moataz ahmed el fegiery* islamic law and freedom of ...€¦ · case of apostasy and its legal...

Moataz Ahmed El Fegiery*

Islamic Law and Freedom of Religion: TheCase of Apostasy and Its Legal Implicationsin 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 Egyptianjudiciary has failed to develop a harmonious relationship between Islamic lawand the principle of freedom of religion. It looks at how the majority of casesexamined before the Egyptian judiciary reveal a continued tension betweenfreedom 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 barriersregarding the right of converts of Christian origin to record their re-affiliationto Christianity in their documents of identification, and pragmatically justifiedthis precedent in light of the requirements of modern states, whereby identitycards should reflect the correct information of each citizen. Yet it argues that thecourt was not conscious of freedom of religion as a fundamental individualright, and moreover, that this precedent has not been followed with respect toconverts of Islamic origin. Finally, the paper argues that, for a sustainablesolution to the legal tensions concerning apostasy in Egyptian courts, a newperspective is required on the relationship between Islamic law and religiousfreedom whereby the universal understanding of freedom of religion can belegitimized from within Islamic legal traditions. The article also proposes a set ofconstitutional 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 con-cerns raised by UN member states during discussion on the general situation of

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human rights in the country, within the Universal Periodic Review at the HumanRights Council.1 The subject has also been the focus of a considerable number ofreports by local and international NGOs (Human Rights Watch and EgyptianInitiative for Personal Rights 2007). The main problems raised are associatedwith discrimination against religious minorities, the legal rights of the adherentsof non-recognized religions such as the Baha’i faith, and apostasy.

Freedom of thought, conscience and religion is well established in interna-tional human rights law as a principal norm of a modern democratic andpluralistic society. All international and regional human rights treaties includea provision on this fundamental right (Baderin 2005). According to the HumanRights Committee (HRC), religious freedom maintains the rights of the individualto embrace and manifest any belief or religion without restriction, whichincludes the right to change religious affiliation.2 Restrictions on religious free-dom cannot be justified by the fact that the state recognizes one religion as itsofficial religion.3 Baderin explains that “while the principle of religious freedomis theoretically recognized by Muslim states, the scope of its practical applica-tion is narrower than that of international human rights law” (Baderin 2008).

Against this backdrop, this article examines the position of Egyptian courtson apostasy, with special focus on conversion from Islam to Christianity. I arguethat the Egyptian judiciary has failed to develop a harmonious relationshipbetween freedom of religion and Islam as an official state religion. The majorityof cases examined before the State’s Council reveal a tension between themodern conception of religious freedom and judges’ interpretation of Islamiclaw as a constitutive element of public order in Egypt. Recently, the SupremeAdministrative Court broke the traditional barriers with regard to the right ofconverts of Christian origin to record their re-affiliation to Christianity in theiridentification documents.4 The Court pragmatically justified this new precedentwith the need, as a modern state, for identity cards to reflect the correctinformation of each citizen. However, it did not assert freedom of religion as afundamental individual right. Moreover, this precedent has not been followedwith respect to converts of Islamic origins.

The article is divided into three parts: the first part explores the place ofIslamic 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), par3–5.3 Ibid.4 See Supreme Administrative Court, Cases nos. 19082/60, 12 February 2011 and 13496/53, 9February 2008.

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provides a background on apostasy in Egyptian law and case law. The secondpart critically analyses the jurisprudence of the State Council on apostasyparticularly that of conversion from Islam to Christianity. The third part showsmodern trends in the debate on religious freedom and Islamic law. It maintainsthat Muslims’ understanding of freedom of religion is not monolithic and thatthere are multiple theoretical options that can be employed by Egyptian judgesto establish a harmonious relationship between Islamic law and religious free-dom. It also proposes a set of constitutional and legal reforms to settle thelongstanding disputes over freedom of religion in Egyptian courts.

Islamic law and freedom of religion in theEgyptian constitutional and legal system

The place of Islamic law in the Egyptian constitutional andlegal 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 oflegislation in the Egyptian constitution of 1971. In the constitutional amend-ments of 1980, the reference to Islamic law was consolidated by stipulating inArticle 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 ofIslamist political opposition in Egypt, and the emergence of Islamisation pro-jects in other Muslim states in the 1970s such as Iran and Pakistan (Zubaida2005). Zubaida noted that: “Shari‘a has always been central to Islamic politicaladvocacy. The Muslim Brotherhood held the application of the Shari‘a at thecenter of its political programs” (Zubaida 2005, 163). Nevertheless, the introduc-tion of Article 2 has not substantially changed the Egyptian legal system, whichhas maintained its secular features. As argued by Berger and Sonneveld, “a formof compromise has been found between Shari‘a and Western law” (Berger andSonneveld 2010). Political authority, as well as the constitutional judiciary, haskept 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 legalsystem – which incorporates aspects of European positive law and Islamic law –has triggered intensive debates and contestations in parliament, courts and thepublic media (Zubaida 2005, 166). Hamad has meanwhile noted that having a

Case of Apostasy and Its Legal Implications in Egypt 3



plural source of law has allowed judges to adopt positions which are not in linewith human rights. Having studied the rulings of the administrative justicerelating to religious freedom, he concluded that:

Such rulings attempt a literal application of positions adopted by traditional Islamic fiqhscholars dated back some thousands years. Such positions well-suited the time, in whichthey 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 definingcitizens’ rights and duties in family matters, including those relating to mar-riage, divorce, custody and inheritance. The religious status of a person stilldetermines the applicable family law, whether from the Muslim, Christian orJewish religions. Civil marriage is not permissible in Egypt. Non-Muslim laws arelimited to marriage and divorce on cases where the parties belong to the samesect or rite. In all other cases, Islamic law is applicable (Hamad 1999, 724–5). If aperson has no religion, or if concerned parties are affiliated to a religion that isnot covered by the existing family laws, Muslim law is applied (Berger 2003).

