This study was presented to the UN Minority Group Conference Geneva 2005. The Study was accepted and adopted by the United Nations High Commission for Human Rights, and is filed under Al-Kalema Centre in the UN web site: www.ohchr.org/Documents/Issues/Minorities/WG/11/Al-Kalema-3A.pdf
STUDY OF THE PRESENT EGYPTIAN CONSTITUTION
AND THE LAW ARTICLES THAT CONFLICT
WITH MINORITY RIGHTS
Introduction: Egypt is the most populous country in the Middle East and has over seventy million inhabitants. The COPTS, “The Christians of Egypt” are the largest Christian minority living in the Middle East; their numbers have never been accurately recorded. While the Egyptian government considers their numbers to be around 6 %, the COPTS, based on their estimation, consider their numbers to be around 14%, (42) COPTS claim that the government official figures are deliberately made smaller for political reasons. Egypt has a leadership position amongst the Arab World. Egypt is the centre of gravity in the Middle East politically, culturally and also religiously.
The Egyptian Constitution has two hundred and eleven articles directed at the legislators, some parts of the constitution has conflicting messages.
This short study endeavours to illustrate how the severe infringement on the Human Rights of the religious minorities in Egypt is shaped through the “muddle” created by integrating Constitution articles, civil law, religious text and their effect on real life court rulings.
The Egyptian Constitution second article states “Islam is the religion of the state and Arabic its official language, Islamic jurisprudence is the principal source of legislation” (1). The position of the article and its order being the second amongst two hundred and eleven articles indicates its importance and hierarchal power to the legislator. This becomes apparent in courts when other articles of the Egyptian Law are made subordinate to the Islamic Sharia law, which severely curtails the principle of equality.
It is noteworthy that the Egyptian Constitution provides for Equality between all Egyptians:- Article 40 states “All citizens are equal before the law. They have equal public rights and duties without discrimination between them due to race, ethnic origin, language, religion or creed.” (1)
Article 46 also guarantees the Freedom of belief; “The State shall guarantee the freedom of belief and the freedom of practice of religious rites.”(1) The articles 40 and 46 are in agreement with article 18. Universal Declaration of Human Rights:- “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.” (2)
Furthermore; the Egyptian Constitution considers any International Law or Treaty ratified by the Egyptian government to be part of the Egyptian Law. Article 151 stipulates that "The President of the Republic shall conclude treaties and communicate them to the People's Assembly, ratified with suitable clarifications. They shall have the force of law after their conclusion, ratification and publication according to the established procedure." However, by attaching a qualification to the adoption of International Laws and Treaties which states “taking into consideration the provisions of the Islamic Sharia and the fact that they do not conflict with the text annexed to the instrument, we accept, support and ratify it.” This has rendered the adoption of the international law useless. A similar qualification was also made to the adoption of international law in Egypt on ratification of the “International Covenant on Civil and Political Rights” which was signed by Egypt in 1982.
The Rutherford Institute Handbook on Religious Liberty, Egypt witnesses to this fact and states “...complicated the issue of religious freedom in Egypt by making Islamic Shari'a law a main source of legislation . . . this is detrimental to the cause of religious freedom and tolerance. Muslim fundamentalists are now seeking the actual revision of existing legislation in order to provide for the immediate and total implementation of Shari'a.” (11)
As the Egyptian Constitution has identified itself with a religion, i.e. Islam, which has its own set of rules and laws, it has become mandatory to look, in an objective manner, into how basic human rights and specifically the freedom of other beliefs and religions under Islamic Sharia Law could be possibly adversely affected.
Freedom of Religion and Freedom of Conversion: Judaism and Christianity are considered under Islam to be “heavenly religions”. Other religions such as Bahaii’s, Hinduism, and Buddhism etc are considered non-heavenly religions and prohibited from practice in Egypt. Under Islam a Muslim cannot reject Islam or otherwise becomes an “apostate”. Islam looks down on other heavenly religions and prophecies itself to be the most superior.
