I. Court rulings and trials

1. The Court of Administrative Justice, headed by Judge Mohamed Atiya, issued a ruling on 7 April 2009 in case no. 21751/61, canceling the license for Ibda’a Magazine, issued by the General Egyptian Book Organization (GEBO). The suit was filed by an attorney against the magazine editor, Ahmed Abd al-Muti Higazi, as well as the GEBO, the Minister of Culture, the Speaker of the Shura Council, the Sheikh of al-Azhar, and the Public Prosecutor. The petitioner asked that the magazine’s publication license be revoked and that its offices be closed for publishing “Layla Murad’s Balcony,” a poem by Helmy Salim. The lawyer argued that the poem entailed an “offense to the divinity,” which required revoking the magazine’s license in order to “protect Muslim sensibilities and avert the strife provoked by the magazine.”

In its ruling, a copy of which was obtained by the EIPR, the court stated that the poem, “Layla Murad’s Balcony,” published in the magazine in 2007, contained expressions representing an affront to the divinity and painted “an offensive image of the Lord, may He be exalted.” The court went on: “The expressions published by this magazine entirely contradict the mission of the press as upheld by the Egyptian Constitution and the Press Law, which makes any association between this magazine and the Egyptian press, with its distinguished history, reprehensible….The publication of such expressions also contradicts the objective of the act of bestowing a license —which is to publish creative works so graciously bestowed by truly talented poets and writers.” The court added that it “would not hesitate to hold the magazine responsible for its misdeeds and malicious intentions, an accounting deserved by anyone who wishes to mock the constituent elements of Egyptian society, such that this magazine may disappear from existence and the court may intervene between it and the poison it emits, and the ethics and values it violates.”

Although the court referred to the importance of freedom of opinion and expression, noting that the press enjoys full freedom, it nevertheless made such freedom conditional on not assaulting society’s constituent elements, including the family, religion, morals, patriotism and motherhood. “If the press diverges from the straight path in performing its assigned mission and becomes a danger instead of a ray of hope, it is of the utmost necessity that it be taken in hand by the fair judiciary until it finds its true direction within the order of society and the fabric of the community with all its various segments.”

Justifying its decision to cancel the magazine’s license for the publication of one poem, the court stated, “The magazine is the tool used to commit this crime against God and the sacred beliefs of this nation, regardless of who the perpetrator is; it is the means by which this heinous crime was committed. Moreover, the contempt shown for the Creator is eminently clear, an offense to God which is hidden from no one. It is inconceivable that this work was published by mistake, without having been seen by those who evaluate such works for publication. This indicates that some of these people have the conviction and willingness to publish insolent slights against the Lord.” Responding to arguments from the administrative body that confiscating newspapers and magazines or suspending their licenses is forbidden, the court made a distinction between the suspension of a license when done by an administrative body and when based on a judicial ruling: “The constitutional ban—an appropriate embodiment of freedom of opinion—is limited to administrative confiscation or suspension.  The decision to license a newspaper or magazine does not however provide immunity from judicial suspension.”

The GEBO appealed the ruling before the Supreme Administrative Court, asking first for an urgent injunction against the ruling and second that it be overturned entirely. On 15 June 2009, the court, headed by Judge Ibrahim al-Saghir, issued the injunction. Although the court stated that it “would not neglect to affirm its utter rejection of every word—nay, every letter—of the foul poem…and the court affirms the need to take deterrent criminal and disciplinary measures against anyone who participated in this shameful work,” it nevertheless concluded that Egyptian law does not allow any authority, including the judicial authority, to cancel the license of a newspaper. Rather, it only allows the judiciary to hold the journalist responsible if he “abuses freedom of the press and freedom of expression…in addition to the measures that may be taken against the newspaper who abuses this freedom.” The court justified the urgent injunction against the ruling to cancel the magazine’s license by saying that closing the magazine would “impinge on freedom of the press, expression and opinion, a constitutional right which is always—in the proceedings of this court—granted the principle of urgency…and would displace the magazine’s staff and deprive them of a livelihood.” The court referred the appeal to the State Commissioners' Authority to prepare a legal opinion before ruling on the demand to overturn the initial decision.

On 1 April 2008, the Court of Administrative Justice, headed by Judge Mohamed al-Husseini, had ruled to suspend the decision to grant poet Helmy Salim the State Award for Achievement in the Arts for his complete works and withdrew the prize from him because of the publication of the poem, “Layla Murad’s Balcony,” in Ibda’a Magazine. That court relied on the same reasoning used in the ruling to suspend the magazine’s license (see paragraph 1 of the Second Quarterly Report, 2008).

