Islamic Law and Freedom of Religion: the Case of Apostasy and Its Legal Implications in Egypt

doi 10.1515/mwjhr-2012-0007 MWJHR 2013; 10(1): 1–26

Moataz Ahmed El Fegiery* Islamic Law and Freedom of Religion: The Case of Apostasy and Its Legal Implications in Egypt

Abstract: The article analyses Egyptian jurisprudence on the issue of apostasy, with a focus on conversion from Islam to Christianity. It argues that the Egyptian judiciary has failed to develop a harmonious relationship between Islamic law and the principle of freedom of religion. It looks at how the majority of cases examined before the Egyptian judiciary reveal a continued tension between freedom of religion as defined in international human rights law and its judges’ interpretation of Islamic law as a constitutive element of public order. Recently, the Supreme Administrative Court tried to break through traditional barriers regarding the right of converts of Christian origin to record their re-affiliation to Christianity in their documents of identification, and pragmatically justified this precedent in light of the requirements of modern states, whereby identity cards should reflect the correct information of each citizen. Yet it argues that the court was not conscious of freedom of religion as a fundamental individual right, and moreover, that this precedent has not been followed with respect to converts of Islamic origin. Finally, the paper argues that, for a sustainable solution to the legal tensions concerning apostasy in Egyptian courts, a new perspective is required on the relationship between Islamic law and religious freedom whereby the universal understanding of freedom of religion can be legitimized from within Islamic legal traditions. The article also proposes a set of constitutional and legal measures to enhance freedom of religion in Egypt.

Keywords: apostasy, freedom of religion, Egypt

*Corresponding author: Moataz Ahmed El Fegiery, School of Oriental and African Studies (SOAS), University of London, London, UK, E-mail: [email protected]

Introduction

Freedom of religion in Egypt remains among the persistent human rights concerns raised by UN member states during discussion on the general situation of

Brought to you by | School of Oriental and African Studies (SOAS), University of London Authenticated | 212.219.139.72 Download Date | 8/12/13 8:29 PM 2 M.A. El Fegiery human rights in the country, within the Universal Periodic Review at the Human Rights Council.1 The subject has also been the focus of a considerable number of reports by local and international NGOs (Human Rights Watch and Egyptian Initiative for Personal Rights 2007). The main problems raised are associated with discrimination against religious minorities, the legal rights of the adherents of non-recognized religions such as the Baha’i faith, and apostasy. Freedom of thought, conscience and religion is well established in international human rights law as a principal norm of a modern democratic and pluralistic society. All international and regional human rights treaties include a provision on this fundamental right (Baderin 2005). According to the Human Rights Committee (HRC), religious freedom maintains the rights of the individual to embrace and manifest any belief or religion without restriction, which includes the right to change religious affiliation.2 Restrictions on religious freedom cannot be justified by the fact that the state recognizes one religion as its official religion.3 Baderin explains that “while the principle of religious freedom is theoretically recognized by Muslim states, the scope of its practical application is narrower than that of international human rights law” (Baderin 2008). Against this backdrop, this article examines the position of Egyptian courts on apostasy, with special focus on conversion from Islam to Christianity. I argue that the Egyptian judiciary has failed to develop a harmonious relationship between freedom of religion and Islam as an official state religion. The majority of cases examined before the State’s Council reveal a tension between the modern conception of religious freedom and judges’ interpretation of Islamic law as a constitutive element of public order in Egypt. Recently, the Supreme Administrative Court broke the traditional barriers with regard to the right of converts of Christian origin to record their re-affiliation to Christianity in their identification documents.4 The Court pragmatically justified this new precedent with the need, as a modern state, for identity cards to reflect the correct information of each citizen. However, it did not assert freedom of religion as a fundamental individual right. Moreover, this precedent has not been followed with respect to converts of Islamic origins. The article is divided into three parts: the first part explores the place of Islamic law in the constitutional and legal system of contemporary Egypt and

1 See Human Rights Council, UN, A/HRC/WG6/EGY1, 16 November 2009. 2 Human Rights Committee, General Comment 22, U.N. Doc. HRI/GEN/1/Rev.1 at 35 (1994), par 3–5. 3 Ibid. 4 See Supreme Administrative Court, Cases nos. 19082/60, 12 February 2011 and 13496/53, 9 February 2008.

Brought to you by | School of Oriental and African Studies (SOAS), University of London Authenticated | 212.219.139.72 Download Date | 8/12/13 8:29 PM Case of Apostasy and Its Legal Implications in Egypt 3 provides a background on apostasy in Egyptian law and case law. The second part critically analyses the jurisprudence of the State Council on apostasy particularly that of conversion from Islam to Christianity. The third part shows modern trends in the debate on religious freedom and Islamic law. It maintains that Muslims’ understanding of freedom of religion is not monolithic and that there are multiple theoretical options that can be employed by Egyptian judges to establish a harmonious relationship between Islamic law and religious freedom. It also proposes a set of constitutional and legal reforms to settle the longstanding disputes over freedom of religion in Egyptian courts.

Islamic law and freedom of religion in the Egyptian constitutional and legal system

The place of Islamic law in the Egyptian constitutional and legal system

Egyptian constitutions since 1923 refer to Islam as the official religion in Egypt. The principles of Islamic Shari‘a were adopted for the first time as a source of legislation in the Egyptian constitution of 1971. In the constitutional amend- ments of 1980, the reference to Islamic law was consolidated by stipulating in Article 2 that the principles of Islamic Shari‘a are the chief source of legislation. This advanced legal status for Islamic law came as a reaction to the rise of Islamist political opposition in Egypt, and the emergence of Islamisation pro- jects in other Muslim states in the 1970s such as Iran and Pakistan (Zubaida 2005). Zubaida noted that: “Shari‘a has always been central to Islamic political advocacy. The Muslim Brotherhood held the application of the Shari‘a at the center of its political programs” (Zubaida 2005, 163). Nevertheless, the introduction of Article 2 has not substantially changed the Egyptian legal system, which has maintained its secular features. As argued by Berger and Sonneveld, “a form of compromise has been found between Shari‘a and Western law” (Berger and Sonneveld 2010). Political authority, as well as the constitutional judiciary, has kept the incorporation of Islamic law into the Egyptian legal system to a mini- mum (Berger and Sonneveld 2010, 82–4). However, Zubaida has observed that the dual nature of the Egyptian legal system – which incorporates aspects of European positive law and Islamic law – has triggered intensive debates and contestations in parliament, courts and the public media (Zubaida 2005, 166). Hamad has meanwhile noted that having a

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Such rulings attempt a literal application of positions adopted by traditional Islamic fiqh scholars dated back some thousands years. Such positions well-suited the time, in which they were originally developed, are hardly compatible with the realities of modern life. (Hamad 1999)

