Egyptian Law Fosters its Own Islam…and Reproduces it

2018-07-03    |   

Egyptian Law Fosters its Own Islam…and Reproduces it

“Here in Egypt, public order is Islam.”

The deputy chair of Egypt’s State Council made this statement at the American University in Cairo in April 2017, at a conference titled “The Role of State Council in Protecting Public Rights and Freedoms in the Transitional Period.” The statement above is an apt summary of this article’s object of study, namely legal practices that aim to protect and foster Islam as an official religion of the state and the majority of its population. These practices play a role in shaping Islam itself and reproducing it as a contemporary social practice.

The statement was uttered at the conference in the context of a discussion about the practice of apostasy. Judge Muhammad Hassan, the deputy chair of the State Council, presented the judicial body’s longstanding position on the subject: namely, that it does not officially acknowledge acts of apostasy. He attributed this to the fact that apostasy is a crime according to Islamic law, saying that “here in Egypt, Islam is [the organizing principle of] public order.” Thus, the State Council will not recognize a citizen’s change of religion from Islam to another religion. At the same time, despite refusing to change a person’s religion as recorded on their official documents from “Muslim” to anything else, the court does acknowledge apostasy in other ways: namely, an apostate must suffer the consequences of having their status revoked when it comes to marriage, inheritance, and other aspects of personal status. This includes a judicial separation between two spouses if one of them is an apostate, the inability of an apostate to inherit from their Muslim relatives, and other consequences.

And yet the total identification of Islam with the concept of “public order” is a potential point of legal and juristic contention. This is not only on account of the vagueness surrounding the concept of “public order” and the considerable legal controversy surrounding it, but also because of the wide range of meanings that might be intended by the word “Islam.” Regardless, the significance of the phrase is that in judicial use, the concept of “public order” refers, in a broad sense, to a set of social conditions necessary to guaranteeing the stability of life under the state. The state must therefore ensure the continuance of these social conditions and prevent anything that infringes upon them. These conditions are not necessarily specified in the text of the Constitution or in legislation. Rather, they are left to the discretion of judges. The concept of “public order” also carries weight as a legally-binding principle that can place limits on the exercise of rights and freedoms. In other words, any contract, practice, or situation that the judiciary deems to be in violation of public order is considered void or criminal.

The link between “protecting Islam” and the concept of “the public order” also points to the various ways that this “protection” has been invoked in order to limit freedoms and rights––and which sometimes infringe upon the provisions of the Constitution and of the law. As with the concept of public order, the notion of “protecting Islam” has likewise become subject to the discretion of members of the judiciary and the public prosecution, and even, at times, the police or state officials. At times, they exercise this discretion in ways that violate the Constitution and the law, and sometimes Islamic law as well, as will be detailed below. This also raises questions about what constitutes Islam itself more generally: like “public order,” Islam represents an authority whose features are not necessarily specified but are rather invoked through legal or law enforcement practices. These practices defend Islam, or its manifestations, as part of the social conditions upon which the state is based, or through which life in society is organized. In this context, one legal scholar has even adopted the phrase “faith-based public order.”[al-Nizam al-Imani al-’Am].[1]

This article is concerned with the effects of these legal practices, which claim to “protect and preserve Islam,” in shaping the state of Islam primarily as a social practice. It also addresses their effects on the ideas and teachings that social practices strengthen, promote, and reproduce.

An Inescapable Outcome?

Alongside judicial bodies, the executive branch also refuses to register any conversion from Islam: the civil registration authority of the Ministry of the Interior will not record conversions from Islam to another religion, to atheism, to being labeled non-religious, or the choice not to disclose a religion. In the Court of Cassation’s case dissolving the marriage between the late [scholar of Islamic studies] Nasr Hamid Abu Zayd and his wife, Ibtihal Younis, the court’s justification invoked statutes of apostasy. According to the court, “Islam is the religion of the state, and the principles of Islamic law are the principal source of its legislation. All systems of positive law specify sanctions and measures to be taken against acts that are contrary to its foundations.” It also stated that “entering into the Islamic faith renders a person bound by its provisions, including those in connection with apostasy.”[2] The sole exception to this established position is the High Administrative Court’s acceptance of certain Christians returning to Christianity after converting to Islam.[3] Barring this exception, the result of this position is that the majority of the population––those born to two Muslim parents, whose religion is registered as Muslim on their birth certificates––have no choice in the matter starting at birth and throughout their life, and neither will their children after them. This renders Islam an inescapable outcome for the majority of Egyptians, for generations on end, according to the law.

Trapped in a Web of Compulsion?

There are many instances in which those whose state-issued papers label them as Muslims convert to something else––for instance, cases of conversion to Christianity. There is also the phenomenon of conversion to atheism or to a label of non-religious, of which the state, state media, and religious institutions are especially wary. But because the state refuses to document these changes on a person’s official documents or to take its effects into account, there are a number of citizens compelled to follow legal provisions in their personal life as though they were still Muslim.