2. On 14 April 2009, the Court of Administrative Justice, headed by Judge Mohamed Atiya, rejected petition no. 27658/62, filed by Shahinaz Kamel, Kamilia Lutfi and Ghada Ayoub against the Minister of Interior and the head of the Civil Status Department. The petitioners contested the fact that the state had changed the religion of their children on official documents from Christianity to Islam after the children’s fathers had converted to Islam (see paragraph 5 of the Second Quarterly Report, 2008). The court ruling, a copy of which was reviewed by the EIPR, stated, “It is accepted in personal status laws of Muslims and non-Muslims that guardianship rests with the father. In turn, when the father changed the information in question, it was done in accordance with the law and the prerogatives of the guardian. As such, the administrative body cannot alter this information, which was provided by a person with legal standing to do so, without a basis in the law.”

The third petitioner did not appear before the court, leading the court to reject her petition. The court also noted that the second petitioner had dropped her claim and withdrawn from the petition. The ruling was issued in regard to the first petitioner only.

3. The state-owned daily al-Ahram reported on 19 April 2009 that the Council of State had overturned “a decision by the Minister of Education to remove women teachers who wear the niqab [full face veil] from teaching positions and place them in similar jobs in administration in education departments, as the decision violated the principles of religious, cultural and personal freedoms guaranteed by the Constitution and because the decision was not in the public interest.” The news report noted that the court stated in its ruling, “It is impermissible to prohibit those who wear the niqab from entering a school or engaging directly in the teaching duties of their positions.”

Newspapers reported that a teacher who wears the niqab at a primary school in Ismailia had filed a suit against the Minister of Education and the governor of Ismailia against the decision to transfer her from her position and place her in a position in educational administration. The EIPR was unable to review the text of the court ruling.

4. On 19 April 2009, the Court of Administrative Justice, headed by Judge Mohamed Ibrahim Qishta, rejected a motion from the head sheikh of the al-Azmiya Sufi order asking that Abd al-Hadi Ahmed Abd al-Hadi al-Qasabi not be recognized as the head sheikh of Sufi orders until the elections in the Supreme Council of Sufi Orders were verified (see paragraph 31 of the First Quarterly Report, 2009). The court rejected petition no. 9589/63 on formal grounds since there has been no relevant decree from the President; furthermore the law regulating Sufi orders does not require the President to appoint the head sheikh of Sufi orders within a particular time frame.

The petition contained other requests from the petitioner, including overturning the most recent elections to the Supreme Council for Sufi Orders, dissolving the current council and ordering the Minister of Interior, the Minister of Awqaf (Religious Endowments) and provincial governors to close the headquarters of 11 Sufi orders on the grounds that there is no legal basis for their recognition. The court referred the rest of the petitioner’s claims to the State Commissioners' Authority asking for a legal opinion.

5. The Court of Administrative Justice, headed by Judge Mohamed Atiya, on 21 April 2009 rejected a motion from a Christian citizen seeking to enroll in graduate studies at the College of Sharia and Law at al-Azhar University. The plaintiff filed petition no. 3807/63 against the Prime Minister and the president of al-Azhar University, asking that the decision to reject him and other Christian students from entering graduate studies at the university be overturned.

In its ruling, which was reviewed by the EIPR, the court stated that the plaintiff did not meet the prerequisites for enrollment as a master’s student in the graduate studies program at the College of Sharia and Law at al-Azhar University. The law states that in order to register a student must “have received a first-class qualification from the college, or its equivalent, with at least a grade of ‘good’ and apply before the beginning of studies each year,” which does not apply to the plaintiff.

6. On 28 April 2009, the Court of Administrative Justice, headed by Judge Mohamed Atiya, rejected seven suits filed by Christian citizens against Pope Shenouda III in his capacity as the president of the General Denominational Council (al-Majlis al-Milli) of the Coptic Orthodox Patriarchate, asking that changes made by the council to the by-laws governing personal status for Orthodox Copts, issued in 1938, be overturned. On 20 May 2008, the council had introduced fundamental changes to the personal status by-laws, which are used to adjudicate disputes between Copts in family courts. The changes imposed further restrictions on the right of Copts to divorce or remarry after divorce (see paragraph 29 of the Second Quarterly Report, 2008).

The court rejected petition no. 47339/62 and six other petitions on the grounds that the plaintiffs lacked a direct personal interest in demanding the abolition of the changes. In its ruling, which was reviewed by the EIPR, the court said, “A suit cannot be filed by any citizen simply because he is a citizen on the grounds that he is interested in protecting the general welfare or that he is a member of a group of people whose welfare concerns him.” Rather, the petitioner, in addition to being a citizen, must also have a direct personal interest according to conditions and circumstances.