Even before the introduction of Article 2, religion was a key factor in defining citizens’ rights and duties in family matters, including those relating to marriage, divorce, custody and inheritance. The religious status of a person still determines the applicable family law, whether from the Muslim, Christian or Jewish religions. Civil marriage is not permissible in Egypt. Non-Muslim laws are limited to marriage and divorce on cases where the parties belong to the same sect or rite. In all other cases, Islamic law is applicable (Hamad 1999, 724–5). If a person has no religion, or if concerned parties are affiliated to a religion that is not covered by the existing family laws, Muslim law is applied (Berger 2003). The rules of Islamic law are codified in modern legislation. In Egypt, the Hanafi School of law is the main source of Islamic rules, however, in many times the legislator adopted legal opinions from other schools of law. This has enabled the government to legitimize some legal reforms from the perspective of Islamic law, for example in giving women the right to discharge themselves from marriage (khul‘). The civil code allows judges to apply customary law, Islamic law and the principle of equity, if they do not find a relevant legal provision. The personal status law requests that judges refer to the most salient opinion of the Hanafi School of law when the law is silent on a certain issue (Berger and Sonneveld 2010, 74–8). Human rights and religious freedom in particular under the 2012 Constitution is at peril. The new Egyptian Constitution represented an opportu- nity for the Muslim Brotherhood and its Islamist allies who dominated the Constituent Assembly to consolidate the authority of Islamic law in the text. The Constitution establishes a consultative role for religious scholars in the law- making process. Article 4 says that “Al-Azhar Association of Senior Scholars is to be consulted in matters pertaining to Islamic law”.5 This Article has provoked outrage from a wide range of liberals and human rights activists. In a public statement, 23 Egyptian human rights NGOs considered this move as a bold step

5 Article 4 of the Constitution of the Arab Republic of Egypt, 25 December 2012, Official Gazette No. 51 bis of 25 December 2012.

Brought to you by | School of Oriental and African Studies (SOAS), University of London Authenticated | 212.219.139.72 Download Date | 8/12/13 8:29 PM Case of Apostasy and Its Legal Implications in Egypt 5 towards theocracy, where unaccountable religious scholars intervene in the work of the elected bodies. They expressed worries that this Article copies the Iranian system of wilayat al faqih but in a different shape. According to them, Article 4 “undermines the concept of the modern democratic state and sets the country up for significant legal uncertainty” (Cairo Institute for Human Rights studies 2012). Even though the opinions of the Association of Senior Scholars are not mandatory, the Constitution provides religious scholars with a powerful moral and religious authority over elected parliamentarians. Their opinions would be hardly ignored. Furthermore, Article 219 gives a specific explanation to the principles of Islamic Shari‘a. It states that these principles include Shari‘a’s “general evi- dences (adillah kulliyah), rules of jurisprudence (qawa‘id usuliyyah) and juristic principles (qawa’id fiqhiyyah) and the sources considered by the Sunni schools of law”.6 This explanation is now binding for all judicial and political bodies in Egypt. It is different from the modernist approach taken by the Supreme Constitutional Court (SCC) in the 1990s when it upheld that the legislator should not override fixed rulings of Shari’a derived from authentic and clear texts in the Qur’an and Sunna and then emphasised ijtihad in all other cases to accommo- date the changing public interest (Lombardi and Brown 2012). The Constitution of 1971 (with its 1980 amendment) left the explanation of the principles of Islamic Shari‘a open to judges but Article 219 “ties the Egypt constitution to traditional Islamic jurisprudence” (Lombardi and Brown 2012). Under Articles 4 and 219, liberal and un-orthodox approaches of Islamic law have no legitimacy in Egyptian legal reasoning. Over the coming period, jurists trained in traditional jurisprudence are the ones who can influence law-making process. Article 43 of the 2012 Constitution protects religious freedom, but it allows only the members of monotheistic religion to establish their places of worship.7 This means that the members of other religions are not officially recognized in Egypt. Article 81 of the Constitution stipulates that “rights and freedoms shall be practiced in a manner not conflicting with the principles pertaining to State and society of the Constitution”. This means that the principles of Islamic Shari‘a (Article 2) and other vague criteria pertaining to public morals (Articles 10 and 11), the cultural and civilizational foundations of the society (Article 12) and national unity (Article 5) will determine the scope of constitutional rights.8

6 Article 219 of The Constitution of the Arab Republic of Egypt, 25 December 2012. 7 Article 43 of the Constitution of the Arab Republic of Egypt, 25 December 2012. 8 Articles 2,10,11,12, and 5 of the Constitution of the Arab Republic of Egypt, 25 December 2012.

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Apostasy in Egyptian law

To explain the place of apostasy in the jurisprudence of Egyptian courts, Burger makes a distinction between the legal consequences of apostasy for personal status and family law, and the acts by which a person can be recognized as apostate. He pointed out that both are justified by the principle of public policy (Berger 2003, 738). The application of rules of apostasy in the first case is defended by the requirements of public policy, “while in the second case; public policy serves as the protecting shield for the orthodoxy of Islam” (Berger 2003, 738). Certain rules and principles of Islamic law have long been perceived as fundamental to public order. This is due to the advanced constitutional status given to Islam as the official state religion and then to Islamic law as the main source of legislation. This has grounded the legal justifications for judicial rulings on apostasy. As pointed out by Burger, the rules of apostasy in Egypt can only be found in case law, as there are no explicit rules applied to apostasy in Egyptian law (Berger 2003, 723). The concept of public order is central in understanding the limitations placed on religious freedom by the Egyptian judiciary. In a landmark case in 1975 concerning the rights of the Baha’i minority to manifest their belief, the Supreme Court, which preceded the SCC, defined the scope of religious freedom within the limitations of public order. The Court upheld that freedom of religion is not absolute and that the manifestation of religious beliefs must be subject to and considered in relation to public order, morals and values. The Court pointed out that Islamic Shari‘a and its principles are constitutive elements of public order and that under this the constitutional right of freedom of religion can be restricted. The petition had been filed by members of the Baha’i community, and in rejecting it the Court argued that only divine religions (Islam, Christianity and Judaism) can be publicly practiced in a Muslim society.9 Egyptian courts have intensively cited this case. For instance, SCC upheld that freedom of belief is absolute, while the practice of beliefs may be subject to restrictions based on public order, morals and the protection of rights and reputation of others.10 As we will see in the following sections, the Egyptian Courts used this theory to justify the restrictions over apostasy. As noted by Burger:

9 Supreme Court, Case 7/2, 1 March 1975. 10 Supreme Constitutional Court, Case No. 8/17, 18 May 1996.

Apostasy in the courts’ definition does not pertain to a freedom of belief, which is interpreted as the right to practice one’s belief free of any coercion or prejudice. Apostasy is part of the practice of a belief, the regulation of which is left to the “internal order” of that particular religion. (Berger 2003, 737)

