Sunday, September 30, 2012

The Case of the Baha'is in Egypt: a scholarly legal essay

Here is another well-researched legal brief on the case of the Baha'is in Egypt that explores their history in that land, their trials and tribulations, and their current struggle in post-Mubarak Egypt.

This article was written by Naseem Kourosh and appeared in the International Law News Volume 41, Number 3, Summer 2012, a publication of the American Bar Association (ABA). It is posted here with the permission of the author.

A Cold Winter in North Africa:The Case of the Bahá’ís in Egypt
By Naseem Kourosh

For Egypt’s tiny Bahá’í community, the coming winter may be an especially cold one. The Bahá’í Faith is an independent religion with an estimated 500 to 2,000 followers in Egypt, many of whom have faced significant discrimination in recent years. In early 2011, many expected that the Arab Spring, blooming most visibly in Egypt, would usher in a new era in the region. However, more than a year on, amidst fears that Spring in the Middle East may be turning frosty, the status of Egypt’s Bahá’í community provides an important if unflattering metric of the progress of Egyptian society towards freedom, democracy, and human rights.

The History of Egypt’s Bahá’í Community
The Bahá’í community in Egypt was established in the mid-1800s and, with a few notable exceptions, developed largely undisturbed for nearly a century. However, in 1960, the government issued Presidential Decree 263, which dissolved all Bahá’í institutions, seized all Bahá’í properties, and made engaging in public Bahá’í activities a criminal act punishable by imprisonment. In subsequent years, several dozen Bahá’ís were arrested and detained on the basis of the law, though none were ever found guilty.

While Article 40 of the 1971 Egyptian Constitution protects equal rights and prohibits religious discrimination, and Article 46 guarantees freedom of belief and freedom to practice religious rites, the legal status of Bahá’ís in Egypt has never been deemed equal to that of Muslims, not only because of the 1960 Presidential Decree, but also because of two important structural issues.

First, in the Egyptian legal system, matters of personal status are governed not by civil law, but by religious law— specifically the family law systems of the only three staterecognized religions: Christianity, Judaism, and Islam. Because Bahá’í law is not recognized and Islam is the official state religion, personal status for Bahá’ís has often been determined according to shari’a (Islamic family law), which does not recognize Bahá’í family relationships, or fatwas (Islamic judicial rulings), many of which are hostile to the Bahá’í Faith. Indeed, at least 15 fatwas have declared the Bahá’í Faith to be heresy and blasphemy. In 2003, the Islamic Research Center of Al-Azhar University—one of the oldest and most respected centers of Islamic learning in the world—issued a fatwa stating that Bahá’ís are apostates and that the Bahá’í Faith is a “lethal spiritual epidemic” that the state must “annihilate.”

As a result of the nonrecognition of Bahá’í family law and the influence of anti-Bahá’í fatwas, Bahá’ís are not accorded equal treatment under the law: Bahá’í marriages are not recognized, Bahá’í children are regarded as illegitimate, and Bahá’ís have no means of controlling matters such as family allowances, pensions, inheritance, divorce, alimony, and custody of children.

Second, the free exercise of religion has traditionally been permitted only insofar as it has not been deemed to disturb public order and good morals—both of which have historically been defined according to Muslim clerics who believe that the Bahá’í Faith inherently violates public order and good morals because it is heresy or apostasy against Islam. Thus, a 1975 decision of the Supreme Constitutional Court held that the constitutional freedom of belief guaranteed by the constitution protected only the Bahá’ís’ right to inwardly believe in their religion, and not their right to practice it.

The ID Card Controversy
The Egyptian government requires all citizens to possess standardized government ID cards, which are necessary for obtaining basic services. These ID cards, like other official documents, require the individual to list his or religious affiliation. Bahá’ís do not, as a matter of principle, misrepresent their religion. Thus, although the government only recognizes three “heavenly” religions—Judaism, Christianity, and Islam—Bahá’ís will generally not misidentify themselves as a member of one of these religions. Historically, this was not problematic, as Bahá’ís were permitted to write “Bahá’í” or insert a dash in the religion field of official documents. However, following the issuance of the 1960 Presidential Decree, many government officials refused to register Bahá’ís as such, and ID card registration for each Bahá’í became dependent on the actions of the particular clerk in a given government office. This led to serious inconsistencies, with Bahá’ís being variously identified as Christian, Muslim, Bahá’í, or no religion at all—or being denied ID cards altogether. In 1983, an administrative court affirmed that Bahá’ís should be allowed to list “Bahá’í” or “other” on their ID cards, but it held that a Bahá’í student who had been expelled from university for not possessing a valid ID card could still be rightfully expelled, even after receiving a valid ID card, as he was an apostate, and apostates should not be allowed to pursue education.