Quran and Hadith are the main two pillars of Islam. For Muslims, Quran is the word of God and provides counsel for men in all areas of life; thus it is suitable for all ages. Hadith, based upon Prophet Mohammed’s sayings as recorded by his followers, is subject to questions of accuracy and interpretations. There are four schools of Sunni Islamic Jurisprudence in Egypt: the Hanafi, Shafie, Malikie, and Hanbali; all of them reject apostasy. Under Islamic Shari’a Law apostates should be given period to repent and return to Islam, if the apostate continues to reject Islam he /she must be killed.(26) Also refer to Fig. 6 (D) in Arabic. Judges refer to the Islamic jurisprudence opinion of one of the four schools to qualify their judgement to give it legal support to be seen as legal judgement based on accepted religious text in accordance with the Egyptian Constitution.
Examples from Hadith regarding Apostates - “Narrated Abu Huraira”:
Ali burnt some people and this news reached IBn 'Abbas, who said, "Had I been in his place I would not have burnt them, as the Prophet said, don’t punish anybody with Allah's Punishment.' No doubt, I would have killed them, for the Prophet said, "If somebody (a Muslim) discards his religion, kill him." (5) (13)
Other source of Islamic jurisprudence is “Sirah”, which is the biography of Prophet Mohammed - that could be used as a yardstick and taken as an example. Islam and Shari'a have a vast array of values, principles, historical undercurrents, and interpretations that have influenced the culture and mind-set of the Muslim world.
Carnegie Endowment for International Peace refers to the difficulty created in incorporating Islamic Sharia Laws in Civil Laws by saying “Sharia is not an easily identifiable set of rules that can be mechanically applied but a long and quite varied intellectual tradition”. Proclaiming it “the principal source of legislation” places the burden on officials to draw on that tradition in drafting legislation” (25)
USA International Religious Freedom Report 2004 raises several points on the encroachment on freedom to worship in Egypt and based upon the Egyptian Constitution, the Egyptian Law and the legal practices such as; “The Constitution provides for freedom of belief and the practice of religion; however, the Government places restrictions on this right. According to the Constitution, Islam is the official state religion, and Shari'a is the primary source of legislation; religious practices that conflict with the official interpretation of Shari'a are prohibited “. (12) “Law 263 of 1960, which is stillin force, bans Baha'i institutions and community activities.” (12)
The United States Commission on International Religious Freedom report May 2005 refers to Egypt poor record on the issue of Freedom of belief “Egypt has a poor overall human rights record that includes repressive practices which seriously violate freedom of thought, conscience, and religion or belief.”(45) Also the report refers to “Known converts from Islam to Christianity generally receive attention from the state security services,
The Egyptian Penal Code, in Articles 160 and 161 protects against the violation of constitutional principles respecting freedom of religion, yet there are important limitations on Egyptian freedom of religion since Islam is the state religion. The U.S. Department of State explains: Islam accepts Christian and other converts but Muslims face legal problems if they convert to another faith. There is no clear legal prohibition against conversion or proselytising but the Penal Code prohibits any person from "degrading or disdaining any of the holy religions or any of its religious sects" with "the intention of harming national unity and social peace." This is interpreted as forbidding the conversion of Muslims and conviction is punishable by imprisonment. (12)
Although not forbidden by law, the State does not recognise conversions from Islam to Christianity or other religions. Authorities periodically charge converts with violating laws prohibiting the falsification of documents. In such instances, converts who have no legal means to register their change in religious status sometimes resort to soliciting illicit identity papers, often by submitting fraudulent supporting documents or bribing the Government Clerks who process the documents. The U.S. Department of State says (12)
An Example of such an event is here. (19) The Egyptian courts have one-way religious conversion documents, i.e. from other religions to Islam but not the reverse, copy at the end of document. Fig 1 and Fig. 5
Examples of Verses from Quran, which are quoted by Islamists and used to form a mindset of people who apply and device laws in Egypt:
“Fight those who believe not in Allah nor the Last Day, nor hold that forbidden which hath been forbidden by Allah and His Messenger, nor acknowledge the Religion of Truth, from among the People of the Book, until they pay the Jizya with willing submission, and feel themselves subdued” (3)
“Remember thy Lord inspired the angels (with the message): "I am with you: give firmness to the Believers: I will instil terror into the hearts of the Unbelievers: smite ye above their necks and smite all their finger tips off them” (9)
“And fight them on until there is no more tumult or oppression, and there prevails justice and faith in Allah altogether and everywhere; but if they cease, verily Allah doth see all that they do.” (8)
Examples from Hadith regarding Apostates - “Narrated Abu Huraira”:
“Allah's Messenger said: I have been commanded to fight against people till they testify that there is no god but Allah, and that Muhammed is the Messenger of Allah, perform the Prayer, and pay Zakah. If they do that, their blood and property are guaranteed protection on my behalf except when justified by law, and their affairs rest with Allah.” (10)
Thus conversion from Islam is effectively prohibited. Under Islam the severity of punishment, largely carried out by the family and relatives, renders the Muslim converts unable to confess let alone preach his/ her newfound faith and live a life of fear if he/she survives this ordeal.
