CASE
LAW: Rights in Marriage – Müller and Engelhard v.
Namibia
Human
Rights Committee
Müller and Engelhard v. Namibia
Communication No. 919/2000
26 March 2002
CCPR/C/74/D/919/2000
VIEWS
Submitted
by: Mr. Michael Andreas Müller and Imke Engelhard, (represented
by The Legal Assistance Centre, by Mr. Clinton Light)
State party: Namibia
Date of registered communication: 29 October 1999 (initial submission)
The Human Rights
Committee, established under article 28 of the International
Covenant on Civil and Political Rights,
Meeting on 26 March 2002,
Having concluded its consideration of communication No. 919/2000,
submitted to the Human Rights Committee by Mr. Michael Andreas
Müller and Imke Engelhard, under the Optional Protocol
to the International Covenant on Civil and Political Rights,
Having taken into account all written information made available
to it by the author of the communication, and the State party,
Adopts the following:
Views
under article 5, paragraph 4, of the Optional Protocol
1. The authors of
the communication, dated 8 November 1999, are Mr. Michael Andreas
Müller (hereinafter called Mr. Müller), a German citizen,
born on 7 July 1962, and Imke Engelhard (hereinafter called
Ms. Engelhard), a Namibian citizen, born on 16 March 1965, who
claim to be victims of a violation by Namibia[1] of articles
26, 23 paragraph 4, and 17, paragraph 1, of the International
Covenant on Civil and Political Rights (the Covenant). They
are represented by counsel.
The
facts as submitted by the author
2.1Mr. Müller,
a jewellery maker, came to Namibia in July 1995 as a visitor,
but was so taken up with the country that he decided to settle
in the city of Swakopmund. He started to work for Engelhard
Design, a jewellery manufacturer since 1993, owned by Ms. Engelhard.
The authors married on 25 October 1996. Before getting married,
they sought legal advice concerning the possibility of adopting
Ms. Engelhard’s surname. A legal practitioner informed
them that this was possible. After the marriage, they returned
to the same legal practitioner to complete the formalities to
change the surname. They were then informed that whereas a wife
could assume her husband’s surname without any formalities,
a husband would have to apply to change his surname.
2.2 The Aliens Act
No. 1 of 1937 (hereinafter named the Aliens Act) Section 9,
paragraph 1 as amended by Proclamation A.G. No. 15 of 1989,
states that it is an offence to assume another surname than
a person has assumed, described himself, or passed before 1937,
without the authorisation by the Administrator General or an
officer in the Government Service, and such authority has been
published in the Official Gazette, or unless one of the listed
exceptions apply. The listed exception in the Aliens Act Section
9, paragraph 1 (a), is when a woman on her marriage assumes
the surname of her husband. Mr. Müller submits that the
said section infringes his rights under the Namibian Constitution
to equality before the law and freedom from discrimination on
the grounds of sex (article 10), his and his family’s
right to privacy (article 13, paragraph 1), his right to equality
as to marriage and during the marriage (article 14 paragraph
1), and his right to have adequate protection of his family
life by the State party (article 14 paragraph 3).
2.3 Mr. Müller
further submits that there are numerous reasons for his wife’s
and his own desire that he assumes the surname of Ms. Engelhard.
He contends that his surname, Müller, is extremely common
in Germany, and exemplifies this by explaining that the phonebook
in Munich were he comes from, contained several pages of the
surname Müller, and that there were 11 Michael Müller
alone in the phonebook for Munich. He contends that Engelhard
is a far more unusual surname, and that the name is important
to his wife and him because their business has established a
reputation under the name Engelhard Design. It would be unwise
to change the name to Müller Design because the surname
is not distinctive. It is likewise important that jewellery
manufacturers trade under a surname because the use of one’s
surname implies that one takes pride in one’s work, and
customers believe that it ensures a higher quality of workmanship.
Mr. Müller submits that if he were to continue to use his
surname, and his wife were to continue to use hers, customers
and suppliers would assume that he was an employee. Mr. Müller
and his wife also have a daughter who has been registered under
the surname of Engelhard, and Mr. Müller would like to
have the same surname as his daughter to avoid exposing her
to unkind remarks about him not being the father.
2.4 Mr. Müller
filed a complaint to the High Court of Namibia on 10 July 1997,
alleging that Section 9, paragraph 1 of the Aliens Act was invalid
because it conflicted with the Constitution with regard to the
right to equality before the law and freedom from discrimination,
the right to privacy, the right to equality as to marriage and
during the marriage, and with regard to the right to family
life.
