Dossier 14-15: From Confiscation to Charges of Apostasy
Publication Author:The Center for Human Rights Legal Aid (CHRLA)
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CHRLA is greatly alarmed by the Cairo Court of Appeals ruling of June 14, 1995, which ordered the divorce of Nasr Hamed Abu-Zeid (the Cairo University professor) from his wife, Dr. Ibthal Younis, on the grounds that he was an apostate because of the opinions contained in his published research.
The argumentation of the ruling raises problems related to freedom of thought, religious interpretation and belief, and the privacy of family relationships. It also brings into question issues regarding the constitutional framework, the existing laws of the country and the rulings and principle of independence of the Court of Cessation (the final court of appeal), and how these comply with the international human rights agreements to which Egypt is a signatory. Lastly, it raises the question as to what extent any official or unofficial party has a legitimate claim in a bringing a case of apostasy against any individual on the basis of his or her opinions and personal beliefs. CHRLA believes that before discussing these issues, we should briefly review the facts surrounding this crisis which is now threatening the future and development of Egyptian society.
The crisis began within the walls of Cairo University while members of the Standing Committee of Academic Tenure and Promotion were debating Abu-Zeid's candidacy for promotion to full professor. It was at this point that charges of apostasy were first levelled against him. This resulted in the court case calling for the divorce, and finally culminated in the issuing of a fatwa by the armed Islamic group, Jihad, calling for Abu- Zeid's blood. We hope that Nasr Hamed Abu-Zeid is not subjected to the same fate as the intellectual, Farag Foda, who was assassinated in 1993, nor the Nobel laureate, Naguib Mahfouz, who survived an assassination attempt last year. We expect the Court of Cessation to settle this point of contention in order to overcome the beasts of darkness who issue death threats at those who dare to think or advocate freedom of opinion or religious belief.
1. Events from the committee report to the divorce case
The events of the crisis began in May 1992 when Dr. Abu-Zeid presented his academic publications to the Standing Committee of Academic Tenure and Promotion for advancement to the position of full professor. These publications included the books, Imam Shafai and the Founding of Medieval Ideology and The Critique of Religious Discourse, in addition to eleven other studies published in several Arab and foreign journals. The committee prepared three reports on Dr. Abu-Zeid's research, two of them in favor of his promotion based on his obvious efforts to propel the Islamic community forwards and his ability to productively interact with the Islamic tradition. However, the third report, submitted by Dr. Abdel- Sabur Shahin, resembled those of the Spanish Inquisition. The report was not based on an intellectual critique of the contents of Dr. Abu-Zeid's research, but rather on an investigation into his intentions by which it sought to establish the illegitimacy of Abu-Zeid's application for promotion on the basis that his research consisted of "clear affronts to the Islamic faith". The report also criticized the orthodoxy of Abu-Zeid's faith.
Basing its decision solely on the negative report, the Committee ruled seven votes to six that Abu-Zeid's publications did not justify promotion. The Council of the Arabic Department prepared a report stating its objection to the committee's decision. The Council of the Faculty of Arts also submitted a report detailing its procedural concerns regarding the Tenure and Promotion Committee report. However, the Council of Cairo University, in a meeting on 18 March 1993, adopted the Committee report.
At that point, the case was completely transported outside the confines of Cairo University and provoked intense debate among intellectuals. It is understandable that in the prevailing climate of religious fanaticism, the tenure battle would lead to charges against Abu-Zeid of apostasy, and consequently to threats against his life. An escalation of the crisis occurred when a lawyer brought in a suit before the Giza Lower Personal Status Court calling for the divorce of Abu-Zeid from his wife, Dr. Ibthal Younis, on the grounds of his alleged apostasy. Attempts were began to involve al-Azhar in the ongoing battle. However, on 27 January 1994, the Giza Personal Status Court ruled against accepting the divorce suit because the plaintiff had no direct, personal interest in the matter.
