doi 10.

1515/mwjhr-2012-0007 MWJHR 2013; 10(1): 1–26

Moataz Ahmed El Fegiery*

Islamic Law and Freedom of Religion: The
Case of Apostasy and Its Legal Implications
in Egypt

Abstract: The article analyses Egyptian jurisprudence on the issue of apostasy,

with a focus on conversion from Islam to Christianity. It argues that the Egyptian
judiciary has failed to develop a harmonious relationship between Islamic law
and the principle of freedom of religion. It looks at how the majority of cases
examined before the Egyptian judiciary reveal a continued tension between
freedom of religion as defined in international human rights law and its judges’
interpretation of Islamic law as a constitutive element of public order. Recently,
the Supreme Administrative Court tried to break through traditional barriers
regarding the right of converts of Christian origin to record their re-affiliation
to Christianity in their documents of identification, and pragmatically justified
this precedent in light of the requirements of modern states, whereby identity
cards should reflect the correct information of each citizen. Yet it argues that the
court was not conscious of freedom of religion as a fundamental individual
right, and moreover, that this precedent has not been followed with respect to
converts of Islamic origin. Finally, the paper argues that, for a sustainable
solution to the legal tensions concerning apostasy in Egyptian courts, a new
perspective is required on the relationship between Islamic law and religious
freedom whereby the universal understanding of freedom of religion can be
legitimized from within Islamic legal traditions. The article also proposes a set of
constitutional and legal measures to enhance freedom of religion in Egypt.

Keywords: apostasy, freedom of religion, Egypt

*Corresponding author: Moataz Ahmed El Fegiery, School of Oriental and African Studies
(SOAS), University of London, London, UK, E-mail: melfegiery@hotmail.com

Introduction
Freedom of religion in Egypt remains among the persistent human rights con-
cerns raised by UN member states during discussion on the general situation of

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2 M.A. El Fegiery

human rights in the country, within the Universal Periodic Review at the Human
Rights Council.1 The subject has also been the focus of a considerable number of
reports by local and international NGOs (Human Rights Watch and Egyptian
Initiative for Personal Rights 2007). The main problems raised are associated
with discrimination against religious minorities, the legal rights of the adherents
of non-recognized religions such as the Baha’i faith, and apostasy.
Freedom of thought, conscience and religion is well established in interna-
tional human rights law as a principal norm of a modern democratic and
pluralistic society. All international and regional human rights treaties include
a provision on this fundamental right (Baderin 2005). According to the Human
Rights Committee (HRC), religious freedom maintains the rights of the individual
to embrace and manifest any belief or religion without restriction, which
includes the right to change religious affiliation.2 Restrictions on religious free-
dom cannot be justified by the fact that the state recognizes one religion as its
official religion.3 Baderin explains that “while the principle of religious freedom
is theoretically recognized by Muslim states, the scope of its practical applica-
tion is narrower than that of international human rights law” (Baderin 2008).
Against this backdrop, this article examines the position of Egyptian courts
on apostasy, with special focus on conversion from Islam to Christianity. I argue
that the Egyptian judiciary has failed to develop a harmonious relationship
between freedom of religion and Islam as an official state religion. The majority
of cases examined before the State’s Council reveal a tension between the
modern conception of religious freedom and judges’ interpretation of Islamic
law as a constitutive element of public order in Egypt. Recently, the Supreme
Administrative Court broke the traditional barriers with regard to the right of
converts of Christian origin to record their re-affiliation to Christianity in their
identification documents.4 The Court pragmatically justified this new precedent
with the need, as a modern state, for identity cards to reflect the correct
information of each citizen. However, it did not assert freedom of religion as a
fundamental individual right. Moreover, this precedent has not been followed
with respect to converts of Islamic origins.
The article is divided into three parts: the first part explores the place of
Islamic law in the constitutional and legal system of contemporary Egypt and

1 See Human Rights Council, UN, A/HRC/WG6/EGY1, 16 November 2009.

2 Human Rights Committee, General Comment 22, U.N. Doc. HRI/GEN/1/Rev.1 at 35 (1994), par
3–5.
3 Ibid.
4 See Supreme Administrative Court, Cases nos. 19082/60, 12 February 2011 and 13496/53, 9
February 2008.

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 Case of Apostasy and Its Legal Implications in Egypt 3

provides a background on apostasy in Egyptian law and case law. The second
part critically analyses the jurisprudence of the State Council on apostasy
particularly that of conversion from Islam to Christianity. The third part shows
modern trends in the debate on religious freedom and Islamic law. It maintains
that Muslims’ understanding of freedom of religion is not monolithic and that
there are multiple theoretical options that can be employed by Egyptian judges
to establish a harmonious relationship between Islamic law and religious free-
dom. It also proposes a set of constitutional and legal reforms to settle the
longstanding disputes over freedom of religion in Egyptian courts.

Islamic law and freedom of religion in the

Egyptian constitutional and legal system

The place of Islamic law in the Egyptian constitutional and

legal system
Egyptian constitutions since 1923 refer to Islam as the official religion in Egypt.
The principles of Islamic Shari‘a were adopted for the first time as a source of
legislation in the Egyptian constitution of 1971. In the constitutional amend-
ments of 1980, the reference to Islamic law was consolidated by stipulating in
Article 2 that the principles of Islamic Shari‘a are the chief source of legislation.
This advanced legal status for Islamic law came as a reaction to the rise of
Islamist political opposition in Egypt, and the emergence of Islamisation pro-
jects in other Muslim states in the 1970s such as Iran and Pakistan (Zubaida
2005). Zubaida noted that: “Shari‘a has always been central to Islamic political
advocacy. The Muslim Brotherhood held the application of the Shari‘a at the
center of its political programs” (Zubaida 2005, 163). Nevertheless, the introduc-
tion of Article 2 has not substantially changed the Egyptian legal system, which
has maintained its secular features. As argued by Berger and Sonneveld, “a form
of compromise has been found between Shari‘a and Western law” (Berger and
Sonneveld 2010). Political authority, as well as the constitutional judiciary, has
kept the incorporation of Islamic law into the Egyptian legal system to a mini-
mum (Berger and Sonneveld 2010, 82–4).
However, Zubaida has observed that the dual nature of the Egyptian legal
system – which incorporates aspects of European positive law and Islamic law –
has triggered intensive debates and contestations in parliament, courts and the
public media (Zubaida 2005, 166). Hamad has meanwhile noted that having a

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4 M.A. El Fegiery

plural source of law has allowed judges to adopt positions which are not in line
with human rights. Having studied the rulings of the administrative justice
relating to religious freedom, he concluded that:

Such rulings attempt a literal application of positions adopted by traditional Islamic fiqh
scholars dated back some thousands years. Such positions well-suited the time, in which
they were originally developed, are hardly compatible with the realities of modern life.
(Hamad 1999)