2.5 Ms. Engelhard
filed an affidavit with her husband’s complaint, in which
she stated that she supported the complaint and that she also
wanted the joint family surname to be Engelhard rather than
Müller, for the reasons given by her husband. The case
was dismissed with costs on 15 May 1998.
2.6 Mr. Müller’s
appeal to the Supreme Court of Namibia was dismissed with costs
on 21 May 1999. The Supreme Court being the highest court of
appeal in Namibia, the authors submit that they have exhausted
domestic remedies.
The
Complaint
3.1 Mr. Müller
claims that he is the victim of a violation of article 26 of
the Covenant, as the Aliens Act Section 9, paragraph 1 (a) prevents
Mr. Müller from assuming his wife’s surname without
following a described procedure of application to a government
service, whereas women wanting to assume their husbands’
surname may do so without following this procedure. Likewise,
Ms. Engelhard claims that her surname may not be used as the
family surname without complying with these same procedures,
in violation of article 26. They submit that this section of
the law clearly differentiates in a discriminatory way between
men and women, in that women automatically may assume the surnames
of their husbands on marriage, whereas men have to go through
specified procedures of application. The procedure for a man
wanting to assume his wife’s surname requires that:
(i) he must publish,
in two consecutive editions of the Official Gazette and two
daily newspapers in a prescribed form, an advertisement of his
intention and reasons to change his surname, and he must pay
for these advertisements;
(ii) he must submit
a statement to the Administrator-General or an officer in the
Government Service authorised thereto by him;
(iii) the Commissioner
of Police and the magistrate of the district must furnish reports
about the author;
(iv) any objection
to the person assuming another surname must be attached to the
magistrate’s report;
(v) the Administrator-General
or an officer in the Government Service authorised thereto by
him, must on the basis of these statement and reports be satisfied
that the author is of good character and that there is sufficient
reason for his assumption of another surname;
(vi) the applicant
must pay prescribed fees and comply with such further requirements
as may be prescribed by regulation.
3.2 The authors refer
to a similar case of discrimination of the European Court of
Human Rights, Burghartz v. Switzerland.[2] In that case, the
European Court held that the objective of a joint surname reflecting
the family unity, could be reached just as effectively by adopting
the surname of the wife as the family surname, and allowing
the husband to add his surname, as by the converse arrangement.
The Court, before finding a violation of articles 14 and 8 of
the European Convention on Human Rights, also stated that there
was no genuine tradition at issue, but that in any event the
Convention must always be interpreted in the light of present
day conditions, particularly regarding the importance of the
principle of non-discrimination. The authors further refers
to the Committee’s General Comment No. 18,[3] were the
Committee explicitly stated that any distinction based on sex
is within the meaning of discrimination in article 26 of the
Covenant, and that the prohibited discrimination includes that
the content of a law should not be discriminatory. The authors
submit, that by applying the Committee’s interpretation
of article 26 of the Covenant, as stated in General Comment
No. 18, Aliens Act Section 9, paragraph 1 (a) discriminates
against both men and women.
3.3 The authors claim
that they are victims of a violation of article 23, paragraph
4 of the Covenant, as Section 9, paragraph 1 of the Aliens Act
infringes their right to equality as to marriage and during
their marriage, by allowing a wife’s surname to be used
as the common family name only if specified formalities are
applied, whereas a husband’s surname may be used without
applying these formalities. The authors refer to the Committee’s
General Comment No. 19,[4] were the Committee notes in respect
of article 23, paragraph 4 of the Covenant, that the right of
each spouse to retain the use of his or her original family
name or to participate on an equal basis in the choice of the
family name, should be safeguarded.
3.4 The authors refer
to the jurisprudence of the Committee in the case Coeriel et
al v. the Netherlands,[5] and allege a violation of article
17, paragraph 1, in that a person’s surname constitutes
an important component of one’s identity and that the
protection against arbitrary and unlawful interference with
one’s privacy includes the protection of the right to
choose and change one’s surname.
3.5 With regard to
a remedy, the authors seek the following:
(a) a statement that the authors’ rights under the Covenant
have been violated;
(b) that Aliens Act Section 9, paragraph 1 (a) is in violation
of, in particular, articles 26, 23, paragraph 4, and 17, paragraph
1 of the Covenant;
(c) that Namibia should immediately allow Mr. Müller to
assume Ms. Engelhard’s surname without complying with
the provisions of the Aliens Act;
(d) that the respondents in the High Court of Namibia and in
the Supreme Court of Namibia should not recover costs awarded
in their favour in these courts;
(e) and that Namibia should amend the Aliens Act Section 9,
paragraph 1, to comply with its obligations under the Covenant.
