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The Legal Framework of Apostasy in Egypt: an Illegal Limitation on Freedom of Belief American University in Cairo AUC Knowledge Fountain Theses and Dissertations 6-1-2014 The legal framework of apostasy in Egypt: an illegal limitation on freedom of belief Yara Yasser Nassar Follow this and additional works at: https://fount.aucegypt.edu/etds Recommended Citation APA Citation Nassar, Y. (2014).The legal framework of apostasy in Egypt: an illegal limitation on freedom of belief [Master’s thesis, the American University in Cairo]. AUC Knowledge Fountain. https://fount.aucegypt.edu/etds/862 MLA Citation Nassar, Yara Yasser. The legal framework of apostasy in Egypt: an illegal limitation on freedom of belief. 2014. American University in Cairo, Master's thesis. AUC Knowledge Fountain. https://fount.aucegypt.edu/etds/862 This Thesis is brought to you for free and open access by AUC Knowledge Fountain. It has been accepted for inclusion in Theses and Dissertations by an authorized administrator of AUC Knowledge Fountain. For more information, please contact [email protected]. The American University in Cairo School of Global Affairs and Public Policy THE LEGAL FRAMEWORK OF APOSTASY IN EGYPT: AN ILLEGAL LIMITATION ON FREEDOM OF BELIEF A Thesis Submitted to the Department of Law in partial fulfillment of the requirements for the LL.M. Degree in International and Comparative Law By Yara Yasser Nassar June 2014 i The American University in Cairo School of Global Affairs and Public Policy Department of Law THE LEGAL FRAMEWORK OF APOSTASY IN EGYPT: AN ILLEGAL LIMITATION ON FREEDOM OF BELIEF Yara Yasser Nassar Supervised by Professor Gianluca Parolin ABSTRACT In 1996 the Egyptian Court of Cassation annulled the marriage of scholar Nasr Hamed Abou Zayd. The court ruled that through his blasphemous religious statements, he had committed apostasy. Four decades later, in 2007 the Egyptian Administrative Court did not recognize the conversion of 22 citizens from Islam to Christianity considering it an act of apostasy not recognizable by Islamic Shari'a. Egyptian authorities have arrested citizens converting from Islam citing that their apostasy was considered a belittlement of Islam and hence a violation of Egyptian Criminal Law. These are but just three examples and simply the tip of the iceberg of the legal framework of apostasy in Egyptian law and its effect on the lives of citizens and their right to freedom of belief and worship. This thesis will analyze limitations on freedom of belief in Egypt through an analysis of the legal framework of the right to abandon Islam, apostasy. In the Thesis, through a thorough analysis of Egyptian jurisprudence in regards to apostasy, we will understand that Egyptian judges wrongfully consider the rules of apostasy as an undisputed part of Islamic Shari’a and therefore a part of Egyptian public policy that is legally binding. The Diversity of opinion in Islamic Shari’a in regards to apostasy will be analyzed to prove that its rules are in fact disputed and should not be applied as part of Egyptian public policy. The Thesis will then move to see the danger of the legal framework of apostasy as it is used for political means. Finally, after understanding the framework of apostasy we will attempt to understand the choice of the Egyptian judges to apply the most conservative understanding of Islamic Shari’a in regards to apostasy and consequently choose to limit freedom of belief and violate Egypt’s international obligations. ii TABLE OF CONTENTS I. Introduction …………………………………………….............................................................................. 1 II. Understanding the Legal Framework of Apostasy in Egyptian Law ………………..…………………… 6 A. General Observations Regarding the Legal k Framewor of Apostasy in Egyptian Law.……………….…………………………………………………………………………………………………………… 6 B. Legal Consequences of Apostasy in Egypt…………………………………………………………………… 7 1. Egyptian Constitutional Law ………………………………...………………………………………….…. 8 2. Egyptian Administrative Law………………………………………………………………………………… 10 a. Egyptian Administrative Law and Conversion from Islam………………………………… 11 b. Practice of the Administrative Courts………………………………………………………………. 13 1) The Practice of the Administrative Courts and the Recognition of the Conversion rom f Islam in Identification Cards……………………………………..……… 13 a) Non-­‐Recognition of Conversion from Islam……..………………………………….. 14 b) The Exceptions to the Established Jurisprudence…………….…………………… 15 2) Illegality of the Marriage an of Apostate……………………………..……………………….. 17 3. Egyptian Penal Code…………………………...................................................................... 18 a. Egyptian Penal Code and the Criminalization of Blasphemy……………............... 19 b. Practice of Criminal Courts………………………………………..…………………………………. 22 4. Egyptian Personal Status Law……………………………………….