November 12, 2007

I. Summary and Introduction

I tried to obtain the national ID card. In the application, I wrote that my religion was Baha'i. The officer refused to accept the application and asked me to present my birth certificate. I showed it to him. It stated that I was Baha'i and so were my parents. He still refused to accept the application and asked me to apply in Cairo. When I went to Cairo, I met an officer called Wa'il who opened a drawer in his desk and pulled out a big pile of documents and said, "You see, all these applications are from Baha'i who want IDs. You will never ever get them."Nayir Nabil
He said I'd committed a sin against God. He asked why I wanted to go back to Christianity. "If you had bad luck with your first husband, you should have found another Muslim man." He offered me assistance and favors. "I can find you a good Muslim man," he said. "If it's financial, we can help you find a job. If you went back to your family for lack of any alternative, we'll help you find an apartment." When I insisted on staying a Christian, he said, "Well, we have to start an investigation into the forgery." Golsen Sobhi Kamil

All Egyptians upon reaching 16 years of age must, by law, obtain a national identification document that includes a national identification number (raqam qawmi) assigned at birth. A national ID is essential to obtain access to post-secondary schooling, get a job, vote, travel abroad or within Egypt, and conduct the most basic financial and administrative transactions.

The Civil Status Department (CSD) of Egypt's Ministry of Interior is responsible for administering and providing to Egyptian citizens these national ID cards, as well as identification documents such as birth certificates, death certificates, marriage certificates, and other vital records. These documents record, among other things, a person's religious identity.

In assigning or recording religious identity, the Egyptian government recognizes only what it refers to as the three "heavenly" or "revealed" religions Islam, Christianity, and Judaism and requires Egyptians to pick one of these religions for their identification documents. This limited choice is not based on any Egyptian law, but rather on the Ministry of Interior's interpretation of Shari`a, or Islamic law. An Egyptian citizen has no option to request a religious identification different from one of these, or to identify him or herself as having no religion. If he or she insists on doing so, authorities refuse to issue a national ID or related document reflecting the requested religious identification.

These policies and practices violate the right of many Egyptians to religious freedom. Because having an ID card is essential in many areas of public life, the policies also effectively deny these citizens a wide range of civil and political as well as economic and social rights. As detailed below, the consequences at times reach deeply into affected individuals' personal lives.

While the Egyptian government's approach adversely affects anyone who is not Muslim, Christian, or Jewish, and anyone who would prefer to keep their convictions private, in Egypt today the greatest impact has been on adherents of the Baha'i faith and on persons who convert or wish to convert from Islam to Christianity. Their experience is the focus of this report.

Egypt's Baha'i community, while small, is the largest and perhaps only unrecognized independent religious community in Egypt. Approximately 90 percent of Egypt's population identify themselves or are identified as Sunni Muslim, with Coptic Christians comprising most of the rest. While there is some diversity within those two major religions, people belonging to minority Muslim or Christian communities have no problem listing themselves as Muslim or Christian for official identity purposes. The second affected group, converts from Islam to Christianity (or to any other religion), are denied documents not on the basis of any Egyptian law prohibiting such conversion but on what officials understand to be the prohibition in Shari`a against conversion from Islam as a form of apostasy. In contrast, Egyptians who convert from Christianity (or any other religion) to Islam have rarely had any difficulty amending their identification documents to reflect the change.

People without national IDs forfeit, among other things, the ability to carry out even the simplest monetary transactions at banks and other financial institutions. Other basic daily activities - engaging in a property transaction, acquiring a driver's license, obtaining a pension check - also require a national ID. Employers, both public and private, by law cannot hire someone without an ID, and academic institutions require IDs for admission. Obtaining a marriage license or a passport requires a birth certificate; inheritance, pensions, and death benefits are contingent on death certificates. The Ministry of Health has even refused to provide immunizations to some Baha'i children because the Interior Ministry would not issue them birth certificates accurately listing their Baha'i religion.