The
State party’s observations on the admissibility and the
merits of the communication
4.1 By submission
of 5 June 2000, the State party made its observations on the
admissibility of the communication and by submission of 17 October
2000, it made its observations on the admissibility and the
merits.
On
admissibility
4.2 With regard to
Mr. Müller, the State party confirms that he has exhausted
domestic remedies in that his claim was brought to the High
Court of Namibia and appealed to the Supreme Court of Namibia.
However, the State party points out that the author brought
his claim directly to the courts, without complying with the
terms of the Aliens Act. The State party further contends that
the Committee has neither the power nor the authority to consider
the author’s claim of a specific remedy as in paragraph
3.5 (d) above, since the author in the national proceedings
did not claim that the Supreme Court was incompetent to award
costs, nor did he contend that Namibian laws on the award of
costs by the national courts violated the Namibian Constitution
or Namibia’s obligations under the Covenant.
4.3 With regard to
Ms. Engelhard, the State party submits that she has not exhausted
domestic remedies and has not provided any explanation for not
doing so. It is therefore contended that Ms. Engelhard’s
communication is not admissible under article 5(2)(b) of the
Optional Protocol, and the State party’s response to the
merits does not relate to her claims.
On
the merits
4.4 With regards
to the author’s claim of a violation of article 26 of
the Covenant, the State party submits that it does not dispute
that Aliens Act Section 9, paragraph 1, differentiates between
men and women. However, it is submitted that the differentiation
is reasonably justified by its object to fulfil important social,
economic and legal functions. Surnames are used to ascertain
an individual’s identity for such purposes as social security,
insurance, licenses, marriage, inheritance, voting, and being
voted for, passports, tax, and public records, and constitutes
therefore an important component of one’s identity, see
Coeriel et al v. The Netherlands. Aliens Act, Section 9 gives
effect to a long-standing tradition in the Namibian community
that the wife normally assumes the surname of her husband, and
no other husband has expressed a wish to assume his wife’s
surname since the Aliens Act entered into force in 1937. The
purpose of differentiation created by the Aliens Act was to
achieve legal security and certainty of identity, and are thereby
based upon reasonable and objective criteria.
4.5 It is further
submitted that Section 9, paragraph 1 of the Aliens Act does
not restrict Mr. Müller from assuming his wife’s
name, but provides a simple and uncomplicated procedure, which
would enable the author to fulfil his wish. The present case
distinguishes from Burghartz v. Switzerland by that the author
in that case had no remedy to assume his surname in a hyphenated
form to his wife’s surname.
4.6 The State party
contends that article 26 of the Covenant is characterised by
an element of unjust, unfair and unreasonable treatment, which
is not applicable to the author’s case, nor has it been
contended that the purpose of Aliens Act Section 9, paragraph
1 was to impair males in Namibia individually or as a group.
4.7 In response to
the author’s claim under article 23, paragraph 4 of the
Covenant, the State party contends that in accordance with this
article, and the Committee’s interpretation in General
Comment 19, Namibian law permits the author to participate on
equal basis with his spouse in choosing a new name, although
he must proceed in accordance with laid down procedures.
4.8 Regarding Mr.
Müller’s claim under article 17, paragraph 1 of the
Covenant, the State party contends that this right only protects
the author from arbitrary, meaning unreasonable and purposelessly
irrational, or unlawful interference with his privacy. Viewing
the purpose of Aliens Act Section 9, paragraph 1 as described
above, inasmuch the author may change his surname if he so wishes,
the law is not unreasonable, and does not violate the State
party’s obligations under article 17, paragraph 1.
4.9 The State party
contests the remedies sought by the author.
Comments
by the author
5.1 By submission
of 5 March 2001, the authors responded to the State party’s
observations.
5.2 Mr. Müller
does not dispute that he could have made an application to change
his surname in the terms of the Aliens Act. However, he contends
that it is the procedure required for men who wish to change
their surname, which is discriminatory. It would therefore have
been contradictory to comply with the prescribed procedure.
5.3 With regard to
the State party’s allegation that Ms. Engelhard has not
exhausted domestic
remedies, the authors submit that it would have been futile
for her to bring a claim to court separately of her husband’s
case, since her claim would not have been different from the
first claim, which the Supreme Court of Namibia dismissed. The
authors refer to the Committee’s jurisprudence, Barzhig
v. France,[6] where the Committee stated that domestic remedies
need not be exhausted if it is inevitable that the claim will
be dismissed or if a positive result is precluded by established
jurisprudence of the highest domestic court. It is further submitted
that throughout the national legal proceedings, Ms. Engelhard
had supported her husband’s application, and that, as
such, her legal and factual situation was known to the domestic
courts.