Although apostasy is not a crime in Egyptian law, it has civil implications for apostates. The charge often arises in civil courts as a result of tensions between citizens over marriage, inheritance or children’s custody. Having intensively studied the jurisprudence of Egyptian courts in this area, Burger concludes that apostasy from Islam has serious consequences for matters related to personal status law, observing that “it renders the marriage of the apostate null and void, prevents him from entering into a new marriage – even with a non Muslim – and excludes him from inheritance” (Berger 2002). The traditional Islamic rules surrounding the consequences and the prohibition of apostasy were considered by the Court of Cassation in 1975 as a core element of public order. In 1996, the Court upheld that the legal consequences of apostasy are derived from Article 2 of the Constitution of 1971.11 Burger has argued that the case law in this area is consistent. He surveyed the case law of the Court of Cassation and the Supreme Administrative Court and concluded that “apostasy is perceived as a legal impediment to almost all personal status rights by virtue of the apostate having incurred civil death”.12 The same conclu- sion was highlighted by Hamad who studied a set of cases examined before the State Council in which certain legal principles on the legal consequences of apostasy were confirmed. These principles include the loss of an apostate’s right to marry and inherit (Hamad 1999). The first time a court identified an Egyptian citizen as an apostate was in the famous case of the Egyptian academic, Nasr Hamid Abu Zayd. The Court made its assessment using Abu Zayd’s academic work on Islamic law and history, and it consequently ordered the dissolution of his marriage to his Muslim partner. In this case, the defendant did not inten- tionally convert from Islam but he was pronounced guilty of heresy (Moustafa 2010). While the Egyptian law does not explicitly prescribe a penalty for apostasy, converts from Islam, atheists and affiliates of non-recognized religious doctrines can be easily convicted under the legal provisions on blasphemy. Article 98(f) of Egypt’s penal code makes blasphemy a crime that is punishable by “prison for a

11 Court of Cassation, Case No. 9/44, 14 December 1975 and Case Nos. 475, 478,481/65, 5 August 1996 cited in Ibid., 584. 12 Ibid., 723.

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Apostasy and documents of identification

Cases related to apostasy have also emerged in administrative law. These have been filed by Egyptian citizens who converted from Islam and wanted to challenge the refusal of the government to record their new religious status in their identity documents. The cases can be classified into three categories. The first category involves the cases filed by citizens who were Christians but converted to Islam, then reverted to Christianity. According to a human rights group in Egypt, there have been 202 such cases in the administrative courts. A considerable number of the plaintiffs were obliged to convert from Christianity to Islam in order to apply the Muslim family law in divorce (Bahgat 2007), since the Orthodox and Catholic Churches in Egypt take a strict position on divorce and usually require that special permission be sought (Ahram Weekly 2011). Law No. 462 of 1955 on the abolition of Shari‘a and Milli Courts stipulates that:

Conversion from one non-Muslim rite or sect to another is legally effective only when carried out before the litigation has been initiated. During the litigation, the parties will be

13 Article 98 (f) of Law No. 58/1937 amended by Law No. 29/1982, Official Gazette No. 16 of 22 April 1982.

judged according to the law of the religion to which they belonged at the moment when they initiated the court case. If, on the other hand, the litigating party converts to Islam, Article 7 stipulates the immediate applicability of Islamic law, even if the conversion takes place during the litigation. (Berger 2001)

The second category includes cases filed by citizens who were born and brought up as Christians, but whose fathers converted to Islam before they reached 16 and could hold their own identity cards. In this situation, the religious status has been changed in the birth certificates of those citizens, sometimes without their knowledge. As noted by Scott:

In cases in which one member of a married couple converts to Islam, the children are almost always given to the Muslim parent. Children of Muslims who have converted to Christianity remain officially Muslims. However, when a Christian becomes a Muslim, his children will automatically become Muslim by law. (Scott 2010)

Many of those people later filed cases in an attempt to register their original affiliation to Christianity in their identity cards. Around 89 cases were docu- mented under this category from 2005 to 2007. The third category includes cases filed by Muslims who converted to Christianity, but who failed to have their new religious status registered in their identity cards. Meanwhile, as has been pointed out by an Egyptian human rights defender, there is no accurate figure for the number of Muslims who converted to Christianity, since the majority of them are afraid of societal revenge if they report it publicly (Bahgat 2007).

Apostasy and documents of identification in the jurisprudence of the State Council: principles and approaches

In this part, I will critically analyse a series of recent decisions by the State Council (majlis al-dawla) in cases of conversion from Islam to Christianity. My aim is to draw a clearer picture of the legal reasoning developed by courts, concerning apostasy and the right of apostates to record their new religious affiliation in identity documents. The jurisprudence of the State Council has exhibited three trends in its handling of the issue: the hard-line approach, the liberal approach and the pragmatic approach. Judges using the hard-line approach have rejected the complaints of Muslim citizens who want to register their new religious status in their identity cards,

Brought to you by | School of Oriental and African Studies (SOAS), University of London Authenticated | 212.219.139.72 Download Date | 8/12/13 8:29 PM 10 M.A. El Fegiery basing it on the traditional prohibition of apostasy in Islamic law, and the protection of public order in a Muslim-majority country. This hard-line approach has long represented the mainstream. However, it was overridden recently by the pragmatic approach, which maintained the same traditional understanding of apostasy, but has acted in favour of registering the new religious status of converts of Christian origin, based on the protection of public order and the requirements of the modern nation state. The liberal approach, meanwhile, argues for the freedom of religion by referring to Egypt obligations under international human rights treaties and reconciling between the constitutional provisions on religious freedom and Islamic law. This perspective has been adopted in a few cases before the Court of Administrative Justice. In the following sections, the three approaches are critically examined.