The only indication that an apostate has been granted a new legal status, in cases when the court does decide to acknowledge the apostasy, is the revocation of a person’s civil status, which forbids them from marrying or inheriting and potentially even being issued an identity card. This amounts to suspending their rights as a citizen. This is prompting some communities to conceal their religious position out of fear of these effects, because their citizenship hangs in the balance. Such legal practices, which at times openly and at others covertly claim to protect Islam or “Islamic society” from the effects of apostasy, force these citizens to remain under Islam as a framework of compulsion from which they can only escape by relinquishing their citizenship. And this has in fact occurred in a number of cases, through migration or requests for religious asylum.

A State Monopoly

Throughout the history of Islam, political authorities have played a significant role in supporting particular religious teachings or schools of Islamic thought. This has manifested in the form of authority over mosques and at times, through the judiciary. But even as the Ottoman state began to legally regulate religious bodies, there was space for the practice of Islam according to schools of thought different from or outside of official religious bodies; this continues to be the case today. However, legal developments have moved increasingly towards criminalizing these marginal practices on principle, and not in connection with any specific idea or practice.

Since the era of Muhammad Ali and his descendants, the Egyptian state has controlled the major mosques and selected the Sheikh of al-Azhar. This was codified in the royal law on religious authorities of 1927, which granted latitude to religious practices and education beyond the dominance of government authority. This was followed, however, by the Egyptian Republic’s 1960 law regulating the Ministry of Religious Endowments, which was charged with “administering all mosques and zawiyas.” This, in turn, led to the 2014 law on preaching, which criminalized preaching and religious teaching except by graduates of al-Azhar holding a specific permit granted by the Ministry of Religious Endowments.[4] Limited exceptions were made for non-Azharis, and offenses are punishable by imprisonment or a fine.

These policies are sometimes justified through the need for preachers to be “specialized.” But at the same time, they do not permit the establishment of religious institutes adhering to teachings other than those of the Sunni schools. In 2015, the state ruled to suspend the operations of independent religious institutes affiliated with religious universities, despite the fact that Azharis made up the majority of their teaching corps. Likewise, the state ruled that all religious institutes’ curricula was subject to review in order to ensure that they were in agreement with the curriculum of al-Azhar and that only Azhari graduates could teach in them. This effectively closed off any opening for “specialists” beyond al-Azhar.[5]

During the Fatimid era, al-Azhar was, to a great extent, an open religious institution in which Islamic subjects from Sunni and Shi’a schools were taught. It transformed into an exclusively Sunni institution in the Ayyubid period. During the Nasser era, it evolved into a state university subject to legal regulation and placed under the leadership of the Sheikh of al-Azhar. The Sheikh’s office assumes roles connected to the state in terms of authority, politics, and diplomacy; indeed, state officials often state that al-Azhar is a part of Egypt’s soft power. This means that in practice, it is both an “authority” as well as an arm of the state’s monopoly on official teachings. For this reason, it is a regular occurrence that academics whose interpretations differ from dominant and conventional interpretations are excluded from al-Azhar University, or have their work suspended and investigated. There are also recorded cases in which university faculty or teachers in primary, preparatory, and secondary schools who are established as embracing Shi’a schools of thought have been dismissed immediately.

Can [Religious] Heritage be Renewed?

The legal regulation of al-Azhar and religious endowments therefore constitutes a closed circle: religious education supports the production of prevailing traditional ideas that align with the political inclinations of the state. It does not permit those who are not graduates of its institutions to preach, subject to increasingly harsh security measures. Anyone outside of this circle works under threat and outside of the law. Non-mainstream perspectives and collective dynamism produced throughout the history of Islam, with their varying and competing doctrinal and legal teachings and Sufi traditions, have become subject to the review and approval of state religious bodies. In some cases they have been pursued by security forces or put on trial on the basis of the law on denigrating religions or “apostasy.” Where, then, can religious renewal come from?

In practice, Islam is being transformed into a heritage that is limited to a number of juristic and doctrinal teachings and officially sanctioned Sufi orders. At best, they reproduce these teachings; at worst, they suffer from calcification and stagnation. As general indicators, for example, for decades Sufi orders that were once popular have been in decline. And although they have been given a forum, the influence of the preaching and thinking of al-Azhar graduates and scholars has weakened in the face of proselytizing icons affiliated with Islamic political movements and salafi groups. Political conditions have granted these latter groups space, although it remains illegal and subject to the whims of power.

The Basis of Social Sovereignty

Throughout Islamic history, rulers and jurists have attempted to broaden the concept of “ahl al-dhimma,” or “people of the book” to include, at times, doctrines and forms of worship other than Christianity and Judaism. Although their constitutions may stipulate citizenship and equality and criminalize religious discrimination, modern Muslim-majority states like Egypt still feature legislative and judicial practices that invoke “religious and social sovereignty” [on behalf of Islam]. In this case, however, it is not being adopted to broaden the concept of “ahl al-dhimma” to include other beliefs or forms of worship. Instead it is invoked to restrict the concept on the pretext of maintaining public order, arguing that the Baha’i and Ahmadiyya faiths are dissident creeds that aim to undermine Islam. Protecting Islam and preserving public order serve as pretexts for undermining the equality specified by the Constitution.