7. On 28 April 2009, the Court of Administrative Justice, headed by Judge Mohamed Atiya, rejected the urgent section of suit no. 1610/63, filed by a Christian woman against the Minister of Interior and a Muslim man. The woman asked for an injunction against, and then a reversal of, a decision to accept her daughter’s conversion to Islam. The woman argued that daughter had married the Muslim man named in the complaint and converted to Islam, though she was a minor and suffers from psychological problems and a mental disorder that makes it impossible for her to willingly convert to a new religion thereby nullifying her actions and claims.

In its ruling, a copy of which was reviewed by the EIPR, the court reasoned that “according to Article 46 of the Constitution, the state guarantees freedom of belief and the freedom to engage in religious practice. This concurs with Article 18 of the Universal Declaration of Human Rights, which states that every person has the freedom of religion, which includes the freedom of an individual to change his religion and engage in religious practices.” The court added that it had concluded from the case papers that “the daughter of the plaintiff converted to Islam of her own free will and also married of her own free will without pressure or coercion. The mother’s claim that her daughter is psychologically disturbed and has a mental disorder is a statement unsupported by evidence; the mother’s real goal is to see her daughter return to Christianity, which it is impermissible to force her to do.”

8. On 13 June 2009, the Court of Administrative Justice, headed by Judge Hamdi Yassin Okasha, rejected two suits, nos. 53717/62 and 22566/63, filed by Maher Ahmed al-Mutasim Billah (Maher al-Gohari) against the President and others. The plaintiff asked for a reversal of the decision to refuse to allow him to change his religion on his national identity card from Muslim to Christian following his conversion.

The court based its ruling, a copy of which was obtained by the EIPR, on several points, most prominently that “freedom of belief from the perspective of the Constitution must be understood in light of two things: firstly, that the Arab Republic of Egypt is not a wholly civil state, but rather a democratic, civil state in which Islam is the religion of the state and the principles of Islamic law are the primary source of legislation, and secondly, the principle of citizenship…and all this entails for the full, equal membership in the society for all citizens who live in the country in rights and duties, without the slightest discrimination based on arbitrary criteria such as religion or race…Hence, changing one’s religion is within the scope of freedom of belief. Whereas this does not create a problem in fully civil states, the situation is different in Egypt due to the significant legal consequences of changes in religion for family matters such as marriage, divorce and inheritance, which all differ depending on religion or confession.”

The court also addressed international conventions on rights and freedoms, noting that when Article 18 of the International Covenant on Civil and Political Rights (endorsed by the UN General Assembly in 1966 and ratified by Egypt in 1982) “gave every individual the right to freedom of thought, conscience and religion and the freedom to freely adopt any religion or faith and the freedom to manifest his religion….it recognized in part 3 of the same article the impermissibility of setting limits on a person’s freedom to manifest his religion or belief, except such limits prescribed by law and deemed necessary to protect public safety, public order, public health, public morals or the rights of others and their basic liberties.” The court stated that the Egyptian government had deposited reservations to the convention when ratifying it and stated that it would comply with it as long as it does not conflict with the judgments of Islamic law.

The court went on at length about its conception of the Islamic attitude toward freedom of belief, saying, “Freedom of thought is the path to the truth and so Islam renounced various restrictions on freedom of thought….It also assumes freedom to be an inseparable part of society’s structure, not only because belief can only exist in a free environment, after full conviction, but also because Islam bases human life in general on the principle that it is a test and a choice between good and evil. This in turn assumes and requires a strong presence for evil and temptation and the freedom of man to conform or resist….On the other hand, upholding freedom of belief in Islamic law preceded all constitutions by more than 14 centuries.” The court cited several Qur’anic verses in support of this and added that “faith is guidance and difference is foreordained, and they are both from God. Thus, God ordered His prophet to ‘shun’ the polytheists and ignorant for there is no compulsion in religion. He who believes is for himself and he who errs is held to account. Only God will judge between the people on matters about which they differ.”

Nevertheless, the court stated that freedom of belief in Islam is not absolute: “Nevertheless, the noble Qur’an does not accept that religion is a plaything, into which a person can enter one day and leave the next, in the matter of some Jews who said, ‘Believe in what has been sent down upon those who believe at the beginning of the day, and disbelieve at the end of it; haply they will then return’ Al Imran 72.”