The hard-line approach: conversion is prohibited

This approach is the oldest in the Egyptian Administrative Courts. The precedent was followed intensively by other courts in the State Council for three decades until a new one was introduced recently by the Supreme Administrative Court and caused it to be modified. In the case of Nabil Hassan Sabry, the Court of Administrative Justice denied the right of an Egyptian Muslim to modify his identity card, to reflect his reversion to Christianity. The plaintiff filed this case before the State Council after the Civil Records Office stated that Islam does not permit apostasy and refused to make the modification.14 The plaintiff argued that the Civil Code does not prohibit any individual from changing his religion. He also invoked the Law of Civil Status which allows citizens to change data in their documents as long as they present proof of the new data. The plaintiff cited Article 46 of the Egyptian Constitution of 1971, which guarantees freedom of religion. He then argued that Islamic law is not applicable in this case, since there is a clear provision in the Law of Civil Status, which includes the changing of religious information.15 The government argued before the court that the provisions of the Law of Civil Status are restricted by the rule that apostasy is prohibited in Islam. According to the Court, this is a rule of public order and the Court is obliged to follow it. The State also invoked Article 2 of the Constitution, which stipulates that the principles of Islamic law are the main source of law. It argued that this thus revokes the provision of the Law of Civil Status concerning the change of religious affiliation

14 Court of Administrative Justice, Case 20/29, 8 April 1980 in Hamad (1999, 222–4). 15 Ibid.

Brought to you by | School of Oriental and African Studies (SOAS), University of London Authenticated | 212.219.139.72 Download Date | 8/12/13 8:29 PM Case of Apostasy and Its Legal Implications in Egypt 11 in identity documents, since apostasy is prohibited by the Quran, the grand source of Islamic law.16 In its decision, the Court argued that the rules of Islamic law are applicable in this case based on Article of 2 of the Constitution and Article 1(2) of the Civil Code, which allow judges to refer to customary law, Islamic Shari‘a and the rules of equity in the absence of a legal provision applicable to the case being examined. It then stated that there was no law regulating the issue of apostasy for those who embrace Islam; that customary law in this case is related to moral issues and that, therefore, the rules of Islamic law are applicable in this case. Apostates, according to the Court, have no civil rights in Islamic law. The right to change religious affiliation can only be provided for non-Muslims, but Muslims cannot denounce their religion, whether to convert to another religion or to become non-religious. The Court affirmed that based on Islamic Shari‘a, apostasy must be prevented. The Court then moved to the facts of the case and observed that since the plaintiff converted to Islam, he was subject to its rules, and the refusal to make the required modification was legal, because the state could not condone his apostasy. Such an act, according to the Court, would violate a rule of public order, and therefore the state cannot legally recognize this act.17 The Court in this case also argued that the scope of Article 47 of the Constitution on freedom of religion should be in line with Article 2, which considers Islamic law as the main source of legislation. The Court continued that:

since Islam protects freedom of belief – for Islam may not be forced on any one – freedom of belief as granted by the Constitution means that each individual may freely embrace whatever religion he believes without constraint. However, this freedom does not restrict the application of Islamic Shari‘a to those who embrace Islam . . . since the plaintiff has embraced Islam, he must then submit to its law which does not condone apostasy.18

Two principles were established in this case and have guided the subsequent rulings of the State Council on apostasy. Firstly, the scope of constitutional rights on religious freedom is based on the consideration of public order, to which the rules of Islamic law are fundamental. The logic of this principle was developed in the decision of the Supreme Court in 1975. It was then consolidated after the amendment of Article 2 of the constitution in 1980, whereby the principles of Islamic Shari‘a became the main source of legislation. However, it should be noted that even before that constitutional amendment, the Egyptian

16 Ibid. 17 Ibid. 18 Ibid., 224.

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it is the concept of public policy that may help to solve the riddle of the apparent contra- diction of Egyptian jurisprudence disallowing apostasy, on the one hand, while upholding the freedom of religion on the other. (Beger 2003, 733)

The second principle is that the scope of religious freedom is different between Muslim and non-Muslims. Since non-Muslims are free to change their religion, once a person becomes a Muslim, he/she cannot abandon Islam. The logic of this understanding stems from traditional Islamic law on apostasy, which prohibits Muslims to apostatize and deprives apostates from civil rights. The hard-line reasoning was reiterated in the case of Jerjes Malak Wassef.19 The claimant was born to a Christian family and in 1990 when he was 7 years old, his father converted to Islam and changed his son’s religious affiliation in his birth certificate. The Court made a distinction between the right of a person to embrace religious beliefs and his or her right to manifest these beliefs in society. It reasoned that while the former concerns the individual and his private relationship with God, the latter affects society and can be limited. It, therefore, argued that the constitutional right of religious freedom should not infringe on public order and public morals, as affirmed before by the Supreme Court’s landmark decision in 1975. Then, the Court observed that Islam is the majority-religion in Egypt, and although its rules respect the right of non-Muslims to believe in any divine religion, Islamic rules prohibit those who become affiliated with Islam, to leave it. This rule according to the Court is a part of public order that must be respected in the country.20 Although the Court has acknowledged that Islamic jurisprudence shows different opinions on whether the act of apostasy entails a criminal punishment under the classification of Hudud or not, it noted that all Islamic legal schools have affirmed the gravity of apostasy and its offensive nature towards Islam. It has also pointed out that Egyptian legislators have not criminalised apostasy. However, when the judiciary examines claims brought by apostates to secure legal recognition of their conversion, the Court affirmed that judges should be guided by the requirements of public order, where Islam represents the main component of it. The Court has ruled that persons who voluntary decided to become Muslims are not allowed to manipulate religion after that and employ the state’s institutions to legitimize their apostasy. This is, according to the

19 Court of Administrative Justice, Case No. 4475/58, 30 June 2009, 20 Ibid.

Court, in order to protect the society from temptation or (fitnah) and to avoid any denigration of Islam. Moreover, the Court has argued that the ratification of the International Covenant on Civil and Political Rights (ICCPR) cannot be invoked in this case by the claimant, because Egypt made a general reservation on the convention on the basis of the rules of Islamic law. Therefore, it cannot be applied in a way that violates rules of Islamic law that are an integral part of the public order in Egypt. The Court referred also to a religious opinion published by the Egyptian House of Legal Opinions, (dar al-ifta’), on 14 May 2006, which says that any person who joins Islam by his/her own free will cannot deviate from the public order of his/her society by publicly announcing his/her apostasy and requesting the change of his/her religious affiliation. The opinion argued that this prohibition is necessary to protect the rights of other citizens and to avoid any temptation and confusion for the majority.21 As mentioned before, the claimant was born and brought up as a Christian, but his father converted to Islam and used his legal powers as a father to change the religion affiliation of his son. The Court argued that, according to the majority opinions of the Hanafi School of law, the child inherits the Islamic affiliation of the parent. When the child becomes adult, there is no need to renew his or her faith, as it is granted by his/her original innate (fitrah). The Court accordingly considered that the claimant had been a Muslim since his childhood.22 This hard-line reasoning was also invoked in the Mohamed Hegazy case.23 The claimant was born to Muslim parents and originally issued his identity card as a Muslim, then he converted to Christianity. The Ministry of Interior refused to change his religious status in his identity card, and Hegazy filed a case before the Administrative Court. When the court refused his petition based on the prohibition of apostasy in Islam and the protection of public order in a Muslim society, the plaintiff invoked the international obligation of the Egyptian government based on Article 18 of the ICCPR, since according to the constitution of 1971 such international obligations become domestic legislations. However, the Court used the same arguments developed in the Wassef Case and argued that the ICCPR’s provisions are limited by the rules of Islamic law. It also quoted the legal opinion on apostasy released by dar al-iftā’ in May 2001.24