……………………………………… 24 a. History of the Egyptian Personal Status ………………………………. Law………………… 25 b. Hisba Law…………………………………………………………………………………………………….. 26 c. Practice of the Personal Status Courts……………………………………….…………………. 27 1) Court of Cassation and Declaring a Muslim an Apostate………………………………. 27 2) Marriage……………………………………………………………………………........ 28 3) Status of Children of Apostates…………………………………………………………………….. 32 4) Inheritance………………………………………………………………………........... 32 5) Property………………………………………………………………………………........ 32 III. International Law postasy and A …………………………………………………………………..…………………. 34 A. ICCPR and Apostasy ………………………………………………………………………………….………………… 34 B. Egyptian Reservation on the ICCPR…………………………………………….........……………………….. 37 IV. State Premises the Legal Consequences of Apostasy on Confessional Law………..…………….. 38 iii A. Public Policy as a Legal Justification for the Non-­‐Recognition of Apostasy and the Application of its Legal Consequences…………………………………………………………………………. 39 1. Public Policy………………………………………………………………………………………………………….. 39 a. Egyptian Public Policy………………………………………………………………….…………………. 40 1) Islamic Shari'a as Public Policy………………………………………….………………… 40 a) Apostasy Rules as Islamic Public Policy………………………….………………. 42 V. Challenging the Justification of the State: Stance the True of Shari'a in Regards to Apostasy………………………………………………………………...………………………………………..……………….. 45 A. Context in which Apostasy Rules Exist: General Approach of Islam to Freedom of Belief………………………………………………….……………………………………..………………………………… 47 1. Islam and Tolerance…………………………………………………………………..…………………………. 47 a. Islam and Tolerance towards Other Religions………………………………………….. 47 b. Islam and Tolerance towards Other Muslims……………………………….………….. 48 2. Islam and the Prohibition Against Coercion………………………………….……………………….. 50 B. Diversity of Opinion in Regards to the Rules of Apostasy in Islamic Shari’a…………………. 51 1. Nonexistence of Temporal Punishment for Apostasy in the Qur'an………................. 52 2. Diversity of Opinion in Islamic Shari’a on Apostasy through Abandoning Islam……………………………………………………………………………………………………………………… 53 a. Apostasy and Treason…………………………………………………………………………………….. 53 1) Understanding the prophet’s Hadith and Sunnah in its historical context……………………………………………………………………………….……………… 54 2) Understanding the tradition of the Caliphates in its historical context………………………………………………………………………………………………. 56 3) Stance of Hanafi school in Regards to Female Apostates……..…………….. 57 b. Political Context in which the Classical Jurisprudence on Apostasy Developed………………………………………………………………………………………………………. 57 c. Diversity of Opinion in Islamic Shari'a on Blasphemy ionship and Its Relat to Apostasy……………………………………………………………………………………………….………… 59 1) Sab Allah w Sab Al Rasoul……………………………………………………..……………. 59 2) The Right of God and The Right of Man……………………………………………… 60 1) Blasphemy As Apostasy………………………………………………..…………………… 61 C. Diversity of Opinion in Islamic Shari'a in Regards to Consequence Apostasy and Its Legal on Personal Status…………………………………………………………………………………. 62 iv 1. Consequences of Apostasy on Marriage…………………………..…………………………………… 62 2. Consequences of asy Apost on Inheritance……………………………….…………………………… 63 3. Consequences of Apostasy on Property……………………………………………….……………….. 64 VI. Apostasy as a Legal Tool against Religious and Political Dissent…………………………………………. 65 A. Use of the Blasphemy Penal Code Articles against Religious Converts and Dissent……………………………………………………………………………………………………….……………….. 67 B. Near-­‐Monopoly of the Public ion Prosecut over Apostasy Cases……….………………………… 68 1. Presidency of Morsi………………………………………………………………………………………………. 70 VII. Possibility of Change in Egyptian Jurisprudence and the Judges' choice not to……............... 72 A. An Exception to the Conservative Jurisprudence…………………………………………………………. 72 B. Understanding the Choice of the Judges………………………………………………………..……………. 74 1. Role of Precedent…………………………………………..………………………………………............... 75 2. Selective Understanding of Apostasy Law in Islamic Shari’a………………………………….. 75 VIII. Conclusion ……….………………………………………………………………………………………………..…….………. 78 v I. Introduction: In 1996 the Egyptian Court of Cassation annulled the marriage of scholar Nasr Hamed Abou Zayd. The court ruled that through his blasphemous religious statements, he had committed apostasy.1 Four decades later, in 2007 the Egyptian Administrative Court did not recognize the conversion of 22 citizens from Islam to Christianity considering it an act of apostasy not recognizable by Islamic Shari'a.2 Egyptian authorities have arrested citizens converting from Islam citing that their apostasy was considered a belittlement of Islam and hence a violation of Egyptian Criminal Law.3 These are but just three examples and simply the tip of the iceberg of the legal framework of apostasy in
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