Even before the introduction of Article 2, religion was a key factor in defining
citizens’ rights and duties in family matters, including those relating to mar-
riage, divorce, custody and inheritance. The religious status of a person still
determines the applicable family law, whether from the Muslim, Christian or
Jewish religions. Civil marriage is not permissible in Egypt. Non-Muslim laws are
limited to marriage and divorce on cases where the parties belong to the same
sect or rite. In all other cases, Islamic law is applicable (Hamad 1999, 724–5). If a
person has no religion, or if concerned parties are affiliated to a religion that is
not covered by the existing family laws, Muslim law is applied (Berger 2003).
The rules of Islamic law are codified in modern legislation. In Egypt, the
Hanafi School of law is the main source of Islamic rules, however, in many times
the legislator adopted legal opinions from other schools of law. This has enabled
the government to legitimize some legal reforms from the perspective of Islamic
law, for example in giving women the right to discharge themselves from
marriage (khul‘). The civil code allows judges to apply customary law, Islamic
law and the principle of equity, if they do not find a relevant legal provision. The
personal status law requests that judges refer to the most salient opinion of the
Hanafi School of law when the law is silent on a certain issue (Berger and
Sonneveld 2010, 74–8).
Human rights and religious freedom in particular under the 2012
Constitution is at peril. The new Egyptian Constitution represented an opportu-
nity for the Muslim Brotherhood and its Islamist allies who dominated the
Constituent Assembly to consolidate the authority of Islamic law in the text.
The Constitution establishes a consultative role for religious scholars in the law-
making process. Article 4 says that “Al-Azhar Association of Senior Scholars is to
be consulted in matters pertaining to Islamic law”.5 This Article has provoked
outrage from a wide range of liberals and human rights activists. In a public
statement, 23 Egyptian human rights NGOs considered this move as a bold step

5 Article 4 of the Constitution of the Arab Republic of Egypt, 25 December 2012, Official Gazette
No. 51 bis of 25 December 2012.

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 Case of Apostasy and Its Legal Implications in Egypt 5

towards theocracy, where unaccountable religious scholars intervene in the

work of the elected bodies. They expressed worries that this Article copies the
Iranian system of wilayat al faqih but in a different shape. According to them,
Article 4 “undermines the concept of the modern democratic state and sets the
country up for significant legal uncertainty” (Cairo Institute for Human Rights
studies 2012). Even though the opinions of the Association of Senior Scholars are
not mandatory, the Constitution provides religious scholars with a powerful
moral and religious authority over elected parliamentarians. Their opinions
would be hardly ignored.
Furthermore, Article 219 gives a specific explanation to the principles of
Islamic Shari‘a. It states that these principles include Shari‘a’s “general evi-
dences (adillah kulliyah), rules of jurisprudence (qawa‘id usuliyyah) and juristic
principles (qawa’id fiqhiyyah) and the sources considered by the Sunni schools
of law”.6 This explanation is now binding for all judicial and political bodies in
Egypt. It is different from the modernist approach taken by the Supreme
Constitutional Court (SCC) in the 1990s when it upheld that the legislator should
not override fixed rulings of Shari’a derived from authentic and clear texts in the
Qur’an and Sunna and then emphasised ijtihad in all other cases to accommo-
date the changing public interest (Lombardi and Brown 2012). The Constitution
of 1971 (with its 1980 amendment) left the explanation of the principles of
Islamic Shari‘a open to judges but Article 219 “ties the Egypt constitution to
traditional Islamic jurisprudence” (Lombardi and Brown 2012). Under Articles 4
and 219, liberal and un-orthodox approaches of Islamic law have no legitimacy
in Egyptian legal reasoning. Over the coming period, jurists trained in traditional
jurisprudence are the ones who can influence law-making process. Article 43 of
the 2012 Constitution protects religious freedom, but it allows only the members
of monotheistic religion to establish their places of worship.7 This means that
the members of other religions are not officially recognized in Egypt. Article 81
of the Constitution stipulates that “rights and freedoms shall be practiced in a
manner not conflicting with the principles pertaining to State and society of the
Constitution”. This means that the principles of Islamic Shari‘a (Article 2) and
other vague criteria pertaining to public morals (Articles 10 and 11), the cultural
and civilizational foundations of the society (Article 12) and national unity
(Article 5) will determine the scope of constitutional rights.8

6 Article 219 of The Constitution of the Arab Republic of Egypt, 25 December 2012.
7 Article 43 of the Constitution of the Arab Republic of Egypt, 25 December 2012.
8 Articles 2,10,11,12, and 5 of the Constitution of the Arab Republic of Egypt, 25 December 2012.

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6 M.A. El Fegiery

Apostasy in Egyptian law

To explain the place of apostasy in the jurisprudence of Egyptian courts, Burger

makes a distinction between the legal consequences of apostasy for personal
status and family law, and the acts by which a person can be recognized as
apostate. He pointed out that both are justified by the principle of public policy
(Berger 2003, 738). The application of rules of apostasy in the first case is
defended by the requirements of public policy, “while in the second case; public
policy serves as the protecting shield for the orthodoxy of Islam” (Berger
2003, 738).
Certain rules and principles of Islamic law have long been perceived as
fundamental to public order. This is due to the advanced constitutional status
given to Islam as the official state religion and then to Islamic law as the main
source of legislation. This has grounded the legal justifications for judicial
rulings on apostasy. As pointed out by Burger, the rules of apostasy in Egypt
can only be found in case law, as there are no explicit rules applied to apostasy
in Egyptian law (Berger 2003, 723). The concept of public order is central in
understanding the limitations placed on religious freedom by the Egyptian
judiciary. In a landmark case in 1975 concerning the rights of the Baha’i minority
to manifest their belief, the Supreme Court, which preceded the SCC, defined the
scope of religious freedom within the limitations of public order. The Court
upheld that freedom of religion is not absolute and that the manifestation of
religious beliefs must be subject to and considered in relation to public order,
morals and values. The Court pointed out that Islamic Shari‘a and its principles
are constitutive elements of public order and that under this the constitutional
right of freedom of religion can be restricted. The petition had been filed by
members of the Baha’i community, and in rejecting it the Court argued that only
divine religions (Islam, Christianity and Judaism) can be publicly practiced in a
Muslim society.9
Egyptian courts have intensively cited this case. For instance, SCC upheld
that freedom of belief is absolute, while the practice of beliefs may be subject to
restrictions based on public order, morals and the protection of rights and
reputation of others.10 As we will see in the following sections, the Egyptian
Courts used this theory to justify the restrictions over apostasy. As noted by
Burger:

9 Supreme Court, Case 7/2, 1 March 1975.

10 Supreme Constitutional Court, Case No. 8/17, 18 May 1996.

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 Case of Apostasy and Its Legal Implications in Egypt 7

Apostasy in the courts’ definition does not pertain to a freedom of belief, which is
interpreted as the right to practice one’s belief free of any coercion or prejudice.
Apostasy is part of the practice of a belief, the regulation of which is left to the “internal
order” of that particular religion. (Berger 2003, 737)

