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III. Religious and National Identity in Egypt

Identity Documents and Religion

The Civil Status Department (CSD, maslahat al-ahwal al-madaniyya)of Egypt’s Ministry of Interior is responsible for administering and providing identity cards, birth certificates, death certificates, marriage certificates, and other vital records. All of these documents record, among other things, a person’s religious identity.³ Of these, the most vital for everyday life is the national identity card that all Egyptians 16 years of age must, by law, obtain. This card includes a national identification number (raqam qawmi) assigned at birth.⁴ A national ID is essential to have access to post-secondary schooling, to get a job, to vote, to travel, and to conduct the most basic financial or administrative transactions. Not to have one’s national ID when requested by a law enforcement official is an offense punishable by a fine of between LE 100-200 (US$18-35).

In assigning or recording religious identity, the Egyptian government recognizes only what it refers to as the three “heavenly” (samawiyya)or “recognized” (mo`taraf biha) religions – Islam, Christianity, and Judaism. An Egyptian has no option to request a religious identification different from one of these, or to identify him or herself as having no religion. This restriction mainly affects Egypt’s Baha’i community because these identification documents do not distinguish among sects of Islam or Christianity (persons belonging to heterodox or non-recognized Muslim or Christian sects have no problem listing themselves as Muslim or Christian for official identity purposes), and because there are few Egyptians who identify themselves as non-Muslim and non-Christian apart from Baha’is.

In addition, government officials responsible for administering vital documents regularly deny Egyptians the option of changing their religious identity from Islam to Christianity (or any other religion). They limit religious identification to the three religions and refuse to permit conversions away from Islam. They do so not on the basis of any Egyptian law but on the basis of what they understand to be the prohibition in Shari`a against apostasy. Egyptian courts for the most part have supported these policies on the grounds that, because Egypt is an overwhelmingly Muslim society and Islam is the official religion of the state according to the constitution, any sanctioning of “apostasy” would constitute a potential offense against public order.

The requirement that Egyptians list their religion (limited to three permitted ones) on all identification documents is itself a questionable practice. International human rights law protects the right of individuals not to disclose their religious beliefs.⁵ Similarly, Egypt’s Supreme Constitutional Court has interpreted the right to freedom of religion in the constitution to include freedom from coercion to disclose one’s beliefs. ⁶

Egyptian officials maintain that requiring citizens to identify their religious affiliation in official records, including ID cards, is necessary because family courts apply religious laws (Muslim, Christian, and Jewish) in personal status matters, and a person’s religious identity determines under which court’s jurisdiction he or she would fall in such matters. In addition, officials argue, religious identification on national IDs and birth certificates is necessary to determine which religious instruction (which is mandatory in public schools) a child receives. While this may justify the state’s recording of a person’s religion in its central statistical bank, it does not constitute a valid reason for including religion as a category in identification documents, much less for requiring persons who are not Muslim, Christian, or Jewish to register as such, or for requiring people who convert from Islam to another religion to register as Muslims.

The UN Special Rapporteur on freedom of religion and belief, in commenting on Egypt’s administrative practice, concluded that:

The mention of religion on an identity card is a controversial issue and appears to be somewhat at variance with the freedom of religion or belief that is internationally recognized and protected. Moreover, even supposing that it was acceptable to mention religion on an identity card, it could only be claimed that the practice had any legitimacy whatsoever if it was non-discriminatory: to exclude any mention of religions other than Islam, Christianity or Judaism would appear to be a violation of international law.⁷

This report documents how Egyptian state officials use the requirement to list one’s religious affiliation in official identification documents to effectively deny the right of some citizens – namely, those who convert or wish to convert from Islam to Christianity and those who adhere to the Baha’i faith – to hold a religious belief and practice a religion of their choice. With the computerization of Egyptian vital records, this violation is about to become even more systematic. In the past, Egyptian Baha’is facing this problem were sometimes able to get a local CSD office to leave the religion line blank, or enter “other.” The government has now removed that option by requiring all persons to have computerized IDs, perhaps as soon as early 2008, which officials insist cannot be processed unless one fills in the religion entry with one of the three “heavenly” religions.