It should be noted that on 31 May 1995 - two weeks before the divorce ruling - the Cairo University Council decided to promote Abu-Zeid to full professorship after the matter was reviewed by the Academic Committee which said:
“After reviewing the works submitted by Dr. Abu-Zeid in his application for promotion, examining them both individually and as a whole, we have reached the following conclusion: his prodigious academic efforts demonstrate that he is a researcher well-rooted in his academic field, well-read in our Islamic intellectual traditions, and with a knowledge of all its many branches - Islamic principles, theology, jurisprudence, Sufism, Qur'anic studies, rhetoric and linguistics - He has not rested on the laurels of his in-depth knowledge of this field, but has taken a forthright, critical position. He does not attempt to make a critique until he has mastered the issues before him, investigating them by way of both traditional and modern methodologies. In sum he is a free thinker, aspiring only to the truth. If there is something urgent about his style, it seems from the urgency of the crisis which the contemporary Arab-Islamic World is witnessing and the necessity to honestly identify the ills of this world in order that an effective cure be found. Academic research should not be isolated from social problems, but should be allowed to participate in current debates and to suggest solutions to current dilemmas by allowing researchers to investigate and interpret as far as possible.”
This report appears to put a finger at the core of the current crisis, a crisis whose danger extends further than the ruling of apostasy and divorce, but which also threatens to drag civilisation backwards by denying the community's need for free and creative intellectual work and by establishing the domination of inflexible and fanatical ideas. Abu-Zeid's only crime is that he used his mind, giving free rein to his intellect, and undertook critical interpretation in an age which does not tolerate critical interpretation.
2. The general climate in which the ruling was made
The ruling was made in a general climate of armed violence and intellectual terrorism, unknown to our country for decades. It expresses a situation of intellectual and cultural retreat from the values of enlightenment and progress. The ground is being paved for a flood of values of intolerance, fanaticism, and intellectual inflexibility which attempt to rehabilitate interpretations by material scholars of jurisprudence and subject society to their concepts.
Closing the door on critical interpretation grants a sacred quality to these interpretations and commentaries and prevents personal interpretations suppressing, the freedom to doubt the opinions of ancestors. This is a basic freedom for scientific, intellectual, and cultural advancement. Thus, the realm of "rationalism" gives way to the domination of uncritical "transmission" of tradition, leaving Muslims no choice but to conform to tradition. This imitation leads to fanaticism and inflexibility whereby Muslims are declared apostates.
What befell our ancestors many years ago in the times of cultural backwardness, happened also at the turn of the twentieth century and is happening now at the end of the century. Although a certain trend to make Islam in keeping with the spirit of the age was introduced by many religious innovators and reformers such as Gamal al-Din al-Afghani, Mohamed Abduh, Rashid Rida and others, it was not accepted by nor encouraged by Islamic jurisprudence.
In the 1920's, there was a heated controversy over the freedom of intellectuals. Sheikh Ali Abdel-Razek was taken to court on the basis of his book Islam and the Principles of Government, one of the rare books that managed to influence the intellectual atmosphere in the first half of the twentieth century. Abdel-Razek was accused of being a heretic and he was dismissed from al-Azhar University and never attempted to publish another edition of his book.
In 1932, Taha Hussein was dismissed from the University after a dispute that lasted for six years over his book On Pre-Islamic Poetry. A group of extremists reported him to the Public Prosecutor demanding the book destroyed, the author was to be prosecuted, and that he be dismissed from the university. Hussein was accused of apostasy on the basis that he dealt with the case of Ibrahim and Ismail in the Qur’an, the seven readings, and the lineage of the Prophet Mohamed.
Having examined the case, the prosecutor, Mohamed Nour, who was assigned to question Hussein reported that: "the objective of the author, Taha Hussein, was not to merely challenge religion. The core sentences in the book dealing with religion are there for the sake of enhancing the academic research. Since the criminal intention is not valid, the case is dismissed". (Abdel Latif Mohamed, Political Jurisprudence in Egypt, Part III, 1927 Edition, p. 1067-1073).
Compared to the cultural climate of the 1930's, the 1980's and the 1990's are characterized by chaos and extremism. Dr. Ahmed Sobhy Mansour was dismissed from al-Azhar University and imprisoned for six months. This was based on a verdict reached by the university itself on the grounds that he rejected a fundamental tenet of Islam in his research of truth of some of the Prophet Mohamed's sayings, or Hadith.