Although apostasy is not a crime in Egyptian law, it has civil implications for
apostates. The charge often arises in civil courts as a result of tensions between
citizens over marriage, inheritance or children’s custody. Having intensively
studied the jurisprudence of Egyptian courts in this area, Burger concludes
that apostasy from Islam has serious consequences for matters related to
personal status law, observing that “it renders the marriage of the apostate
null and void, prevents him from entering into a new marriage – even with a
non Muslim – and excludes him from inheritance” (Berger 2002).
The traditional Islamic rules surrounding the consequences and the prohibi-
tion of apostasy were considered by the Court of Cassation in 1975 as a core
element of public order. In 1996, the Court upheld that the legal consequences of
apostasy are derived from Article 2 of the Constitution of 1971.11 Burger has
argued that the case law in this area is consistent. He surveyed the case law of
the Court of Cassation and the Supreme Administrative Court and concluded
that “apostasy is perceived as a legal impediment to almost all personal status
rights by virtue of the apostate having incurred civil death”.12 The same conclu-
sion was highlighted by Hamad who studied a set of cases examined before the
State Council in which certain legal principles on the legal consequences of
apostasy were confirmed. These principles include the loss of an apostate’s right
to marry and inherit (Hamad 1999). The first time a court identified an Egyptian
citizen as an apostate was in the famous case of the Egyptian academic, Nasr
Hamid Abu Zayd. The Court made its assessment using Abu Zayd’s academic
work on Islamic law and history, and it consequently ordered the dissolution of
his marriage to his Muslim partner. In this case, the defendant did not inten-
tionally convert from Islam but he was pronounced guilty of heresy (Moustafa
2010).
While the Egyptian law does not explicitly prescribe a penalty for apostasy,
converts from Islam, atheists and affiliates of non-recognized religious doctrines
can be easily convicted under the legal provisions on blasphemy. Article 98(f) of
Egypt’s penal code makes blasphemy a crime that is punishable by “prison for a

11 Court of Cassation, Case No. 9/44, 14 December 1975 and Case Nos. 475, 478,481/65, 5 August
1996 cited in Ibid., 584.
12 Ibid., 723.

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8 M.A. El Fegiery

period of not less than six months and not exceeding five years”.13 O’Sullivan
has discussed some cases of blasphemy that arose between 1990 and 2001, in
which legal provisions against blasphemy were used to accuse intellectuals of
insulting Islam. However, few of these cases resulted in conviction and impri-
sonment (O’Sullivan 1997). In 2007, the Egyptian blogger, Karim Amer, was
sentenced to 3 years in prison for publishing articles on his blog that considered
by an Egyptian court blasphemous to Islam and Al-Azhar Islamic institution
(Amnesty International 2010). More allegations of blasphemy have been
launched against Egyptians in 2012. For instance, in December 2012, Alber
Saber, an Egyptian atheist of Christian origin, was sentenced to 3 years in prison
in charge of blasphemy after he posted some critical stories against Islam and
Christianity in his blog and Facebook account. In July 2012, another Egyptian
Muslim Shi‘i was sentenced to 3 years in prison after being convicted of blas-
phemy. Moreover, Article 44 of Egypt’s Constitution of 2012 prohibits the con-
tempt of all religious messengers and prophets, for a detailed analysis of these
cases see Association for Freedom of Thought and Expression (2012). The crim-
inalisation of blasphemy intimidates atheists and converts of publicly declaring
their religious affiliation and views.

Apostasy and documents of identification

Cases related to apostasy have also emerged in administrative law. These have
been filed by Egyptian citizens who converted from Islam and wanted to chal-
lenge the refusal of the government to record their new religious status in their
identity documents. The cases can be classified into three categories. The first
category involves the cases filed by citizens who were Christians but converted to
Islam, then reverted to Christianity. According to a human rights group in Egypt,
there have been 202 such cases in the administrative courts. A considerable
number of the plaintiffs were obliged to convert from Christianity to Islam in
order to apply the Muslim family law in divorce (Bahgat 2007), since the Orthodox
and Catholic Churches in Egypt take a strict position on divorce and usually
require that special permission be sought (Ahram Weekly 2011). Law No. 462 of
1955 on the abolition of Shari‘a and Milli Courts stipulates that:

Conversion from one non-Muslim rite or sect to another is legally effective only when
carried out before the litigation has been initiated. During the litigation, the parties will be

13 Article 98 (f) of Law No. 58/1937 amended by Law No. 29/1982, Official Gazette No. 16 of 22
April 1982.

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 Case of Apostasy and Its Legal Implications in Egypt 9

judged according to the law of the religion to which they belonged at the moment when
they initiated the court case. If, on the other hand, the litigating party converts to Islam,
Article 7 stipulates the immediate applicability of Islamic law, even if the conversion takes
place during the litigation. (Berger 2001)

The second category includes cases filed by citizens who were born and brought
up as Christians, but whose fathers converted to Islam before they reached 16
and could hold their own identity cards. In this situation, the religious status has
been changed in the birth certificates of those citizens, sometimes without their
knowledge. As noted by Scott:

In cases in which one member of a married couple converts to Islam, the children are
almost always given to the Muslim parent. Children of Muslims who have converted to
Christianity remain officially Muslims. However, when a Christian becomes a Muslim, his
children will automatically become Muslim by law. (Scott 2010)

Many of those people later filed cases in an attempt to register their original
affiliation to Christianity in their identity cards. Around 89 cases were docu-
mented under this category from 2005 to 2007. The third category includes
cases filed by Muslims who converted to Christianity, but who failed to have
their new religious status registered in their identity cards. Meanwhile, as has
been pointed out by an Egyptian human rights defender, there is no accurate
figure for the number of Muslims who converted to Christianity, since the
majority of them are afraid of societal revenge if they report it publicly
(Bahgat 2007).

Apostasy and documents of identification in the

jurisprudence of the State Council: principles and
approaches
In this part, I will critically analyse a series of recent decisions by the State
Council (majlis al-dawla) in cases of conversion from Islam to Christianity. My
aim is to draw a clearer picture of the legal reasoning developed by courts,
concerning apostasy and the right of apostates to record their new religious
affiliation in identity documents. The jurisprudence of the State Council has
exhibited three trends in its handling of the issue: the hard-line approach, the
liberal approach and the pragmatic approach.
Judges using the hard-line approach have rejected the complaints of Muslim
citizens who want to register their new religious status in their identity cards,

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10 M.A. El Fegiery

basing it on the traditional prohibition of apostasy in Islamic law, and the

protection of public order in a Muslim-majority country. This hard-line approach
has long represented the mainstream. However, it was overridden recently by the
pragmatic approach, which maintained the same traditional understanding of
apostasy, but has acted in favour of registering the new religious status of
converts of Christian origin, based on the protection of public order and the
requirements of the modern nation state. The liberal approach, meanwhile, argues
for the freedom of religion by referring to Egypt obligations under international
human rights treaties and reconciling between the constitutional provisions on
religious freedom and Islamic law. This perspective has been adopted in a few
cases before the Court of Administrative Justice. In the following sections, the
three approaches are critically examined.