In 2004, the Ministry of the Interior issued Circular 49/2004, a directive that instructed government officials not to issue a new ID card or any other new government document to any individual unless she or he identified as a member of one of the three recognized state religions. Bahá’ís were explicitly denied the right to write in “other,” insert a dash, or leave the religion field blank. Bahá’ís were therefore forced to either falsely identify their religion or go without documents. Because they would not willingly misrepresent their religious identity, many Bahá’ís were unable to obtain ID cards and other official documents, which resulted in a denial of access to many essential government services. Bahá’í children were denied birth certificates and were therefore unable to attend public school or receive immunizations; Bahá’í youth and adults were denied national ID cards and were thus unable to obtain employment, attend university, obtain medical treatment at public hospitals, acquire driver’s licenses, or engage in financial transactions such as opening a bank account or acquiring title to property. Bahá’ís were also unable to obtain death certificates for deceased family members,leaving their heirs unable to legally acquire inheritance.

Soon after the policy was implemented, a Bahá’í couple, unable to obtain ID cards or register their daughters for school, challenged the 2004 policy. Represented by the Egyptian Initiative for Personal Rights (“EIPR”), an independent Cairo-based NGO, the couple obtained a favorable ruling in the Court of Administrative Justice. The court’s April 2006 ruling held that Bahá’ís must be allowed to identify their religion properly on government forms and that the government cannot deny them official documents if they do so. The Ministry of the Interior appealed the ruling, which was publicly decried by Al-Azhar and the Muslim Brotherhood, a conservative political movement. In December 2006, the Supreme Administrative Court overturned the lower court’s decision and upheld the 2004 policy, holding that only individuals identifying themselves with Islam, Christianity, or Judaism were eligible to receive government documents.

These decisions received intense media coverage in Egypt and also garnered international attention. The U.S. State Department and the U.S. Commission on International Religious Freedom noted the December ruling with concern. In a 2007 report, Human Rights Watch and EIPR documented in detail the genesis and implementation of the new government policy; the Egyptian government’s violation of its own constitution and international human rights norms, including several rights enshrined in the International Covenant on Civil and Political Rights, to which Egypt has been a state party since 1982; and the personal stories of Bahá’ís, Copts (Egyptian Orthodox Christians), converts from Islam, and others whose lives have been negatively impacted by the policy.

In 2007, a second Bahá’í couple, who were unable to obtain birth certificates for their twin daughters, challenged the policy. Once again represented by EIPR, the couple obtained another favorable ruling in the Court of Administrative Justice. The lower court’s January 2008 ruling stated that, while Bahá’ís could not list “Bahá’í” as their religion on government documents, they must be permitted to insert a dash in the religion field. In March 2009, the Supreme Administrative Court dismissed an appeal, allowing the lower court’s ruling to stand. The following month, the Ministry of the Interior implemented a new policy consistent with the court’s ruling: government officials must place a dash (–) in the religion field of official documents of citizens who show they are followers of a religion other than the three recognized by the state. In August 2009, five years after the problematic new policy was introduced, the government issued the first new ID cards to Bahá’ís with a dash in the religion field.

Bahá’ís in Post-Mubarak Egypt
Much has happened since 2009. On January 25, 2011, motivated by Tunisia’s success in ousting President Zine El Abidine Ben Ali, millions of Egyptians took to the streets, participating in an 18-day popular uprising that ultimately led to the ouster of President Hosni Mubarak. The wave of uprisings that swept the Middle East beginning with Tunisia in late 2010 and continuing through Egypt and several other Arab countries throughout 2011 was initially dubbed the Arab Spring, in reference to an anticipated renewal of freedom, democracy, and human rights throughout the Arab world as a result of the revolutions.

In the last several months, however, some commentators have rejected this label, quipping that the movement may be more aptly referred to as the Arab Winter. There has been violent, bloody, and brutal repression of uprisings in countries such as Libya, Bahrain, and Syria. And even in Egypt, where the revolution was relatively brief, largely nonviolent, and initially deemed quite successful, the year after the revolution has raised serious doubts about the democratic future of Egypt.