21 Ibid. 22 Ibid. 23 Court of Administrative Justice, Case No. 35647/61, 29 January 2008. 24 Ibid.

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The liberal approach: a solution for converts of Christian origin

In Mohamed Mahdy Abdullah’s Case,25 the claimant was a Christian, born to Christian parents. He converted to Islam but he reverted after that to Christianity and the Ministry of Interior refused to change his religion affiliation in his identity card. In this case, the Court accepted the claim and ordered the Ministry of Interior to comply.26 This case is among 22 cases decided positively by the Court between April 2004 and September 2006. At the time, the Court of Administrative Justice was headed by Abdel Qader who adopted liberal reasoning (Human Rights Watch and Egyptian Initiative for Personal Rights 2007, 72). In these cases, the Court considered the Ministry’s refusal to alter the identity card an unjustifiable interference in his personal choice. The Court has also argued that the act is just an administrative procedure that reflects reality and that this registration is necessary to establish rights and duties based on the correct religious status. In its response to the argument based on public order, the Court affirmed that Article 40 of the Egyptian constitution provides for equality between citizens in all rights and duties without discrimination based on religion, language, origin and sex. It also referred to Article 46, which protects the rights of individuals not only to freely believe in religions but to manifest religious faith. The Court cited the Universal Declaration of Human Rights and the Arab Charter of Human Rights while also arguing that many centuries ago, Islam demonstrably recognized freedom of religion. To show the compatibility between Islam and religious freedom, the Court cited several Quranic verses that highlight the principles of freedom and non-compulsion in religious conviction.27 However, the Court’s understanding of freedom of religion in Islam was not applied to citizens who are born and brought up as Muslims and decided to convert to any other religion. In explaining this position, the Court ambiguously submitted that, according to Islamic jurisprudence, a Muslim cannot be considered apostate unless he or she feels comfortable with his or her apostasy.28 This argument infers that the Court would only guarantee the rights of persons who became Muslims for a while and then decided to apostatize from Islam. By this reasoning, the Court avoided engaging in a thorough discussion on the issue. In fact, the cases raised before this Court were only filed by converts of Christian

25 Court of Administrative Justice, Case No. 26103/85, 26 April 2005. 26 Ibid. 27 Court of Administrative Justice, Case No. 26103/85, 26 April 2005. 28 Ibid.

Brought to you by | School of Oriental and African Studies (SOAS), University of London Authenticated | 212.219.139.72 Download Date | 8/12/13 8:29 PM Case of Apostasy and Its Legal Implications in Egypt 15 origin, and the Court was not tested in cases filed by converts of Muslim origin. The government did not challenge these decisions before the Supreme Administrative Court. However, after the retirement of Judge Abdel Qader, the Court of Administrative Justice reverted to the hard-line approach until a new pragmatic reasoning has been adopted by the Supreme Administrative Council which has partially settled the obsolete legal status of converts of Christian origin (Human Rights Watch 2007, 71–2).

The pragmatic approach: a new precedent by the Supreme Administrative Court and its limitations

In the case of Beshay Rizq,29 the Court’s landmark decision approved the registering of a person’s new religion, if reverting back to Christianity. The Court applied a very pragmatic approach in solving this case and did not indulge in a legal discussion on the right of religious freedom and apostasy in Islam, as in other previous cases. It submitted that the Egyptian law requires that each citizen carries an identity card, by which he/she can interact with the state and society, and that the card should include true information about acitizen’s sex, profession, religion and marital status. Any change in this information should be reported to the mandated authority as stipulated in Article 46 of the law of civil affairs. This Article does not limit the changing of information related to their religion, as long as the change occurs among the three monolithic religions.30 The Court highlighted the fact that the registration only reflects the real status of a person who has already changed his religion. It does not mean that the mandated authority accepts the act or that it establishes a new legal status by the registration itself. The Court made an analogy with the change in legal status resulting from marriage, in which the registration does not establish this legal status, but that rather the satisfaction of the legal pillars and conditions of marriage, as stipulated in the law, is the basis under which the legal status of marriage can be established. The Court also argued that the registration of the new religious status of the claimant is necessary to protect the public order and societal interest, and it will protect against societal complexities or impermis- sible acts such as the marriage of non-Muslim male to a Muslim woman (which is, according to the Court, absolutely prohibited under Islamic law).31

29 Supreme Administrative Court, Case No. 13496/53, 9 February 2008. 30 Ibid. 31 Ibid.

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In order to show that its decision was in line with the previous case law on apostasy, the Court then affirmed that the registration of the new religious status does not mean in any way the acknowledgment of apostasy. Rather, the registration of this new religious status is a requirement of a modern nation state. Finally, the Court decided that while the claimant can register his affiliation to Christianity in his official documents, his previous affiliation to Islam should also be mentioned in these documents.32 Although the decision tries to solve practical problems for a considerable number of Christians who have been obliged to convert to Islam under certain circumstances, but have later reverted, judges in this case did not display consciousness of human rights standards. The arguments of the Court did not include any explanation about the right of religious freedom, whether under Islamic law or the Egyptian constitution. It has also introduced a very strange resort, whereby people will be socially stigmatized by referring in their official documents to their new religion but with mention of their previous and rejected affiliation to Islam. Moreover, this precedent has not been followed by other lower courts in the State Council for converts of Muslim origin, as it is shown below in the case of Al-Jouhary. The solution above has not been commended by many other judges who still believe that the permissibility of apostasy is incompatible with Islamic law and public order. Some judges in the State Council have expressed suspicion of the arguments developed in the Beshay Case, and accordingly, after just a few months, the Administrative Court decided to refer the whole issue to the SCC. It did so in the case of Faiz Adel Malak’s Case, in order to examine the constitutionality of Article 47 of Law No. 143 for 1994, which regulates civil affairs.33 To justify its decision, the Administrative Court argued that Article 47 of LawNo.143for1994issilentonwhetheritisallowedtochangethereligious affiliation of a Muslim or not, since the law permits any citizen to record his personal data in the official documents without stipulating special provisions for any Muslims who convert to another religion. According to the Court, Article 47 is not compatible with Article2oftheEgyptianconstitutionwhich considers Islam as the religion of the state and Islamic law as the main source of legislation. No decision has been delivered yet by the SCC. In Maher Al-Jouhary’s Case, the Court of Administrative Justice limited the scope of the new precedent made by the Supreme Administrative Court.34 The

32 Ibid. 33 Court of Administrative Justice, Case No. 444/61, 4 March 2008. 34 Court of Administrative Justice, Cases No. 53717/62 and 22566/63, 13 June 2009.