Restriction on building and repairing Christian places of worship:
Church building is subjected to State control governed by the outdated Ottoman Hamayouni Decree of 1856, amplified by the Interior Ministry in 1934 as the Alezabi Decree. This decree sets out certain restrictive conditions which must be met before a church can be built. It additionally requires the signature of the President before construction can commence. No such signature is required in order to build a mosque.(20) The restrictions are modelled on the Umar Ibn alas Pact signed by Christians at the time of the Islamic invasion to Egypt. (41)
USA International Religious Freedom Report 2004 sites governmental discrimination in churches/buildings: “Presidential decrees are required only for the building of new churches, while repair permits are issued at the Govern orate level. In 1999, in response to strong criticism of the Ottoman decree, President Mubarak issued a decree making the repair of all places of worship subject to a 1976 civil construction code. The decree places repair of churches and mosques on equal footing before the law and facilitates church repairs. However, local permits for such repairs are still subject to approval by security authorities. Even though mosque and church repairs are now subject to the same laws, enforcement of the laws appears to be much stricter for churches than for mosques. (12)
There are numerous cases which illustrate very clearly the obstruction to building and repairing churches and in some cases an application to build a church has taken 28 years in villages with no churches with several thousands Christian population. As a result Christian funerals and weddings take place in the middle of the village streets (please refer to Mankateen village case) (43)
Appointing or Promoting non-Muslim to a position of leadership:
No leadership of a non-Muslim over Muslim in public life is a well established principle in all Islamic Jurisprudence schools, the USA International Religious Freedom Report 2004 sites this finding by saying “The Constitution provides for equal public rights and duties without discrimination based on religion or creed, and in general the Government upholds these constitutional protections; however, government discrimination against non-Muslims exists. There are no Christians serving as governors, presidents or deans of public universities.” (12) This is a direct application of the Islamic teaching that “A Muslim must not be subordinate to a non Muslim”.(24)
Example of the opinions of Islamic Jurisprudence, which is universally accepted that a non/Muslim must not be in a senior position (17). This judgement is well established and agreed by all jurisprudence schools; it applies to all senior position with authority attached. This clear position is referred to in a Fatwa by the famous Saudi Islamic authority Sheik Mohammed Ibn Saleh El-Othimeen. (23). These views are, unfortunately, prevailing in Egypt severely undermining the principle of equal opportunities.
Marriage of a non-Muslim to a Muslim:
Although there is no Quranic clear rule in this area, marriage of a Muslim man to a Christian woman is permitted under Islam, however marriage of a Muslim woman to a non-Muslim man is prohibited.
According to the Egyptian law based on Islamic Jurisprudence, the court of law would annul a marriage between Christian husband and wife upon one of them changing his/her religion to Islam with dire consequences to children as a result, with parents forced to split. A case in Arabic of the child Marcllino is shown in Figure 2 (B) where the father either has to convert to Islam to follow his wife’s conversion to Islam to keep the marriage to his converted wife or alternatively has to be separated by court.
In April 2005 Wafaa Rafaat Adly married a Muslim man while she is was still legally wife to her Christian husband. Despite complaints of the Christian husband to the Egyptian police, and the stark illegality of having two husbands at a time, the Police let Wafaa free with her Moslem new husband, while the court approved a divorce from her Christian husband against his will. (18) In Arabic. According to Islamic jurisprudence, if a Muslim woman marries a non-Muslim man, the court would annul the marriage if the Christian husband does not convert to Islam.