Unless the government remedies its intolerance regarding conversions from Islam and adherence to Baha’i faith, and allows Egyptians to determine their religious identity freely for official purposes, thousands of Egyptians will continue to have to choose between identifying their actual religious belief and exercising their right to freedom of religion as well as a host of other rights, including access to education, freedom of movement, and a wide range of entitlements such as pensions and essential services. The government’s policies of forcing Egyptians to identify their religion, limited to one of three permitted religions on national identification documents, will also continue to violate the freedom not to identify one’s religion.

In March 2006, the Court of Administrative Justice dismissed a lawsuit brought by lawyer Mamduh Nakhla in 1997 seeking to end the practice of requiring an entry for religion on Egyptian national identity cards. The court did not consider the substance of the lawsuit and declared it inadmissible on procedural grounds because it did not meet the time limits specified by law.⁸ In August 2006, the government-created National Council for Human Rights (NCHR) conducted a workshop around its proposal to remove religion from national ID cards. Some 80 speakers, representing government officials, civil society, academics, and religious communities, spoke for or against the proposal. The workshop’s final report identified a third option: making the religious affiliation line in ID cards an optional entry and allowing individuals to enter “non-recognized” religions.⁹ The NCHR subsequently went a step further and submitted a memorandum to Prime Minister Ahmed Nazif on December 26, 2006, outlining the difficulties that Egypt’s Baha’i community faces and proposing that the government remove religious affiliation from ID cards or reinstate the policy of entering “other” in the line reserved for religion.¹⁰ In August 2007, the NCHR announced its intention to draft an anti-discrimination bill and recommend that the government present it to parliament in order to introduce criminal penalties for violating the constitutional prohibition against discrimination.¹¹

“Recognized” Religions and Public Order

As noted above, the government’s discriminatory policies have had particularly negative impact on Egyptians who adhere to the Baha’i faith, a community estimated to number around 2,000.¹² The Baha’i faith originated in the mid-nineteenth century in Iran. Although in its doctrines and practices it is quite distinct from Shi`a or Sunni Islam, because it emerged in a Muslim milieu, most orthodox Muslim leaders regard the Baha’i faith, in contrast to Christianity or Judaism, to be a heretical deviation from Islam, and its practitioners to be apostates.¹³

A Baha’i community began to flourish in Egypt in the early twentieth century and, in December 1924, was able to register in Cairo a Central Spiritual Assembly of Baha'is in the Egyptian State. Adherents acquired buildings to house their spiritual assemblies, and the group’s publishing house disseminated printed materials through libraries and bookstores. The community’s situation worsened, however, in the 1950s; it did not help that the Baha’is’ international headquarters was located in the Palestinian city of Haifa, which had been incorporated into the new state of Israel in 1948. In 1960, then-President Gamal `Abd al-Nasir issued a decree (Law 263/1960) revoking the community’s corporate status and confiscating Baha’i properties.¹⁴

Egypt’s Supreme Court in 1975 ruled that Law 263/1960 was constitutional, and it remains in effect.¹⁵ The Supreme Court’s ruling held that the decree did not prevent anyone from believing in Baha’i precepts, but that only adherents of the three “revealed” religions enjoyed constitutional protection to practice their beliefs. The ruling accepted the government’s position that the practice of the Baha’i faith represented a “threat to public order” and therefore fell outside the constitutional protection for freedom of religion. ¹⁶

Today, with the computerization of identification documents and increasing unwillingness of Ministry of Interior officials to allow them to state their actual religion or “other” or none at all, more and more Baha’is in Egypt face the choice of denying their religious identity in official government documents or doing without essential rights and services and risking arrest for not possessing an ID.¹⁷

Some members of the Baha’i community have challenged in court the government’s refusal to recognize their religion on official documents. In April 2006, an administrative court upheld an earlier decision issued in 1983 that Baha’is had the right to obtain official documents identifying them as Baha’is. Following an appeal by the government, however, the Supreme Administrative Court overturned the lower court’s decision in December 2006, arguing that mention of the Baha’i faith in identity documents constituted the practice of a religious rite, which the government could restrict on grounds of preserving “public order.”