The rules of Islamic law are codified in modern legislation. In Egypt, theHanafi School of law is the main source of Islamic rules, however, in many timesthe legislator adopted legal opinions from other schools of law. This has enabledthe government to legitimize some legal reforms from the perspective of Islamiclaw, for example in giving women the right to discharge themselves frommarriage (khul‘). The civil code allows judges to apply customary law, Islamiclaw and the principle of equity, if they do not find a relevant legal provision. Thepersonal status law requests that judges refer to the most salient opinion of theHanafi School of law when the law is silent on a certain issue (Berger andSonneveld 2010, 74–8).

Human rights and religious freedom in particular under the 2012Constitution is at peril. The new Egyptian Constitution represented an opportu-nity for the Muslim Brotherhood and its Islamist allies who dominated theConstituent 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 tobe consulted in matters pertaining to Islamic law”.5 This Article has provokedoutrage from a wide range of liberals and human rights activists. In a publicstatement, 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 GazetteNo. 51 bis of 25 December 2012.

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towards theocracy, where unaccountable religious scholars intervene in thework of the elected bodies. They expressed worries that this Article copies theIranian 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 thecountry up for significant legal uncertainty” (Cairo Institute for Human Rightsstudies 2012). Even though the opinions of the Association of Senior Scholars arenot mandatory, the Constitution provides religious scholars with a powerfulmoral and religious authority over elected parliamentarians. Their opinionswould be hardly ignored.

Furthermore, Article 219 gives a specific explanation to the principles ofIslamic Shari‘a. It states that these principles include Shari‘a’s “general evi-dences (adillah kulliyah), rules of jurisprudence (qawa‘id usuliyyah) and juristicprinciples (qawa’id fiqhiyyah) and the sources considered by the Sunni schoolsof law”.6 This explanation is now binding for all judicial and political bodies inEgypt. It is different from the modernist approach taken by the SupremeConstitutional Court (SCC) in the 1990s when it upheld that the legislator shouldnot override fixed rulings of Shari’a derived from authentic and clear texts in theQur’an and Sunna and then emphasised ijtihad in all other cases to accommo-date the changing public interest (Lombardi and Brown 2012). The Constitutionof 1971 (with its 1980 amendment) left the explanation of the principles ofIslamic Shari‘a open to judges but Article 219 “ties the Egypt constitution totraditional Islamic jurisprudence” (Lombardi and Brown 2012). Under Articles 4and 219, liberal and un-orthodox approaches of Islamic law have no legitimacyin Egyptian legal reasoning. Over the coming period, jurists trained in traditionaljurisprudence are the ones who can influence law-making process. Article 43 ofthe 2012 Constitution protects religious freedom, but it allows only the membersof monotheistic religion to establish their places of worship.7 This means thatthe members of other religions are not officially recognized in Egypt. Article 81of the Constitution stipulates that “rights and freedoms shall be practiced in amanner not conflicting with the principles pertaining to State and society of theConstitution”. This means that the principles of Islamic Shari‘a (Article 2) andother vague criteria pertaining to public morals (Articles 10 and 11), the culturaland 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.




Apostasy in Egyptian law

To explain the place of apostasy in the jurisprudence of Egyptian courts, Burgermakes a distinction between the legal consequences of apostasy for personalstatus and family law, and the acts by which a person can be recognized asapostate. 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 isdefended by the requirements of public policy, “while in the second case; publicpolicy serves as the protecting shield for the orthodoxy of Islam” (Berger2003, 738).

Certain rules and principles of Islamic law have long been perceived asfundamental to public order. This is due to the advanced constitutional statusgiven to Islam as the official state religion and then to Islamic law as the mainsource of legislation. This has grounded the legal justifications for judicialrulings on apostasy. As pointed out by Burger, the rules of apostasy in Egyptcan only be found in case law, as there are no explicit rules applied to apostasyin Egyptian law (Berger 2003, 723). The concept of public order is central inunderstanding the limitations placed on religious freedom by the Egyptianjudiciary. In a landmark case in 1975 concerning the rights of the Baha’i minorityto manifest their belief, the Supreme Court, which preceded the SCC, defined thescope of religious freedom within the limitations of public order. The Courtupheld that freedom of religion is not absolute and that the manifestation ofreligious 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 principlesare constitutive elements of public order and that under this the constitutionalright of freedom of religion can be restricted. The petition had been filed bymembers of the Baha’i community, and in rejecting it the Court argued that onlydivine religions (Islam, Christianity and Judaism) can be publicly practiced in aMuslim society.9

Egyptian courts have intensively cited this case. For instance, SCC upheldthat freedom of belief is absolute, while the practice of beliefs may be subject torestrictions based on public order, morals and the protection of rights andreputation of others.10 As we will see in the following sections, the EgyptianCourts used this theory to justify the restrictions over apostasy. As noted byBurger:

9 Supreme Court, Case 7/2, 1 March 1975.10 Supreme Constitutional Court, Case No. 8/17, 18 May 1996.

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Apostasy in the courts’ definition does not pertain to a freedom of belief, which isinterpreted 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 “internalorder” of that particular religion. (Berger 2003, 737)

Although apostasy is not a crime in Egyptian law, it has civil implications forapostates. The charge often arises in civil courts as a result of tensions betweencitizens over marriage, inheritance or children’s custody. Having intensivelystudied the jurisprudence of Egyptian courts in this area, Burger concludesthat apostasy from Islam has serious consequences for matters related topersonal status law, observing that “it renders the marriage of the apostatenull and void, prevents him from entering into a new marriage – even with anon Muslim – and excludes him from inheritance” (Berger 2002).

