On March 24, 2014, Bilal Badr, single judge in the southern Lebanese town of Jwaya, issued a ruling that gave a 27-year-old woman permission to change her given first name for a new name she had chosen. She argued that her old given name did not reflect reality anymore because her family and friends had started calling her by her new name four years before she submitted her request to the court. From the text of her request, it appeared that she had asked those around her to call her by the new name because her original name explicitly referred to a particular religious denomination. As a result, she wanted to distance herself from that and change everything that could indicate her sect or religion. She had already removed all references to her sect in official records, in line with this wish.

The Badr ruling includes several sections that explain the motives for her decision. It says that “through her experience of living in Lebanon and observing the conflicts among sects, which have sometimes took on a violent form (iqtital), [she reached the conclusion] that belonging to a particular religion or sect served no useful purpose”. The ruling added that “she considers herself a secular woman who does not wish to belong to any sect, neither in name nor by creed”. She is further “dissatisfied with the reality of sects and religions in Lebanon,” even though “she does believe in the existence of God”.

Her petition was therefore an extension of her earlier struggles to assert the identity she wanted over the identity she had inherited. She had already succeeded in emancipating herself from her affiliation to her father's sect in official records, and now she was trying to emancipate herself legally from a name that reflected the identity that her parents wished to impose on her when she was born. She had already succeeded in persuading those around her to recognize her right to define her new identity. In this respect, the ruling represents a fundamental development in the right of individuals to emancipate themselves from their sectarian identity, above and beyond the major progress that has already been made on the question of eliminating any mention of sectarian affiliation in [official] records, and on the question of civil marriage contracts in Lebanon.

In order to determine the course of the ruling, the judge discussed three questions in several passages, based on legal rulings and on the general principles governing name changes- in particular, Article 21 of the decree issued on January 15, 1932. The latter stipulates that a name may not be altered unless a correction is ordered by the relevant court. The justification for distinguishing between a name change and changes in other entries in official records, such as profession, sect, religion or place of residence -which can be made simply by bureaucratic procedure- is that restricting name changes in this way prevents the disruption of social and financial relations, and prevents harm to others.

The first question that Judge Badr addressed was how to interpret the concept of 'correction' that appears in Article 21 of the 1932 decree. Drawing on rulings by the Court of Cassation, Badr was able to expand the scope of applying the concept [of correction] to include cases that go beyond those of merely factual error. According to those [Court of Cassation] rulings, a name can be corrected to bring it in line with reality, “because it is erroneous, regardless of the source of or reason for the error”. Furthermore, “in other words, the criterion is whether the record reflects reality”[1] or “in certain cases, where no registration mistake was made but the name causes its holder grave psychological harm, or subjects the holder to contempt or ridicule by other members of society”.[2]

Based on these rulings, Badr concluded that the name change request submitted to him fell in principle under the concept of correction found in Article 21 of the 1932 decree. For it was established that the plaintiff's actual and real name, the name by which she is known now and was known by for the four years prior to submitting her request, was Dana. This meant that the name in her official papers, Zeinab, “did not reflect reality”.

A first appraisal of the ruling shows that Badr's decision to accept the request relied on the plaintiff's success in showing that people around her were responsive to her wishes, and that otherwise, he would not have consented to the change. It is as if Badr were declaring that the name change had already taken place in practice, and not due to his decision to approve of it. Such a position could reduce the likelihood that other similar requests would be accepted.

On the other hand, it is worth noting that the reality confirmed by the judge was a product of the plaintiff’s will, not of factors beyond her control. This indicates that Badr was inclined to interpret the concept of name 'correction' in a way that gives some scope for individual volition, even if that volition is indecisive or inadequate. This reading is corroborated by the fact that he was lenient about verification of the facts. He did not specify any further inquiries beyond those undertaken by the General Directorate of Public Security, which looked at the reasons for the name change but did not address the extent to which the woman's family and friends used her new name.

The second question that the ruling addressed was the extent to which the request might be incompatible with the principles of public order. The judge was able to address this question by considering the arguments put forward by the organizers of the campaign for the right to eliminate any mention of sect in official records,[3] and subsequently, by the Legislation and Consultations Committee in the Justice Ministry.[4] He also based his ruling on the Arab Charter on Human Rights.

