Judicial Report Recommends Supreme Admin Court Uphold Muslim Women's Right to Wear Niqab
The Egyptian Initiative for Personal Rights (EIPR) today welcomed the report of the State Commissioners Authority (Hay'at Qadaaya Al Dawla), presented to the Supreme Administrative Court (SAD) yesterday, 11 November. The advisory report found that preventing women from wearing the niqab, or face-covering veil, in public violated their rights to personal freedom, freedom of belief and non-discrimination.
The law makes it mandatory for administrative courts to seek the views of the State Commissioners Authority before reaching a decision on any lawsuit. While these reports are not binding, courts often follow their recommendations in their final decisions.
"The Supreme Administrative Court is clearly moving towards setting a legal precedent protecting women who choose to wear the niqab from discrimination," said Hossam Bahgat, director of the EIPR. "This report could not have come at a better time, given the ongoing debate over denying access to female university students wearing the niqab."
The report, authored by Deputy Chief of the State's Council Abdel-Qader Qandil, addresses appeal number 3219/48, which was filed by the President of the American University in Cairo (AUC) to challenge a decision by the Court of Administrative Justice five years ago. The lower court's decision had annulled a decision issued by the AUC prohibiting female students wearing the niqab from entering campus libraries, classrooms and laboratories on "security grounds".
The report recommends that the ban on the niqab be revoked on constitutional grounds. Specifically, Article 41 of the Constitution, according to the report, "prohibits discrimination against citizens on a number of grounds including religion or belief; a Muslim woman's niqab is linked to her religious beliefs." The report likewise invoked Article 41 of the Constitution "which holds personal freedom as a natural, sacrosanct and inviolable right; a woman's dress, which protects and covers her body, is a pillar of personal freedom, as dress is intimately linked to a person's body… and falls under the rubric of bodily freedom."
The report dismissed AUC's claim that, as a private institution, it was not bound to comply with Egyptian laws or submit to the State's regulatory authority. The report also dismissed AUC's argument that security requirements justified its discriminatory policy against women wearing the niqab, reaffirming the principles of necessity and proportionality in balancing security concerns and constitutional rights. "In this respect, it shall suffice for a female employee to ascertain the identity of the niqab-wearing student … thereby achieving the balance between university requirements and the veiled student's rights to freedom of belief and personal freedom," the report said.
In another significant point, the report reemphasized the Higher Education Minister's duty to revoke the ban on wearing the niqab on campus. The report added that barring female students wearing the niqab from entering universities "constitutes a direct breach of the right to education, guaranteed by the Constitution for all citizens without discrimination."
"The report's reaffirmation of the Higher Education Minister's duty to prevent discrimination against female students who choose to wear the niqab sends a powerful message to Minister Hani Helal, who has lately issued a spate of statements in support of university presidents' right to deny access as they wish to niqab-wearing students," said Bahgat.
The issue of public institutions' right to ban the wearing of the niqab was referred to the SAD's Chamber for the Unification of Principles last January. The referral was prompted by the apparent conflict between a SAD's decision in 1999 upholding the right of Mansura University President to deny entry to female niqab-wearing students, and nine earlier decisions issued since 1989 by the same court affirming women's right to wear the niqab on campus. The Chamber adjourned the hearing to 9 December to grant both parties the opportunity to submit responses to the State Commissioners Authority's report.
The EIPR had intervened before the SAD in February 2005 in order to underline the protections afforded by both the Constitution and international law for women to choose their dress code and express their religious beliefs without interference or discrimination.