November 12, 2007

VIII. Freedom of Religion and Human Rights Law

International Standards

International human rights law clearly affirms the right to freedom of religion. Article 18 of the International Covenant for Civil and Political Rights (ICCPR) states: "Everyone shall have the right to freedom of thought, conscience and religion. This right shall include the freedom to have or adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or in private, to manifest his religion or relief in worship, observance, practice and teaching." Article 18 further specifies that "No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice." Freedom to manifest and practice one's faith "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." Finally, Article 18 enjoins the states parties to the ICCPR to "have respect for the liberty of parents... to ensure the religious and moral education of their children in conformity with their own convictions." The covenant specifies that Article 18 is one from which no derogation is possible.[191]

The UN Human Rights Committee, the body of experts that monitors compliance of states parties to the ICCPR, decisively rejected in the drafting process a proposal by the Soviet Union to subject this right to "the dictates of public morality."[192] Muslim states, and in particular Saudi Arabia, objected to the formulation of Article 18 of the Universal Declaration of Human Rights recognizing the "right to change" one's religion, resulting in the vaguer ICCPR formulation "to have or adopt a religion or belief of his choice."

Manfred Nowak, in his authoritative ICCPR commentary, writes that "there can be no doubt that the freedom to adopt a religion of one's own choice includes the right to withdraw one's membership in one religious society and join another."[193] Nowak also writes, "Every individual must have the right and the de facto possibility to join a religious society or to leave it." This right is compatible with a state religion, "so long as the State permits other religions alongside the official one and does not exercise direct or indirect coercion to join the latter."[194] According to Nowak, Article 18(2)'s prohibition of coercion is based on an Egyptian proposal in the UN Human Rights Commission directed at "protection against legal barriers to a change of religion or those established by the religion itself."[195] This prohibition also applies to indirect means of coercion, such as tax or social welfare benefits, which would "impair" the exercise of the right to freedom of religion.

Article 18 protects not only the right to adhere to religious beliefs of one's choice, but also the right to express and practice that belief in a public manner. This includes communication of religious beliefs (also protected under Article 19, guaranteeing freedom of expression) and gathering together with co-believers (also protected under Article 21, guaranteeing freedom of peaceful assembly). Article 18(3) states that limitations to manifesting one's belief must be proscribed by law and must be necessary to achieve the specific purposes of protecting public safety, order, health, and morals, and the fundamental rights and freedoms of others.

Article 18(4), guaranteeing parents (or legal guardians) the right to ensure the religious education of their children in accordance with their own convictions, is also pertinent to assessing Egypt's compliance with international human rights standards with regard to the religious freedom implications of its national identification policies. Egypt's constitution mandates religious instruction, either Muslim or Christian, in all public elementary and secondary schools.[196] Whether that instruction is Muslim or Christian depends entirely on the religious identification of the child, which in turn depends on that of the parents.

By denying Egyptians the right to adhere without interference to the religion of their choice, by not recognizing conversions from Islam and by denying the status of Baha'i faith as a separate religion, Egypt is in violation of Article 18 of the ICCPR.[197] The state also violates Article 18 by forcing Egyptian students to receive Muslim or Christian religious education without providing exemptions or alternatives, particularly for its Baha'i community.[198] These state practices also violate the right to enjoy the highest standard of health, as set out in the International Covenant on Economic, Social, and Cultural Rights, which Egypt ratified in 1982, and the Convention on the Right of the Child, which Egypt ratified in 1990.[199]

In addition, Article 2(1) of the ICCPR affords basic rights to all individuals without distinction or discrimination on any grounds including religion. Article 26 places an obligation on states to ensure that, "the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as religion." Article 17 guarantees protection against unlawful or arbitrary interference with one's privacy or family, and commits the state to ensuring legal protection against such interference. According to the UN Human Rights Committee, "the notion of privacy refers to the sphere of a person's life in which he or she can freely express his or her identity, be it by entering into relationships with others or alone."[200]

The UN General Assembly, in November 1981, issued a Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief. Although the declaration does not carry with it the obligations of treaty law, it affirms the right to freedom of religion and choice of religious belief (Article 1) and calls on all states to "take effective measures to prevent and eliminate discrimination on the grounds of religion or belief in the recognition, exercise and enjoyment of human rights and fundamental freedoms in all fields of civil, economic, political, social and cultural life" (Article 4).[201] The Declaration also states, "Every child shall enjoy the right to have access to education in the matter of religion or belief in accordance with the wishes of his parents... and shall not be compelled to receive teaching on religion or belief against the wishes of his parents or legal guardian, the best wishes of the child being the guiding principle" (Article 5 (2)).