The traditional Islamic rules surrounding the consequences and the prohibi-tion of apostasy were considered by the Court of Cassation in 1975 as a coreelement of public order. In 1996, the Court upheld that the legal consequences ofapostasy are derived from Article 2 of the Constitution of 1971.11 Burger hasargued that the case law in this area is consistent. He surveyed the case law ofthe Court of Cassation and the Supreme Administrative Court and concludedthat “apostasy is perceived as a legal impediment to almost all personal statusrights 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 theState Council in which certain legal principles on the legal consequences ofapostasy were confirmed. These principles include the loss of an apostate’s rightto marry and inherit (Hamad 1999). The first time a court identified an Egyptiancitizen as an apostate was in the famous case of the Egyptian academic, NasrHamid Abu Zayd. The Court made its assessment using Abu Zayd’s academicwork on Islamic law and history, and it consequently ordered the dissolution ofhis marriage to his Muslim partner. In this case, the defendant did not inten-tionally convert from Islam but he was pronounced guilty of heresy (Moustafa2010).

While the Egyptian law does not explicitly prescribe a penalty for apostasy,converts from Islam, atheists and affiliates of non-recognized religious doctrinescan be easily convicted under the legal provisions on blasphemy. Article 98(f) ofEgypt’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 August1996 cited in Ibid., 584.12 Ibid., 723.




period of not less than six months and not exceeding five years”.13 O’Sullivanhas discussed some cases of blasphemy that arose between 1990 and 2001, inwhich legal provisions against blasphemy were used to accuse intellectuals ofinsulting Islam. However, few of these cases resulted in conviction and impri-sonment (O’Sullivan 1997). In 2007, the Egyptian blogger, Karim Amer, wassentenced to 3 years in prison for publishing articles on his blog that consideredby an Egyptian court blasphemous to Islam and Al-Azhar Islamic institution(Amnesty International 2010). More allegations of blasphemy have beenlaunched against Egyptians in 2012. For instance, in December 2012, AlberSaber, an Egyptian atheist of Christian origin, was sentenced to 3 years in prisonin charge of blasphemy after he posted some critical stories against Islam andChristianity in his blog and Facebook account. In July 2012, another EgyptianMuslim Shi‘i was sentenced to 3 years in prison after being convicted of blas-phemy. Moreover, Article 44 of Egypt’s Constitution of 2012 prohibits the con-tempt of all religious messengers and prophets, for a detailed analysis of thesecases see Association for Freedom of Thought and Expression (2012). The crim-inalisation of blasphemy intimidates atheists and converts of publicly declaringtheir religious affiliation and views.

Apostasy and documents of identification

Cases related to apostasy have also emerged in administrative law. These havebeen filed by Egyptian citizens who converted from Islam and wanted to chal-lenge the refusal of the government to record their new religious status in theiridentity documents. The cases can be classified into three categories. The firstcategory involves the cases filed by citizens who were Christians but converted toIslam, then reverted to Christianity. According to a human rights group in Egypt,there have been 202 such cases in the administrative courts. A considerablenumber of the plaintiffs were obliged to convert from Christianity to Islam inorder to apply the Muslim family law in divorce (Bahgat 2007), since the Orthodoxand Catholic Churches in Egypt take a strict position on divorce and usuallyrequire that special permission be sought (Ahram Weekly 2011). Law No. 462 of1955 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 whencarried 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 22April 1982.

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judged according to the law of the religion to which they belonged at the moment whenthey 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 takesplace during the litigation. (Berger 2001)

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

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

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

Apostasy and documents of identification in thejurisprudence of the State Council: principles andapproaches

In this part, I will critically analyse a series of recent decisions by the StateCouncil (majlis al-dawla) in cases of conversion from Islam to Christianity. Myaim is to draw a clearer picture of the legal reasoning developed by courts,concerning apostasy and the right of apostates to record their new religiousaffiliation in identity documents. The jurisprudence of the State Council hasexhibited three trends in its handling of the issue: the hard-line approach, theliberal approach and the pragmatic approach.

Judges using the hard-line approach have rejected the complaints of Muslimcitizens who want to register their new religious status in their identity cards,




basing it on the traditional prohibition of apostasy in Islamic law, and theprotection of public order in a Muslim-majority country. This hard-line approachhas long represented the mainstream. However, it was overridden recently by thepragmatic approach, which maintained the same traditional understanding ofapostasy, but has acted in favour of registering the new religious status ofconverts of Christian origin, based on the protection of public order and therequirements of the modern nation state. The liberal approach, meanwhile, arguesfor the freedom of religion by referring to Egypt obligations under internationalhuman rights treaties and reconciling between the constitutional provisions onreligious freedom and Islamic law. This perspective has been adopted in a fewcases before the Court of Administrative Justice. In the following sections, thethree approaches are critically examined.

The hard-line approach: conversion is prohibited

This approach is the oldest in the Egyptian Administrative Courts. The precedentwas followed intensively by other courts in the State Council for three decadesuntil a new one was introduced recently by the Supreme Administrative Courtand caused it to be modified. In the case of Nabil Hassan Sabry, the Court ofAdministrative Justice denied the right of an Egyptian Muslim to modify hisidentity card, to reflect his reversion to Christianity. The plaintiff filed this casebefore the State Council after the Civil Records Office stated that Islam does notpermit apostasy and refused to make the modification.14

The plaintiff argued that the Civil Code does not prohibit any individualfrom changing his religion. He also invoked the Law of Civil Status which allowscitizens to change data in their documents as long as they present proof of thenew data. The plaintiff cited Article 46 of the Egyptian Constitution of 1971,which guarantees freedom of religion. He then argued that Islamic law is notapplicable 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 CivilStatus are restricted by the rule that apostasy is prohibited in Islam. According tothe Court, this is a rule of public order and the Court is obliged to follow it. TheState also invoked Article 2 of the Constitution, which stipulates that the princi-ples of Islamic law are the main source of law. It argued that this thus revokes theprovision 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.