Conversion from Islam and Public Order

Conversion from Islam to Christianity is fraught with legal and social risks for the person converting. As a result, the number of persons born Muslim who have converted to Christianity is hard to gauge, but at a minimum it would appear to involve a score or more persons per year, and so cumulatively be in the hundreds if not thousands. On occasion, authorities have arrested persons who converted to Christianity, particularly if those persons publicly announced their conversion or appeared to be proselytizing. Authorities have also on occasion arrested individuals for public adherence to a non-orthodox understanding of Islam or Christianity.¹⁸ In such instances, the authorities typically charged those persons with violating Article 98(f) of the Penal Code, which criminalizes any use of religion “to promote or advocate extremist ideologies

The number of Christian-born Egyptians who have converted to Islam and then reverted to Christianity is similarly difficult to estimate with precision, but there are certainly hundreds, at minimum. Human Rights Watch and the Egyptian Initiative for Personal Rights (HRW/EIPR) documented and studied the files of 165 such cases that were filed before one administrative court in Cairo between April 2004 and the time of writing.

According to the Civil Status Law, a citizen can change or correct most information, including religious affiliation, in his or her identification documents by simply registering the new information, without requiring the approval of the Ministry of Interior’s Civil Status Department (CSD).²⁰ The only requirement is to have the request authorized by the “competent body” (jihat al-ikhtisas). While the law does not elaborate on what constitutes a competent body, in practice it has meant an employer when one is seeking to change how one’s profession is listed, for instance, or an officiating religious authority in the case of one’s marital status.

While the CSD generally has applied this formal flexibility for revising identification documents to persons converting to Islam, in practice CSD officials obstruct and discriminate against persons who have converted from Islam to Christianity by refusing to make the change in official records or to provide vital documents reflecting the requested change.²¹ This refusal to accommodate requests to change one’s religion of record to Christianity, in accordance with the Civil Status Law, extends to persons who were born Christian, became Muslim for a time, and wish to convert back to Christianity, as well as persons who were involuntarily “converted” to Islam, usually as a result of a father having converted to Islam. At least 89 of these people filed lawsuits against the Civil Status Department’s refusal to correct their personal information. The Court of Administrative Justice has issued seven rulings in such cases, all of them in favor of the plaintiffs.

Official denial of one’s religious identity has enormous consequences for the persons concerned. Often converting to Islam or Christianity also involves changing one’s name to a Muslim or Christian one, and so goes to the very core of a person’s self-identity. It also affects a person’s ability to worship as part of a religious community. Moreover, one’s religious identity, as reflected in an ID, determines the religion that will be listed on their children’s birth certificates, which, once they begin school, will determine whether mandatory religious instruction will be Islam or Christianity.²² It will also affect who they can marry, and the inheritance rights of surviving family members upon their death.

Muslim converts to Christianity face the choice of denying their new religious identity, securing fraudulent identification documents and risking criminal prosecution for that offense, or living an underground existence without official identification in which even local travel or acquiring work can lead to arrest and detention.

Freedom of Religion, Shari`a, and Public Order

In Egypt, Islam is the religion of most of society and of the state.²³ Egyptian officials cite Article 2 of the Constitution, which stipulates that Islamic law is the principal source of legislation, to justify policies that conflict with the government’s obligation to guarantee freedom of religion.²⁴ Egypt’s judiciary has supported the government’s position that Islamic law, or at least those elements that are considered fixed and undisputed, constitute an essential part of public policy owing to their “strong link to the legal and social foundations which are deep-rooted in the conscience of [Egyptian] society.”²⁵ The Supreme Constitutional Court, in denying a challenge to the Ministry of Education’s ban on women wearing veils in state schools, distinguished between freedom of belief, which the state cannot restrict, and freedom to practice, which the state may restrict “on the grounds of preserving public order and moral values and the protection of the rights and freedoms of others.”²⁶ On the basis of this distinction between practice and belief, the government has maintained that it has no obligation to register any religion other than the three “recognized” religions in public records because doing so would disturb public order.