Chaos and extremism have acquired an incredible force in the 1990's. The climax of the denial of freedom of thought was reached when the court ruled Abu-Zeid an apostate and that he must be divorced from his wife, although he announced his adherence to the creed of Islam.
CHRLA is concerned that this ruling might lead to the strengthening of extremism and intellectual inflexibility, a climate that threatens the values of religious tolerance, freedom of thought, and expression. Such a climate could lead to further rulings of apostasy by Egyptian courts, which, in turn, could be damaging to Egyptian society. Most significantly, these accusations serve only to legalize extremism.
3. The legal basis of the ruling
CHRLA believes that this ruling causes severe dilemmas and challenges with regard to juristic and legal principles:
a. Invalidating the legal principle of crimes and penalties
The court ruling stated that apostasy was a crime punishable in accordance with "Qur'anic punishments" and that it may be the grounds for a case brought before the judiciary. This is contrary to Article 66 of the Constitution which states that "penalty is personal and there may be no crime established nor penalty inflicted except on the basis of the law". The Egyptian Penal Code does not recognize apostasy and, hence, it has no legal definition that might assist the judiciary in deciding whether or not apostasy may form the grounds of a legal court case.
Even in Civil Law, the Court of Cessation has ruled that apostasy could only be proved through specified ways: either a certificate from a specialized religious institution certifying that the individual has converted to another religion or a confession by the individual that he has converted.
"Since a Muslim inherits his/her religion from his/her parents, he/she does not need to re-announce his/her Faith". (Court of Cessation, 5/11/1975 - Court decisions 1926, p. 137).
"It is stated that for a person to be a Muslim it is enough that he articulates his belief in Allah and the Prophet Mohamed. The judge may not look into the seriousness of incentives behind the confession. It is not necessary to make a public confession". (Justice Azmy El Bakry, The Encyclopaedia of Jurisprudence and the Judiciary in Personal Status, 3rd Edition, p. 234)
Concerning the same issue, the Court of Cessation adds that "In accordance with the established course of this court, religious belief is considered to be a spiritual matter, and consequently is to be judged only by what is explicitly declared. Therefore, a judge is not to investigate the sincerity nor the motive of such declared statement". (Cessation 44, judicial year 40, session 26 January 1975). It has further ruled in another incident that "this court has always taken the course established by the law that religious belief is among matters in which the judgement should be based on declared statement and by no means should the sincerity or motives of this statement be questioned". (Cessation 51, judicial year 52, session 14 June 1981) (Both rulings in Azmy al-Bakry, p. 125)
Apostasy and its punishment of death are controversial issues among Islamic scholars; some deny that such a crime exists in the first place, while others insist that it does. It is established that penalties must be defined precisely in order that a judge may implement them in the cases brought before him.
Article 2 of the Egyptian Constitution, stating that "the principle of Islamic Sharia is the main source of law" may not be used as a basis for the ruling. The Constitutional Court has ruled that "Article 2 of the Constitution stipulates that this clause has no legal force in and of itself. Instead, it is a discourse aimed at urging the legislator to amend new and existing legislation in accordance with the principles of Islamic Sharia. Thus, Article 2 addresses no other, not even the Judiciary, but the legislator. Consequently, the principles of Islamic Sharia do not have the power of law unless a legislator makes such a law. Outside of this, Article 2 is no more than a source of legislation".
The Constitutional Court adds that "if the Constitutional legislator had wanted to make the principle of Islamic Sharia a part of the Constitution specifically, or had intended that these principles be enforced by the courts regardless of particular legislation and procedures defined by the constitution, he would have stipulated this explicitly". (Ruling of the High Constitutional Appeals Court, Appeal session 1/20; 4/5/1985)
b. Contravention of the ruling established by fiqh and the judiciary
The court refused to acknowledge the fact that "Dr. Nasr Hamed Abu- Zeid is a Muslim". The Judge's understanding of his books, opinions and research, in the end, was a "human understanding", or is a subjective interpretation, which may be right or wrong. From the established principles of law it is not permitted to deny what is absolutely certain in favor of what is subjective. The court has overlooked the fact that an individual who entered Islam with his/her own convictions may not be deemed a non-Muslim except under his/her own volition, so that no doubt remains.