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in identity documents, since apostasy is prohibited by the Quran, the grandsource of Islamic law.16

In its decision, the Court argued that the rules of Islamic law are applicablein this case based on Article of 2 of the Constitution and Article 1(2) of the CivilCode, which allow judges to refer to customary law, Islamic Shari‘a and the rulesof equity in the absence of a legal provision applicable to the case beingexamined. It then stated that there was no law regulating the issue of apostasyfor those who embrace Islam; that customary law in this case is related to moralissues 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. Theright to change religious affiliation can only be provided for non-Muslims, butMuslims cannot denounce their religion, whether to convert to another religionor 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 andobserved 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 statecould not condone his apostasy. Such an act, according to the Court, wouldviolate a rule of public order, and therefore the state cannot legally recognizethis act.17

The Court in this case also argued that the scope of Article 47 of theConstitution on freedom of religion should be in line with Article 2, whichconsiders 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 – freedomof belief as granted by the Constitution means that each individual may freely embracewhatever religion he believes without constraint. However, this freedom does not restrictthe application of Islamic Shari‘a to those who embrace Islam . . . since the plaintiff hasembraced 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 subsequentrulings of the State Council on apostasy. Firstly, the scope of constitutionalrights on religious freedom is based on the consideration of public order, towhich the rules of Islamic law are fundamental. The logic of this principle wasdeveloped in the decision of the Supreme Court in 1975. It was then consolidatedafter the amendment of Article 2 of the constitution in 1980, whereby theprinciples 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.




judiciary had interpreted the fact that Islam is the official religion of the state asa constitutive element of public order, which brings certain legal consequencesin public life. As noted by Burger:

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 upholdingthe freedom of religion on the other. (Beger 2003, 733)

The second principle is that the scope of religious freedom is different betweenMuslim 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 ofthis understanding stems from traditional Islamic law on apostasy, which pro-hibits 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 yearsold, his father converted to Islam and changed his son’s religious affiliation inhis birth certificate. The Court made a distinction between the right of a personto embrace religious beliefs and his or her right to manifest these beliefs insociety. It reasoned that while the former concerns the individual and his privaterelationship with God, the latter affects society and can be limited. It, therefore,argued that the constitutional right of religious freedom should not infringe onpublic order and public morals, as affirmed before by the Supreme Court’slandmark decision in 1975. Then, the Court observed that Islam is the major-ity-religion in Egypt, and although its rules respect the right of non-Muslims tobelieve in any divine religion, Islamic rules prohibit those who become affiliatedwith Islam, to leave it. This rule according to the Court is a part of public orderthat must be respected in the country.20

Although the Court has acknowledged that Islamic jurisprudence showsdifferent opinions on whether the act of apostasy entails a criminal punishmentunder the classification of Hudud or not, it noted that all Islamic legal schoolshave affirmed the gravity of apostasy and its offensive nature towards Islam. Ithas also pointed out that Egyptian legislators have not criminalised apostasy.However, when the judiciary examines claims brought by apostates to securelegal recognition of their conversion, the Court affirmed that judges should beguided by the requirements of public order, where Islam represents the maincomponent of it. The Court has ruled that persons who voluntary decided tobecome Muslims are not allowed to manipulate religion after that and employthe 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.

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Court, in order to protect the society from temptation or (fitnah) and to avoid anydenigration of Islam.

Moreover, the Court has argued that the ratification of the InternationalCovenant on Civil and Political Rights (ICCPR) cannot be invoked in this caseby the claimant, because Egypt made a general reservation on the convention onthe basis of the rules of Islamic law. Therefore, it cannot be applied in a way thatviolates 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 Houseof Legal Opinions, (dar al-ifta’), on 14 May 2006, which says that any personwho joins Islam by his/her own free will cannot deviate from the public order ofhis/her society by publicly announcing his/her apostasy and requesting thechange of his/her religious affiliation. The opinion argued that this prohibitionis necessary to protect the rights of other citizens and to avoid any temptationand 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 changethe religion affiliation of his son. The Court argued that, according to themajority opinions of the Hanafi School of law, the child inherits the Islamicaffiliation of the parent. When the child becomes adult, there is no need torenew his or her faith, as it is granted by his/her original innate (fitrah). TheCourt accordingly considered that the claimant had been a Muslim since hischildhood.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 cardas a Muslim, then he converted to Christianity. The Ministry of Interior refused tochange his religious status in his identity card, and Hegazy filed a case beforethe Administrative Court. When the court refused his petition based on theprohibition of apostasy in Islam and the protection of public order in aMuslim society, the plaintiff invoked the international obligation of theEgyptian government based on Article 18 of the ICCPR, since according to theconstitution of 1971 such international obligations become domestic legislations.However, the Court used the same arguments developed in the Wassef Case andargued that the ICCPR’s provisions are limited by the rules of Islamic law. It alsoquoted 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.




The liberal approach: a solution for convertsof Christian origin

In Mohamed Mahdy Abdullah’s Case,25 the claimant was a Christian, born toChristian parents. He converted to Islam but he reverted after that to Christianityand the Ministry of Interior refused to change his religion affiliation in hisidentity card. In this case, the Court accepted the claim and ordered theMinistry of Interior to comply.26 This case is among 22 cases decided positivelyby the Court between April 2004 and September 2006. At the time, the Court ofAdministrative Justice was headed by Abdel Qader who adopted liberal reason-ing (Human Rights Watch and Egyptian Initiative for Personal Rights 2007, 72).