Brought to you by | School of Oriental and African Studies (SOAS), University of London Authenticated | 212.219.139.72 Download Date | 8/12/13 8:29 PM Case of Apostasy and Its Legal Implications in Egypt 17 plaintiff was a Muslim who had converted to Christianity in 1973 and claimed against the refusal of the Ministry of Interior to change his religious affiliation. The Court rejected the claim and restated the hard-line position, choosing not to adhere to the reasoning presented by the Supreme Administrative Court in the Beshay Case. It argued that the previous decision was only limited to converts of Christian origin and held that converts of Muslim origin are prohibited from converting from Islam.35 This argument is not only discriminatory but it lacks any justification under Islamic law, which does not differentiate between an apostate who was born and brought up as a Muslim and one who belonged to another religion before he becomes a Muslim. Moreover, the Court argued that the constitutional provision for freedom of religion is understood in light of two factors: firstly, that Islam is the official religion of the state, and the principles of Islamic Shari‘a are the main source of legislation; secondly, that all citizens are equal before the law without discrimination. However, the scope of religious freedom in Egypt is not like that of those considered civil states, because any change in religion bears important legal consequences for issues such as marriage, divorce and inheritance.36 Although the Court then cited Article 18 of the ICCPR, like other similar rulings, it referred to the reservation and also argued that the manifestation of religious belief can only be restricted in a way prescribed by law, when necessary to the protection of public order, morals and the rights and reputations of others. On the relationship between Islam and freedom of religion, the Court emphasised that the former protected the latter. It affirmed that a person should be freely convinced by his/her religious beliefs without compulsion. However, freedom of religion in Islam is not absolute, and the Court stated that Quran does not permit people to abuse or manipulate religion.37 The most important argument made by the Court was developed during a discussion of the legal authority to decide on conversions. The Court argued that although Article 47 of the Law of Civil Affairs stipulates that each citizen can change the information on his or her religious affiliation without any restrictions, the legislator requires the applicant to follow certain procedures; this includes presenting either a ruling from a mandated court or an organ which certified the conversion. However, the Court said that the legislator did not identify which court or organ can issue such certificates. It observed that churches do not have the legal authority to prove the conversion of a Muslim to Christianity, and it concluded that although the law theoretically did not

35 Ibid. 36 Ibid. 37 Ibid.

Brought to you by | School of Oriental and African Studies (SOAS), University of London Authenticated | 212.219.139.72 Download Date | 8/12/13 8:29 PM 18 M.A. El Fegiery restrict conversion from Islam, there is a gap by which conversion cannot be legally recognized. The Court called for a legislation to be passed in order to protect religion from abuse and manipulation, as well as clarifies the conditions of conversion from one religion to another, and the organs that can certify this conversion.38 This new interpretation of Article 47 of the Law of Civil Affairs was repeated in another ruling made by the Court of Administrative Justice.39 Those who refuted this argument referred to other rulings whereby the Court accepted certificates issued by Churches to prove that an act of conversion already occurred. Moreover, this argument is not raised with respect to Christians or non-Muslims in general who convert to Islam (Scott 2010, 88). The Supreme Administrative Court has not yet substantively examined a case related to a Muslim such as Hegazy or Al-Jouhary, who were born and brought up as Muslims and then converted to Christianity. Its jurisprudence is, however, clear now with regard to the legal status of converts of Christian origin. This was true in Sherif Al Housseny’s Case where the Court adopted the pragmatic reasoning of the Beshay Case. But unlike the decision in the Beshay Case, the Court in Al Housseny Case decided that the claimant needs only record of his new religious status.40 Under the pragmatic reasoning, the Supreme Administrative Court has followed a flexible position towards converts. This new reasoning has been applied to converts of Christian origin. It has not, however, been extended to converts who were born and brought up as Muslims and decided to convert from Islam like the cases of Hegazy and Al-Jouhary or converts whose one of their non-Muslim parents converted to Islam during their childhood like the Case of Jerjes Malak. Moreover, the Supreme Administrative Court has failed to establish that religious freedom is a right that should be protected under Egyptian law and Islamic law, including individuals’ decision to change their religious beliefs. In the meantime, the legal consequences of apostasy in the areas of marriage, inheritance and custody continue to arise in Egyptian civil and family courts. If the solution introduced by the Supreme Administrative Court for converts of Christian origin is consistently executed by the Ministry of Interior, one could expect that more legal tensions arise in relation to the civil consequences of apostasy. From the perspective of international human rights law, the

38 Ibid. 39 See the case filed by Kamilia Lotify on behalf of her sons Mario and Andro, Court of Administrative Justice, Case no 54471/63, 30 March 2010. 40 Supreme Administrative Court, Case No. 19082/60, 12 February 2011.

Brought to you by | School of Oriental and African Studies (SOAS), University of London Authenticated | 212.219.139.72 Download Date | 8/12/13 8:29 PM Case of Apostasy and Its Legal Implications in Egypt 19 deprivation of converts of some of their civil rights still represents a severe abuse of religious freedom. Finally, the reasoning developed in most of the cases under review reflects a monolithic and static understanding of Islamic law that prohibits Muslims from changing their religion and holds apostasy as a serious crime in a Muslim society. Although Islamic Shari‘a was mentioned several times in the rulings, judges have not systematically shown the logic of their conclusions from within the spectrum of Islamic law. They have not also made the distinction between Shari‘a as sources of Islamic law and the jurisprudence, (fiqh), as methodologies and rulings. Moreover, judges continue to systematically invoke the protection of public order in a Muslim society to justify the prohibition of apostasy.

Prospects for freedom of religion in Egypt

Possible reconciliation between freedom of religion and Shari‘a: the theoretical debate

The previous section demonstrated that Egyptian judges are strongly affected by the dominant views in traditional Islamic law on apostasy. Although judges have admitted that there was no agreement among classical jurists on whether apostasy entails a criminal fixed punishment, there is a consensus in most of the judgments that conversion from Islam should not be tolerated in a Muslim society. This strict position explains the steady refusal of courts to record the new religious status of converts. When courts made positive judgments for the sake of converts of Christian origin, the reasoning was based on pragmatic arguments which did not involve the right of religious freedom, including the right of each individual to change his/her religious beliefs without being subject to any forms of pressure or punishment. Islamic law plays a key role in the Egyptian constitutional and legal body. The reference to Islamic law is consolidated in the 2012 Constitution. The unprecedented political influence of Islamist parties after the 25th of January revolution has reignited the debate in Egypt on the relationship between Islamic law and international human rights (El-Fegiery 2012). Therefore, a sustainable solution to the legal tensions concerning apostasy requires a new perspective on the relationship between Islamic law and religious freedom. Islamic legal traditions are diverse and the practices of Muslim states are different according to certain political, social and cultural circumstances. The implementation of freedom of religion by Muslim states has not been the same; as rightly stated