The hard-line approach: conversion is prohibited

This approach is the oldest in the Egyptian Administrative Courts. The precedent
was followed intensively by other courts in the State Council for three decades
until a new one was introduced recently by the Supreme Administrative Court
and caused it to be modified. In the case of Nabil Hassan Sabry, the Court of
Administrative Justice denied the right of an Egyptian Muslim to modify his
identity card, to reflect his reversion to Christianity. The plaintiff filed this case
before the State Council after the Civil Records Office stated that Islam does not
permit apostasy and refused to make the modification.14
The plaintiff argued that the Civil Code does not prohibit any individual
from changing his religion. He also invoked the Law of Civil Status which allows
citizens to change data in their documents as long as they present proof of the
new data. The plaintiff cited Article 46 of the Egyptian Constitution of 1971,
which guarantees freedom of religion. He then argued that Islamic law is not
applicable in this case, since there is a clear provision in the Law of Civil Status,
which includes the changing of religious information.15
The government argued before the court that the provisions of the Law of Civil
Status are restricted by the rule that apostasy is prohibited in Islam. According to
the Court, this is a rule of public order and the Court is obliged to follow it. The
State also invoked Article 2 of the Constitution, which stipulates that the princi-
ples of Islamic law are the main source of law. It argued that this thus revokes the
provision of the Law of Civil Status concerning the change of religious affiliation

14 Court of Administrative Justice, Case 20/29, 8 April 1980 in Hamad (1999, 222–4).
15 Ibid.

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 Case of Apostasy and Its Legal Implications in Egypt 11

in identity documents, since apostasy is prohibited by the Quran, the grand

source of Islamic law.16
In its decision, the Court argued that the rules of Islamic law are applicable
in this case based on Article of 2 of the Constitution and Article 1(2) of the Civil
Code, which allow judges to refer to customary law, Islamic Shari‘a and the rules
of equity in the absence of a legal provision applicable to the case being
examined. It then stated that there was no law regulating the issue of apostasy
for those who embrace Islam; that customary law in this case is related to moral
issues and that, therefore, the rules of Islamic law are applicable in this case.
Apostates, according to the Court, have no civil rights in Islamic law. The
right to change religious affiliation can only be provided for non-Muslims, but
Muslims cannot denounce their religion, whether to convert to another religion
or to become non-religious. The Court affirmed that based on Islamic Shari‘a,
apostasy must be prevented. The Court then moved to the facts of the case and
observed that since the plaintiff converted to Islam, he was subject to its rules,
and the refusal to make the required modification was legal, because the state
could not condone his apostasy. Such an act, according to the Court, would
violate a rule of public order, and therefore the state cannot legally recognize
this act.17
The Court in this case also argued that the scope of Article 47 of the
Constitution on freedom of religion should be in line with Article 2, which
considers Islamic law as the main source of legislation. The Court continued that:

since Islam protects freedom of belief – for Islam may not be forced on any one – freedom
of belief as granted by the Constitution means that each individual may freely embrace
whatever religion he believes without constraint. However, this freedom does not restrict
the application of Islamic Shari‘a to those who embrace Islam . . . since the plaintiff has
embraced Islam, he must then submit to its law which does not condone apostasy.18

Two principles were established in this case and have guided the subsequent
rulings of the State Council on apostasy. Firstly, the scope of constitutional
rights on religious freedom is based on the consideration of public order, to
which the rules of Islamic law are fundamental. The logic of this principle was
developed in the decision of the Supreme Court in 1975. It was then consolidated
after the amendment of Article 2 of the constitution in 1980, whereby the
principles of Islamic Shari‘a became the main source of legislation. However,
it should be noted that even before that constitutional amendment, the Egyptian

16 Ibid.
17 Ibid.
18 Ibid., 224.

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12 M.A. El Fegiery

judiciary had interpreted the fact that Islam is the official religion of the state as
a constitutive element of public order, which brings certain legal consequences
in public life. As noted by Burger:

it is the concept of public policy that may help to solve the riddle of the apparent contra-
diction of Egyptian jurisprudence disallowing apostasy, on the one hand, while upholding
the freedom of religion on the other. (Beger 2003, 733)

The second principle is that the scope of religious freedom is different between
Muslim and non-Muslims. Since non-Muslims are free to change their religion,
once a person becomes a Muslim, he/she cannot abandon Islam. The logic of
this understanding stems from traditional Islamic law on apostasy, which pro-
hibits Muslims to apostatize and deprives apostates from civil rights.
The hard-line reasoning was reiterated in the case of Jerjes Malak Wassef.19
The claimant was born to a Christian family and in 1990 when he was 7 years
old, his father converted to Islam and changed his son’s religious affiliation in
his birth certificate. The Court made a distinction between the right of a person
to embrace religious beliefs and his or her right to manifest these beliefs in
society. It reasoned that while the former concerns the individual and his private
relationship with God, the latter affects society and can be limited. It, therefore,
argued that the constitutional right of religious freedom should not infringe on
public order and public morals, as affirmed before by the Supreme Court’s
landmark decision in 1975. Then, the Court observed that Islam is the major-
ity-religion in Egypt, and although its rules respect the right of non-Muslims to
believe in any divine religion, Islamic rules prohibit those who become affiliated
with Islam, to leave it. This rule according to the Court is a part of public order
that must be respected in the country.20
Although the Court has acknowledged that Islamic jurisprudence shows
different opinions on whether the act of apostasy entails a criminal punishment
under the classification of Hudud or not, it noted that all Islamic legal schools
have affirmed the gravity of apostasy and its offensive nature towards Islam. It
has also pointed out that Egyptian legislators have not criminalised apostasy.
However, when the judiciary examines claims brought by apostates to secure
legal recognition of their conversion, the Court affirmed that judges should be
guided by the requirements of public order, where Islam represents the main
component of it. The Court has ruled that persons who voluntary decided to
become Muslims are not allowed to manipulate religion after that and employ
the state’s institutions to legitimize their apostasy. This is, according to the

19 Court of Administrative Justice, Case No. 4475/58, 30 June 2009,

20 Ibid.

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 Case of Apostasy and Its Legal Implications in Egypt 13