The ruling of the Appeals Court on the apostasy of Dr. Nasr Hamed Abu-Zeid is contrary to the Court of Cessation ruling which states that questioning people's beliefs is not a matter for discussion. The court established that "religious belief is a spiritual matter which no judicial body may judge unless it has been explicitly stated by the person himself".
c. Legal implications of a lawsuit based on the principle of hisba
The principle behind hisba grants Muslims the right to file lawsuits in cases where, in their opinion, an exalted right of God has been violated. It came about as a human interpretation and innovation by Muslim fiqhs (jurists), influenced by people's lawsuits under Roman law and in accordance with the formation of a nation-state based on religion.
Article 89 and 110 of the Regulations Governing Sharia Courts include legal support for hisba lawsuits, but Law 462 of 1955 abolished this legal tradition and decided to subject Personal Status disputes to the rules of the Civil Procedures Code to free it of these regulations.
The Egyptian Civil Procedures Code does not give legal support to private hisba lawsuits if we take into account changes made to the legal structure by the Constitution of 1971 in which Article 40 noted a principle of equality between citizens and forbade discrimination on the basis of religion since it was necessary to interpret conditions (of status and interest of the individual bringing the case against the defendant) according to Article 3 of the Criminal Procedures Code. Thus, the hisba lawsuits are contrary to the Constitution because they discriminate between citizens on the basis of religion by granting Muslim citizens the right to file lawsuits while non-Muslim citizens are not granted the same right.
The implication of the ruling on hisba lawsuits is that it creates sectarian divisions within society; specifically concerning legal rights. Thus, it violates the concept of contemporary citizenship since most modern societies, including our own, base the rights of citizenship not on religious criteria but on that of belonging to a nation regardless of the religious tendency of the individual. Not only is the acceptability of hisbalawsuits incompatible with Article 40 of the Constitution, but it is also in contravention of several international agreements, including: Article 2 Section 7 of the International Declaration of Human Rights; the values of equality and citizenship stipulated in Article 2 Section 2 of the International Covenant on Civil and Political Rights, whereby all signatory states are obligated to take necessary legislative and non-legislative measures, in accordance with constitutional procedure, if their existing legislative or non-legislative measures do not provide effective application of the rights granted by this Agreement; and Article 4 of the International Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, which states that:
1. All States shall take effective measures to prevent and eliminate discrimination on the grounds of religion or belief in the recognition, exercise and enjoyment of human rights and fundamental freedoms in all fields of civil, economic, political, social and cultural life.
2. All States shall make all efforts to enact or rescind legislation where necessary to prohibit any such discrimination, and to take all appropriate measures to combat intolerance on the grounds of religion or other beliefs in this matter.
The basing of this ruling on the acceptability of hisba lawsuits also constitutes an invalidation of women's rights and dignity, in that it permits a woman's divorce without regard to her wishes and at the request of individuals without any relation to the parties of the marital relationship. It is thus in contravention of Article 12 of the International Declaration of Human Rights which stipulates that:
No one shall be subjected to arbitrary interference with his/her privacy, family home or correspondence, nor to attacks upon his/her honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.
d. Hisba lawsuits and the suppression of freedom of thought
Perhaps the most dangerous legal problem raised by this ruling is the degree to which hisba lawsuits are appropriate in cases regarding freedom of opinion, thought, and belief, in so far as such cases require an examination of the consciences of writers, intellectuals, and researchers. In the prevailing climate of fanaticism and extremism, these provide a justification for extremist Islamic groups to assassinate those who differ in their opinions or interpretations. Egyptian courts are now witnessing a great number of these lawsuits being brought against intellectuals, journalists, and university professors like Atif al-Iraqi, Ragaa al-Naqash, Mahmoud al-Tohami, Yousef Chahine, and others.