In these cases, the Court considered the Ministry’s refusal to alter theidentity card an unjustifiable interference in his personal choice. The Courthas also argued that the act is just an administrative procedure that reflectsreality and that this registration is necessary to establish rights and duties basedon the correct religious status. In its response to the argument based on publicorder, the Court affirmed that Article 40 of the Egyptian constitution provides forequality between citizens in all rights and duties without discrimination basedon religion, language, origin and sex. It also referred to Article 46, whichprotects the rights of individuals not only to freely believe in religions but tomanifest religious faith. The Court cited the Universal Declaration of HumanRights and the Arab Charter of Human Rights while also arguing that manycenturies ago, Islam demonstrably recognized freedom of religion. To show thecompatibility between Islam and religious freedom, the Court cited severalQuranic verses that highlight the principles of freedom and non-compulsion inreligious conviction.27

However, the Court’s understanding of freedom of religion in Islam was notapplied to citizens who are born and brought up as Muslims and decided toconvert to any other religion. In explaining this position, the Court ambiguouslysubmitted that, according to Islamic jurisprudence, a Muslim cannot be consid-ered apostate unless he or she feels comfortable with his or her apostasy.28 Thisargument infers that the Court would only guarantee the rights of persons whobecame Muslims for a while and then decided to apostatize from Islam. By thisreasoning, the Court avoided engaging in a thorough discussion on the issue. Infact, 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.

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origin, and the Court was not tested in cases filed by converts of Muslim origin.The government did not challenge these decisions before the SupremeAdministrative Court. However, after the retirement of Judge Abdel Qader, theCourt of Administrative Justice reverted to the hard-line approach until a newpragmatic reasoning has been adopted by the Supreme Administrative Councilwhich has partially settled the obsolete legal status of converts of Christianorigin (Human Rights Watch 2007, 71–2).

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

In the case of Beshay Rizq,29 the Court’s landmark decision approved theregistering of a person’s new religion, if reverting back to Christianity. TheCourt applied a very pragmatic approach in solving this case and did notindulge in a legal discussion on the right of religious freedom and apostasyin Islam, as in other previous cases. It submitted that the Egyptian law requiresthat each citizen carries an identity card, by which he/she can interact with thestate and society, and that the card should include true information abouta citizen’s sex, profession, religion and marital status. Any change in thisinformation should be reported to the mandated authority as stipulated inArticle 46 of the law of civil affairs. This Article does not limit the changingof information related to their religion, as long as the change occurs among thethree monolithic religions.30

The Court highlighted the fact that the registration only reflects the realstatus of a person who has already changed his religion. It does not mean thatthe mandated authority accepts the act or that it establishes a new legal statusby the registration itself. The Court made an analogy with the change in legalstatus resulting from marriage, in which the registration does not establish thislegal status, but that rather the satisfaction of the legal pillars and conditions ofmarriage, as stipulated in the law, is the basis under which the legal status ofmarriage can be established. The Court also argued that the registration of thenew religious status of the claimant is necessary to protect the public order andsocietal interest, and it will protect against societal complexities or impermis-sible acts such as the marriage of non-Muslim male to a Muslim woman (whichis, 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.




In order to show that its decision was in line with the previous case law onapostasy, the Court then affirmed that the registration of the new religious statusdoes not mean in any way the acknowledgment of apostasy. Rather, the regis-tration 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 toChristianity in his official documents, his previous affiliation to Islam shouldalso be mentioned in these documents.32

Although the decision tries to solve practical problems for a considerablenumber of Christians who have been obliged to convert to Islam under certaincircumstances, but have later reverted, judges in this case did not displayconsciousness of human rights standards. The arguments of the Court did notinclude any explanation about the right of religious freedom, whether underIslamic law or the Egyptian constitution. It has also introduced a very strangeresort, whereby people will be socially stigmatized by referring in their officialdocuments to their new religion but with mention of their previous and rejectedaffiliation to Islam. Moreover, this precedent has not been followed by otherlower courts in the State Council for converts of Muslim origin, as it is shownbelow in the case of Al-Jouhary.

The solution above has not been commended by many other judges who stillbelieve that the permissibility of apostasy is incompatible with Islamic law andpublic order. Some judges in the State Council have expressed suspicion of thearguments developed in the Beshay Case, and accordingly, after just a fewmonths, 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 theconstitutionality of Article 47 of Law No. 143 for 1994, which regulates civilaffairs.33

To justify its decision, the Administrative Court argued that Article 47 ofLaw No. 143 for 1994 is silent on whether it is allowed to change the religiousaffiliation of a Muslim or not, since the law permits any citizen to recordhis personal data in the official documents without stipulating special provi-sions for any Muslims who convert to another religion. According to the Court,Article 47 is not compatible with Article 2 of the Egyptian constitution whichconsiders Islam as the religion of the state and Islamic law as the main sourceof legislation. No decision has been delivered yet by the SCC.

In Maher Al-Jouhary’s Case, the Court of Administrative Justice limited thescope 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.

16 M.A. El Fegiery



plaintiff was a Muslim who had converted to Christianity in 1973 and claimedagainst 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 toadhere to the reasoning presented by the Supreme Administrative Court in theBeshay Case. It argued that the previous decision was only limited to converts ofChristian origin and held that converts of Muslim origin are prohibited fromconverting from Islam.35 This argument is not only discriminatory but it lacksany justification under Islamic law, which does not differentiate between anapostate who was born and brought up as a Muslim and one who belongedto another religion before he becomes a Muslim.