Brought to you by | School of Oriental and African Studies (SOAS), University of London Authenticated | 212.219.139.72 Download Date | 8/12/13 8:29 PM 20 M.A. El Fegiery by An-Na‘im, “being Muslim or Islamic did not in fact have the same meaning in different places or over time” (An-Na‘im 2004). Muslim scholars and jurists have also shown different positions, and it has been observed that increasing num- bers of scholars have become eager to establish reconciliation between Islamic traditions and freedom of religion. There are indeed legal options that can be employed by judges and the government, to bring Egypt in line with the universal understanding of freedom of religion. The diversity of rulings delivered by Egyptian courts shows that the understanding of Islam is not static, but dynamic and changeable. As observed by An-Na‘im, “the relationship [between Islam and human rights] is open to engagement and transformation precisely because it is contingent on an inter- active web of internal and external factors and forces” (An-Na‘im 2004, 9). The ambivalent position of many Muslim states towards religious freedom is attrib- uted to the contesting interpretations of Islamic law on apostasy. Given the fact that Islamic law has been playing an important role in the constitutional and legal system of many Muslim states, the application of international law in this area requires a solution from within it. A definite causal relationship should not be established between the poor records of religious freedom in many Muslim states and Islamic law, since other political, economic and social factors might bear the responsibility. However, as noted by An-Na‘im: “this relationship is important enough for most Muslims that their motivation to uphold human rights norms will probably diminish if they perceive those norms to be inconsistent with Islamic principles” (An-Nai‘m 2008, xii). Although the classical Muslim jurists adopted diverse opinions on rules related to apostasy, it has been noted that the mainstream opinion in classical Islamic law contradicts the modern conception of religious freedom in international human rights law. According to Shafi’is and Zahiris, apostasy is not allowed for Muslims and it is punishable by death (Saeed and Saeed 2005, 56). However, the classical jurist, Ibn Taimiyyah, claimed that a group of the prophet’s companions, such as Ibrahim al-Nakha and Sufyan al-Thawri, were of the opinion that no criminal penalty should be applied to a Muslim who changes his or her religion (Baderin 2003, 123). Even when the punishment is not applied, a charge of apostasy has significant consequences for civil rights. According to Hashemi, an apostate is not permitted to marry a Muslim, and if married, his or her marriage will be deemed void. Apostates are not allowed to claim the custody of their children, or retain their right to inherit, neither are they allowed to maintain the ownership of their properties (Hashemi 2008, 38). According to a survey on the position of modern Muslim scholars on the criminal penalty for apostasy, a considerable number of jurists such as the

Egyptian jurist al-Sh‘arawi restated the pre-modern position that was favourable to a punishment; other modern scholars such as Rashid Rida, Maududi, Faruqi allowed the punishment only if applied by the state in cases where conversion from Islam is associated with a threat to public order (Saeed 2005, 88–93). Another category was those of the opinion that apostasy is not punishable in Islam, since it is incompatible with Islamic values of free choice and plurality, and not congruent with the circumstances of the modern nation state (Saeed 2005, 93–8). This opinion was embraced by a number of scholars such as Kamali, Tantawi, Shaltut and al Turabi (Saeed 2005). Although a considerable number of Muslim scholars and Muslim states are now against the application of harsh criminal penalty for apostasy, the freedom of Muslims to convert from Islam is still controversial in contemporary practice. As mentioned, apostasy gives rise to other serious consequences related to civil law and family law, and since many states do not legally recognize the act, Muslims who convert from Islam will not be able to manifest their religion publicly, and can be subject to several forms of discrimination. The majority of Modern Muslim scholars who opposed the application of a criminal penalty on apostates have not elaborated a progressive position that would secure apostates’ freedom from discrimination based on their free choice. In explaining this defect, An-Na‘im noted that as long as Muslim scholars adhere to the classical methods of Islamic law, Ijtihad, “juristic reasoning” will be unable to solve the tension that arises between Islamic law and the modern conception of religious freedom, because some aspects of this tension, particularly with regard to the civil consequences of apostasy, are associated with clear and define text in Quran and Sunna (An-Na‘im 1986, 236). Therefore, the solution according to An-Nai‘m entails drastic reform for the methods of Islamic law (An-Na‘im 1986, 237–9). Being concerned about respect for equality, non-discrimination and freedom of religion, from an Islamic perspective, Al-Na‘im believes that it is not enough to introduce different interpretations of prophetic traditions that impose punishment for apostates, but advocates a new understanding of the Islamic message that responds to the contextual and historical developments of human beings. An-Na‘im has been inspired by the evolutionary approach of the Sudanese reformer Mahoumd Taha, who differentiated between the Qur’an and Sunna in Mecca and Medina. According to Taha, the message in Mecca was universal, it considered the full equality of human beings and promoted individual free choice, but the message in Medina came up with a set of rules to regulate the emerging Muslim community in Al-Medina. These rules have been analysed by Taha and An-Na‘im according to the political, cultural and social circumstances of the Muslims at that time. All rules which concern women, non-Muslims and

Brought to you by | School of Oriental and African Studies (SOAS), University of London Authenticated | 212.219.139.72 Download Date | 8/12/13 8:29 PM 22 M.A. El Fegiery penal law were developed at this stage. According to this methodology, contemporary Muslims can appeal now to the Islamic message of Mecca to develop the Islamic public law and make it consistent with current circumstances (An-Na‘im 1990, 52–3). An-Na‘im’s theory advocates equality and full citizenship in Muslim societies from an Islamic perspective. As a result of this drastic perspective, any consequences stipulated by traditional Islamic law on the personal status of apostates are irrelevant. As he notes, there were a wide range of Muslim scholars who struggled to challenge the death penalty for apostasy as a rule of Islamic law but they fail to “establish a positive right to change one’s religion or faith. They admit that adverse consequences may follow upon apostasy. This is inconsistent with freedom of religion” (An-Na‘im 1986, 215).