The Egyptian government’s policy of denying identification documents to Baha’is and converts to Christianity unless they misidentify their religion violates their right to adoptthe religion of their choice, for which no limitation is allowed under the Egyptian constitution or international human rights law. The government has not provided any evidence, in court or elsewhere, to support its contention that conversion from Islam or adherence to a non-recognized religion are forms of religious practice (the “manifesting” of religious belief as distinct from the belief itself), and thus subject to limitation on grounds such as preserving public order.

Furthermore, the government’s use of “public order” to justify discrimination against Baha’is and converts to Christianity fails to meet the narrow grounds on which international law permits such restrictions. The UN Human Rights Committee has explained that any such restriction must be: proscribed by law; necessary to achieve the legitimate aim of preserving public order; proportionate to achieving the specific need; not applied in a manner that would vitiate the right to freedom of religion; and “not …imposed for discriminatory purposes or applied in a discriminatory manner.”²⁷

The Egyptian government’s policy with regards to identification documents is inconsistent with these standards. While listing one’s religion on identification documents is required by law, no law limits that identification to particular religions, and the Civil Status Law specifically allows Egyptians to change elements of their identification, including their religion. The limitations imposed by the government clearly have a discriminatory impact on certain religions and a foreseeable deleterious impact on affected individuals’ equal access to health care, education, and employment, among other rights, effects which could not be considered proportionate to achieving the specific need of preserving public order. The government has consistently failed to show how public order would be harmed by allowing citizens to list their actual religious affiliation in their identification documents.  Moreover, it is hard to imagine how any legitimate public order concern could justify effectively denying affected individuals the ability to exercise numerous basic civil and economic rights. In 1996, the European Court of Human Rights ruled that “[t]he right to freedom of religion… excludes any discretion on the part of the State to determine whether religious beliefs or the means used to express such beliefs are legitimate.”²⁸

Article 40 of the constitution guarantees equal rights to all citizens and prohibits discrimination based on religion (or other factors). Article 46 states that “the State shall guarantee freedom of belief and the freedom to practice religious rites.”²⁹ The Penal Code contains similar provisions.³⁰ Egypt has ratified the International Covenant on Civil and Political Rights (ICCPR), which guarantees freedom of thought and religion (Article 18), and Article 151 of the constitution states that international treaties have the force of law and supersede domestic law. In ratifying the ICCPR, however, Egypt attached a statement that the government would comply with the ICCPR to the extent that its provisions were consistent with Islamic law: “Taking into consideration the provisions of the Islamic Shari`a and that they do not conflict with [the Covenant].”³¹ However, the UN Human Rights Committee has made clear that states may not make reservations³² that are “incompatible with the object and purpose” of the treaty, and that reservations that “offend peremptory norms” – among them freedom of religion – are not acceptable.³³ In a different authoritative opinion, the Committee noted that the fact that a religion is recognized as a state religion, or that its followers comprise the majority of the population, “shall not result in the impairment of the enjoyment of any rights under the Covenant, including articles 18 and 27 [concerning the protection of minorities].”³⁴

Egyptian government officials and jurists attempt to reconcile the serious discrepancy between state practice and constitutional and international treaty guarantees of freedom of religion by defining freedom of belief essentially as the absence of any compulsion to become Muslim and freedom to embrace any religion. However, a person who is a Muslim by birth or conversion does not have the right, under Islamic law, to convert or otherwise cease to be Muslim. Freedom of belief, according to a Supreme Administrative Court ruling, “does not restrict the application of the Islamic Shari`a to those who embrace Islam.”³⁵ In other words, apostasy is “part of the practice of a belief” in Islam, and thus regulated by Islamic law.³⁶

Although there is no penalty in Egyptian law for apostasy, government lawyers have argued in conversion cases, and courts have agreed, that apostasy "is synonymous with death"; that is, it deprives the "apostate" of the ability to perform many civil acts.³⁷ For instance, consequences of conversion from Islam include the revocation of an individual’s right to marry, maintain custody of children, and inherit property.³⁸