Moreover, the Court argued that the constitutional provision for freedom ofreligion is understood in light of two factors: firstly, that Islam is the officialreligion of the state, and the principles of Islamic Shari‘a are the main source oflegislation; secondly, that all citizens are equal before the law without discrimi-nation. However, the scope of religious freedom in Egypt is not like that of thoseconsidered civil states, because any change in religion bears important legalconsequences for issues such as marriage, divorce and inheritance.36

Although the Court then cited Article 18 of the ICCPR, like other similarrulings, it referred to the reservation and also argued that the manifestation ofreligious belief can only be restricted in a way prescribed by law, when neces-sary to the protection of public order, morals and the rights and reputations ofothers. On the relationship between Islam and freedom of religion, the Courtemphasised that the former protected the latter. It affirmed that a person shouldbe freely convinced by his/her religious beliefs without compulsion. However,freedom of religion in Islam is not absolute, and the Court stated that Qurandoes not permit people to abuse or manipulate religion.37

The most important argument made by the Court was developed during adiscussion of the legal authority to decide on conversions. The Court argued thatalthough Article 47 of the Law of Civil Affairs stipulates that each citizen canchange the information on his or her religious affiliation without any restric-tions, the legislator requires the applicant to follow certain procedures; thisincludes presenting either a ruling from a mandated court or an organ whichcertified the conversion. However, the Court said that the legislator did notidentify which court or organ can issue such certificates. It observed thatchurches do not have the legal authority to prove the conversion of a Muslimto Christianity, and it concluded that although the law theoretically did not

35 Ibid.36 Ibid.37 Ibid.




restrict conversion from Islam, there is a gap by which conversion cannot belegally recognized. The Court called for a legislation to be passed in order toprotect religion from abuse and manipulation, as well as clarifies the conditionsof conversion from one religion to another, and the organs that can certify thisconversion.38

This new interpretation of Article 47 of the Law of Civil Affairs was repeatedin another ruling made by the Court of Administrative Justice.39 Those whorefuted this argument referred to other rulings whereby the Court acceptedcertificates issued by Churches to prove that an act of conversion alreadyoccurred. Moreover, this argument is not raised with respect to Christians ornon-Muslims in general who convert to Islam (Scott 2010, 88).

The Supreme Administrative Court has not yet substantively examined acase related to a Muslim such as Hegazy or Al-Jouhary, who were born andbrought 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 prag-matic 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 hisnew religious status.40

Under the pragmatic reasoning, the Supreme Administrative Court hasfollowed a flexible position towards converts. This new reasoning has beenapplied to converts of Christian origin. It has not, however, been extended toconverts who were born and brought up as Muslims and decided to convert fromIslam like the cases of Hegazy and Al-Jouhary or converts whose one of theirnon-Muslim parents converted to Islam during their childhood like the Case ofJerjes Malak. Moreover, the Supreme Administrative Court has failed to establishthat religious freedom is a right that should be protected under Egyptian lawand 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. Ifthe solution introduced by the Supreme Administrative Court for converts ofChristian origin is consistently executed by the Ministry of Interior, one couldexpect that more legal tensions arise in relation to the civil consequences ofapostasy. 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 ofAdministrative Justice, Case no 54471/63, 30 March 2010.40 Supreme Administrative Court, Case No. 19082/60, 12 February 2011.

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deprivation of converts of some of their civil rights still represents a severe abuseof religious freedom.

Finally, the reasoning developed in most of the cases under review reflects amonolithic and static understanding of Islamic law that prohibits Muslims fromchanging their religion and holds apostasy as a serious crime in a Muslimsociety. Although Islamic Shari‘a was mentioned several times in the rulings,judges have not systematically shown the logic of their conclusions from withinthe spectrum of Islamic law. They have not also made the distinction betweenShari‘a as sources of Islamic law and the jurisprudence, (fiqh), as methodologiesand rulings. Moreover, judges continue to systematically invoke the protectionof public order in a Muslim society to justify the prohibition of apostasy.

Prospects for freedom of religion in Egypt

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

The previous section demonstrated that Egyptian judges are strongly affected bythe dominant views in traditional Islamic law on apostasy. Although judgeshave admitted that there was no agreement among classical jurists on whetherapostasy entails a criminal fixed punishment, there is a consensus in most of thejudgments that conversion from Islam should not be tolerated in a Muslimsociety. This strict position explains the steady refusal of courts to record thenew religious status of converts. When courts made positive judgments for thesake of converts of Christian origin, the reasoning was based on pragmaticarguments which did not involve the right of religious freedom, including theright of each individual to change his/her religious beliefs without being subjectto 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. Theunprecedented political influence of Islamist parties after the 25th of Januaryrevolution has reignited the debate in Egypt on the relationship between Islamiclaw and international human rights (El-Fegiery 2012). Therefore, a sustainablesolution to the legal tensions concerning apostasy requires a new perspective onthe relationship between Islamic law and religious freedom. Islamic legal tradi-tions are diverse and the practices of Muslim states are different according tocertain political, social and cultural circumstances. The implementation offreedom of religion by Muslim states has not been the same; as rightly stated




by An-Na‘im, “being Muslim or Islamic did not in fact have the same meaning indifferent places or over time” (An-Na‘im 2004). Muslim scholars and jurists havealso shown different positions, and it has been observed that increasing num-bers of scholars have become eager to establish reconciliation between Islamictraditions and freedom of religion.