The U.N. Human Rights Committee in 1993 issued an authoritative General Comment on Article 18 of the ICCPR making the following points that are relevant to Egyptian state policies regarding religion and national identity and the human rights consequences of those policies:

  • The Committee asserts that Article 18's protections are not limited to "traditional religions" and "views with concern any tendency to discriminate against any religion or belief for any reasons, including the fact that they are newly established, or represent religions minorities that may be the subject of hostility by a predominant religious community." (para 2)[202]

The freedom to "have or to adopt" a religion includes "the right to replace one's current religion or belief with another..." Article 18 also "bars coercion that would impair the right to have or to adopt a religion or belief, including the use or threat of physical force or penal sanctions to compel believers or non-believers... to recant their religion or belief or to convert." Policies that restrict "access to education, medical care, employment" or other rights guaranteed by the ICCPR "are inconsistent with Article 18 (2)." (para 5)

The General Comment "notes that public education that includes instruction in a particular religion or belief is inconsistent [with respect for the liberty of parents to ensure their children's religious education in conformity with their own convictions] unless provision is made for non-discriminatory exemptions or alternatives that would accommodate the wishes of parents or guardians." (para 6)

The General Comment notes that "limitations on the freedom to manifest a religion or belief for the purpose of protecting morals must be based on principles not deriving exclusively from a single tradition." (para 8)

The fact that a religion is recognized as a state religion, or that its followers comprise the majority of the population, "shall not result in the impairment of the enjoyment of any of the rights under the Covenant, including articles 18 and 27 [concerning the protection of minorities]" (para 9).

As noted, when Egypt ratified the ICCPR, the government attached a statement that it would comply with the Covenant's provisions "to the extent that they do not conflict with" Shari`a. But the UN Human Rights Committee, in another General Comment, made clear that states ratifying the ICCPR may not make reservations that are "incompatible with the object and purpose of the treaty."[203] The Human Rights Committee further stated, "Reservations that offend peremptory norms would not be compatible with the object and purpose of the Covenant," among which it lists "freedom of thought, conscience and religion.[204] Following a review of Egypt's implementation of the ICCPR in 2002, the Human Rights Committee concluded:

While observing that the State party considers the provisions of the Islamic Shariah to be compatible with the Covenant, the Committee notes the general and ambiguous nature of the declaration made by the State party upon ratifying the Covenant. The State party should either clarify the scope of its declaration or withdraw it.[205]

Egypt did not reply to this request, and to date has neither clarified the scope of its declaration nor withdrawn it.

Egypt is also a state party to the African Charter of Human and Peoples' Rights. Article 8 of the Charter states, "Freedom of conscience, the profession and free practice of religion shall be guaranteed. No one may, subject to law and order, be submitted to measures restricting the exercise of these freedoms."[206]Articles 2 and 3 of the Charter guarantee the right to non-discrimination and to equality before the law.

The UN Special Rapporteur on freedom of religion or belief, Asma Jahangir, in her September 2005 report to the General Assembly, noted that she had in 2005 requested an invitation to visit Egypt but had received no reply.[207] In her report, the special rapporteur made the following general observation that is relevant to Egyptian official rationales for denying Baha'is and converts from Islam the right to exercise freedom of religion. States, she wrote:

must ensure that the persons on their territory and under their jurisdiction, including members of religious minorities, can practice the religion or belief of their choice free of coercion and fear.[208]

The special rapporteur, in her March 2006 report to the former Commission on Human Rights, wrote that she had contacted the Egyptian government at least twice, on April 15, 2004 and May 15, 2005, "related to the requirement to mention one's belief on identity cards and other documents."[209]In her May communication to the government, the special rapporteur expressed her concern "that the forms [for acquiring identity documents] currently contain three religious affiliations to choose from: Islam, Christianity and Judaism and that it was impossible for members of other religious groups or non-believers to indicate their religion or leave the space blank."

