November 12, 2007

VII. In the Name of the Father: Involuntary "Conversions"

Fadi Naguib Girgis's father converted to Islam, changing his surname to `Abd al-Hakim, and left his Christian family when Fadi, now 27, was only five. As noted, according to Islamic law, a child's religion is determined by that of his or her parents, and when one parent is (or becomes) Muslim, the authorities classify the children as Muslims. Fadi grew up Christian in Alexandria and used his birth certificate, which identified him as Christian and reflected his original surname, Girgis, for as long as he could. "At 19, I came to Cairo for work," he told HRW/EIPR.

My [paper] ID was falling apart, and I wanted the national identity card. I went to apply on November 11, 2003. They pulled up my name; it was listed not as Girgis but `Abd al-Hakim [his father's new Muslim surname]. And the religion was wrong [listing Fadi as a Muslim]. They charged me with forging my ID, my birth certificate, my diplomas, said I was trying to convert from Islam to Christianity. They confiscated my documents and transferred me to the public prosecution office. I was in prison until November 16. By chance, [my cousin and a lawyer] met someone who put us in touch with the [Coptic] Pope, who called the public prosecutor and got me out.

The public prosecutor later dropped the case due to lack of evidence and advised Fadi Naguib to reapply for an identity card at the Civil Affairs Department (CSD). Fadi did so, but CSD officials again rejected his request. "In this country, on this issue, life is difficult," he told HRW/EIPR. Without an ID, he said, "I have to stay put, couldn't take a job in Sharm, I can't go to Alexandria. I'm walking close to the wall, like a shadow." [177]

Fadi is one of at least 89 individuals in similar circumstances who have resorted to the Court of Administrative Justice and whose cases HRW/EIPR have documented in Cairo alone. These individuals represent a distinct category of Egyptian Christians whom the state has categorized as Muslims without their knowledge or against their will. In most if not all of these cases, their fathers were Christians who converted to Islam. When this occurred, the government automatically "converted" the children as well, 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, as required by law.

When these Egyptians attempt to assert their Christianity, typically fortified with documents from the Coptic Orthodox Patriarchy proving that they had lived their entire lives as Christians, they face the same discriminatory and obstructionist policies from CSD officials as Egyptians who convert or reconvert from Islam to Christianity. CSD officials refused to grant them identity cards reflecting their actual religion, on the premise that the state should not acknowledge or abet "apostasy" and thereby undermine public order.

State policy dictates that children adhere to their parents' religion, reflecting the position that in the absence of specific legislation, Shari`a principles must govern such matters. [178] If the father is Muslim and the mother belongs to any other recognized religion -- that is, Christianity or Judaism -- the children must adopt the religion of the father. [179] In cases where either parent converts to Islam, however, the state considers the children to be Muslim. [180]

The Court of Cassation, Egypt's highest appellate court, has consistently ruled that if either parent converts to Islam, Shari`a jurisprudence requires that the children also become Muslim. Children who become Muslim in this manner do not need to declare that they embrace Islam when they reach puberty and adulthood, as a convert to Islam would. [181]

HRW/EIPR examined the files of 56 lawsuits brought before the Cairo Court of Administrative Justice since May 2004. All of these lawsuits involved Christians who were unwillingly or unwittingly "converted" to Islam by the state upon the conversion to Islam of either parent. In most of these cases, as already noted, it was the father who converted to Islam and left his Christian family. The children typically were then brought up in Christian households and continued to adhere to Christianity. When the children reached the age of 16 and requested national ID cards from the CSD, as required by law, they discovered that the government had changed their religion, and at times even their family names. When they applied to the CSD to alter their personal data to reflect their actual faith, CSD officials refused, even when they presented appropriate documentation from the Coptic Orthodox Patriarchy. The CSD officials considered their requests to identify themselves as Christians to constitute acts of "apostasy."

There is one documented case of a mother's conversion to Islam which resulted in the children's automatic classification as Muslims by the CSD although the children continued to practice Christianity and identify themselves as Coptic Christians. They obtained documents from the Coptic Orthodox Patriarchy stating that they had belonged to the church since birth. Nevertheless, the CSD also denied them ID cards recognizing their adherence to the Christian faith, on grounds that the CSD should not condone "apostasy."