In this context, the future of Egypt’s Bahá’í community remains particularly uncertain. First, the 1960 Presidential Decree, which criminalizes many aspects of the practice of the Bahá’í faith, remains in effect. Second, while the 2009 accommodation with respect to ID cards was a positive development, delays and complications have arisen in the implementation of the new policy. Ultimately, Bahá’ís are still denied the right to do what members of the three staterecognized religions are able to do: truthfully list their religion on government documents. Third, Bahá’ís have been the target of recent social hostilities, including a 2009 incident that remains uninvestigated in which several Bahá’í homes in a village were vandalized and a February 2011 incident in which several Bahá’í homes in the same village were torched. Finally, and perhaps of greatest concern, there are indications that Bahá’ís may be excluded from, and perhaps even specifically targeted by, the new political order. Leaders of the Muslim Brotherhood, which won the highest number of seats in the recent parliamentary elections, have stated that they have no plans to amend Article 2 of Egypt’s current constitution when they draft its new one. Leaders of the Salafi movement, a fundamentalist group that won the second highest number of seats in the parliamentary elections, have made similar statements. Article 2 currently provides that Islam is the state religion and principles of Islamic law are the chief sources of legislation. Apparently, it will be incorporated into the new constitution. In addition, in February, Abdel Moneim alShahat, a spokesperson for the Salafi movement, publicly stated that Bahá’ís are not entitled to rights under Islam and are a threat to national security. Citing the 2003 AlAzhar fatwa, al-Shahat asserted that Bahá’ís “do not exist” by virtue of their faith and should be prosecuted for treason. Thus, at present, the legal status of Egyptian Bahá’ís does not seem likely to improve, and may in fact worsen. If there is to be a winter in Egypt, it may be a long and cold one for the Bahá’ís.

A society’s treatment of its minorities is often a barometer of its general level of freedom and equality, and its persecution of its religious minorities frequently foreshadows wider repression. Thus, those concerned about the democratic future of Egypt would do well to keep a close eye on the situation of religious minorities such as the Bahá’ís under the new régime.

Friday, September 07, 2012

Arab Spring becomes Cold Winter for Egypt's Baha'is!

Wahied Wahdat-Hagh, a Senior Fellow with the European Foundation for Democracy in Brussels, just published a clear analysis of the question of freedom and equality in the new Egypt, using the Baha'i case as an example and a barometer for what direction events have taken its governance. The entire essay, titled "A barometer for freedom and equality in Egypt: The persecution of minorities in an Islamic society is truly a barometer of the lack of freedom and equality that prevails there," is quoted below:

Can the discrimination and persecution of the Baha'is serve as a barometer for freedom in an Islamic society such as Egypt? This answer is yes.
At the beginning of August 2012, the U.S. Secretary of State Hillary Clinton addressed the human rights abuses committed against religious minorities in Egypt, remarks that were promptly rejected by Mahmoud Ghozlan, spokesman for the Egyptian Muslim Brotherhood. He accused Clinton of lying and claimed that “non-Muslims in Egypt have the same rights as Muslims”.
However, Mahmoud Ghozlan has clearly stated that the Egyptian Baha'is are forbidden from practicing their religion freely according to the Egyptian English-language newspaper, Daily News. Ghozlan erroneously assumes that theBaha'i faith “stems from Zionism”. The Baha'i faith sees itself more as a religion in favour of equality of the sexes and of all people. In addition, Baha’is support universal human rights, something that is a thorn in the side for some fundamentalist Muslims.
Persecution of the Baha'is in Egypt
There are about 2,000 members of the Baha'i faith in Egypt. This is not a large number compared to an estimated 170,000 Baha'is in the United States, 300,000 in Iran and more than two million in India. Yet the treatment of this minority is significant in gauging the freedom of other minorities in an Islamic country like Egypt.In fact, for theBaha'is the Arab Spring has turned into a cold winter – particularly in Egypt.
It is worthwhile taking a brief look at the history of the persecution of Egyptian Baha'is. Already in 1960, as a result of the so-called Presidential Decree number 263, all Baha'i institutions were dissolved and the property of the Baha'iwas confiscated. Under the decree Baha'i public activities were prosecuted and this was strictly enforced. In the sixties, dozens of Egyptian Baha'is were arrested, solely because of their religious affiliation, according to NaseemKourosh in the journal of International Law News (Volume 41, 2012).
As in the “Islamic Republic of Iran”, in Egypt not even Baha'i marriages were recognised, with tragic consequences for many families. In 1975, another law was passed that banned Baha'is from practicing their faith, even in private.
In 2003, the scientific centre of Al-Azhar University (the most important theological school of Sunni Islam) issued a fatwa against the Baha'i faith, which constituted an additional basis for discrimination and persecution of the Baha'is. It stated that the Baha'i religion was a “deadly spiritual epidemic”, which must be destroyed by the state. Even in the face of this, the Baha'is advocate peace between religions on the grounds that all religions have the same divine origin.
Egyptian identity card
In the journal of International Law News, Nasseem Kourosh highlights the fact that Baha'is do not deny their religious identity. This made it especially problematic when they had to declare a religious affiliation.
A person’s religion must be specified on Egyptian identity cards, but there are only three categories: Jew, Christian and Muslim. Those who do not want to put themselves in any of these categories are, from the point of view of the state, theoretically non-existent and must deal with myriad consequences.
Since the Presidential Decree of 1960, the Egyptian state has decreed that the Baha'is are not allowed to register as Baha'i. Therefore, if Baha'is got identity cards, they were involuntarily registered as Christians, Jews or Muslims, and sometimes atheists.
Only in 1983 did the Baha'is have permission from the Egyptian government to identify themselves either as Baha'i or “other” on their passports. However, problems remained. For example, Baha'is are considered apostates and as apostates they are not allowed to study.
In 2004 the Egyptian state withdrew permission for the Baha’is to state their faith on their identity cards. Now, when an Egyptian applies for a new identity card, he or she can only belong to one of the three recognised religions. The Baha’is were also not allowed to identify their religion as “other” or simply leave the field blank.
The problems of the Egyptian Baha'is are growing
As the Baha'is refused to deny their religion, they were no longer entitled to an identity card. This had tragic consequences. Baha'i children had no birth certificates and therefore could not attend school. They were even denied vaccinations.
Baha'i youth and adults also did not have identity cards, which meant that they could not work, could not study and could seek care in public hospitals. They also could not apply for a driving license. They were even not entitled to a death certificate if a family member passed away.
Because of this, they lost their right to inheritances. The possession of Baha'i money, goods and property thus passed into state ownership. The persecution of the Baha’is was certainly a comfortable situation for those in power.
In April 2006 Egyptian Baha'is were given the right to a religious identity, which could be officially registered in state documents. However, as the Muslim Brotherhood and Al-Azhar University protested against the government decision, it was reversed in December 2006.
In 2007, several human rights organisations denounced the situation in Egypt, as well as the U.S. government in an annual report on religious freedom. So far this has had little actual effect. It’s not only the Baha’is who are negatively affected by religious prejudice, but also Copts and newly converted Christians.
It was only in August 2009 that the Baha'is were granted the right leave blank the box for religious affiliation on their identity cards. This was a step forward as they could now apply for passports, even if their religion was not registered and was only denoted with a hyphen.
With the “Arab Spring”, the situation of the Baha'is has not improved. In fact, the opposite is true. The “Arab Spring” that began in Tunisia and toppled Egyptian President Hosni Mubarak does not seem to be bringing democracy and human rights to the region. Especially considering the bloody chaos and violence in Libya, Bahrain, Syria, and also Egypt, it can be surmised that positive developments in the Arab world are unlikely in the medium-term.
The situation of members of the Baha'i religion in Egypt is indeed a litmus test for the overall development of an Islamic society such as Egypt’s.
As Nassim Kourosh notes, the positive steps forward in 2009 regarding the treatment of Baha'is are currently being rolled back. In the “Arab Spring” that is rapidly turning into a winter, the Baha’is are still not being treated equally alongside members of the other three religions. As far as the “Arab Spring” is concerned, civil rights are non-existent.
Attacks and arson
If the State acts as an ideological arsonist, one need not wonder whether the citizens of such a state will become arsonists themselves. In Egypt, an increase in attacks on the Baha'is has been recorded and in some villages, their houses have been attacked and set on fire.
The Muslim Brotherhood, who got the most votes in the general election, will not take it upon themselves to improve the situation of the Baha'is. Neither the Brotherhood nor the Salafists have any inclination to change Article 2 of the Egyptian constitution, according to which Islam is the state religion and Islamic law is to the fore.
The Salafist Abdel Moneim al-Shahat demonises the Baha'is and describes them as a “threat to national security”. This Salafist even referred to a fatwa issued by Al-Azhar University, according to which the Baha’i should be prosecuted for “high treason”.
It is very likely that the situation will deteriorate for the Egyptian Baha'is. The persecution of minorities in an Islamic society is truly a barometer of the lack of freedom and equality that prevails there.
Wahied Wahdat-Hagh is a Senior Fellow with the European Foundation for Democracy in Brussels.