Freedom of Religion and Egyptian Law

Freedom of religion and belief has been protected since Egypt had its first constitution in 1923. Article 46 of the current Constitution, issued in 1971, stipulates that, "The State shall guarantee the freedom of belief and the freedom of practicing religious rites." Egypt's Supreme Constitutional Court (SCC) defined freedom of belief, according to Article 46, in the following manner:

Freedom of belief, in principle, means for the individual not to be forced to adopt a belief he does not believe in, or to drop one that he had accepted, or to declare it, or to side with one belief in a manner that would be prejudicial to another by denying, belittling or ridiculing it. Rather all religions should be tolerant and respectful of each other. In addition, according to the right definition of freedom of belief, [the state] does not have the right to punish those who adopt a belief that it has not chosen.[210]

Freedom of religion and belief belong to a group of rights protected by the constitution that the SSC termed "absolute rights," that is, rights and freedoms that the government can not subject to limitations of enjoyment. The SSC in its rulings made this distinction and established the supremacy of constitutionally-protected rights and freedoms over any laws or state policies.

All Egyptian constitutions, starting with the 1923 Constitution, have stressed the primacy of public rights and freedoms. This was intended to grant these rights and freedoms the power of the constitution itself and its primacy over ordinary laws, and by stating [these rights and freedoms] in the text of the Constitution the aim was to limit the power of the state [and to curtail] what regulations and rules it passes. In one instance, [for example] the Constitution establishes a certain public freedom and allows for its regulation in order to define the limits of this freedom and how it is to be practiced in a complete and unabridged manner. Elsewhere the Constitution stresses the absolute nature of [certain other] public freedoms in such a way that it becomes impossible to delimit or regulate.[211]

Moreover, Article 40 guarantees equality among all citizens and prohibits discrimination on several grounds, including religion and creed. The SSC defined discrimination for the purpose of Article 40 as "any act of differentiation, limitation, privileging or exclusion that can affect in an arbitrary manner the rights and freedoms guaranteed by the constitution and the Law, this either by denying the very existence [of these rights and freedoms] or by suspending and/or limiting their effect in such a way that it prevents their enjoyment on a complete equal footing by all entitled to exercise them."[212]

Articles 41 and 45 of the constitution protect the personal liberty and "inviolability of the private life" of citizens, respectively. The SCC attempted in its ruling to explain these rights and delineate the areas of the human life where the state has no right to interfere. The court called these areas "sanctuaries," the protection of which from arbitrary interference is vital for individuals to be truly "sovereign."

There are areas of private life for each individual that are sanctuaries not to be violated. The secrecy and sanctity of these areas are to be protected by forbidding anyone to ever intrude upon them; any violation of these areas is not allowed. These areas of personal privacy protect two functions which complement each other even if they appear to be separate. [The first] is that in general there exist those areas of personal matters that should be hidden and not revealed to others. [Secondly, these areas of personal privacy] are necessary for each individual to be sovereign in matters affecting his own destiny.[213]

The SCC further found that "personal freedom is not guaranteed only by preventing any assault on the body; rather, it includes other forms such as the will to choose and the autonomy which each individual is endowed with."[214]

The SCC is the judicial body solely mandated to issue binding interpretations of constitutional provisions. While the reasoning included in SCC rulings has an authoritative power over other courts, that reasoning is not itself binding on the other courts. This, together with the "legal plurality" introduced in the Egyptian legal system by virtue of placing Islamic Shari`a in parallel to civil laws, result in often contradictory court rulings on several issues, including freedom of religion.[215]

Egyptian government policies that compel Baha'is and converts from Islam to falsely identify themselves as belonging to a religion not of their choice in order to obtain national identification documents, essential to the exercise of basic rights and privileges, appear to be in conflict with the Constitution's guarantee of the right to freedom of religion. These concerns, as well as the right to privacy and the right not to be subject to discrimination based on religious belief, also arise in state policies denying Baha'is or converts from Islam the right to obtain necessary official documents that correctly identify their religion, without which they can not obtain immunizations, register for school, obtain a job, marry, or receive inheritances and pensions.

