Freedom of academic research:

From confiscation to charges of apostasy

3. The legal basis of the ruling:

CHRLA believes that this ruling causes severe dilemmas and challenges with regard to juristic and legal principles:

I. Invalidating the legal principle of crimes and penalties.

The court ruling stated that apostasy was a crime punishable in accordance with 'Quranic 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 Cassation 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 Cassation, 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 or incentives behind the confession. It is not necessary to make a public confession.' (Justice Azmy El Bakry, The Encyclopedia of Jurisprudence and the Judiciary in Personal Status. 3rd Edition, p. 234)

Concerning the same issue, the Court of Cassation 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.' (Cassation 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 judgment should be based on declared statement and by no means should the sincerity or motives of this statement be questioned.' (Cassation 51, judicial year 52, session 14 June 1981) (Both rulings appear 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)


II. Contravention of the ruling established by fiqh and the judiciary

The court refused to acknowledge the fact that 'Dr. Nasr Hamed Abu Zayd 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 Zayd is contrary to the Court of Cassation 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.'

III. 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 hisba lawsuits 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.

IV. 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.

V. 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 Zayd 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 Zayd'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.

VI. 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 Hanifa 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.

Introduction | Parts 1,2 | Part 3 | Part 4 | Conclusion

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