Court, in order to protect the society from temptation or (fitnah) and to avoid any
denigration of Islam.
Moreover, the Court has argued that the ratification of the International
Covenant on Civil and Political Rights (ICCPR) cannot be invoked in this case
by the claimant, because Egypt made a general reservation on the convention on
the basis of the rules of Islamic law. Therefore, it cannot be applied in a way that
violates rules of Islamic law that are an integral part of the public order in Egypt.
The Court referred also to a religious opinion published by the Egyptian House
of Legal Opinions, (dar al-ifta’), on 14 May 2006, which says that any person
who joins Islam by his/her own free will cannot deviate from the public order of
his/her society by publicly announcing his/her apostasy and requesting the
change of his/her religious affiliation. The opinion argued that this prohibition
is necessary to protect the rights of other citizens and to avoid any temptation
and confusion for the majority.21
As mentioned before, the claimant was born and brought up as a Christian,
but his father converted to Islam and used his legal powers as a father to change
the religion affiliation of his son. The Court argued that, according to the
majority opinions of the Hanafi School of law, the child inherits the Islamic
affiliation of the parent. When the child becomes adult, there is no need to
renew his or her faith, as it is granted by his/her original innate (fitrah). The
Court accordingly considered that the claimant had been a Muslim since his
childhood.22
This hard-line reasoning was also invoked in the Mohamed Hegazy case.23
The claimant was born to Muslim parents and originally issued his identity card
as a Muslim, then he converted to Christianity. The Ministry of Interior refused to
change his religious status in his identity card, and Hegazy filed a case before
the Administrative Court. When the court refused his petition based on the
prohibition of apostasy in Islam and the protection of public order in a
Muslim society, the plaintiff invoked the international obligation of the
Egyptian government based on Article 18 of the ICCPR, since according to the
constitution of 1971 such international obligations become domestic legislations.
However, the Court used the same arguments developed in the Wassef Case and
argued that the ICCPR’s provisions are limited by the rules of Islamic law. It also
quoted the legal opinion on apostasy released by dar al-iftā’ in May 2001.24

21 Ibid.
22 Ibid.
23 Court of Administrative Justice, Case No. 35647/61, 29 January 2008.
24 Ibid.

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14 M.A. El Fegiery

The liberal approach: a solution for converts

of Christian origin

In Mohamed Mahdy Abdullah’s Case,25 the claimant was a Christian, born to

Christian parents. He converted to Islam but he reverted after that to Christianity
and the Ministry of Interior refused to change his religion affiliation in his
identity card. In this case, the Court accepted the claim and ordered the
Ministry of Interior to comply.26 This case is among 22 cases decided positively
by the Court between April 2004 and September 2006. At the time, the Court of
Administrative Justice was headed by Abdel Qader who adopted liberal reason-
ing (Human Rights Watch and Egyptian Initiative for Personal Rights 2007, 72).
In these cases, the Court considered the Ministry’s refusal to alter the
identity card an unjustifiable interference in his personal choice. The Court
has also argued that the act is just an administrative procedure that reflects
reality and that this registration is necessary to establish rights and duties based
on the correct religious status. In its response to the argument based on public
order, the Court affirmed that Article 40 of the Egyptian constitution provides for
equality between citizens in all rights and duties without discrimination based
on religion, language, origin and sex. It also referred to Article 46, which
protects the rights of individuals not only to freely believe in religions but to
manifest religious faith. The Court cited the Universal Declaration of Human
Rights and the Arab Charter of Human Rights while also arguing that many
centuries ago, Islam demonstrably recognized freedom of religion. To show the
compatibility between Islam and religious freedom, the Court cited several
Quranic verses that highlight the principles of freedom and non-compulsion in
religious conviction.27
However, the Court’s understanding of freedom of religion in Islam was not
applied to citizens who are born and brought up as Muslims and decided to
convert to any other religion. In explaining this position, the Court ambiguously
submitted that, according to Islamic jurisprudence, a Muslim cannot be consid-
ered apostate unless he or she feels comfortable with his or her apostasy.28 This
argument infers that the Court would only guarantee the rights of persons who
became Muslims for a while and then decided to apostatize from Islam. By this
reasoning, the Court avoided engaging in a thorough discussion on the issue. In
fact, the cases raised before this Court were only filed by converts of Christian

25 Court of Administrative Justice, Case No. 26103/85, 26 April 2005.

26 Ibid.
27 Court of Administrative Justice, Case No. 26103/85, 26 April 2005.
28 Ibid.

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 Case of Apostasy and Its Legal Implications in Egypt 15

origin, and the Court was not tested in cases filed by converts of Muslim origin.
The government did not challenge these decisions before the Supreme
Administrative Court. However, after the retirement of Judge Abdel Qader, the
Court of Administrative Justice reverted to the hard-line approach until a new
pragmatic reasoning has been adopted by the Supreme Administrative Council
which has partially settled the obsolete legal status of converts of Christian
origin (Human Rights Watch 2007, 71–2).

The pragmatic approach: a new precedent by the

Supreme Administrative Court and its limitations

In the case of Beshay Rizq,29 the Court’s landmark decision approved the
registering of a person’s new religion, if reverting back to Christianity. The
Court applied a very pragmatic approach in solving this case and did not
indulge in a legal discussion on the right of religious freedom and apostasy
in Islam, as in other previous cases. It submitted that the Egyptian law requires
that each citizen carries an identity card, by which he/she can interact with the
state and society, and that the card should include true information about
a citizen’s sex, profession, religion and marital status. Any change in this
information should be reported to the mandated authority as stipulated in
Article 46 of the law of civil affairs. This Article does not limit the changing
of information related to their religion, as long as the change occurs among the
three monolithic religions.30
The Court highlighted the fact that the registration only reflects the real
status of a person who has already changed his religion. It does not mean that
the mandated authority accepts the act or that it establishes a new legal status
by the registration itself. The Court made an analogy with the change in legal
status resulting from marriage, in which the registration does not establish this
legal status, but that rather the satisfaction of the legal pillars and conditions of
marriage, as stipulated in the law, is the basis under which the legal status of
marriage can be established. The Court also argued that the registration of the
new religious status of the claimant is necessary to protect the public order and
societal interest, and it will protect against societal complexities or impermis-
sible acts such as the marriage of non-Muslim male to a Muslim woman (which
is, according to the Court, absolutely prohibited under Islamic law).31

29 Supreme Administrative Court, Case No. 13496/53, 9 February 2008.

30 Ibid.
31 Ibid.

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16 M.A. El Fegiery

In order to show that its decision was in line with the previous case law on
apostasy, the Court then affirmed that the registration of the new religious status
does not mean in any way the acknowledgment of apostasy. Rather, the regis-
tration of this new religious status is a requirement of a modern nation state.
Finally, the Court decided that while the claimant can register his affiliation to
Christianity in his official documents, his previous affiliation to Islam should
also be mentioned in these documents.32
Although the decision tries to solve practical problems for a considerable
number of Christians who have been obliged to convert to Islam under certain
circumstances, but have later reverted, judges in this case did not display
consciousness of human rights standards. The arguments of the Court did not
include any explanation about the right of religious freedom, whether under
Islamic law or the Egyptian constitution. It has also introduced a very strange
resort, whereby people will be socially stigmatized by referring in their official
documents to their new religion but with mention of their previous and rejected
affiliation to Islam. Moreover, this precedent has not been followed by other
lower courts in the State Council for converts of Muslim origin, as it is shown
below in the case of Al-Jouhary.
The solution above has not been commended by many other judges who still
believe that the permissibility of apostasy is incompatible with Islamic law and
public order. Some judges in the State Council have expressed suspicion of the
arguments developed in the Beshay Case, and accordingly, after just a few
months, the Administrative Court decided to refer the whole issue to the SCC.
It did so in the case of Faiz Adel Malak’s Case, in order to examine the
constitutionality of Article 47 of Law No. 143 for 1994, which regulates civil
affairs.33
To justify its decision, the Administrative Court argued that Article 47 of
Law No. 143 for 1994 is silent on whether it is allowed to change the religious
affiliation of a Muslim or not, since the law permits any citizen to record
his personal data in the official documents without stipulating special provi-
sions for any Muslims who convert to another religion. According to the Court,
Article 47 is not compatible with Article 2 of the Egyptian constitution which
considers Islam as the religion of the state and Islamic law as the main source
of legislation. No decision has been delivered yet by the SCC.
In Maher Al-Jouhary’s Case, the Court of Administrative Justice limited the
scope of the new precedent made by the Supreme Administrative Court.34 The

32 Ibid.
33 Court of Administrative Justice, Case No. 444/61, 4 March 2008.
34 Court of Administrative Justice, Cases No. 53717/62 and 22566/63, 13 June 2009.