e. Judges and intellectual conflicts
The role of a judge is not to impose opinion, nor are the courts an arena for settling intellectual matters. The case of Dr. Abu-Zeid must be considered within its proper framework, for in reality the true essence of this case is the issue of the freedom of academic research. Dr. Abu-Zeid's only crime is that certain individuals have refused to accept the legitimacy of his academic research, and, instead of refuting or criticizing his opinions within a framework of intellectual and academic debate, they have done so within the legal framework of the Egyptian courts. The same course of action was taken in the case of the film "The Emigrant" (al-Muhajir), whereby the courts were called on to judge a matter considered to fall in the realm of aestheticism.
f. The unconstitutionality of Article 280 of the rules regulating the Sharia Courts
Article 280 stipulates that "rulings shall be made in accordance with the Articles contained in these rules and the majority of accepted doctrines of the Abu Hanoi school of jurisprudence, except in cases governed by the rules of the Law on Sharia Courts that stipulates that rulings on such cases shall be made in accordance with the same rules". This Article is contrary to the constitutional principle of the separation of the legislative and judicial estates. Judges are assigned the task of searching for the legal rule in the Abu Hanifa school; if this rule is clearly acceptable there is no fault in this process and no unconstitutionality, but if the acceptability of the rule is unclear the work of the judge in this instance exceeds that of a search for the rule - which is essentially his task – to enter into the realm of legislating the rule, which is the jurisdiction of the legislative, not the judicial estate.
4. The ruling with regard to basic human rights
a. The violation of freedom of belief and expression
The level of progress reached by civilized societies is measured by the degree of freedom of thought enjoyed by individuals in those societies. Freedom of thought is a basic guarantee for future advancement as well as the ability for creativity and innovation. International human rights standards have established that no power may interfere with this basic human right.
The ruling on Dr. Nasr Hamed Abu-Zeid is contrary to Article 46 of the Egyptian Constitution which stipulates that "the State guarantees freedom of conviction and freedom to practice religion". It is also contrary to Article 47 which states that "freedom of opinion is guaranteed whether expressed orally, through writing, through art or through any other means of expression". Finally, the ruling is contrary to Articles 18 and 19 of the International Covenant on Civil and Political Rights. Since the issue of apostasy is not dealt with by domestic law; therefore, it becomes necessary for Egyptian judges to work within the framework of International Law which discusses freedom of opinion, expression, and belief. In this regard, we find that the Court of Cessation has ruled that International Law is a part of Egyptian domestic law without exception, in accordance with the fact that Egypt is a member of the international community. Therefore, an Egyptian judge is obliged to impose these standards in matters not dealt with by domestic law. (Appeals 259 and 300 of 1951, Session 3/25/82 - Laws including 3 bis. 168) The Court of Cessation has written in a number of its rulings the duty of applying international covenants, which Egypt has signed along with other nations, and has expressed their pre-eminence in local law. (Review of laws from Session 39 to 52 bis. 164 and afterward)
b. The ruling threatens freedom of scientific research
The world today is witnessing rapid scientific developments. Co-operation is a necessary condition for progress and development, and this is only possible by increasing scientific research and protecting it from restrictions. Recent progress in modern science, such as genetic engineering and organ transplants, provide all societies with potentials that would not exist in the presence of suppression of scientific research. As stipulated by Article 3 of the Lima Declaration regarding academic freedom:
Academic freedom is a necessary precondition to pedagogical functions, research, administration, and other services upon which universities and other higher institutions of learning are founded. All members of the academic community have the right to pursue their jobs without discrimination of any kind or fear of any interference or compulsion coming from states or any other sources.
The ruling that Dr. Nasr Hamed Abu-Zeid is an apostate has created an atmosphere of blindness, tension, and intolerance which stunts the growth of thought in scientific research. As a result, academics and intellectuals may avoid undertaking research that might anger non-specialists and lead to a fate similar to that of Dr. Abu-Zeid. This opposes the spirit of Article 6 of the Lima Declaration which states that "members of the academic society who undertake research projects have the right to carry out their research without any interference. They also have the right to publish the results of their research in the utmost freedom and to publish it without censorship".