[191] ICCPR, article 4(2),

[192] Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary (Kehl and Arlington, VA: N.P. Engel, 2005), p. 410.

[193] Nowak, p. 414, emphasis in original.

[194] Nowak, p. 415.

[195] Nowak, p. 416.

[196] Article 19 of the Egyptian Constitution.

[197] Baha'i parents are asked to consent to their children's taking the mandatory religion exam for either Islam or Christianity.

[198] Human Rights Committee, General Comment No. 22 [ICCPR Article 18], para. 6. The General Comment "notes that public education that includes instruction in a particular religion or belief is inconsistent with [respect for the liberty of parents to ensure their children's religious education in conformity with their own convictions] unless provision is made for non-discriminatory exemptions or alternatives that would accommodate the wishes of parents or guardians."

[199] International Covenant on Economic, Social and Cultural Rights (ICESCR), G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force Jan. 3, 1976, articles 12 and 13; Convention on the Rights of the Child (CRC), G.A. res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989), entered into forceSept. 2, 1990, articles 24 and 28.

[200] UN Human Rights Committee, Coeriel and Aurik v The Netherlands, Communication no. 453/91.

[201] Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, G.A. res. 36/55, 36 U.N. GAOR Supp. (No. 51) at 171, U.N. Doc. A/36/684 (1981).

[202] Human Rights Committee, General Comment No. 22 [ICCPR Article 18].

[203] Para 6 of General Comment 24, Issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declarations under article 41 of the Covenant, November 4, 1994. UN doc. CCPR/C/21/Rev.1/Add.6, available at http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/69c55b086f72957ec12563ed004ecf7a?Opendocument, accessed on September 25, 2007.

[204] Ibid., Para 8.

[205] Concluding observations of the Human Rights Committee: Egypt, November 28, 2002, UN dic. CCPR/CO/7^/EGY, para 5, available at http://daccessdds.un.org/doc/UNDOC/GEN/G02/460/72/PDF/G0246072, accessed on September 24, 2007.

[206] The text of the African Charter is available in Twenty-five Human Rights Documents (New York: Center for the Study of Human Rights, Columbia University, 1994), pp. 119-128.

[207] "Elimination of all forms of religions intolerance: Report of the Special Rapporteur of the Commission on Human Rights on freedom of religion or belief, Asma Jahangir," General Assembly, 60th Session, A/60/399, September 30, 2005, Table 2.

[208] Ibid., para 53.

[209] "Elimination of all forms of religious intolerance: Report of the Special Rapporteur of the Commission on Human Rights on freedom of religion or belief, Asma Jahangir, Addendum: Summary of cases transmitted to Governments and replies received," UN. Doc. E/CN.4/2006/5/Add.1, March 27, 2006, para. 117.

[210] Decision of theSupreme Constitutional Court in Case no. 8/17, issued on May 18, 1996.

[211]Decision of the Supreme Constitutional Court, in Case no. 44/7, issued on May 7, 1988.

[212] Decision of the Supreme Constitutional Court in Case no. 180/20, issued on January 1, 2000.

[213] Decision of the Supreme Constitutional Court in Case no. 56/18, issued on November 15, 1997.

[214] Decision of the Supreme Constitutional Court in Case no. 16/17, issued on June 7, 1997.

[215] See Ahmed Seif al-Islam Hamad, "Legal Plurality and the Legitimationof Human Rights Abuses: A Case Study of State Council Rulings Concerning the Rights or Apostates," in Baudouin Dupret, Maurits Berger and Laila al-Zwaini, eds., Legal Pluralism in the Arab World, (The Hague: Kluwer Law International , 1999).