The legal repercussions of apostasy directly extend to matters of personal status, where religious law – Shari`a or (Coptic) canon law for almost all Egyptians – rather than civil law governs. Matters governed by religious law include marriage and divorce, child custody, inheritance, and so forth.³⁹ The requirement to include religion on national identification documents, however, coupled with the determination of Ministry of Interior officials to deny Baha’is and converts from Islam identification documents that accurately identify their religious identity, extends the consequences of apostasy to a range of civil, political, economic, social, and cultural rights, in addition to violating the right to practice freely the religion of one’s choice and the right to manifest publicly, or not, one’s religion. This policy forces individuals to suppress or deny their religious identity in order to enjoy the protection of and access to many basic rights, including the right to participate in public affairs, to work, to education, and to have a family. Basic daily activities – registering for school, opening a bank account, engaging in a property transaction, picking up a pension check – require a national ID.

There is general agreement among all leading schools of Islamic law that the “people of the Book,” that is, Christians, Jews, and Muslims, should enjoy the right to practice their religion without interference.⁴⁰ There is also general agreement that the authorities may not compel anyone to become Muslim. However, virtually all schools of Islamic jurisprudence also agree that a person who is a Muslim, whether by birth or conversion, may not leave the faith. Conversion to another religion constitutes a repudiation of the faith, and thus apostasy. Religious scholars, however, differ widely on whether or not it is appropriate for a government through its courts to mete out worldly punishment to converts from Islam to Christianity or any other religion.

In an article that appeared in July 2007 on a Washington Post-Newsweek website, Egypt’s Mufti, Shaikh `Ali Gum`a, the government-appointed top religious adviser, wrote:

The essential question before us is can a person who is Muslim choose a religion other than Islam? The answer is yes, they can, because the Qur’an says, "Unto you your religion, and unto me my religion," [Qur’an, 109:6], and, "Whosoever will, let him believe, and whosoever will, let him disbelieve," [Qur’an, 18:29], and, "There is no compulsion in religion. The right direction is distinct from error," [Qur’an, 2:256]. These verses from the Qur’an discuss a freedom that God affords all people. But from a religious perspective, the act of abandoning one's religion is a sin punishable by God on the Day of Judgment. If the case in question is one of merely rejecting faith, then there is no worldly punishment.⁴¹

Similarly, Shaikh Gamal Qotb, former head of the Fatwa Committee at Al-Azhar, holds that "being an apostate is a sin, but the preponderance of evidence from both the Qur’an and Sunna indicates that there is no firm ground for the claim that apostasy in itself deserves a mandatory fixed punishment [hadd], namely capital punishment."⁴² Qotb, echoed by other scholars, argues that “there is no hadith confirming punishment or retribution solely for apostasy. In every case where punishment has been meted out, apostasy involved treason or rebellion… The prophet's hadith, ‘If somebody [a Muslim] discards his religion, kill him,’ can be considered a legal policy determined by the time when the prophet advocated it as head of the Muslim state in wartime. He himself did not kill the hypocrites, who were among his companions.”⁴³

By subjecting converts from Islam to severe and far-reaching administrative discrimination, in some cases coupled with criminal punishment for those who refuse to obtain a national ID on condition that they misidentify their religion, the Egyptian government is selectively using Shari`a to absolve itself of its obligations under the constitution and international human rights law to protect religious freedom and equality before the law without discrimination on any grounds.

The government does the same in not recognizing Baha’i faith and preventing Baha’is from identifying themselves as such. One of the precepts of Islam is that it is the last revealed religion and that the Prophet Mohammad is the last of all prophets. There is widespread agreement among Muslim religious authorities, therefore, that because Bahá’u’lláh, the spiritual founder of the Baha’i faith, was himself a Muslim and established the Baha’i religion well after the establishment of Islam, it is not a legitimate religion but rather an apostate deviation from Islam whose institutions and public manifestations should be suppressed rather than protected.