Yusif Fandi (not his real name) is a victim of this official policy, which has hindered his ability to marry and start a family. Yusif's father converted to Islam before Yusif turned 15. Yusif remained Christian in faith. When he presented himself to the Civil Registry Office, as local branches of the CSD are called, in Imbaba to apply for an identity card, the office director confiscated his birth certificate, which stated that he was Christian, and referred him to the Imbaba police. After he spent the night at the police station, the police transferred him to the Imbaba public prosecutors office. The prosecutor freed him later the next night, but CSD officials continued to refuse to grant him an identity card listing him as Christian. Yusif said he had been engaged for several months while he was trying to get a correct identity card, but that "our engagement was broken, only because of this ID problem. Now a Christian girl's family won't accept me because I'm [officially] a Muslim, and a Muslim girl's family won't accept me knowing I'm really Christian." [182]

Yusif's brother told HRW/EIPR that he faces a similar problem but that he prefers to leave the country to avoid the legal and social difficulties associated with proving his Christian identity.

Christian women classified as Muslim by the state confront even greater difficulties in marrying a Christian, since marriages between Muslim women and men of any other faith are not recognized and cannot be registered. HRW/EIPR have documented 27 cases of women who were victims of this policy.

In some cases, the state forcibly converted offspring to Islam against the wish of the converting father. Isam Ishaq Nasif's father converted from Christianity to Islam when Isam was 14 years old. CSD officials denied Isam an identity card listing him as Christian even though his father did not wish to convert him. Isam said that the police finally coerced his father into changing Isam's religion by threatening to bring charges against Isam in connection with a minor bicycle accident.

`Isam's lawsuit is still pending before the Court of Administrative Justice, where he is requesting an ID card with his real religious affiliation and his birth name, rather than the Muslim name that a CSD official chose for him. In a significant development related to this case, `Isam's Christian fianc asked the court in March 2005 for a stay to intervene as a party in the case against the government. She argued that since she would not be able to marry him if he did not obtain documents recognizing him as Christian, she therefore had an interest in `Isam's success and should be added as one of the plaintiffs.

"I'm still in touch with my father," `Isam told HRW/EIPR. "He was not trying to make me a Muslim. He agreed to be a witness, but they haven't contacted him yet." [183]

Without an identity card, Isam, who is now 24, faces problems at the Suez CanalUniversity, where he is studying tourism because he could not provide the required military service documents, which can be obtained only with a valid identity card. The university administration has sent him several expulsion warnings as a result. "If the university knew the religion aspect, they would not be so tolerant," `Isam said.

The 56 lawsuits filed by Christians whose fathers had converted to Islam are all before the First Circuit of the Court of Administrative Justice in Cairo. They all challenge the Interior Minister and the president of its CSD to end their practice of routinely denying identity cards recognizing the Christian identity of children of Muslim converts. The plaintiffs in these suits argue that the refusal of CSD officials to grant them documents identifying them as Christians violates the 1994 Civil Status Law regulating the issuance of mandatory identity documents as well as Egypt's constitution, which guarantees freedom of belief and outlaws discrimination on the basis of religion.

In all of these cases, government lawyers made no distinction between those converted to Islam against their will and other Christian converts to Islam who are suing to have the state recognize their reversion to Christianity. Defense briefs submitted to the court by government lawyers consistently argue that those asking to be identified as Christians after their fathers' conversion to Islam should be treated as "apostates." The briefs argue a Muslim state may not recognize apostasy and should therefore not recognize the validity of the act or its consequences. No reference is made to the fact that those offspring were born Christian, had no say in their parents' conversion, and never endorsed Islam willingly. One such government brief, in complete disregard for the facts, argued:

The Plaintiff adopted Islam with his full will and freedom, with no compulsion or coercion from whomsoever, and in accordance with the principle of freedom of religion and religious rites protected by the ConstitutionTherefore, he must abide by the percepts of Islamic Shari`a. The steadiness and stability of legal standings necessitate the non-recognition of the applicant's apostasy and his abandonment of Islam and return to Christianity. [184]