The ruling is important in several respects. First, it reaffirms the absolute right to freedom of belief, following the example of several rulings issued in the past by a number of courts.[5] Freedom of belief thereby includes the possibility of embracing or not embracing a certain belief, even if that belief is not one of the officially recognized religions. The State Council has confirmed this in several recent rulings.[6]

Second, it is the first court ruling that states that freedom of belief also includes the freedom to express that belief, whether overtly or otherwise. That is, the freedom asserted by those who requested that their sect be removed from their official papers. The ruling goes as far as saying that deciding not to make public one's religious affiliation is a right guaranteed by the Lebanese Constitution, derived from the freedom to perform religious rites, which is enshrined in Article 9 of the Constitution. In an important passage, the ruling considers that a change in the state of affairs takes place for legitimate reasons as long as it is based on a desire that is legitimate and guaranteed by freedom of belief.

The ruling addressed this question by asking whether the name change that had in fact taken place was legitimate (that is, whether the new reality was legitimate), and not by asking whether the plaintiff had a legitimate right to change her name. This confirms what was stated earlier – that the court preferred to examine the question of whether the request was sound by looking at it as a correction that recognized a state of affairs that had already changed, rather than as an attempt to change reality.

This also reflects the fact that the judge was cautious to restrict the right to change one's name to those who had shown a long-standing and deep-seated desire to do so, in a way that had proved effective in their immediate environment and that had brought about a new reality. This could be interpreted as an attempt by the judge to balance the requirements of freedom of belief against the need to keep stable and credible official records, and to further prevent any damage to social or financial relationships or any harm to others or to the public interest. It is therefore linked to the third question that the ruling addressed – the effects the name change would have on others. The judge ended up handling this on the basis of the new state of affairs, which in fact required changing the name that was registered, rather than preserve the original one. This was done in order to ensure that the record was correct and in line with reality.

Indeed, this judicial attitude raises legitimate questions about whether it might develop in the future in the direction of recognizing more freedom for individuals to change their names, and consequently, to ascertain the identity they choose over the one imposed on them by birth, regardless of any change in the way they are already addressed. Doesn't the link that this ruling makes between the desire to change one's name and the right to freedom of belief, and hence the totality of individual freedoms, pave the way for Article 21 to be circumvented judicially, if not by legislation, on the basis of general principles or international conventions? This tendency is reinforced by certain judicial rulings that have stated that freedom of expression, in speech and in writing, as enshrined in Article 13 of the Constitution, includes the right to choose the name by which one is known among one's peers, by asking them to address one by that name or to deal with one on that basis.[7]

Regardless of the direction in which this trend evolves in the future, the ruling certainly provides another indication that the human rights battle to emancipate people from their sectarian identities is escalating and expanding into new forms and new arenas, most notably, the judiciary. The fact that the judge took care to make acceptance of the plaintiff's request conditional on her success in winning recognition from those around her, could lead to unexpected developments in this battle. Activists who now demand to exercise their rights regardless of what others want may change into social agents who try to win over those around them, at least on some issues, in order to legitimize their demands for what they want.

Incidentally, the same judge ruled on February 11, 2014, that a family's name should be changed from Abd Ali to Abd al-Ali on the grounds that the original name, by suggesting worship of a human being, Ali, rather than God (one of whose names is al-Ali), was contrary to the family's religious belief. When the two rulings are taken together, it seems that in this area of law, the court is committed to respect the right of individuals to shape their own identities and to make them public according to the beliefs they deem appropriate, through a legal approach in which no one belief prevails over any other.

Click here to read the text of the ruling

This article is an edited translation from Arabic.

 

[1] Rulings issued on July 9, 2002, June 29, 2004, and February 28, 2007, by the fifth chamber of the Court of Cassation, published in the Cassander online encyclopedia.

[2] A ruling issued on October 27, 1988, by the Mount Lebanon Appeals Court, published in the Compendium of Judge Afif Shamseddine, under inheritance and personal status cases, Beirut 1996, page 466; and the ruling issued on July 26, 1989, by the Nabatieh Appeals Court, idem, page 470.

[3] The writer Talal al-Husseini wrote the text, and a number of young people submitted it in April 2007 to make clear that they rejected sectarianism.

[4] The committee gave its opinion on July 5, 2007.

[5] See Nizar Saghieh’s: Judge al-Khatib, Hizb al-Tahrir and Article 9 of the Constitution – “Free to Believe or Not Believe in the Caliphate”, The Legal Agenda, Issue No. 4, dated January 24, 2012.

[6] See Ghida Frangieh’s: “The State Council Sacrifices Basic Freedoms on the Altar of the System”, The Legal Agenda, Issue No. 9, 2013.

[7] Ruling issued on June 19, 1967 by the third chamber of the Court of Cassation, published in the Compendium of Judge Afif Shamseddin.