12 August 1996
CHRLA's comments on the Court of Cassation ruling
on the case of Professor Nasr Hamed Abu Zayd
CHRLA regrets that the Court of Cassation has endorsed the ruling separating Prof. Nasr Hamed Abu Zayd from his wife because of his beliefs and his published academic research. CHRLA views this verdict as part of a current that is trying to drag the whole of society away from the path of civilization and progress and drive it back to the dark ages, when courts of inquisition examined the consciences of intellectuals, academics and innovators, and prejudice and rigidity prevailed over rationality and intellectual research.
CHRLA noticed that some of the intellectual elite and some party journals have chosen to remain silent about the consequences of this unprecedented ruling, which paves the way for figures of extremist religious bigotry to hound their intellectual opponents and bring them forcibly before courts in order to "prove" their apostasy, deprive them of the right of citizenship, destroy them psychologically and even call for their execution.
At the same time, the call for Dr. Abu Zayd's intellectual output, research and text books to be banned has been renewed. His opponents also demand that he be dismissed from his university post. A number of pro-Islamist media centers have demanded that the government shoulder its responsibilities and take the necessary steps to arrest Dr. Abu Zayd and imprison him until he "announces repentance or dies in prison."
The Court of Cassation's verdict clearly violates a number of constitutional provisions ensuring unrestricted freedom of thought and academic research. The verdict also ignores the principles of the International Declaration for Academic freedom, known as the Lima Declaration, which stipulates that "all members of the academic community involved in research have the right to carry out their work without interference, in accordance with the principles and academic methodology of the particular research. They also have the right to communicate the outcome of their research to others and publish it without censorship."
CHRLA finds it its duty to state its reservations about the Court of Cassation's verdict. CHRLA would like to stress its pride in the Egyptian judiciary's defense of public freedoms and maintenance of the principles of justice. Aside from the grave conclusions to be drawn from the said verdict, CHRLA must point out that its reservations are primarily directed against the legal grounds on which the verdict was based.
CHRLA also believes that for courts, and hence their rulings, to be just, it is not only a matter of guaranteeing the independence and neutrality of the judges, nor in guaranteeing the legal rights of the defendant. Such guarantees could be upheld and yet a court still be unjust, if it relies on legislation that contradicts human rights or on rules not recognized as law.
In a case such as this, the fault lies not with the court and its procedures, but with the state and the legislature, who bear the full responsibility for failing to remedy the defects that have corrupted the institution of law and given figures of extremist religious prejudice the chance to exploit the right to prosecute, and involve the judiciary in an artificial confrontation over the freedom of conscience and academic research.
Furthermore, the Court of Cassation ruling set a precedent for judges, in the absence of clear legal rules, to choose the most likely interpretations of selected schools of fiqh (Islamic jurisprudence) to support their rulings. And it is all the more serious that these interpretations, which used merely to represent shades of intellectual opinion in a different era, are now to be a basis for court rulings. In future the leaders of extremist religious groups will be able to rely on this to persecute their rivals.
CHRLA has these comments to make concerning the legal questions stirred up by the verdict:
1) The court quite properly ruled out referring to the law regulating hisba suits, which was established after three years of campaigning by the human rights movement. The court saw that since there were no legal rules restricting the raising of hisba suits at the time when the case was raised, it had to accept that, according to Article 280 of the Code of Religious Courts, and Article 6 of Law 462/1955, which abolished shari'a courts, the most likely interpretation of the rules of the Abu Hanifa school of fiqh took precedence as a basis for judgment.
CHRLA has previously drawn attention to the main problem with this article[footnote 1], in that it refers the judge to rules that have never been recognized as law nor codified in a way that enables a judge, a lawyer or a citizen to handle them easily. It also implies a violation of the principle of separation of powers of the legislative and judicial authorities by assigning judges to examine what is most probably valid in the Hanafi interpretation, which infringes the authorities granted to the legislative authority. This is particularly so since the grounds for determining what is and what isn't valid in a given interpretation are extremely vague.
Furthermore, the constitution states that all laws must be codified in a clear and precise manner and published in the Official Gazette within two weeks of approval in the People's Assembly. As the rules of a particular school of fiqh are not definite, for the most part unwritten and uncodified, they lack the character of laws, cannot, therefore, be published, and hence are not valid as laws.
2) Allowing precedence to the most probable interpretation of Hanafi rules gives judges wide scope to choose what they can rely on to support their rulings. It also allows rulings to be affected by a judge's personal political, social, cultural or religious beliefs.
In the absence of definite laws, the court was able to overrule the regulations of the Court of Cassation that state that: "Religious belief is a matter that should be taken by oral statement. No judge has the right to question its causes or sources." And the Court was able, in a precedent, to issue a ruling to excommunicate a citizen who nevertheless has repeatedly declared al-Shahadatain, the two statements of adherence to Islam, and who furthermore presented a certificate supporting his adherence to the faith to the court.
