A new report by EIPR: legal inconsistency in the inheritance distribution of Egyptian Christian women
The Egyptian Initiative for Personal Rights (EIPR) issued a new report entitled "Female Share - The Inheritance of Egyptian Christian Women between the Constitutional Text and Court Doctrine", authored by EIPR's lawyer, Ms. Hoda Nasrallah, and reviewed and edited by the EIPR team.
The report provides a summary of the history of legal texts regulating matters of personal status for Christians in modern Egypt. From the Delta to Upper Egypt, this report also eviews the current patterns followed by judges in dealing with the dilemma of Christian women's share in distributing inheritance. It also shows the extent of inconsistency that characterized the decisions of these courts in the absence of both a clear legal framework and a comprehensive judicial interpretation. The “Female Share” report reveals, among other matters, that Christian women in Upper Egypt and the Canal governorates are the least fortunate, as no ruling has been issued in these areas obligating the application of the principles of Christian jurisprudence in matters of inheritance, while their counterparts in Cairo and Alexandria were able to implement the principles of their Sharia and obtained their right to inherit equally with males. In addition, the report provides an example of a constitutional lawsuit submitted by EIPR seeking a constitutional ruling that recognizes these rights of equity to those entitled to them. Thus, “Female Share” presents a view of the necessary role of the supreme courts to resolve this ambiguous situation regulating the inheritance of Egyptian Christian women and the double discrimination against them in view of this ambiguity. This comes especially in light of the impossibility of appealing in the court of cassation in personal status matters, and the fact that each appellate court rules with its own vision because of the absence of a stable principle set by a higher court.
This report is also an expression of EIPR’s position of rejecting the application of certain religious provisions to followers of other religions in personal status matters, an application that prioritizes the text of the law over that of the constitution which recognizes the rights of those entitled to them. The legal recognition of an official religion, because its followers constitute the majority of the population, should not prevent other citizens from enjoying any of their rights stipulated in the Constitution and international covenants, and should not lead to a violation of the principle of citizenship and equality.
The EIPR report comes against the background of the shift represented by Article 3 in both the 2012 and 2014 constitutions in Egyptian constitutional history. The article, repeated in both texts, acknowledges for the first time, the application of laws other than Islam to the adherents of the Christian and Jewish religions in matters of their personal status. Thus, the text of Article 3 narrowed the scope of Article 2 in both constitutions, which established that Islamic Sharia is the main source of legislation, thereby excluding from its scope issues related to personal status of Egyptian Christians and Jews, who would be therein governed by principles of their own laws.
Personal status matters for Egypt’s Christians are organized by 12 regulations, the most famous of which are the Coptic Orthodox, the Coptic Catholic, and the National Evangelical ones. Although these regulations cover all personal status issues, Article 2 of the Constitution had been an obstacle to the application of all their provisions, thereby limiting their application to issues of marriage and divorce between those who share religion and sect, which court rulings considered part of the public order in Christianity.
Following the constitutional change that was settled in 2014, Egyptian Christian women rushed to demand the application of Article 3 of the Constitution in inheritance issues, especially as it is detailed in the aforementioned regulations. However, court rulings ranged between responding to their demands and insisting on applying Islamic inheritance provisions to them, which constituted double discrimination against a significant segment of Egyptian women on the basis of religion on the one hand and gender on the other. Thus, this sector is prevented from applying the principles of its own religious jurisprudence to its private life, which constitutes an explicit violation of one of the elements of freedom of religion and belief as defined by international covenants signed by Egypt. The failure of Parliament and the judiciary to implement the explicit constitutional text also results in subjecting those women to further discrimination on the grounds of gender, because a large sector of Christian men, in turn, prefer to resort to the inheritance distribution rules enshrined in the personal status laws of Muslims in Egypt, as they secure a double share of the inheritance of the deceased for males at the expense of women in most cases.
The responsibility for activating this constitutional provision lies with both the legislative and judicial authorities. By virtue of Article 224 of the Constitution, Parliament is obligated to submit a unified personal status law for Christian denominations that enforces Article 3, as part of its general obligation to issue laws that “implement the provisions of the Constitution.” However, Parliament has failed to do so for nine years, despite the frequent news of the completion of the new law in cooperation between the various churches and the Ministry of Justice, and even despite the circulation of unofficial copies of this draft. Furthermore, the absence of this legal regulation cannot be considered a license for the courts to violate an explicit constitutional text. If the constitutional text needs the law in order to be enforced, then the absence of the law does not mean that the text becomes invalid. Rather, the courts must be committed, in light of the available legislation (church regulations), to apply the constitutional principle, otherwise they would be in violation of the constitution. In the event of failure to do so, the higher courts must rise to invalidate legal texts that violate the constitution, or to interpret the constitutional text and determine the applicable legal rule without waiting for the Legislative Council to play its role.
Read the full report in Arabic, here.
The English version will be available soon.