now relevant, and the case law predating the new Constitution did not apply anymore. Finally, the appeal argued that the judgment under consideration mistakenly ignored the unanimous view of the scholars (fuqaha) and the formal opinions (fatwa) issued by competent authorities. These opinions and fatwas held that an individual is free to embrace any belief, under the condition that [this] does not imply interference with the public order of the state or its stability. The government concluded 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. 20 Dealing with the merits of the case, the Supreme Administrative Court first analysed the history of the constitutional provision relating to freedom of religion and consciousness. It holds that: 16 See U.S. Department of State, supra note Ibid. 18 J. Pink, Deriding Revealed Religions? Baha is in Egypt, (2002) 10 International Institute for the Study of Islam in the Modern World 30, at See the judgment, supra note Ibid. 11/17/2007 4

6 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. 21 It argued nonetheless that, although freedom of religion and belief is unlimited, restrictions have been placed on the freedom of practicing religious rites (see section 4.3. below). The judgment thereafter proceeded to give an overview of the Bahá í Faith, stating that the rejection of the concept of jihad by Bahá ís, which is provided for in the Islamic shari ah, is one of the secrets of their ties with the colonialists, old and new, who embrace and protect them. Referring to the aforementioned Law no. 263 of 1960, which dissolved all existing Bahá í assemblies and centres in the country, the Court emphasised that the law had been upheld by the Constitutional Court, 22 and that, moreover, it was found not to violate Article 18 of the Universal Declaration of Human Rights. 23 The Constitutional Court arrived at that conclusion by holding that this latter right [to freedom of thought, conscience and religion] 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. 24 Accordingly, the Supreme Administrative Court held, in relation to faiths other than the three above mentioned: their recording in either the documents of the Civil Status Department [documents] which are mentioned in the civil status law, including the documents under consideration or in any other official documents issued by the government administration that requires the mention of religion is not allowed. This is established on the grounds that the legal provisions that regulate all these issues are considered part of the public order An Analysis of Some of the Aspects of the Appeals Judgment 4.1. Theological as Opposed to Legal Focus The most troubling aspect of the Supreme Administrative Court s decision is the length to which it focuses on issues of a theological nature rather than the specific legal issues at issue arising from the authorities constitutional and international legal obligations. In particular, the Court condemns the Bahá í Faith because it absolutely and totally forbid[s] 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. This appears to relate to Bahá í beliefs rejecting the concept of holy war; its stress on global governance; and the historic persecution of the community which led to its founder being exiled to Ottoman controlled Palestine, resulting in primary shrines and world 21 Ibid. 22 See Constitutional Court case of 1 March 1975, no. 7 of 2 J.C., referred to in the judgment, supra note Article 18 of the Universal Declaration on Human Rights provides: 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. 24 See Constitutional Court case, supra note See the judgment, supra note 3. 11/17/2007 5

7 centre being located in modern day Israel. Although the applicants had filed their initial complaint based on a violation of their legal rights as Egyptian citizens, the highest administrative court in the land dismissed their claim based largely on an artificial and irrelevant analysis of their religious beliefs Distinction between the Underlying Request and Official Recognition In its decision, the Supreme Administrative Court also argued that the right to have the word Baha i written in the space assigned for religion on the ID and their daughters birth certificates ( ) 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. A link was thereby made between the issue at dispute and the wider, uncontested, issue regarding the official recognition of the Bahá í Faith under Egyptian law. This aspect is particularly problematic, as the applicants had not raised the issue of the official recognition of their religion. They merely asked for the possibility to mention their religion on their ID cards, given the moral and legal prohibition against lying. Moreover, the refusal of the Court to consider the pragmatic solution of leaving the religion category blank indicats a deeper unwillingness to allow members of the Egyptian Bahá í community to enjoy the legal protections afforded to ordinary citizens without fear of discrimination or persecution. By importing objections unrelated to the issue under consideration, the Court again appears to have left the specific legal issues under review unresolved Interpretation of Current Text of Constitution Based on Older Versions of the Constitution Article 46 of the 1980 Egyptian Constitution reads: The State shall guarantee the freedom of belief and the freedom of practising religious rites. 26 The wording of this provision appears to grant an absolute right to religious freedom. The Constitution was in 1980 amended with a new Article 2, which reads that Islam is the Religion of the State. Arabic is its official language, and the principal source of legislation is Islamic Jurisprudence (Shari a). 27 This amendment entered into force following intense debate despite its apparent vagueness in view of ongoing differences as to what constitutes Islamic Shari a is and its role as the principle source of legislation. 28 As an example, in one of its early cases dealing with the Article 2 provision, the Egyptian Constitutional Court held that one of the fundamental principles of Islam is that no law should create hardship for people. 29 This principle was derived from an interpretation of Qur an verse 5:6, which reads Allah does not desire to put on you any difficulty. 30 As part of its ruling, the Supreme Administrative Court examined the interpretation of Article 46 of the Constitution by looking at the travaux préparatoires. In an earlier version of the 26 Egypt Constitution of 22 May 1980, Article 46, URL: The translated text of this provision on the Egyptian government s website reads rights instead of rites, but see for correct version of this provision: 27 Ibid. 28 C.B. Lombardi, Islamic Law as a Source of Constitutional Law in Egypt: The Constitutionalization of the Sharia in a Modern Arab State, (1998) 37 Columbia Journal of Transnational Law 81, at Ibid., at M.H. Shakir (translator), The Qur an, Translation (2001). 11/17/2007 6