Because the consequences of not having an ID card are so far-ranging, some converts from Islam feel compelled to resort to forged documents that reflect their actual religious identity. This constitutes a criminal offense and puts them at risk of heavy fines and years in prison.

Modern technology has made the problem more acute. In the past, when national identity documents were filled out by hand, Baha'is, for example, were sometimes able to get a local civil registry office to leave the religion line blank, or enter "other." Converts might count on a sympathetic local official to reflect their change of religion, which often also involves a change of name, on identity documents. The government, however, has increasingly removed that option. Since 1995, all persons needing to acquire or replace such documents have had to acquire a computer-generated document from the central Civil Registry office in the Ministry of Interior, whose officials are using this requirement to compel all Baha'is to identify themselves and their children as Muslim or Christian. In the near future, perhaps as soon as early 2008, all persons will have to acquire computerized IDs, even if they now possess a valid paper ID.

Many Egyptians interviewed for this report recounted how Ministry of Interior officials had attempted to pressure and intimidate them into assuming a religious identity not of their choosing. In some cases, officials have confiscated valid identity documents in order to compel individuals to acquire computer-generated ones for themselves or their children. Several Christian women who had converted to Islam and subsequently attempted to "re-convert" back to Christianity testified that a high-ranking officer within the Criminal Intelligence Unit of the CSD alternately threatened and attempted to bribe them in order to pressure them to maintain their Muslim identity. In some instances, this official intolerance of conversion (or re-conversion) to Christianity led to the dissolution of marriages and destruction of families.

Egyptian Law and International Law

These policies and practices violate Egyptian as well as international law. Article 40 of Egypt's constitution guarantees equal rights to all citizens and prohibits discrimination based on religion (as well as other factors). Article 46 states that "the State shall guarantee freedom of belief and the freedom to practice religious rites." The Civil Status Law of 1994 allows citizens to change or correct information, including religious affiliation, in their identification documents simply by registering the new information, without requiring approval by the CSD.

As a party to the International Covenant on Civil and Political Rights (ICCPR), Egypt is obligated to respect the rights to freedom of thought and religion (Article 18), and specifically the right to manifest one's religion in practice (or to hold no religion). The ICCPR specifies Article 18 as one from which no derogation is possible, even in times of national emergencies, and Article 151 of Egypt's constitution states that international treaties have the force of law. Egypt's Supreme Constitutional Court has ruled that the constitutional protection of religious freedom includes the right not to be coerced into disclosing one's beliefs.

While freedom of belief may not be limited under any circumstances, Article 18 states that the right "to manifest" one's religion or belief "may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others." The Egyptian government, with support from some domestic courts, has argued that identifying oneself as a Baha'i or changing one's identity from Muslim to another religion "manifests" a belief that is considered forbidden by Islam, and thus may be restricted on "public order" grounds. According to the Human Rights Committee, however, a state may not limit a person's right to manifest his or her religion on "public order" or "public morals" grounds that are based on a single religious tradition, even if it has decreed that religion to be the religion of the state.

Article 18 also protects the right of parents and legal guardians to impart to their children the religious belief of their choice. Egypt's constitution mandates religious education as a "principal subject" in the curricula of public education. Students are assigned to study the religion that is registered in their birth certificates. Converts from Islam to Christianity who are unable to have their conversion recognized by the state must register their children as Muslims, and those children must study Islam throughout their schooling. Baha'i parents or guardians must sign a "consent form" stating that their children "have no objection to studying" Islam or Christianity in public schools. This is contrary to the authoritative opinion of the Human Rights Committee that public education in a particular religion is "inconsistent" with the right to freedom of religion as guaranteed by the ICCPR "unless provision is made for non-discriminatory exemptions or alternatives that would accommodate the wishes of parents and guardians." [1]

When Egypt ratified the ICCPR in 1982, it issued an understanding that it intended to comply with the Covenant's provisions "to the extent that they do not conflict with" Shari`a. In court proceedings, it has justified discriminatory policies against converts from Islam and Baha'is as based on a prevailing understanding that Shari`a regards these persons as apostates, and noting that Article 2 of the constitution stipulates that Islamic law is the principal source of legislation in the country.