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 Case of Apostasy and Its Legal Implications in Egypt 17

plaintiff was a Muslim who had converted to Christianity in 1973 and claimed
against the refusal of the Ministry of Interior to change his religious affiliation.
The Court rejected the claim and restated the hard-line position, choosing not to
adhere to the reasoning presented by the Supreme Administrative Court in the
Beshay Case. It argued that the previous decision was only limited to converts of
Christian origin and held that converts of Muslim origin are prohibited from
converting from Islam.35 This argument is not only discriminatory but it lacks
any justification under Islamic law, which does not differentiate between an
apostate who was born and brought up as a Muslim and one who belonged
to another religion before he becomes a Muslim.
Moreover, the Court argued that the constitutional provision for freedom of
religion is understood in light of two factors: firstly, that Islam is the official
religion of the state, and the principles of Islamic Shari‘a are the main source of
legislation; secondly, that all citizens are equal before the law without discrimi-
nation. However, the scope of religious freedom in Egypt is not like that of those
considered civil states, because any change in religion bears important legal
consequences for issues such as marriage, divorce and inheritance.36
Although the Court then cited Article 18 of the ICCPR, like other similar
rulings, it referred to the reservation and also argued that the manifestation of
religious belief can only be restricted in a way prescribed by law, when neces-
sary to the protection of public order, morals and the rights and reputations of
others. On the relationship between Islam and freedom of religion, the Court
emphasised that the former protected the latter. It affirmed that a person should
be freely convinced by his/her religious beliefs without compulsion. However,
freedom of religion in Islam is not absolute, and the Court stated that Quran
does not permit people to abuse or manipulate religion.37
The most important argument made by the Court was developed during a
discussion of the legal authority to decide on conversions. The Court argued that
although Article 47 of the Law of Civil Affairs stipulates that each citizen can
change the information on his or her religious affiliation without any restric-
tions, the legislator requires the applicant to follow certain procedures; this
includes presenting either a ruling from a mandated court or an organ which
certified the conversion. However, the Court said that the legislator did not
identify which court or organ can issue such certificates. It observed that
churches do not have the legal authority to prove the conversion of a Muslim
to Christianity, and it concluded that although the law theoretically did not

35 Ibid.
36 Ibid.
37 Ibid.

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18 M.A. El Fegiery

restrict conversion from Islam, there is a gap by which conversion cannot be

legally recognized. The Court called for a legislation to be passed in order to
protect religion from abuse and manipulation, as well as clarifies the conditions
of conversion from one religion to another, and the organs that can certify this
conversion.38
This new interpretation of Article 47 of the Law of Civil Affairs was repeated
in another ruling made by the Court of Administrative Justice.39 Those who
refuted this argument referred to other rulings whereby the Court accepted
certificates issued by Churches to prove that an act of conversion already
occurred. Moreover, this argument is not raised with respect to Christians or
non-Muslims in general who convert to Islam (Scott 2010, 88).
The Supreme Administrative Court has not yet substantively examined a
case related to a Muslim such as Hegazy or Al-Jouhary, who were born and
brought up as Muslims and then converted to Christianity. Its jurisprudence is,
however, clear now with regard to the legal status of converts of Christian origin.
This was true in Sherif Al Housseny’s Case where the Court adopted the prag-
matic reasoning of the Beshay Case. But unlike the decision in the Beshay Case,
the Court in Al Housseny Case decided that the claimant needs only record of his
new religious status.40
Under the pragmatic reasoning, the Supreme Administrative Court has
followed a flexible position towards converts. This new reasoning has been
applied to converts of Christian origin. It has not, however, been extended to
converts who were born and brought up as Muslims and decided to convert from
Islam like the cases of Hegazy and Al-Jouhary or converts whose one of their
non-Muslim parents converted to Islam during their childhood like the Case of
Jerjes Malak. Moreover, the Supreme Administrative Court has failed to establish
that religious freedom is a right that should be protected under Egyptian law
and Islamic law, including individuals’ decision to change their religious beliefs.
In the meantime, the legal consequences of apostasy in the areas of marriage,
inheritance and custody continue to arise in Egyptian civil and family courts. If
the solution introduced by the Supreme Administrative Court for converts of
Christian origin is consistently executed by the Ministry of Interior, one could
expect that more legal tensions arise in relation to the civil consequences of
apostasy. From the perspective of international human rights law, the

38 Ibid.
39 See the case filed by Kamilia Lotify on behalf of her sons Mario and Andro, Court of
Administrative Justice, Case no 54471/63, 30 March 2010.
40 Supreme Administrative Court, Case No. 19082/60, 12 February 2011.

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 Case of Apostasy and Its Legal Implications in Egypt 19

deprivation of converts of some of their civil rights still represents a severe abuse
of religious freedom.
Finally, the reasoning developed in most of the cases under review reflects a
monolithic and static understanding of Islamic law that prohibits Muslims from
changing their religion and holds apostasy as a serious crime in a Muslim
society. Although Islamic Shari‘a was mentioned several times in the rulings,
judges have not systematically shown the logic of their conclusions from within
the spectrum of Islamic law. They have not also made the distinction between
Shari‘a as sources of Islamic law and the jurisprudence, (fiqh), as methodologies
and rulings. Moreover, judges continue to systematically invoke the protection
of public order in a Muslim society to justify the prohibition of apostasy.