The State Commissioners, who are required to give advisory opinions to the judges of the Court of Administrative Justice before they can pronounce decisions, supported the government's position but provided arguments that were more specific to these cases than those put forward by the government lawyers. In addition to stating the Shari`a position on apostasy and the principle of non-recognition, the Commissioners argued that, under Shari`a, children remained affiliated to their father until the age of puberty. Under the Hanafi school of Islamic jurisprudence, they added, 15 is the average age of puberty. The legal test, they argued, should therefore be whether the plaintiff was above or below the age of 15 at the time of his or her father's conversion to Islam. According to this test, anyone below the age of puberty should automatically follow "the parent with the better religion." [185]

In the case of Rami Na`im Nazir, for instance, the State Commissioners advised the court to find against the plaintiff because he was 14 years old when his father converted to Islam in 1987 and changed his son's name to Rami `Abdullah `Abd al-Rahman. [186] Rami, now 23, grew up with his Christian mother after their father left them 20 years ago. He went to church all his life, studied Christianity as his mandatory religious education at school, and has a cross tattoo on his wrist. He has been fighting since 1999 to get the Interior Ministry's CSD to recognize that he is Christian and never converted to Islam.

As detailed above, the Shari`a-based argument put forward both by the government lawyers and by the State Commissioners Authority, which treats plaintiffs in this type of cases as apostates, is highly selective and by no means reflects a consensus (ijma)among Muslim jurists.

Government lawyers and State Commissions have not sought to distinguish the facts of the cases in question from the incident that led to the revelation of the Qur'anic verse: "There is no compulsion in religion" (2:256). Scholars of exegesis(tafsir) hold that the verse was revealed when an inhabitant of Medina who had converted from Christianity to Islam asked the Prophet for permission to coerce his two Christian sons into adopting the new faith.[187] The Prophet refused and advised Muslims against forcing people into Islam against their will.[188]

As of this writing, the court had ruled in favor of the plaintiffs in seven of these lawsuits, while the remaining suits were still pending. All seven decisions, however, were issued between 2004 and the retirement of the Court's then president, Judge Faruq `Abd al-Qadir, in September 2006. As noted above, on April 24, 2007, the Court's new president and members reversed an earlier decision by Judge `Abd al-Qadir and found that Christians who convert to Islam have no right to revert back to Christianity and have their new faith recognized in identity documents. While the court has yet to decide on the issue of offspring of Christian fathers who convert to Islam, the April 24 decision indicated the possibility of a similar reversal.

In all seven rulings issued in favor of the plaintiffs thus far, the Court of Administrative Justice used exactly the same reasoning it used in the earlier decisions in favor of those reverting back to Christianity, described above. These are: the protection of freedom of religion and prohibition of discrimination under the constitution, the Universal Declaration of Human Rights, and Shari`a; the obligation on the state under the Civil Status Law to issue identity documents and make any necessary changes in them in order to reflect the individual's actual status; and, most importantly, that the cases under consideration do not constitute acts of apostasy under Shari`a. "It is stipulated under [Islamic] jurisprudence than Muslims are not considered as abandoning Islam or as having committed apostasy except when they find ease in disbelief and are content with it." [189]

The court then reached the same conclusion it had in cases of those reverting to Christianity:

This position of the administration constitutes an impermissible interference and use of coercion to compel [the plaintiff] to choose a certain religion or creed against his wish It is not permissible in any manner for the administration to use the administrative power vested in it by law as a vehicle to force the plaintiff to remain in Islam.[190]

Notably, the court in these decisions did not reason that the plaintiffs could not have abandoned Islam because they never embraced it. Nor did the court find that changing one's religion from Islam to any other faith or no faith at all should not have punitive civil or criminal consequences; rather, the court maintained only that plaintiffs' actions should not be penalized in these cases because they do not meet the court's definition of what constitutes apostasy.

The fact that citizens whom the state listed as Muslims against their wishes and often without their knowledge need to resort to the courts to prove their Christian identity represents an unreasonable barrier to their exercising freedom of religion and belief. That the Ministry of Interior has refrained from appealing these court decisions before the Supreme Administrative Court does not absolve the ministry of its obligation to respect domestic and international law. The government has an obligation to instruct the Interior Ministry and CSD to implement the Civil Status Law, which stipulates that the CSD should change a person's stated religion in official documents upon presentation of documentation from the relevant authorities, in this case from the Coptic Orthodox Church.