5.4 In relation to
article 26, it is submitted that once there is a differentiation
based on sex alone, there would have to be an extremely weighty
and valid reason therefor. It should be considered whether the
objectives enunciated by the State party are of sufficient importance
to justify this differentiation based on sex. It is not disputed
that a person’s surname constitutes an important component
of one’s identity, but it is submitted that, as a consequence
thereof, the equal right of partners in a marriage to choose
either surname as the family name is worthy of the highest protection.
5.5 Furthermore,
the State party’s notions of a “long-standing tradition”
does not justify the differentiation, since it only occurred
in the mid-nineteenth century, and, with reference to the European
Court decision Burghartz v. Switzerland, the interpretation
must be made in the light of present day conditions, especially
the importance of the principle of non-discrimination. To exemplify
that tradition should not support discriminatory laws and practices,
the authors refer to Apartheid as South Africa’s former
traditional approach to promulgate laws to perpetuate a racially
discriminatory process.
5.6 It is submitted
that the State party’s allegations that keeping the differentiation
in Aliens Act Section 9, paragraph 1 in the interest of public
administration and the public at large, is not a rational objective,
since this interest would not be lesser served should a couple
contracting in a marriage have the choice of which of their
surnames is to be used as their family name.
5.7 The authors contend
that the procedure set out for a man who would like to assume
his wife’s surname are not as simple as contended by the
State party, and refers to the procedure as described above
(paragraph 3.1).
5.8 The authors also
refer to the European Court of Human Rights’ decision,
Stjerna v. Finland,[7] where the Court stated that “For
the purposes of article 14 [of the European Convention on Human
Rights], a difference of treatment is discriminatory if it has
no objective and reasonable justification, that is, if it does
not pursue a legitimate aim …”, and they submit
that there is no reasonable justification for the differentiation
complained of. They contend that the Aliens Act Section 9, paragraph
1 perpetuate the “long-standing tradition” of relegating
a woman to a subservient status within marriage.
5.9 In relation to
the State party’s allegations regarding General Comment
19 on article 23 of the Covenant, it is submitted that it should
be interpreted to include not only the choice of a family surname,
but also the method in which such choice is effected. In this
connection, the authors submit that a husband’s application
to change his surname, may or may not be approved by the Minister
of Home Affairs, for example where the costs of advertising
or prescribed fees are out of reach for the applicant.
Issues
and proceedings before the Committee
6.1 Before considering
any claim contained in a communication, the Human Rights Committee
must, in accordance with rule 87 of its rules of procedure,
decide whether or not the complaint is admissible under the
Optional Protocol to the Covenant.
6.2 In relation to
all the alleged violations of the Covenant by Mr. Müller,
the Committee notes that the issues have been fully raised under
domestic procedures, and the State party has confirmed that
Mr. Müller has exhausted domestic remedies. There are therefore
no obstacles for finding the communication admissible under
the Optional Protocol article 5, paragraph 2 with regard to
Mr. Müller.
6.3 In relation to
the claims by Ms. Engelhard, the State party has contested that
domestic remedies have been exhausted. Even if Ms. Engelhard
could have pursued her claim through the Namibian court system,
together with her husband or separately, her claim, being quite
similar to Mr. Müller’s, would inevitably have been
dismissed, as Mr. Müller’s claim was dismissed by
the highest court in Namibia. The Committee has established
jurisprudence, (Barzhig v. France), that an author need not
pursue remedies that are indisputably ineffective, and concludes
therefore that Ms. Engelhard’s claims are not inadmissible
under the Optional Protocol article 5, paragraph 2. Although
the State party has abstained from commenting on the merits
of Ms. Engelhard’s claims, the Committee takes the view
that it is not precluded from examining the substance of the
case also with regard to her claims, as completely identical
legal issues concerning both authors are involved.
6.4 The Committee
has also ascertained that the same matter is not being examined
under another procedure of international investigation or settlement.
6.5 The Committee
therefore decides that the communication is admissible as far
as it may raise issues under articles 26, 23, paragraph 4, and
17, paragraph 1, of the Covenant.
6.6 The Committee
has examined the substance of the authors’ claims, in
the light of all the information made available to it by the
parties, as required by article 5, paragraph 1, of the Optional
Protocol.
6.7 With regard to
the authors’ claim under article 26 of the Covenant, the
Committee notes the fact, undisputed by the parties to the case;
that section 9, paragraph 1, of the Aliens Act differentiates
on the basis of sex, in relation to the right of male or female
persons to assume the surname of the other spouse on marriage.