Divorcing an “apostate” from his Muslim wife took a new dimension in the famous case of Dr Nasr Hamed Abu Zeid, a professor of Islamic studies, when a traditional Islamist in Egypt sought and succeeded in divorcing him from his wife using an Islamic legal process called “Hesbah”; when he expressed views contrary to what the Islamist believed to be the correct Islamic belief.. Soon after that case the Egyptian government changed the law to allow only the Attorney General to initiate “Hesbah” cases. (44)
Apostates lose their possession:
Under Islamic Shari’a law, a convert from Islam would lose his/her worldly possessions as well as other rights. Please refer to Islamic jurisprudence opinion fig. 3 (C).
If a husband converts to Islam, which is permissible under Islam, his spouse and children cannot inherit him unless they also convert to Islam, (also his children become Muslims regardless of their wishes if they are under the age of 18, as mentioned later). Although the Hanafi Fiqh does allow a Muslim to inherit from an apostate but not the reverse”, also see Fig. 3 (C). Hanifi Fiqh is the one followed in Egypt.
Custody of Muslim children:
The minor children of converts to Islam, and in some cases adult children, automatically become classified as Muslims in the eyes of the state regardless of the status of the other spouse. This is in accordance with "established" Islamic Shari'a rule, which dictates "no jurisdiction of a non-Muslim over a Muslim."(38) (12)
Please refer to Marcllino Emad Hasaballah case Figure (3) as an example - this four year old, upon the conversion of his mother from Christianity to Islam, would automatically become a Muslim according to the jurisprudence concept that the minor would follow the better religion of either parents i.e. Islam . Also see Fig. 4 in Arabic, a standard Egyptian Law book Al-Dafo’o Al-Shareeiah (Jurisprudence Rebuttals)
Non-Muslim witness in court:
A “Just” witness has to be a “free Muslim, i.e. not a slave Muslim”; non-Muslims witness in court is not admissible according to Islamic Shari law.(34) The Arabic “Tafseer” of “Jalaleen, Ibn-Katheer, Al-Tabaree and Al-Kortobi, all agree that a witness must be a free Muslim.
Appointment of a non-Muslim as a judge:
Christian Judges in the Egyptian courts constitute approximately 1% of the total number of judges in Egypt. Quranic text -“but Allah will judge betwixt you on the Day of Judgement, and never would Allah grant to the Unbelievers a way (to triumph) over the Believers” (15) could have influenced such decision.
This judgement is shared by all Islamic jurisprudence schools, for example a well respected Islamic scholar Ibn Taimiah in his book Al-Fatawi Al-Kobra “The Great Fatwa’s”, the stipulation for a judge to be Muslim is stipulation number 4 (in Arabic). (33) Arabic.
Application of “Sharia” by the public if the government does not apply it:
This could be interpreted as “Mob justice”, famous for it is Sheikh Muhammad al-Ghazali, the Al-Azhar preacher and renowned Islamic scholar, witness statement in court following the murder of the famous writer Farag Fouda1996, a Moslem writer who was murdered by the Islamic Groups because he wrote books and articles against Islamists seizing power. He frequently exposed unfairness during early Islamic “Khilafa”. According to Sheikh Ghazali, "Any person or group of people who kill an apostate should not be liable for punishment since they would be fulfilling the legitimate punishments proscribed by Islam and should be treated with leniency." (41)
The killing of Non-Muslim does not lead to the same punishment as killing a Muslim:
This is clearly stated in Hadith books and in “Fiqh” books for example Volume 1, Book 3, Number 111: (29) Hadith in Arabic (31) (32) the topic is discussed in detail in the site answering Islam with reference to most scholars views on the subject and they all agree that the Muslim must not be punished as harshly as a non-Muslim in murdering a non-Muslim (39)
Example of Hadith which is used by Islamic Jurisprudence in justifying the differential treatment in punishment for murder “Qisas”: please look up hadith 111 (40). Narrated Ash-Sha'bi: Abu Juhaifa said, "I asked Ali, have you got any book (which has been revealed to the Prophet apart from the Qur'an)?' 'Ali replied, 'No, except …the law that no Muslim should be killed in Qisas (equality in punishment) for the killing of (a disbeliever).”
The effect in real life on Christian minorities is most unfair as they do not generally see their murderers punished by courts of law, but the majority escape punishment in individual cases of murder or the large scale one such as El-Kosheh case when 21 Christians were killed in 2000 and not a single murderer was found. (22)
Women in leadership or positions of authority: “The evidence from the Qur’an and Sunnah indicates that it is not permissible for a woman to assume positions of senior public authority”, please see 4th question number 20677 (27) (28) Needless to say that this position undermines the principle of equality between men and women.