There are indeed legal options that can be employed by judges and thegovernment, to bring Egypt in line with the universal understanding of freedomof religion. The diversity of rulings delivered by Egyptian courts shows that theunderstanding of Islam is not static, but dynamic and changeable. As observedby An-Na‘im, “the relationship [between Islam and human rights] is open toengagement and transformation precisely because it is contingent on an inter-active web of internal and external factors and forces” (An-Na‘im 2004, 9). Theambivalent position of many Muslim states towards religious freedom is attrib-uted to the contesting interpretations of Islamic law on apostasy. Given the factthat Islamic law has been playing an important role in the constitutional andlegal system of many Muslim states, the application of international law in thisarea requires a solution from within it. A definite causal relationship should notbe established between the poor records of religious freedom in many Muslimstates and Islamic law, since other political, economic and social factors mightbear the responsibility. However, as noted by An-Na‘im: “this relationship isimportant enough for most Muslims that their motivation to uphold human rightsnorms will probably diminish if they perceive those norms to be inconsistent withIslamic principles” (An-Nai‘m 2008, xii).

Although the classical Muslim jurists adopted diverse opinions on rulesrelated to apostasy, it has been noted that the mainstream opinion in classicalIslamic law contradicts the modern conception of religious freedom in interna-tional human rights law. According to Shafi’is and Zahiris, apostasy is notallowed for Muslims and it is punishable by death (Saeed and Saeed 2005,56). However, the classical jurist, Ibn Taimiyyah, claimed that a group of theprophet’s companions, such as Ibrahim al-Nakha and Sufyan al-Thawri, wereof the opinion that no criminal penalty should be applied to a Muslim whochanges his or her religion (Baderin 2003, 123). Even when the punishment isnot applied, a charge of apostasy has significant consequences for civil rights.According to Hashemi, an apostate is not permitted to marry a Muslim, andif married, his or her marriage will be deemed void. Apostates are notallowed 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 thecriminal penalty for apostasy, a considerable number of jurists such as the

20 M.A. El Fegiery



Egyptian jurist al-Sh‘arawi restated the pre-modern position that was favourableto a punishment; other modern scholars such as Rashid Rida, Maududi, Faruqiallowed the punishment only if applied by the state in cases where conversionfrom 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 inIslam, since it is incompatible with Islamic values of free choice and plurality,and not congruent with the circumstances of the modern nation state (Saeed2005, 93–8). This opinion was embraced by a number of scholars such asKamali, Tantawi, Shaltut and al Turabi (Saeed 2005).

Although a considerable number of Muslim scholars and Muslim states arenow against the application of harsh criminal penalty for apostasy, the freedomof Muslims to convert from Islam is still controversial in contemporary practice.As mentioned, apostasy gives rise to other serious consequences related to civillaw 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 religionpublicly, and can be subject to several forms of discrimination.

The majority of Modern Muslim scholars who opposed the application of acriminal penalty on apostates have not elaborated a progressive position thatwould secure apostates’ freedom from discrimination based on their free choice.In explaining this defect, An-Na‘im noted that as long as Muslim scholars adhereto the classical methods of Islamic law, Ijtihad, “juristic reasoning” will beunable to solve the tension that arises between Islamic law and the modernconception of religious freedom, because some aspects of this tension, particu-larly with regard to the civil consequences of apostasy, are associated with clearand define text in Quran and Sunna (An-Na‘im 1986, 236). Therefore, the solutionaccording 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 freedomof religion, from an Islamic perspective, Al-Na‘im believes that it is not enoughto introduce different interpretations of prophetic traditions that impose punish-ment for apostates, but advocates a new understanding of the Islamic messagethat responds to the contextual and historical developments of human beings.An-Na‘im has been inspired by the evolutionary approach of the Sudanesereformer Mahoumd Taha, who differentiated between the Qur’an and Sunna inMecca and Medina. According to Taha, the message in Mecca was universal, itconsidered the full equality of human beings and promoted individual freechoice, but the message in Medina came up with a set of rules to regulate theemerging Muslim community in Al-Medina. These rules have been analysed byTaha and An-Na‘im according to the political, cultural and social circumstancesof the Muslims at that time. All rules which concern women, non-Muslims and




penal law were developed at this stage. According to this methodology, con-temporary Muslims can appeal now to the Islamic message of Mecca to developthe 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 socie-ties from an Islamic perspective. As a result of this drastic perspective, anyconsequences stipulated by traditional Islamic law on the personal status ofapostates are irrelevant. As he notes, there were a wide range of Muslim scholarswho struggled to challenge the death penalty for apostasy as a rule of Islamiclaw 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 isinconsistent with freedom of religion” (An-Na‘im 1986, 215).

The constitutional and legal landscapeof religious freedom

The jurisprudence of Egyptian judiciary on conversion from Islam highlightscertain constitutional and legal loopholes that restrict the scope of religiousfreedom in Egypt. Egyptian citizens should record their religious affiliations inall official documents of identification. It is argued that this legal requirementrepresents a serious source of religious discrimination, and a flagrant interfer-ence on individual freedoms. According to this view, the religious affiliation ofcitizens should be abolished, not only from the identity cards but also from anyother official documents. People will then freely decide which religious rulesthey apply in marriage. Another view goes that such an abolition is not apractical solution, given the fact that religious status in Egypt establishes certainrights and duties in family law. According to this opinion, the only practicalsolution in the short run is to enable citizens to freely record their true religiousaffiliation in their documents (Bahgat 2007). The abolition of personal religiousdata will not prevent any potential legal consequences for converts based ontraditional Islamic law on apostasy, unless there are genuine modifications inthe civil and family law, or there is a new liberal interpretation of Islamic lawin Egypt.