Prospects for freedom of religion in Egypt

Possible reconciliation between freedom of religion

and Shari‘a: the theoretical debate

The previous section demonstrated that Egyptian judges are strongly affected by
the dominant views in traditional Islamic law on apostasy. Although judges
have admitted that there was no agreement among classical jurists on whether
apostasy entails a criminal fixed punishment, there is a consensus in most of the
judgments that conversion from Islam should not be tolerated in a Muslim
society. This strict position explains the steady refusal of courts to record the
new religious status of converts. When courts made positive judgments for the
sake of converts of Christian origin, the reasoning was based on pragmatic
arguments which did not involve the right of religious freedom, including the
right of each individual to change his/her religious beliefs without being subject
to any forms of pressure or punishment.
Islamic law plays a key role in the Egyptian constitutional and legal body.
The reference to Islamic law is consolidated in the 2012 Constitution. The
unprecedented political influence of Islamist parties after the 25th of January
revolution has reignited the debate in Egypt on the relationship between Islamic
law and international human rights (El-Fegiery 2012). Therefore, a sustainable
solution to the legal tensions concerning apostasy requires a new perspective on
the relationship between Islamic law and religious freedom. Islamic legal tradi-
tions are diverse and the practices of Muslim states are different according to
certain political, social and cultural circumstances. The implementation of
freedom of religion by Muslim states has not been the same; as rightly stated

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20 M.A. El Fegiery

by An-Na‘im, “being Muslim or Islamic did not in fact have the same meaning in
different places or over time” (An-Na‘im 2004). Muslim scholars and jurists have
also shown different positions, and it has been observed that increasing num-
bers of scholars have become eager to establish reconciliation between Islamic
traditions and freedom of religion.
There are indeed legal options that can be employed by judges and the
government, to bring Egypt in line with the universal understanding of freedom
of religion. The diversity of rulings delivered by Egyptian courts shows that the
understanding of Islam is not static, but dynamic and changeable. As observed
by An-Na‘im, “the relationship [between Islam and human rights] is open to
engagement and transformation precisely because it is contingent on an inter-
active web of internal and external factors and forces” (An-Na‘im 2004, 9). The
ambivalent position of many Muslim states towards religious freedom is attrib-
uted to the contesting interpretations of Islamic law on apostasy. Given the fact
that Islamic law has been playing an important role in the constitutional and
legal system of many Muslim states, the application of international law in this
area requires a solution from within it. A definite causal relationship should not
be established between the poor records of religious freedom in many Muslim
states and Islamic law, since other political, economic and social factors might
bear the responsibility. However, as noted by An-Na‘im: “this relationship is
important enough for most Muslims that their motivation to uphold human rights
norms will probably diminish if they perceive those norms to be inconsistent with
Islamic principles” (An-Nai‘m 2008, xii).
Although the classical Muslim jurists adopted diverse opinions on rules
related to apostasy, it has been noted that the mainstream opinion in classical
Islamic law contradicts the modern conception of religious freedom in interna-
tional human rights law. According to Shafi’is and Zahiris, apostasy is not
allowed for Muslims and it is punishable by death (Saeed and Saeed 2005,
56). However, the classical jurist, Ibn Taimiyyah, claimed that a group of the
prophet’s companions, such as Ibrahim al-Nakha and Sufyan al-Thawri, were
of the opinion that no criminal penalty should be applied to a Muslim who
changes his or her religion (Baderin 2003, 123). Even when the punishment is
not applied, a charge of apostasy has significant consequences for civil rights.
According to Hashemi, an apostate is not permitted to marry a Muslim, and
if married, his or her marriage will be deemed void. Apostates are not
allowed to claim the custody of their children, or retain their right to inherit,
neither are they allowed to maintain the ownership of their properties
(Hashemi 2008, 38).
According to a survey on the position of modern Muslim scholars on the
criminal penalty for apostasy, a considerable number of jurists such as the

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 Case of Apostasy and Its Legal Implications in Egypt 21

Egyptian jurist al-Sh‘arawi restated the pre-modern position that was favourable
to a punishment; other modern scholars such as Rashid Rida, Maududi, Faruqi
allowed the punishment only if applied by the state in cases where conversion
from Islam is associated with a threat to public order (Saeed 2005, 88–93).
Another category was those of the opinion that apostasy is not punishable in
Islam, since it is incompatible with Islamic values of free choice and plurality,
and not congruent with the circumstances of the modern nation state (Saeed
2005, 93–8). This opinion was embraced by a number of scholars such as
Kamali, Tantawi, Shaltut and al Turabi (Saeed 2005).
Although a considerable number of Muslim scholars and Muslim states are
now against the application of harsh criminal penalty for apostasy, the freedom
of Muslims to convert from Islam is still controversial in contemporary practice.
As mentioned, apostasy gives rise to other serious consequences related to civil
law and family law, and since many states do not legally recognize the act,
Muslims who convert from Islam will not be able to manifest their religion
publicly, and can be subject to several forms of discrimination.
The majority of Modern Muslim scholars who opposed the application of a
criminal penalty on apostates have not elaborated a progressive position that
would secure apostates’ freedom from discrimination based on their free choice.
In explaining this defect, An-Na‘im noted that as long as Muslim scholars adhere
to the classical methods of Islamic law, Ijtihad, “juristic reasoning” will be
unable to solve the tension that arises between Islamic law and the modern
conception of religious freedom, because some aspects of this tension, particu-
larly with regard to the civil consequences of apostasy, are associated with clear
and define text in Quran and Sunna (An-Na‘im 1986, 236). Therefore, the solution
according to An-Nai‘m entails drastic reform for the methods of Islamic law
(An-Na‘im 1986, 237–9).
Being concerned about respect for equality, non-discrimination and freedom
of religion, from an Islamic perspective, Al-Na‘im believes that it is not enough
to introduce different interpretations of prophetic traditions that impose punish-
ment for apostates, but advocates a new understanding of the Islamic message
that responds to the contextual and historical developments of human beings.
An-Na‘im has been inspired by the evolutionary approach of the Sudanese
reformer Mahoumd Taha, who differentiated between the Qur’an and Sunna in
Mecca and Medina. According to Taha, the message in Mecca was universal, it
considered the full equality of human beings and promoted individual free
choice, but the message in Medina came up with a set of rules to regulate the
emerging Muslim community in Al-Medina. These rules have been analysed by
Taha and An-Na‘im according to the political, cultural and social circumstances
of the Muslims at that time. All rules which concern women, non-Muslims and

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22 M.A. El Fegiery

penal law were developed at this stage. According to this methodology, con-
temporary Muslims can appeal now to the Islamic message of Mecca to develop
the Islamic public law and make it consistent with current circumstances
(An-Na‘im 1990, 52–3).
An-Na‘im’s theory advocates equality and full citizenship in Muslim socie-
ties from an Islamic perspective. As a result of this drastic perspective, any
consequences stipulated by traditional Islamic law on the personal status of
apostates are irrelevant. As he notes, there were a wide range of Muslim scholars
who struggled to challenge the death penalty for apostasy as a rule of Islamic
law but they fail to “establish a positive right to change one’s religion or faith.
They admit that adverse consequences may follow upon apostasy. This is
inconsistent with freedom of religion” (An-Na‘im 1986, 215).