Muslim Women as witness: Women witnesses are granted half the power of men witnesses in Islam regardless of the degree of education or any other factors. The Quran states “And get two witnesses, out of your own men, and if there are not two men, then a man and two women, such as ye choose, for witnesses, so that if one of them errs, the other can remind her.” (4)
The subordination of Egyptian legislation to the Islamic Sharia Law has diminished the ratification of international laws and treaties. Various Islamic jurisprudence schools vary in their judgements how to treat Dhimmies (Jews and Christians).
However all agree that they must have fewer rights than Muslims and generally agree that Muslims must have dominance over non-Muslims.(15)
The state duty is to defend people’s “right” rather than people’s “good”, for the State to assume any moral or religious stand based on the majority’s belief would immediately encroach on minority’s rights and casts great doubt on the state as neutral body.
- The second article of the Egyptian constitution must be removed to ensure the neutrality of the state and to safeguard the Rights of all Egyptian citizens. We strongly recommend the replacement of the paragraph of the second article of the Egyptian Constitution which states that “Islamic jurisprudence is the principal source of legislation” by an article that recognises Islam as one of several source of legislation.
- We strongly recommend the removal of religious affiliation from the national number and the Egyptian ID card.
- Removal of the amendments from the international treaties such as Universal Declaration of Human Rights which stipulates “taking into consideration the provisions of the Islamic Sharia and the fact that they do not conflict with the text annexed to the instrument, we accept, support and ratify it.”
- We strongly recommend devising heavy penalties and custodial sentences to punish encroaching upon the Rights of Minorities; this step would act as a deterrent.
1- The Egyptian Constitution. http://www.uam.es/otroscentros/medina/egypt/egypolcon.htm
2- Universal Declaration of Human Rights http://www.un.org/Overview/rights.html.
3- Quran Sura 9:29 Quran http://quran.al-islam.com/Targama/dispTargam.asp?l=arb&t=eng&nType=1&nSora=9&nAya=29
6- Hadith Bukhari http://www.usc.edu/dept/MSA/fundamentals/hadithsunnah/bukhari/
7- Hadith Bukhari http://www.sacred-texts.com/isl/bukhari/bh4/bh4_197.htm
10- Hadith33 Sahih Muslim http://hadith.al-islam.com/bayan/display.asp?Lang=eng&ID=12
11- Rutherford Institute Handbook on Religious Liberty, Egypt http://religiousfreedom.lib.virginia.edu/rihand/Egypt.html
12- USA International Religious Freedom Report 2004 http://www.state.gov/g/drl/rls/irf/2004/35496.htm
13- Book 4 Volume 52 Hadith 260 http://www.usc.edu/dept/MSA/fundamentals/hadithsunnah/
14- Pact of Umar http://www.fordham.edu/halsall/source/pact-umar.html
16- Bat Ye'or,
17- The fourth stipulation from the book”Al-Ahkam Al-Soltanih” http://feqh.al-islam.com/Display.asp?DocID=9&MaksamID=1&ParagraphID=40&Sharh=0
20- CSW report on Egypt , http://www.cswusa.com/Countries/Egypt.htm
21- Answering Islam book http://answering-islam.org/BehindVeil/btv4.html
23- Ibn Othimeen Fatwa about employing non-Muslims is prominent position “in Arabic” http://www.ibnothaimeen.com/all/khotab/article_215.shtml
25- Carnegie Endowment for International Peace” Debating Islam in Post-Baathist Iraq” www.carnegieendowment.org/files/PO13.Brown.FINAL2.pdf
26- Hadith Bukhari look for number 260 please - Question20677 http://www.islammuslims.com/islam-qa/Volume_10/Chapter_1.htm
27- Question20677 http://www.islammuslims.com/islam-qa/Volume_10/Chapter_1.htm
29- Sahih Bukhari Book. Please refer to Hadith number 111
30- The Hadith that a Muslim should not be killed in “QASAS” for the killing of non-Muslim
31- Hadith in Arabic that a Muslim should not be killed in “QASAS” for the killing of non-Muslim http://hadith.al-islam.com/Display/Display.asp?hnum=1333&doc=2