Egyptian courts have historically supported the official stance that Islamic law, or at least those elements considered fixed and undisputed, constitutes an essential part of public order and that recognizing "apostasy" or registering any religion other than the three "recognized" religions in public records would violate the principles of public order. How the Egyptian government applies Shari`a in matters relating to personal identification documents, however, is not fixed and undisputed as a matter of religious law. As set forth in greater detail below, the government has a choice in how to apply the strictures of Shari`a. Rather than adopting an approach which upholds the basic principles of justice and equality and reconciles Shari`a and international human rights law, it is using an approach which directly violates the internationally recognized rights of its citizens.

In addition, international law does not permit reservations to a treaty that are "incompatible with the object and purpose" of the treaty. Reservations to the ICCPR that effectively deny fundamental customary law rights, such as Egypt's use of Shari`a to justify restrictions on freedom of religious belief, are considered incompatible.

As documented in this report, the government's arbitrary practice with regards to listing religious affiliation in identification documents interferes with the fundamental right to "have or to adopt" a belief, for which both the constitution and international law allow no limitations on any grounds.

The government's contention, that converting from Islam or adhering to a non-recognized religion in themselves constitute the "manifestation" or practice of religious beliefs (rather than the mere holding of such beliefs), fails both as a matter of logic and on the facts.

Logically, it makes no sense for the government to say to citizens that they are free to believe what they like and then deem it unacceptable when citizens respond honestly when the government requires them to state what they believe. It is one thing for a government to say to citizens: "You can believe in whatever religion you want, but the state does not have to recognize it." It is another thing entirely for the government to say: "If you do not lie when we ask you what religion you follow, we will deny you identification documents critical to daily life in this society."

Even assuming that truthfully stating one's religion when required to do so constitutes "manifestation" of belief, the government's "public order" justification fails on the facts. The government has consistently failed to demonstrate how public order would be harmed by allowing citizens to list their true religious affiliation in their identification documents. Furthermore, the limitations imposed by the government are clearly discriminatory against specific religions and the ensuing limitations on affected individuals' access to health care, education, employment, and other services outweigh the putative public order interest served by the government's approach. In a 1996 ruling on a case involving Greece, the European Court of Human Rights found that "[t]he right to freedom of religion excludes any discretion of the part of the State to determine whether religious beliefs or the means used to express such beliefs are legitimate." [2]

The government has repeatedly argued that requiring citizens to identify their religious beliefs in identification documents is necessary in order to identify the individual's applicable family law system, since all personal status laws in Egypt are faith-based. The same purpose could be achieved, however, without burdening freedom of religion or other rights: a person's religion is maintained with other data in the central Civil Registry and the registry could be consulted, as the need arises, to determine or confirm the proper jurisdiction for resolution of personal status issues. The government's argument also fails to explain its decision to cease the practice of granting Baha'is identification documents with the word "other" inserted in the religion entry, or its insistence on arbitrarily subjecting converts to Christianity to the rules of Muslim personal status law.

Shari`a and Egypt's Plural Legal System

The government's assertion that its policies are the only ones consistent with Shari`a are also without merit. As noted above and discussed at greater length below, there are various interpretations of how Shari`a defines apostasy and its implications, and courts in Egypt have taken different approaches to such questions over the years. While Muslim scholars agree that converting from Islam is a sin that is not permitted from a religious point of view, no such agreement exists as to whether the state can or should mete out a worldly or civil law punishment to converts from Islam to Christianity or any other religion.