The Quran, in fact, nowhere restricts the freedom to practice one’s religion to the three “recognized” religions and Egyptian government officials and judicial authorities have cited no evidence in the practice of the Prophet Muhammad or his followers that co-existence was only allowed among Muslims, Jews, and Christians, even in the early days of Islam.⁴⁴ The Egyptian government is using an Islamic religious belief – that Islam is the last revealed religion and that no other legitimate faith will follow – in order to negate the civil rights of citizens who adhere to other faiths that emerged after Islam and that most Muslims do not recognize as a legitimate religion. In its April 2006 finding against the government’s policy vis-à-vis Egyptian Baha’is, the Court of Administrative Justice argued to the contrary that Shari`a requires the authorities to identify Baha’is as such:

The Shari`a provisions require, as explained by Muslim scholars, a disclosure that would allow a distinction to be made between Muslims and non-Muslims in the exercise of social life, so as to establish the range of the rights and obligations reserved to Muslims that others cannot avail [themselves] of, for these [rights and obligations] are inconsistent with their beliefs.⁴⁵

The manner in which the Egyptian government has applied Article 2 of the constitution contradicts the position of the Supreme Constitutional Court (SCC), which issues binding interpretations of constitutional provisions. The SCC has stated that the opinions of religious scholars or jurists “are not to be considered fixed laws or regulations that cannot be deviated from. If this were the case, then one would not be allowed to think or contemplate in God’s religion. This would also be contrary to the fact that each opinion can be wrong.”⁴⁶ The court further found that the state may follow a minority position on a particular aspect of Shari`a regardless of its jurisprudential weight: in order to preserve people’s interests (masalih al-nas):

Accordingly it is correct to assert that the opinion of one of the jurists (fuqaha’) is as valid as any other’s. Indeed, an opinion that may be seen as the weakest could turn out to be most fitting for the changing circumstances, even if this opinion contradicts received wisdom and the consensus that had been established for a long time.⁴⁷

The SCC reasoned that the state has an obligation to interpret religious texts in order to deduce modern day solutions to pressing problems on which there is no fixed position in Shari`a:

Furthermore, if it is correct to assert that the opinion in matters about which the Qur’an and the sunna are not clear is a right reserved to jurists and, further, that they also have the right to resolve disputes among people by deducing principles and/or interpreting the Text, then by the same token the ruler has that same right; nay, he may even be more entitled than them so that he may be able to quiet unrest, resolve disputes and end enmity. It should be understood that the opinions of previous generations should not be considered the final or sole source from which practical principles could be deduced.⁴⁸

As noted, while the SCC’s legal reasoning is itself not binding on lower courts, it is the highest court on constitutional matters and its reasoning—together with the lack of a fixed and undisputed Islamic law position on the administrative requirements for religious identification in the public records of a modern bureaucracy—make clear that the Egyptian government has a choice. It is not true, as officials have publicly asserted, that the government’s arbitrary and discriminatory administrative policies are religiously mandated.

The Computerization Deadline

Egypt introduced computer-generated birth certificates and plastic national identity cards in 1995. Since then, persons needing a birth certificate or national identity card because they had come of age, or needing to replace their existing paper ID, have had no option other than a computer-generated card. As this report documents, when Egyptians have requested identity documents reflecting the fact that they are Baha’i or adhere to any religion other than Islam, Judaism, or Christianity, officials have told them that government policy does not permit this and that, furthermore, the computers generating the ID cards were programmed in a way that prevented them from leaving the religion line blank or writing “other” on that line.⁴⁹

Since 2004, government officials have been warning that older paper IDs would soon no longer be valid and urging citizens to approach Civil Status Department offices to obtain their computer-generated plastic cards. On August 13, 2007, General `Isam al-Din Bahgat, then-Assistant Minister of Interior and president of the CSD, asserted in Al-Ahram,the semi-official daily newspaper, that as of October 2007, government offices will no longer accept paper IDs in official dealings.⁵⁰ According to the US Department of State, in its International Religious Freedom Report 2007, the government extended the deadline for the use of old identity cards to January 2008.⁵¹ As of this writing, the government had not issued any law or decree setting an official deadline for the expiry of old IDs.