As in the cases of Egyptians who revert to Christianity, involuntary "converts" to Islam continue to face difficulties even after securing favorable rulings due to the hostility of CSD officials and the delays they cause in the implementation of court orders. Lawyer Athenasius William, who represented 13 plaintiffs at the time HRW/EIPR spoke with him, said that CSD officials were refusing to implement all six favorable rulings in these cases. He said he sent complaints to the office of the public prosecutor and the Ministry of Interior. While the CSD eventually implemented all such decisions, several lawyers handling similar cases claimed that their clients have faced delays in implementing court orders, mostly due to the discriminatory attitudes of Ministry of Interior officials and the reluctance of officials to take initiatives to rectify discriminatory practices.

[177] HRW/EIPR interview with Fadi Naguib Shafiq Girgis, Cairo, November 12, 2005.

[178] The Civil Code 131 of 1948 in article 2, section 1 stipulates that in the absence of legislation on a particular matter, the courts are to refer to customary law ('urf) and then to Shari`a principles.

[179] The reverse is not an issue because the state does not recognize marriages between Muslim women and men of other faiths.

[180] In the absence of specific legislation, Egyptian family courts apply the Hanafi school of Islamic jurisprudence, according to which a Muslim convert's child under fifteen must adopt Islam because Islam is the last and therefore the superior divinely revealed religion. See report submitted by the State Commissioners Authority to the First Circuit of the Court of Administrative Justice in Case no. 24405/60 on March 27, 2007, p. 5. Copy on file with HRW/EIPR.

[181]"It is stipulated under Shari`a that the son follows the parent with the better religion during his childhood before puberty, and does not need to renew his Islam after puberty." Cassation Court ruling in Case no. 21/39 on October 9, 1974. See also rulings in Case no. 1/22 on June 12, 1952 and Case no. 44/40 on January 29, 1975.

[182] HRW/EIPR interview, name withheld on request, Cairo, November 11, 2005.

[183] HRW/EIPR interview with `Isam Ishaq Nasif, Cairo, November 12, 2005.

[184] Defense brief submitted by the State Lawsuits Authority to the First Circuit of the Court of Administrative Justice in Case no. 24405/60 on January 9, 2007, p. 11, copy on file with HRW/EIPR. The government briefs were self-contradictory in many places because they largely reproduced the same briefs they submitted to the court in cases of Christian coverts to Islam seeking reversion to Christianity, and did not bother to adjust their arguments to the specifics of this distinct group of cases filed by the Christian offspring of converts to Islam. For example, the brief cites several fatwas that define an apostate as that "who reverts from Islam" and specify the requirement for apostasy as "uttering the words of unbelief after belief."

[184] This and other fatwas cited in the government defense briefs should not apply to plaintiffs who never endorsed Islam as their religion.

[185] Report submitted by the State Commissioners Authority to the First Circuit of the Court of Administrative Justice in Case no. 24405/60 on March 27, 2007, p. 5. Copy on file with HRW/EIPR.

[186]Ibid.

[187] This interpretation of the verse (2:256) appears in the four authoritative books of tafsir (exegesis) Ibn Kaltheer, al-Jalalein, al-Tabari and al-Qurtubi, available at http://quran.al-islam.com/arb. See also Taha Jaber al-Alwani, La Ikraha fil Din: Ishkaliyyat Al-Ridda wal Murtaddin men Sadr Al-Islam Ila Al-Yom [There is no Compulsion in Religion: the Dilemma of Apostasy and Apostates from Early Islam until Today], 2nd edition, (Cairo: International Institute of Islamic Thought and Maktabat Al-Shuruq Al-Dawliyya, 2006) p. 92,.

[188] See ibid.

[189] Decision of Court of Administrative Justice in Case no. 18924/58 on April 5, 2005.

[190] Ibid. See also the decision in Case no. 20498/58 on May 31, 2005.