Moreover, despite the existence of constitutional protections for religious practices and houses of worship for Christians and Jews, in 2011, state Islamic bodies rejected outright proposed legislation that would have put procedures for constructing mosques and churches on an equal footing.[6] Salafi movements raised strong objections that were accepted by the transitional military council at the time. Subsequently a new law regulating church construction was adopted. This law has not altered the status quo significantly and therefore legally establishes discrimination between Muslims and Christians on the issue.[7]

An Excuse for Sectarian Aggression?

Attacks on houses and gathering places that Christians use for worship is one of the most salient forms of recurring sectarian attacks that Egypt has witnessed intermittently. These usually take place in protest against changing a building into a church. They are a frequent and widespread phenomenon; and yet the way the judiciary and the police deal with them raises questions about the rigor applied to address these attacks.

In other cases of sectarian tensions between Muslims and Christians, studies have noted a common feature in the way police and prosecutors deal with these incidents: often, equal numbers of Muslims and Christians are detained. This makes it easier to frame the incident as a conflict between two parties that must be resolved through reconciliation––and the withdrawing of statements made to the police and allegations. Political and religious leaders have also interfered in these attempts, through “customary reconciliation sessions” whose recommendations frequently express the “social sovereignty” of Muslims. Often Christians who have suffered damages are pressured to waive their claims. Sometimes this process even involves removing Christians from their villages or neighborhoods if they have been accused of offending Muslim sensibilities, whether by entering into a romantic relationship with a Muslim woman, are accused of insulting a Muslim during an ordinary quarrel, or for other reasons.

Some of these cases have involved crowds of “religious fanatics,” some of whom carried weapons, infringed upon the sanctity of places of worship (as established by law) or that of private homes, or threatened to injure or kill. In all such cases, those in the crowds were never accused. These cases clearly enshrine a practice that absolves the behavior of Muslims who participate in such attacks, arguing that the perpetrators believed they were “defending Islam.”

Religious Renewal, or Political and Legal Change?

All of the circumstances discussed here, in combination with aspects of the law, have had a number of implications for contemporary Islam: Islam has become a mandatory status for Muslims who have no choice in the matter and a compulsory framework for those who want to leave the religion. It has been transformed into a heritage that cannot be renewed; state religious bodies hold a monopoly on its expression, and shut out those who have differences with these bodies and their teachings. It is a basis for discrimination against non-Muslims and the ingraining of social sovereignty over them. And it has justified anger expressed on its behalf that is used to justify aggressions that are exempt from accountability. Nevertheless, none of this is an inevitable outcome for the Egyptian state or others like it, or for contemporary Muslims more broadly.

This article has discussed a number of legal and political practices implicated in the reproduction of these manifestations of Islam. Some of these practices have been influenced by jurisprudence, or by the historical practices of Islamic authorities; but they have been combined and reconfigured with forms of conservative contemporary legal concepts, as in the excessive and authoritarian adoption of the concept of “public order.” This process of “reproduction” may even eclipse historical and juristic practices, as in the case of restricting the parameters of “ahl al-dhimma.” At times it even violates the provisions of Islamic jurisprudence entirely, as in cases whereby a person who has converted to a religion other than Islam continues to be treated as a Muslim.

And yet, there are other contemporary legal and political practices that have moved in a different direction. These have managed to overcome certain practices rooted in jurisprudence and in history, like forms of slavery, aspects of women’s rights and public and personal freedoms, certain provisions related to economic transactions, and others. The structures of contemporary Islam have reckoned with these changes in a significant way, on both a practical level as well as a theoretical and juristic level.

For some, the fact that contemporary Islam is waiting, in crisis, for “religious renewal” or a “religious revolution” to come from religious institutions is part of the problem. Efforts at religious interpretation that strive to be more authentic, revitalizing, and contemporary cannot find a supportive environment while they are attempting to critique and renew what has become a matter of unchangeable status, state monopoly, and heritage beyond the reach of the law. But this article suggests that this need not be the case: if political and legal practices were aimed in a democratic direction, in favor of equality and affirming rights and freedoms, they might create space that enabled new efforts at religious interpretation. In doing so, these practices could become the most significant factors in halting this process of “reproduction” and potentially contribute to a new formation of contemporary Islam.

This article is an edited translation from Arabic.

[1] Salama Abd al-Sani’ Amin, College of Law, Helwan University, in “Brief on Liability for Contempt of Religions and Hate Speech,” Dar al-Nahda al-’Arabiyya, Cairo, 2018.

[2] Rulings of the Court of Cassation on Appeals 475, 481, 478 of Year 565 of Personal Status.

[3] For more details see the statement on the subject by the Egyptian Initiative for Personal Rights and Human Rights Watch.

[4] For more details on legal development, see “To whom do minbars belong today? An analysis of state policies on mosque administration,” 2014.

[5] See article in al-Ahram, Cairo, August 2015.

[6] See article in al-Masry al-Yawm, Cairo, October 2011.

[7] See the statement of the Egyptian Initiative for Personal Rights in response to the passing of the Church Construction Regulation Act.

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