8 Constitution, former Articles 12 and 13 were dedicated to the freedom of religion. Article 12 stipulated the freedom as enshrined in the current Article 46, while Article 13 formulated a restriction thereto, namely that the state protects the freedom of practicing religious rites on the condition that they do not violate the public order or morals. The court went on to conclude from this analysis: the religious rites that needed to be protected were those of the recognized religion, namely the three heavenly religions: Islam, Christianity and Judaism. It was then decided to confine the provision to the protection of these religions so that there will be no possibility to create another religion. 31 In the later Constitutions of 1956, 1958 and 1964, former Articles 12 and 13 were combined into one provision, to read: 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. 32 The present Constitution amended the provision further by retaining only the first part, namely: The State shall guarantee the freedom of belief and the freedom of practising religious rights. 33 The legal principle of expressio unius est exclusio alterius provides that the terms excluded from a law must be considered as excluded intentionally. 34 Therefore, by changing the Constitution to its current form, an ordinary reading would indicate a legislative intent to delete the part concerning restrictions on religious freedom and rites. The Supreme Administrative Court, in contradiction to this principle, interpreted Article 46 of the Constitution as if no changes had been made to it. In particular, it held: As to the freedom of practicing religious rites, this has the limitations that were explicitly mentioned in the 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. But, the religions whose rites are protected by this provision, as deduced from the travaux préparatoirs [sic] of Articles 12 and 13 of the Constitution of 1923, the origin of all the provisions that appeared in the successive Egyptian constitutions, including Article 46 of the present constitution, are the three heavenly religions: Islam Christianity and Judaism. 35 By interpreting Article 46 of the Constitution in light of the older versions of the Constitution, the Court violated the principle of expressio unius est exclusio alterius. Although the legislature amended the Constitution in order to broaden the provision on religious freedom, the Court based its legal reasoning on superseded texts in order to interpret the extant provisions Judgment Pays No Attention to Human Rights Claims 31 See the judgment, supra note Ibid. 33 See Egypt Constitution, supra note See S.H. Gifis, Dictionary of Legal Terms (1998), See the judgment, supra note 3. 11/17/2007 7