Furthermore, fatwas accusing researchers of apostasy are not limited to the social sciences, but also extend to the natural sciences, as in the case of the well-known fatwa issued by the Saudi Mufti, Ibn Baz, who accused all those who believed that the world was round as being apostates. The same accusations have been made with regard to genetic engineering… etc.
c. The ruling destroys the concepts of citizenship
The ruling states that: "the defendant's proposition that the requirement of Christians and Jews to pay jizya (tax) constitutes a reversal of humanity's efforts to establish a better world is contrary to the divine verses on the question of jizya, in a manner considered by some, inappropriate, even for temporal matters and judgements not withstanding its inappropriateness when dealing with the Qur'an and Sunna, whose texts represent the pinnacle of humane and generous treatment of non-Muslim minorities. If non-Muslim countries were to grant their Muslim minorities even one-tenth of the rights accorded to non-Muslim minorities by Islam, instead of undertaking the mass murder of men, women, and children, this would be a step forward for humanity. The verse on jizya, verse 29 of Sura al-Tawba, which the defendant opposes, is not subject to discussion". (p. 16 of the judicial opinion)
The appeal ruling judged this kind of talk to be apostasy and a sufficient reason to declare Abu-Zeid an apostate on the grounds that "he has refused to accept what is religiously proven without doubt". This destroys the basis of citizenship rights by denying non-Muslim citizens such rights. Such an idea is unacceptable to contemporary human conscience, regardless of the cloak under which it lies.
d. The ruling denies women's dignity
The Court objected to Dr. Abu-Zeid's denunciation of the permissibility of the ownership of slave girls. The ruling states that the rejection of this principle considered "religiously proven without doubt" is "contrary to all the divine texts which permit such provided that the required conditions are met". (p. 16 of the judicial opinion). There is no doubt that this diminishes a woman's dignity by making her a mere sexual object to be owned, and represents a return to concepts of bondage and enslavement rejected by humanity in its path to justice, freedom, and equality. The ruling may, in this respect, be considered a violation of Article 4 of the International Declaration of Human Rights and Article 8 of the International Covenant on Civil and Political Rights, as well as a violation of the convention on the abolition of slavery, the slave trade, and institutions and practices similar to slavery.
e. The ruling is contrary to the concept of inherent rights
The forced separation by law of Dr. Nasr Hamed Abu-Zeid and Dr. Ibtihal Younis, is a violation of the most fundamental human rights, the most important of which is the right to have a family without aggression or interference in its affairs. This is a violation of Article 50 of the Civil Code and Article 45, clause 1 of the Egyptian Constitution. The lawsuit and the subsequent ruling have constituted an arbitrary infringement on the personal life of Dr. Nasr Hamed Abu-Zeid and Dr. Ibtihal Younis. This is a violation of Article 12 of the International Declaration of Human Rights and Article 17 of the International Covenant on Civil and Political Rights, the latter which affirms that:
1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honor and reputation.
2. Every person has the right to protection of the law against such interference or attacks.
Finally, CHRLA calls on all institutions of civil society and the State to act. For this ruling is, in fact, not a charge of apostasy against Dr. Nasr Hamed Abu-Zeid only, but also against the Egyptian Constitution, all institutions of civil society, and the State itself. Furthermore, it has dangerous consequences for human rights organizations, on the grounds that adherence to the concept of citizenship based on factors other than religion is deemed by this ruling a denial of a religious truth, and thus is apostasy. Moreover, the Egyptian Constitution guarantees the right of citizenship and equality between citizens and opposes such concepts as jizya. Therefore, may it be considered a heretic constitution? This judicial ruling plunges the whole of civil society into a very dangerous situation.
Therefore, CHRLA declares its solidarity with Dr. Nasr Abu-Zeid and Dr. Ibtihal Younis and calls for the institutions of civil society to work together to bring about:
1. An end to all legislative loopholes which permit such rulings to be made and, in particular, the passing of legislation that clearly stipulates the abolition of hisba lawsuits;
2. The alignment of Egyptian legislation with established international criterion on human rights;
3. Legal immunity for scientific research;
4. Necessary safeguards to protect the dignity and rights of women and to prevent any intervention in their private lives by calling for the implementation of legislation concerning the abolition of all forms of discrimination against women.
Source: The Center for Human Rights Legal Aid, CHRLA
49 al-Batal Ahmed Abdel-Aziz St., Mohandessin, 12411, Cairo, Egypt.
Tel./Fax: (202) 302-2241