The Committee reiterates its constant jurisprudence that the
right to equality before the law and to the equal protection
of the law without any discrimination does not make all differences
of treatment discriminatory. A differentiation based on reasonable
and objective criteria does not amount to prohibited discrimination
within the meaning of article 26.[8] A different treatment based
on one of the specific grounds enumerated in article 26, clause
2 of the Covenant, however, places a heavy burden on the State
party to explain the reason for the differentiation. The Committee,
therefore, has to consider whether the reasons underlying the
differentiation on the basis of gender, as embodied in section
9, paragraph 1, remove this provision from the verdict of being
discriminatory.
6.8 The Committee
notes the State party’s argument that the purpose of Aliens
Act section 9, paragraph 1, is to fulfil legitimate social and
legal aims, in particular to create legal security. The Committee
further notes the States party’s submission that the distinction
made in section 9 of the Aliens Act is based on a long-standing
tradition for women in Namibia to assume their husbands’
surname, while in practice men so far never have wished to assume
their wives’ surname; thus the law, dealing with the normal
state of affairs, is merely reflecting a generally accepted
situation in Namibian society. The unusual wish of a couple
to assume as family name the surname of the wife could easily
be taken into account by applying for a change of surname in
accordance with the procedures set out in the Aliens Act. The
Committee, however, fails to see why the sex-based approach
taken by section 9, paragraph 1, of the Aliens Act may serve
the purpose of creating legal security, since the choice of
the wife’s surname can be registered as well as the choice
of the husband’s surname. In view of the importance of
the principle of equality between men and women, the argument
of a long-standing tradition cannot be maintained as a general
justification for different treatment of men and women, which
is contrary to the Covenant. To subject the possibility of choosing
the wife’s surname as family name to stricter and much
more cumbersome conditions than the alternative (choice of husband’s
surname) cannot be judged to be reasonable; at any rate the
reason for the distinction has no sufficient importance in order
to outweigh the generally excluded gender-based approach. Accordingly,
the Committee finds that the authors have been the victims of
discrimination and violation of article 26 of the Covenant.
6.9 In the light
of the Committee’s finding that there has been a violation
of article 26 of the Covenant, the Committee considers that
it is not necessary to pronounce itself on a possible violation
of articles 17 and 23 of the Covenant.
7. The Human Rights
Committee, acting under article 5, paragraph 4, of the Optional
Protocol to the International Covenant on Civil and Political
Rights, is of the view that the facts before it disclose a violation
of article 26 of the Covenant.
8. In accordance
with article 2, paragraph 3 (a), of the Covenant, the State
party is under an obligation to provide the authors with an
effective remedy, avoiding any discrimination in the choice
of their common surname. The State party should further abstain
from enforcing the cost order of the Supreme Court or, in case
it is already enforced, to refund the respective amount of money.
9. Bearing in mind
that, by becoming a party to the Optional Protocol, the State
party has recognised the competence of the Committee to determine
whether there has been a violation of the Covenant or not and
that, pursuant to article 2 of the Covenant, the State party
has undertaken to ensure to all individuals within its territory
or subject to its jurisdiction the rights recognised in the
Covenant and to provide an effective and enforceable remedy
in case a violation has been established, the Committee wishes
to receive from the State party, within ninety days, information
about the measures taken to give effect to the Committee’s
Views. The State party is also requested to publish the Committee’s
Views.
____________
** The following
members of the Committee participated in the examination of
the present communication: Mr. Abdelfattah Amor, Mr. Nisuke
Ando, Ms. Christine Chanet, Mr. Maurice Glèlè
Ahanhanzo, Mr. Louis Henkin, Mr. Ahmed Tawfik Khalil, Mr. Eckart
Klein, Mr. David Kretzmer, Mr. Rajsoomer Lallah, Ms. Cecilia
Medina Quiroga, Mr. Rafael Rivas Posada, Sir Nigel Rodley, Mr.
Martin Scheinin, Mr. Ivan Shearer, Mr. Hipólito Solari
Yrigoyen, Mr. Patrick Vella and Mr. Maxwell Yalden.
Notes
[1] The Optional Protocol entered into force for Namibia
on 28 November 1994 by accession.
[2] See European Court of Human Rights, judgement A280-B of
22 February 1994.
[3] See General Comment No. 18 of 10 November 1989, para. 7
and 12.
[4] See General Comment No. 19 of 27 July 1990, para. 7.
[5] See Views in Case No. 453/1991 of 31 October 1994.
[6] See Views in Case No. 327/1988 of 11 April 1991.
[7] See European Court of Human Rights, judgement A299B of 25
November 1994, para. 48.
[8] See Views Danning v. The Netherlands, Case No. 180/1984.