The constitutional and legal landscape

of religious freedom

The jurisprudence of Egyptian judiciary on conversion from Islam highlights

certain constitutional and legal loopholes that restrict the scope of religious
freedom in Egypt. Egyptian citizens should record their religious affiliations in
all official documents of identification. It is argued that this legal requirement
represents a serious source of religious discrimination, and a flagrant interfer-
ence on individual freedoms. According to this view, the religious affiliation of
citizens should be abolished, not only from the identity cards but also from any
other official documents. People will then freely decide which religious rules
they apply in marriage. Another view goes that such an abolition is not a
practical solution, given the fact that religious status in Egypt establishes certain
rights and duties in family law. According to this opinion, the only practical
solution in the short run is to enable citizens to freely record their true religious
affiliation in their documents (Bahgat 2007). The abolition of personal religious
data will not prevent any potential legal consequences for converts based on
traditional Islamic law on apostasy, unless there are genuine modifications in
the civil and family law, or there is a new liberal interpretation of Islamic law
in Egypt.
A considerable number of Egyptian Christians convert to Islam to apply
Islamic family law, and then face administrative troubles when they decide to
return to their original religion. Therefore, a legal solution needs to be intro-
duced for Christians who are legally barred from dissolving their marriages due
to the strict position of Christian family law on this issue, and indeed, there is an
ongoing debate among Christians in Egypt on the need to reform Christian

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 Case of Apostasy and Its Legal Implications in Egypt 23

family regulations (Ahram Weekly 2011, 1058). This reform would not be easy
given the resistance of some Egyptian Churches. The 2012 Constitution estab-
lishes an autonomous status of non-Muslim Christian sects in regulating their
personal status affairs. Islamist-dominated Constituent Assembly presented this
provision as an advantage for non-Muslims in Egypt, but it actually strengthens
the powers of Christian religious establishments over their members and
obstructs the possibility of having one civil family law applied to all Egyptians
regardless of their religious affiliation.
Another reason for the high number of converts from Islam in Egypt is that
the law allows for the automatic registration of a child as a Muslim when his/her
father converts from Christianity to Islam. According to international human
rights law, the choice in this case should be left for the children themselves
when they become able to understand and judge the different religious convic-
tions. Article 14 of The International Convention of the Rights of the Child
provides that every child has the right to freedom of thought, religion and
conscience. It establishes rights and duties for the parents or legal guardians
in directing a child, but it does not give an exclusive right for fathers to decide
the religion of their children based on their own religious beliefs.41 Hashemi has
noted that:

The Qura’n rejects nonbelievers justifying their following of the religion because of their
parents. In the same sense, according to Shiite jurists every Muslim from the age of
maturity should stand for his/her own beliefs. But in contrast to this progressive rule,
according to other Muslim legal traditions, a Muslim child or adult is not allowed to choose
a religion other than his father’s, i.e., Islam. (Hashemi 2008, 215)

This article suggests that in the case of inter-faith marriages, children should
have the possibility of fully exploring the religions of their parents and freely
deciding which religion they will adhere to.
Finally, although freedom of religion has often been protected in Egypt’s
constitutions, its interpretation has been undermined by other constitutional
provisions which give Islam or Islamic law an advanced status in the whole
constitutional and legal system. We have seen that Islamic law influences the
understanding of freedom of religion by most Egyptian judges. Islam as a
fundamental component of public order is the highest norm in determining
the scope of any other legal and constitutional norm in Egypt. To protect free-
dom of religion from any inappropriate interpretation of Islam, a constitutional
clause could give fundamental human rights, including freedom of religion, the
highest status in the constitution, so that any other constitutional or legal

41 Convention on the Rights of the Child, U.N. Doc. A/44/49 (1989).

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24 M.A. El Fegiery

provision cannot restrict their scope without strictly defined criteria, as stipu-
lated in international human rights law. During the constitution making process
in 2012, there were some efforts led by human rights defenders and liberal forces
to adopt a constitutional bill of rights or to refer in the constitution to the
superiority of international human rights treaties over Egyptian legislation, for
instance see A Coalition of 27 Egyptian Human Rights NGOs (2011). However,
Islamist-dominated Constituent Assembly opposed the determination of the
content of human rights in the constitution in accordance with international
human rights treaties. The Muslim Brotherhood and its allies maintained that
these treaties often “reflect Western conceptions of human rights” (Statement by
the Freedom and Justice Party 2011).

Conclusions
Although apostasy is not a crime in Egyptian law, it is a source of intense legal
dispute in Egyptian courts. Apostasy brings serious legal consequences, which
deprive apostates of basic civil rights. This article focused on the right of
converts to document their new religious affiliation in their documents of
identification, noting the extent to which Egyptian judges have failed to recon-
cile between Islam as the official religion of the state as well as the main source
of legislation and freedom of religion. Although the jurisprudence of the State
Council on apostasy has developed, allowing converts of Christian origin to
record their religious affiliation in their documents of identifications, the posi-
tion of Egyptian Courts has not changed yet towards converts of Muslims origin.
Throughout the previous three decades, judges at the State Council adopted
three approaches towards this right. The hard-line trend dominated the judiciary
since 1980, in which judges considered apostasy a serious crime in Islamic law
and a threat to the Muslim society. The liberal trend was the minor position
adopted by the Court of Administrative Justice from 2004 to 2006 when the Court
defended the compatibility between Islam as the official religion and freedom of
religion. However, these rulings were limited to converts of Christian origin.
There has since been a pragmatic trend, adopted by the Supreme Administrative
Court in 2008, in which it has argued that in modern states, each citizen should
record his/her true information in the documents of identification. The Court
affirmed that this documentation does not mean that the Court recognizes the
act of apostasy, but that instead it is a practical requirement to regulate the
relationship between citizens and the state and avoid any threat to public order
by giving citizens false religious status which might carry dangerous legal

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 Case of Apostasy and Its Legal Implications in Egypt 25

consequences. This pragmatic trend has been adopted by judges with regard to
converts of Christian origin, but again, has not been followed with respect to
converts of Muslim origins.
Although judges have not systematically discussed Islamic law on apos-
tasy, they have built their reasoning on the general premise that apostasy is
prohibited in Islamic law and is a serious threat to public order in Muslim
societies. Islamic law on apostasy is not monolithic, and that judges have
various legal options for reconciling Islamic law and freedom of religion. A
new perspective on the former, which recognizes the right of individuals to
freely choose or change their religion, is a sustainable solution to the legal
disputes examined in Egyptian courts concerning apostasy. An increasing
number of modern and contemporary Muslims scholars have worked to estab-
lish a reconciliatory view between Islamic law and freedom of religion. The
article has addressed certain constitutional and legal loopholes that under-
mine the application of freedom of religion in Egypt. The 2012 Constitution of
Egypt has failed to fill these loopholes. On the contrary, the consolidation of
Islamic law in the constitution and the lack of sufficient protection of human
rights create uncertain future for religious freedom in post-revolutionary
Egypt.

Acknowledgments: I am grateful to Professor Lynn Welchman of the School of

Oriental and African Studies for her support during the preparation of this
article. I also thank Hossam Bahgat and Adel Ramadan of the Egyptian
Initiative for Personal Rights for providing me with some recent cases on
conversion.

References
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Ahram Weekly. 2011. “Protesting for the Right to Divorce.” Ahram Weekly.
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