9 The applicants had based their claims both on the Constitution as well as on the Universal Declaration of Human Rights (UDHR). 36 Whilst a large part of the judgment is spent on explaining the Court s constitutional interpretation, scant attention is paid to the applicants claim to a violation of their human rights under international law, in particular the UDHR. 37 This section will analyse Egypt s obligations under international law, which the State Council failed to recognize in its judgment of December Law No. 94 of 2003 established the National Council for Human Rights of Egypt. 38 A summary of this agency s annual report spells out the progress made by Egypt s recent contributions to the development of international human rights: 39 throughout its recent history, Egypt has participated with the international community in its efforts to crystallize and establish the principles of fundamental human rights and freedoms. ( ) Egypt has joined the global march of the international movement of human rights towards its transformation into international legitimacy, and in the drafting of the principles of fundamental human rights and freedoms, set forth in the Universal Declaration of Human Rights, into binding international legal rules. 40 The reasoning applied by the Court calls this statement into serious doubt. In particular, several provisions of the UDHR and the International Convention on Civil and Political Rights (ICCPR) 41 appear to have been violated by the decision Freedom of Religious Belief Article 18 of the UDHR provides that: 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. This right is echoed in Article 18 of the ICCPR, which additionally provides for the right to have a religion or belief of one s choice: Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. 2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice. 36 Adopted and proclaimed by General Assembly resolution 217 A (III) of 10 December 1948, to which Egypt was a co-signatory. 37 The only reference the judgment makes to the UDHR, is when it refers to the judicial interpretation of 1975 of Law 263 of 1960, which dissolved all existing Bahá í Assemblies and centres in the country and forbidding individuals, establishments or bodies to undertake activities. 38 The National Council for Human Rights website can be found at URL: 39 See for the summary of the annual report URL: see for the full report 2005/2006 URL: 40 Ibid. 41 The ICCPR was ratified by Egypt on 14 April 1982, see URL: 42 According to Article 4(2) of the ICCPR, Article 18, freedom of religion, cannot be derogated from. 11/17/2007 8

10 3. Freedom to manifest one s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. ( ) In 2002 the United Nations Human Rights Committee, the treaty monitoring body of the ICCPR, called on the Egyptian Government to address discrimination against Bahá í Egyptians in accordance with the convention. The UN Special Rapporteur on Freedom of Religion or Belief also raised the problem of the Bahá ís failure to obtain necessary official documents and the resulting consequences on their everyday lives with the government. 43 The Human Rights Committee, concluded with regard to the religious freedom of the Bahá ís in Egypt: 44 The Committee is concerned about infringements of the right to freedom of religion or belief. (a) The Committee deplores the ban on worship imposed on the Bahai community. (b) The Committee is also concerned at the pressures applied to the judiciary by extremists claiming to represent Islam, who have even succeeded, in some cases, in imposing on courts their own interpretation of the religion (articles 14, 18 and 19 of the Covenant). The State party must see to it that its legislation and practice are consistent with article 18 of the Covenant as regards the rights of the Bahai community and reinforce its legislation, in particular Act No. 3 of 1996, to make it consistent with articles 14, 18 and 19 of the Covenant. The Courts s creative interpretation of its international legal obligations, namely that freedom of religion only applies to the three heavenly religions mentioned in the Qur an, cannot be accepted as a valid argument from a legal perspective. Moreover, the international human rights provisions not only refer to religion but also to freedom belief and conscience, therefore a broader category than just religion. Forcing citizens to indicate that they adhere to either Islam, Christianity or Judaism is also in direct breach of the ICCPR provision that [n]o one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice. Egypt, therefore, would appear to be in violation of its international obligation to safeguard its citizens right to freedom of religion or belief, thought or conscience. Article 18(2) of the ICCPR seems directly derived from the Qur an; verse 2:256 reads: There is no compulsion in religion Protection against Discrimination Article 7 of the UDHR provides: All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such 43 See EIPR, supra note Concluding observations of the Human Rights Committee: Egypt, 28 November 2002, Doc. No. CCPR/CO/76/EGY, para. 17, can be found at URL: 11/17/2007 9