The constitutional and legal landscape of religious freedom

The jurisprudence of Egyptian judiciary on conversion from Islam highlights certain constitutional and legal loopholes that restrict the scope of religious freedom in Egypt. Egyptian citizens should record their religious affiliations in all official documents of identification. It is argued that this legal requirement represents a serious source of religious discrimination, and a flagrant interference on individual freedoms. According to this view, the religious affiliation of citizens should be abolished, not only from the identity cards but also from any other official documents. People will then freely decide which religious rules they apply in marriage. Another view goes that such an abolition is not a practical solution, given the fact that religious status in Egypt establishes certain rights and duties in family law. According to this opinion, the only practical solution in the short run is to enable citizens to freely record their true religious affiliation in their documents (Bahgat 2007). The abolition of personal religious data will not prevent any potential legal consequences for converts based on traditional Islamic law on apostasy, unless there are genuine modifications in the civil and family law, or there is a new liberal interpretation of Islamic law in Egypt. A considerable number of Egyptian Christians convert to Islam to apply Islamic family law, and then face administrative troubles when they decide to return to their original religion. Therefore, a legal solution needs to be introduced for Christians who are legally barred from dissolving their marriages due to the strict position of Christian family law on this issue, and indeed, there is an ongoing debate among Christians in Egypt on the need to reform Christian

Brought to you by | School of Oriental and African Studies (SOAS), University of London Authenticated | 212.219.139.72 Download Date | 8/12/13 8:29 PM Case of Apostasy and Its Legal Implications in Egypt 23 family regulations (Ahram Weekly 2011, 1058). This reform would not be easy given the resistance of some Egyptian Churches. The 2012 Constitution establishes an autonomous status of non-Muslim Christian sects in regulating their personal status affairs. Islamist-dominated Constituent Assembly presented this provision as an advantage for non-Muslims in Egypt, but it actually strengthens the powers of Christian religious establishments over their members and obstructs the possibility of having one civil family law applied to all Egyptians regardless of their religious affiliation. Another reason for the high number of converts from Islam in Egypt is that the law allows for the automatic registration of a child as a Muslim when his/her father converts from Christianity to Islam. According to international human rights law, the choice in this case should be left for the children themselves when they become able to understand and judge the different religious convic- tions. Article 14 of The International Convention of the Rights of the Child provides that every child has the right to freedom of thought, religion and conscience. It establishes rights and duties for the parents or legal guardians in directing a child, but it does not give an exclusive right for fathers to decide the religion of their children based on their own religious beliefs.41 Hashemi has noted that:

The Qura’n rejects nonbelievers justifying their following of the religion because of their parents. In the same sense, according to Shiite jurists every Muslim from the age of maturity should stand for his/her own beliefs. But in contrast to this progressive rule, according to other Muslim legal traditions, a Muslim child or adult is not allowed to choose a religion other than his father’s, i.e., Islam. (Hashemi 2008, 215)

This article suggests that in the case of inter-faith marriages, children should have the possibility of fully exploring the religions of their parents and freely deciding which religion they will adhere to. Finally, although freedom of religion has often been protected in Egypt’s constitutions, its interpretation has been undermined by other constitutional provisions which give Islam or Islamic law an advanced status in the whole constitutional and legal system. We have seen that Islamic law influences the understanding of freedom of religion by most Egyptian judges. Islam as a fundamental component of public order is the highest norm in determining the scope of any other legal and constitutional norm in Egypt. To protect freedom of religion from any inappropriate interpretation of Islam, a constitutional clause could give fundamental human rights, including freedom of religion, the highest status in the constitution, so that any other constitutional or legal

41 Convention on the Rights of the Child, U.N. Doc. A/44/49 (1989).

Brought to you by | School of Oriental and African Studies (SOAS), University of London Authenticated | 212.219.139.72 Download Date | 8/12/13 8:29 PM 24 M.A. El Fegiery provision cannot restrict their scope without strictly defined criteria, as stipulated in international human rights law. During the constitution making process in 2012, there were some efforts led by human rights defenders and liberal forces to adopt a constitutional bill of rights or to refer in the constitution to the superiority of international human rights treaties over Egyptian legislation, for instance see A Coalition of 27 Egyptian Human Rights NGOs (2011). However, Islamist-dominated Constituent Assembly opposed the determination of the content of human rights in the constitution in accordance with international human rights treaties. The Muslim Brotherhood and its allies maintained that these treaties often “reflect Western conceptions of human rights” (Statement by the Freedom and Justice Party 2011).

Conclusions

Although apostasy is not a crime in Egyptian law, it is a source of intense legal dispute in Egyptian courts. Apostasy brings serious legal consequences, which deprive apostates of basic civil rights. This article focused on the right of converts to document their new religious affiliation in their documents of identification, noting the extent to which Egyptian judges have failed to recon- cile between Islam as the official religion of the state as well as the main source of legislation and freedom of religion. Although the jurisprudence of the State Council on apostasy has developed, allowing converts of Christian origin to record their religious affiliation in their documents of identifications, the position of Egyptian Courts has not changed yet towards converts of Muslims origin. Throughout the previous three decades, judges at the State Council adopted three approaches towards this right. The hard-line trend dominated the judiciary since 1980, in which judges considered apostasy a serious crime in Islamic law and a threat to the Muslim society. The liberal trend was the minor position adopted by the Court of Administrative Justice from 2004 to 2006 when the Court defended the compatibility between Islam as the official religion and freedom of religion. However, these rulings were limited to converts of Christian origin. There has since been a pragmatic trend, adopted by the Supreme Administrative Court in 2008, in which it has argued that in modern states, each citizen should record his/her true information in the documents of identification. The Court affirmed that this documentation does not mean that the Court recognizes the act of apostasy, but that instead it is a practical requirement to regulate the relationship between citizens and the state and avoid any threat to public order by giving citizens false religious status which might carry dangerous legal

Brought to you by | School of Oriental and African Studies (SOAS), University of London Authenticated | 212.219.139.72 Download Date | 8/12/13 8:29 PM Case of Apostasy and Its Legal Implications in Egypt 25 consequences. This pragmatic trend has been adopted by judges with regard to converts of Christian origin, but again, has not been followed with respect to converts of Muslim origins. Although judges have not systematically discussed Islamic law on apostasy, they have built their reasoning on the general premise that apostasy is prohibited in Islamic law and is a serious threat to public order in Muslim societies. Islamic law on apostasy is not monolithic, and that judges have various legal options for reconciling Islamic law and freedom of religion. A new perspective on the former, which recognizes the right of individuals to freely choose or change their religion, is a sustainable solution to the legal disputes examined in Egyptian courts concerning apostasy. An increasing number of modern and contemporary Muslims scholars have worked to establish a reconciliatory view between Islamic law and freedom of religion. The article has addressed certain constitutional and legal loopholes that under- mine the application of freedom of religion in Egypt. The 2012 Constitution of Egypt has failed to fill these loopholes. On the contrary, the consolidation of Islamic law in the constitution and the lack of sufficient protection of human rights create uncertain future for religious freedom in post-revolutionary Egypt.

Acknowledgments: I am grateful to Professor Lynn Welchman of the School of Oriental and African Studies for her support during the preparation of this article. I also thank Hossam Bahgat and Adel Ramadan of the Egyptian Initiative for Personal Rights for providing me with some recent cases on conversion.

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