And in the absence of any definite law, the court also contradicted the fatwa of al-Azhar that states that no-one can excommunicate a Muslim for his/her writings without discussing it with him/her personally. The court even used its discretion to refuse to allow Abu Zayd to affirm his faith by reciting al-Shahadatain before the court, claiming that although some schools of fiqh require this proof, that of Abu Hanifa only "favors" it.
3) The legal foundation on which the ruling was based was the judge's reference to the most probable interpretation of the Hanafi rules. This gave the court complete freedom to apply whatever legal guidelines it so chose, and established a legal basis for proving apostasy from interpretations of intellectual writings and academic research.
Previously, the Court of Cassation has proven apostasy based on official, explicit documents that state renunciation of Islam. This new precedent is serious in the sense that it sets a legal principle, not a discretionary guideline that can be either taken or left. In that sense, leaving charges of apostasy to the discretion of the court would allow a marked increase the number of cases of excommunication and the persecution of intellectuals, making them a target for extremists in Egypt.
4) The details of the ruling reveal the inaction of the government to protect freedom of thought and academic research against narrow religious prejudice. The state was too late in intervening with amended legislation which would have protected these freedoms and put an end to the misuse of the right to prosecute by some Islamist lawyers to intimidate intellectuals, scholars and innovators. The state's tardy intervention at the beginning of this year was not enough to maintain these freedoms and protect the individuals who exercise them. The law that was supposed to regulate cases of hisba was even taken by the court as additional evidence of the legitimacy of raising a case of hisba. Pleas against considering the case on the grounds that the modern judicial system does not adopt hisba cases were turned down[footnote 2].
This allowed the court to rule that, "Hisba is a compulsory duty of any capable Muslim who knows of a case, unless someone else is better able to do it." Hence, the court did not pay much attention to the 1996 amendment to procedural law, which set a precondition that the person raising the case of hisba should have a direct personal interest, to be applied to all cases and pleas being considered before courts of all kinds.
Therefore, CHRLA sees the considerations adopted by the court as further indication of the current hasty and careless reflex method of amending and producing legislation in Egypt, and as directly linking the legislature's interference with the political preference of the executive. The law regulating cases of hisba, which has brought to an end the debate over their legitimacy, cannot be seen independently of the rising political pressure from the current of political Islam, which demanded that hisba be legalized. This would lead to courtrooms becoming battlefields for settling intellectual disputes, undermine the integrity of the judiciary and its neutrality, and allow rulings to be influenced by a judge's personal opinions and religious beliefs.
5) If we assume that the ruling of the Court of Cassation is valid, then Abu Zayd's apostasy, and hence the separation of a man from his wife and the deprivation of his rights of citizenship and to form a family, is implied. Does this not contradict the most fundamental principles of the Egyptian legal structure?
CHRLA would like to emphasize that any legal structure should not be able to apply any kind of discrimination on the basis of religion or belief. CHRLA would also like to stress that a legal edifice which makes the concept of apostasy part of its structure contradicts the basic principles of democracy and violates Egypt's commitments to the International Covenant on Civil and Political Rights (ICCPR), which guarantees in Article 18 the right to freedom of intellect, conscience and religion. This includes the freedom to choose a particular religion or belief and the freedom to express this belief.
In its 48th session, the UN Commission on Human Rights extensively explained this article and asserted that these freedoms should be unconditionally protected. The commission noticed that the freedom of a person to follow a religion or a belief necessarily implies the freedom to choose this religion or belief. This freedom also implies the right to convert to another religion or to become an atheist. Article 18 of the ICCPR bans the enforcement of any act that might violate the right of a person to choose his/her own belief or religion, including intimidation and establishing punishments to force people to stick to their beliefs. The Commission considered policies or acts that attain the same ends, such as those restricting the freedom to attain education, medical care, work, or other rights guaranteed by the ICCPR, as contradicting Article 18 of the covenant. The Commission added that the protection stated in this article should also be enjoyed by the followers of all beliefs of a non-religious character. A state's recognition of an official religion or having a particular religious majority should not lead to discrimination against the followers of other religions or non-believers. Furthermore, it should not influence a citizen's right to enjoy all the civil and political rights guaranteed by the ICCPR.
CHRLA declares the Egyptian state wholly responsible for the present crisis, which has amplified serious threats to all the freedoms of intellect and academic research and placed the judiciary in confrontation with these freedoms. This will undoubtedly harm the reputation of the Egyptian judiciary.
CHRLA calls for concerted efforts by the institutions of civil society to face up to this ominous attack on the freedom of intellect, belief and academic research. In this vein, CHRLA would like to stress the following:
1. See CHRLA's previous reports on hisba and the Abu Zayd case: From confiscation to charges of apostasy (July 1995) and Hisba: Is Egypt a civil or religious state? (January 1996)
2. For a critical review of the current law on hisba in Egypt see CHRLA's January 1996 report Hisba: Is Egypt a civil or religious state?
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