A considerable number of Egyptian Christians convert to Islam to applyIslamic family law, and then face administrative troubles when they decide toreturn to their original religion. Therefore, a legal solution needs to be intro-duced for Christians who are legally barred from dissolving their marriages dueto the strict position of Christian family law on this issue, and indeed, there is anongoing debate among Christians in Egypt on the need to reform Christian

22 M.A. El Fegiery



family regulations (Ahram Weekly 2011, 1058). This reform would not be easygiven the resistance of some Egyptian Churches. The 2012 Constitution estab-lishes an autonomous status of non-Muslim Christian sects in regulating theirpersonal status affairs. Islamist-dominated Constituent Assembly presented thisprovision as an advantage for non-Muslims in Egypt, but it actually strengthensthe powers of Christian religious establishments over their members andobstructs the possibility of having one civil family law applied to all Egyptiansregardless of their religious affiliation.

Another reason for the high number of converts from Islam in Egypt is thatthe law allows for the automatic registration of a child as a Muslim when his/herfather converts from Christianity to Islam. According to international humanrights law, the choice in this case should be left for the children themselveswhen they become able to understand and judge the different religious convic-tions. Article 14 of The International Convention of the Rights of the Childprovides that every child has the right to freedom of thought, religion andconscience. It establishes rights and duties for the parents or legal guardiansin directing a child, but it does not give an exclusive right for fathers to decidethe religion of their children based on their own religious beliefs.41 Hashemi hasnoted that:

The Qura’n rejects nonbelievers justifying their following of the religion because of theirparents. In the same sense, according to Shiite jurists every Muslim from the age ofmaturity 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 choosea religion other than his father’s, i.e., Islam. (Hashemi 2008, 215)

This article suggests that in the case of inter-faith marriages, children shouldhave the possibility of fully exploring the religions of their parents and freelydeciding which religion they will adhere to.

Finally, although freedom of religion has often been protected in Egypt’sconstitutions, its interpretation has been undermined by other constitutionalprovisions which give Islam or Islamic law an advanced status in the wholeconstitutional and legal system. We have seen that Islamic law influences theunderstanding of freedom of religion by most Egyptian judges. Islam as afundamental component of public order is the highest norm in determiningthe scope of any other legal and constitutional norm in Egypt. To protect free-dom of religion from any inappropriate interpretation of Islam, a constitutionalclause could give fundamental human rights, including freedom of religion, thehighest 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).




provision cannot restrict their scope without strictly defined criteria, as stipu-lated in international human rights law. During the constitution making processin 2012, there were some efforts led by human rights defenders and liberal forcesto adopt a constitutional bill of rights or to refer in the constitution to thesuperiority of international human rights treaties over Egyptian legislation, forinstance see A Coalition of 27 Egyptian Human Rights NGOs (2011). However,Islamist-dominated Constituent Assembly opposed the determination of thecontent of human rights in the constitution in accordance with internationalhuman rights treaties. The Muslim Brotherhood and its allies maintained thatthese treaties often “reflect Western conceptions of human rights” (Statement bythe Freedom and Justice Party 2011).

Conclusions

Although apostasy is not a crime in Egyptian law, it is a source of intense legaldispute in Egyptian courts. Apostasy brings serious legal consequences, whichdeprive apostates of basic civil rights. This article focused on the right ofconverts to document their new religious affiliation in their documents ofidentification, 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 sourceof legislation and freedom of religion. Although the jurisprudence of the StateCouncil on apostasy has developed, allowing converts of Christian origin torecord their religious affiliation in their documents of identifications, the posi-tion of Egyptian Courts has not changed yet towards converts of Muslims origin.

Throughout the previous three decades, judges at the State Council adoptedthree approaches towards this right. The hard-line trend dominated the judiciarysince 1980, in which judges considered apostasy a serious crime in Islamic lawand a threat to the Muslim society. The liberal trend was the minor positionadopted by the Court of Administrative Justice from 2004 to 2006 when the Courtdefended the compatibility between Islam as the official religion and freedom ofreligion. However, these rulings were limited to converts of Christian origin.There has since been a pragmatic trend, adopted by the Supreme AdministrativeCourt in 2008, in which it has argued that in modern states, each citizen shouldrecord his/her true information in the documents of identification. The Courtaffirmed that this documentation does not mean that the Court recognizes theact of apostasy, but that instead it is a practical requirement to regulate therelationship between citizens and the state and avoid any threat to public orderby giving citizens false religious status which might carry dangerous legal

24 M.A. El Fegiery



consequences. This pragmatic trend has been adopted by judges with regard toconverts of Christian origin, but again, has not been followed with respect toconverts of Muslim origins.

Although judges have not systematically discussed Islamic law on apos-tasy, they have built their reasoning on the general premise that apostasy isprohibited in Islamic law and is a serious threat to public order in Muslimsocieties. Islamic law on apostasy is not monolithic, and that judges havevarious legal options for reconciling Islamic law and freedom of religion. Anew perspective on the former, which recognizes the right of individuals tofreely choose or change their religion, is a sustainable solution to the legaldisputes examined in Egyptian courts concerning apostasy. An increasingnumber of modern and contemporary Muslims scholars have worked to estab-lish a reconciliatory view between Islamic law and freedom of religion. Thearticle has addressed certain constitutional and legal loopholes that under-mine the application of freedom of religion in Egypt. The 2012 Constitution ofEgypt has failed to fill these loopholes. On the contrary, the consolidation ofIslamic law in the constitution and the lack of sufficient protection of humanrights create uncertain future for religious freedom in post-revolutionaryEgypt.

Acknowledgments: I am grateful to Professor Lynn Welchman of the School ofOriental and African Studies for her support during the preparation of thisarticle. I also thank Hossam Bahgat and Adel Ramadan of the EgyptianInitiative for Personal Rights for providing me with some recent cases onconversion.

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