32- Hadith in Arabic That Muslim should not be killed in “QASAS” for the killing of non-Muslim http://hadith.al-islam.com/Display/Display.asp?hnum=2250&doc=8
33- Al-Fatawi Al-Kobra by Ibn Taimiah http://feqh.al-islam.com/Display.asp?DocID=9&MaksamID=1&ParagraphID=40&Sharh=0
34- Quran Sura 2:28, the Arabic explanation states the witness must be a Muslim http://quran.al-islam.com/Targama/DispTargam.asp?nType=2&nSora=2&nAya=282&nSeg=51&l=arb&t=eng
35- Inheritance to a non-Muslim from a Muslim http://www.fatwa.org.za/questions_inheritance.htm
36- Sahih Bukhari Hadith 756
37- CSW report on Egypt http://www.cswusa.com/Countries/Egypt.htm
39- Answering Islam,” Discrimination Between a Muslim and a Non–Muslim” http://answering-islam.org.uk/BehindVeil/btv4.html
40- Translation of Sahih Bukhari, Book 3: differential treatment in punishment for murder “Qisas” hadith 111
41- Umr Pact and status of “Dhimmies” in Egypt http://www.fordham.edu/halsall/source/pact-umar.html
Egyptian government official statement of intention to change religion to Islam printed by the Egyptian Ministry of Justice
* The translation is (in God’s eyes, the true religion is Islam)
Figure (2) A
Stating that Mrs Hanan Gaber Melika who was Christian at the time of her marriage but after delivering her baby Emad on 14/10/2000 she converted to Islam and according to the Egyptian Personal status laws, third article of law number 1 year 2000 which regulates court cases in Personal status matters that Islamic Jurisprudence according to the Abu-Hanifa Fiqhi school of Islamic Jurisprudence should be applied in this case.
Figure (2) B
Part TranslationAccording to the Abu-Hanifa Fiqhi school of Islamic Jurisprudence the husband of the Christian convert should be asked to convert to Islam or divorce his wife “regardless of children”*The Child follows the parent who has the best religion, and Islam is the best religion.**Islam supersedes and not to be superseded “i.e. it supersedes Christianity”.
***If the husband of a Christian convert to Islam refuses to accept Islam, the judge has to separate them, as a Muslim woman can not marry a non-Muslim
Figure (2) CFigure (2) D Translation…..Personal Status and according to the most powerful opinion according to Abu Hanifa Alno’maan Jurisprudence in all cases consider the child Maseiliono Emad Hasaballah DOB 14/10/2000 A Muslim with all the resulting effect, a judgment which has to be executed urgently …the cost of the case and the solicitors fees have to be borne by the husband with full protection of all the rights of the wife.
Figure 3 (A)
Figure 3 (B)
Figure 3 (C)
The translation is…..Personal Status and according to the most powerful opinion according to Abu Hanifa Alno’maan Jurisprudence in all cases consider the child Maseiliono Emad Hasaballah DOB 14/10/2000 A Muslim with all the resulting effect, a judgment which has to be executed urgently …the cost of the case and the solicitors fees have to be borne by the husband with full protection of all the rights of the wife.
Figure 3 (D)
الدفوع الشرعية لمصطفي هرجة
Figure 5 (A)
Figure 5 (B)
Figure 5 (C)Figure 5 (D)
Figure 6 (A)
Figure 6 (B)
Figure 6 (C)
*Translation” Shafie Jurisprudence states, an apostate either return to Islam or get killed”
Figure 6 (D)Translations * “Whoever changes his religion (Islam), kill him.”**Ibn Masood said. “Prophet Mohammed said a person should be killed for three apostasy, adultery if he’s married and if he murders someone without justification.”***Jaber said.” A woman called Um Marwan converted from Islam and prophet Mohammed ordered to kill her unless she repents and returns to Islam.” She refused and was killed.****Abu Baker fought apostates in the Arab Peninsula until they came back to Islam. All Muslim scholars agreed that apostate must be killed.*****Muaz said that the prophet told him as he was going to Yemen whoever leaves Islam let him come back, otherwise smite his neck
Figure 6 (E)
Dr I H Ibrahim
United Copts GB