Similarly, while Islamic jurists and scholars concur that Baha'i faith is an apostate deviation from Islam, the Qur'an does not restrict religious freedom to the three "recognized" religions, and the jurists and scholars do not claim, for example, that the Prophet Muhammad or his followers allowed or practiced co-existence only among Muslims, Jews, and Christians, even in the early days of Islam. Furthermore, neither Egypt's government nor its judiciary have provided any jurisprudential basis to support forcing converts or Baha'is to proclaim themselves as Muslim, or to misidentify their true religion, as an appropriate remedy for apostasy.

The Supreme Constitutional Court (SCC), in a May 1996 ruling, rejected a challenge to the Ministry of Education's restrictions on girls wearing veils in state schools. The court's reasoning in that case, particularly its approach to Shari`a, has direct relevance to the government's attempt to use the dictates of Shari`a to justify its policies on religious identification for ID card purposes. In its 1996 decision, the court found that the government was obliged to adopt the religious interpretation most conducive to preserving people's interests (masalih al-nas)in accordance with changing circumstances, regardless of the jurisprudential weight of that interpretation, as long as it did not contradict fixed and undisputed rules of Islam. While the SCC has the mandate to issue binding interpretations of constitutional provisions, and its reasoning is considered authoritative, that reasoning is not legally binding on other courts.

In addition, Egypt's legal system is "plural" that is, it applies religious law as well as civil law. Egyptian statutory law nowhere addresses the matter of apostasy. In practice, the legal repercussions of apostasy generally have been limited to matters of personal status, where religious law Shari`a or 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. While this arrangement in itself has discriminatory consequences for Baha'is and converts from Islam that lie outside the scope of this report, where assertions of apostasy are used to deny people the right to proper identification cards the consequences extend to a much broader range of civil, political, economic, social, and cultural rights.

Some Egyptians have battled these abusive policies by filing complaints against officials in Egypt's Court of Administrative Justice. In some cases they have secured favorable rulings, but officials have resisted complying with those rulings and the government has appealed a number of them. In April 2006, the Court of Administrative Justice ordered the CSD to issue ID cards and birth certificates to a Baha'i family, arguing that Shari`a in fact required mentioning the plaintiffs' Baha'i faith in order to regulate the rights and duties of distinct religious communities. The government appealed the ruling, however, and the Supreme Administrative Court overturned the decision, agreeing that the government may restrict the mention of the Baha'i faith in identity documents on grounds of preserving "public order." In doing so, the court improperly equated the freedom to practice religious rites, which may be limited in some compelling cases, and the freedom to adopt and adhere to religious beliefs, which is absolute and may not be restricted for any reasons.

Religious Conversion

Egyptians who are born Muslim but convert to Christianity face considerable social opprobrium as well as official harassment. For these reasons, very few if any Muslim converts to Christianity have initiated the necessary formal steps to revise their identification documents to reflect their change in religion, as permitted by the Civil Status Law. An undetermined number have emigrated to other countries, or live anonymously and surreptitiously with forged documents. As discussed below, some who nonetheless have made their conversion public say that security officials have detained them on charges of violating public order and, in some cases, have subjected them to torture.

In a country of 79 million people where approximately 90 percent identify themselves or are identified as Muslims and most of the rest as Christians, it is not surprising that a small number of people each year wish to convert from one religion to the other. We found many cases in which Coptic Christian Egyptians converted to Islam, often at the time of their marriage to a Muslim (Muslim women cannot marry non-Muslim men, according to Islamic law) or in seeking divorce from a Christian spouse (the Coptic Orthodox Church restricts divorce to exceptional circumstances), and subsequently wished to return to Christianity. They typically faced no difficulties whatsoever when converting to Islam and acquiring identity documents recognizing their new religion, but attempts to return to Christianity met with official refusal and harassment.