11 discrimination. Article 2 of the UDHR, insofar relevant, endows every citizen the rights enshrined in the Declaration: Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. ( ) Article 26 of the ICCPR reads: All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. The anti-discrimination provisions in these international instruments are unambiguous: no form of discrimination, on any ground, is permitted. The Court s reinterpretation of Article 46 of the Constitution leads to non-permissible discrimination of persons adhering to another religion than Islam, Christianity and Judaism, or to no religion at all, since the consequence is that they cannot carry the ID cards which are indispensable for access basic public services such as education and medical care. This leads to a further violation of Article 21(2) of the UDHR, which provides that [e]veryone has the right of equal access to public service in his country Protection of Public Order In the last section of the judgment, the Supreme Administrative Court indicates that mentioning of other religions than the three heavenly religions is not allowed, and that [t]his is established on the grounds that the legal provisions that regulate all these issues are considered part of the legal order. Two counter arguments can be advanced in this respect. In the first place, would it not be conducive to public order to ensure that all citizens are duly registered? By excluding the Bahá ís and other citizens not adhering to the Islam, Christianity or Judaism, the government excludes them from proper registration, thus creating a situation where people will try to avoid registration. This is of course not furthering public order. 45 In the second place, the Bahá í Faith encourages obedience to the government. Abdu l-bahá, the son of the founder of the Bahá í Faith, indicates: We must obey and be the well-wishers of the governments of the land, regard disloyalty unto a just king as disloyalty to God Himself and wishing evil to the government a transgression of the Cause of God. 46 At another time, Abdu l-bahá says: Let them willingly subject themselves to every just king, and to every generous ruler be good citizens. Let them obey the government and not meddle in political affairs, but devote themselves to the betterment of character and behaviour, and fix their gaze 45 See for this argument Seeking Justice, a personal blog examining the situation of the Baha is of Egypt, URL: 46 Abdu l-bahá, Bahá í World Faith (1971), /17/

12 upon the Light of the world. 47 Also, the Bahá ís have always accepted the ban on their organisation, as the religious writings tell them to follow the laws of the land. 48 Therefore, there is no reason to believe that allowing the Bahá ís to have their religious affiliation indicated on their ID cards, or to leave them blank, would lead to a disruption of the public order of any kind, neither has such argument been substantiated in the judgment of December Conclusion The short analysis above of the Egyptian Supreme Administrative Court s judgment of 16 December 2006 has shown the flaws in its interpretation of the legal rights to which all Egyptian citizens are entitled under the country s Constitution, and its failure to respond to the international human rights claims raised by the applicants. Despite its claims to the contrary, the case before the Court was not about the Egyptian government s official recognition of the Bahá í Faith. Rather, it centred on how Egyptian Bahá ís, who are under the same obligation as all other Egyptian citizens to obtain government-issued ID cards, can do so without being falsely identified on these documents. At the same time, a Bahá í who falsely declares his or her religion, besides its moral implications, risks committing a punishable offence by the penal code. The paradox created by the situation appears to have been lost on the Court: that the Bahá ís are being forced by the legal authorities to commit a crime by making a fraudulent statement as to their religious affiliation or else face not having an ID card at all, which is itself punishable. In view of the foregoing, the Egyptian government would appear to bear the burden of establishing procedures to enable Bahá í citizens to obtain official identity documents in a manner that does not require them to misrepresent their religious affiliation. To do otherwise would be to deny civil rights to its citizens on the basis of their personal beliefs. As things stand, one could conclude that the Supreme Administrative Court s judgment has led to hardship, a violation of one of the most fundamental principles of Shari a, as derived from the Qur an s verse Allah does not desire to put on you any difficulty. 49 Egypt s election to the newly formed Human Rights Council may make it difficult to take action on this issue arising from this case in the Council s deliberation, but it may also make the authorities more vulnerable to international criticism. The issue, however, has implications far beyond the immediate impact it has on the members of the Bahá í community. Over the past few months, over 400 articles have been published in the press, on radio and in conferences, discussing the renewed debate on religious freedom in Egypt. 50 As Kifayah, (Enough), a group of civil society organisations, journalists, writers, artists and academics in Egypt, issued a statement on 13 May 2006, i.e. after the case had been decided at the first level, noted with alarm: We confirm that this is not a case of the followers of the Bahá í denomination only, it is the case of all minorities and faiths that are suffering from discrimination in Egyptian society for decades. ( ) Our attitude springs from a deep belief that calls for 47 Abdu l-bahá, Selections from the Writings of Abdu l-bahá (1982), See Pink, supra note 18, at See The Qur an, supra note 30; see Lombardi, supra note 28, at See Bourque, supra note 4, at /17/

13 constitutional and political reform cannot be separated from demands for the guarantee of freedom of belief and expression equally for every citizen, regardless of their religion, ethnicity, gender or color, otherwise, reform would become merely ink on paper and lose all meaning. Today, the followers of a small denomination are sacrificed to fanaticism, but whose turn will it be tomorrow ( ) if we be silent now? The Situation of the Bahá í Community in Egypt: Update May 2007, URL: 11/17/