At least 211 Egyptians wishing to reconvert to Christianity have appealed the CSD's decisions before the Cairo Court of Administrative Justice. Between 2004 and early 2007, the court ruled in favor of a number of these plaintiffs, and the Interior Ministry, usually after long delay, eventually implemented the rulings. But with the retirement in September 2006 of the judge responsible for these favorable rulings, the court has since reverted to its earlier position that re-conversion to Christianity also constitutes apostasy. This development means that the administrative courts appear no longer to be acting as a check on these discriminatory policies of the Ministry of Interior.

The government's systematic refusal to accommodate persons wishing to change their official religious identity to reflect their actual beliefs extends further to a distinct category of Egyptian Christians: those whom the state categorizes as Muslims without their knowledge or against their will. In most of these cases, their fathers were Christians who converted to Islam when they were still children. When this occurred, the children were automatically "converted" as well, without regard to their actual religious practices, without regard to their or their mothers' wishes, and frequently without their even being aware that this had happened. Indeed, many individuals in this category only learned they were "Muslim" when they applied for their own national ID cards upon reaching their sixteenth birthday: when they applied for their card, they found the government had officially registered them as Muslims, and that in many cases had changed their names, without their knowledge, from Christian to Muslim ones. CSD officials base this arbitrary policy on a prevailing interpretation of Islamic law, supported by Egyptian court rulings, that in cases where one parent is Muslim and the other not, children should automatically follow "the parent with the better religion" that is, Islam.

When these Egyptians attempt to assert their Christianity, typically fortified with documents from the Coptic Orthodox Patriarchy proving that they have lived their entire lives as Christians, they face the same discrimination and obstruction from CSD officials as Egyptians who have converted or reconverted from Islam to Christianity. At least 89 Egyptians in these circumstances have brought complaints in the Court of Administrative Justice. Defense briefs by government lawyers insist that these persons are "apostates" under Shari`a and, as such, the state can properly refrain from acknowledging their actual religious affiliation or any rights related to their conversion. At this writing, the court had ruled in seven of the cases before it, all in favor of the plaintiffs; the government, after arbitrary and extensive delays, eventually implemented the court's rulings by ordering officials to provide the individuals with documents identifying them as Christians. There have been no rulings on these issues since April 2007, however, following the retirement of the president of the court several months earlier.

Remedies

At least one quasi-official agency has attempted to address Egypt's consistent failure to protect the religious freedom of Egyptian converts and Baha'is. The government-created National Council for Human Rights (NCHR) submitted a memorandum to Prime Minister Ahmed Nazif on December 26, 2006, outlining the difficulties faced by Egypt's Baha'i community and proposed removing religious affiliation from ID cards or reinstating the policy of entering "other" in the line reserved for religion. In August 2007, the NCHR announced its intention to draft an anti-discrimination bill that it would ask the government to present to parliament in order to introduce criminal penalties for violating the constitutional prohibition against discrimination.

Abolishing the mention of religion in identification documents would undoubtedly constitute a positive measure, as it would signal the state's neutrality vis--vis the religious affiliations of citizens in everyday dealings. Yet the numerous accounts included in this report show that the root cause of the issue goes far deeper than what appears or does not appear on identification documents. The serious problems faced by Baha'is and converts to Christianity in areas such as accessing basic services are the consequence of the government's insistence on misidentifying these citizens in CSD files in the Civil Registry, an issue that the NCHR's recommendations do not address.

The government of Egypt should therefore take immediate steps to ensure that a person's religious identity in CSD files, as well as any religious identification listed on vital documents, accurately reflects their religious belief and the faith to which they adhere in practice without any negative civil or criminal consequences. The government should also instruct officials to cease pressuring individuals to convert to Islam, or to accept any religious identity against their wishes.

[1] Human Rights Committee, General Comment No. 22 [ICCPR Article 18], CCPR/C/21/Rev.1/Add.4, July 20, 1993, http://www.ohchr.org/english/bodies/hrc/comments.htm, para. 6.

[2]Manoussakis and Others v. Greece, (18748/91) WCHR 41 (26 September 1996), para. 47. The case concerned Greece's refusal to authorize a new church on grounds of maintaining public order.