Although the court conceded that Article 47 of the Civil Status Law “contains the absolute right to change information related to religious affiliation without restriction by the legislator,” the court offered a new interpretation of the article, stating, “The legislator requires a set of measures, conditions, safeguards and documents which must be provided for the administrative body to issue an order to change one’s religion or name on a birth certificate or personal identity card. These measures have nothing to do with proving belief, which remains between the servant and his Lord and requires no proof, but are rather conditions related to the exigencies of the regulatory system documenting particular information on the citizen’s identifying papers, to manage the legal ramifications of dealing with others in family matters such as marriage, divorce and inheritance, all of which differ according to religion or confession.”

The court listed these conditions as filing an application with the civil status department accompanied by documentation supporting the application to change religious affiliation, which can be legally proven with one of two documents: either a ruling on conversion from the competent court or a document on conversion issued by the competent authority. The court stated that the legislative reality is such that there is no court with the authority to authorize conversion and the measures to effect this change have not been proceduralized. Nor has the legislator designated an administrative body that is authorized to issue a document affirming a change of religion from Islam to Christianity. The court denied the church’s competence to issue such a document regarding conversion from Islam to Christianity saying, “If the patriarch [of the Orthodox Coptic Church] has the authority to clerically recognize those who practice religious rites, he has no authority to change a person’s religion by expelling an adherent of a particular faith from his religion in accordance with a religion over which he has no responsibility, even if it is the adherent’s wish, and bringing him into another religion over which he is responsible, as long as the law does not give him this authority.” Thus, the court concluded that although the text of Article 47 of the Civil Status Law allows conversions absolutely, the legal reality does not permit conversion from Islam to any other religion.

The court refused to recognize a baptismal certificate for the plaintiff issued by a church in Cyprus on 20 September 2005 or a certificate showing he joined the Orthodox Coptic Church on 8 April 2009, saying, “Since the two certificates in question lack all legal value, which means that neither one has any probative value toward conversion according to the existing legal system, and considering the foregoing, the decision of the administrative body to reject a recognition of the plaintiff’s conversion from Islam to Christianity is correct and based on the law, for it does not meet the formal and procedural conditions or –objective rules required by law to establish conversion [of religion].”

The court also asked the legislator to intervene to regulate the issue of conversion, saying, “There is a pressing need for legislation to protect religions from offense or jest, to be the basis of freedom of belief and the freedom to move from one religion to another while taking care not to violate the exigencies of the public order, and to elaborate the legal body with which one proclaims a new religion and which would set down the conditions for conversion in regard to age, mental condition, whether one’s parents share the same religion or differ, or whether there are pressures that amount to coercion or incentives that lead to false conversion. Such a body should determine a punishment to prevent such folly and impose a stiff penalty on anyone who seeks strengthening of his position through support from the foreigner or [for those who] seek monetary benefit, work, marriage, divorce or inheritance through the trafficking in and manipulating of religions. It should consider the conditions of those confused by parents’ different religions and the punishment should in all these cases be separated from the right to change one’s religion. It should not be leveled because one returns to his original religion, but because he has rashly entered a religion in which he does not believe, and this to avert the social strife which continues to rear its [ugly] head among us from time to time.”

9. The Court of Cassation, on 15 June 2009, overturned a ruling issued by the Alexandria Appeals Court for Family Affairs in September 2008, which withdrew Kamilia Lutfi’s custody of her twin sons, Andrew and Mario, and compelled her to turn the children over to their father, Medhat Ramsis, after his conversion to Islam. The Court of Cassation issued its ruling in appeal no. 15277/78, filed by the Public Prosecutor on 25 November 2008 (see paragraph 3 of the First Quarterly Report, 2009).

In its ruling, a copy of which was obtained by the EIPR, the court stated that “By consensus, the most capable person of taking custody of the young child is the mother, even if she is a non-Muslim, because she is more compassionate and more able to raise a child…and compassion does not differ with religion.” The court reiterated its previous rulings that “the child follows one of his parents in Islam, since it is the best religion, until he comes of age, and this dependency is not severed and the child does not come of age but through rationality and adulthood…The original principle of adulthood is that it shows the recognizable signs and does not exceed 15 hijri years.” From this, the court concluded that the non-Muslim mother is equal to the Muslim mother in taking custody of a Muslim child “for they are equivalent in the thing that mandates this right, which is compassion for the young and which springs from human nature whatever the religion of its owner.” The court then stipulated two conditions for negating custody from the non-Muslim mother over her Muslim child: the child’s ability to distinguish between different religions and actions of the mother that influence the child’s ability to adhere to Islam: “The child has to be capable of rational thought in order to distinguish between different religions, even if he is not capable of choosing one of them. This might happen when the child reaches a certain age, such as seven, or before or after; what determines the child’s ability [to choose between religions] is the degree to which he can recognize ways of a religion other than Islam. ” And also, if “the non-Muslim custodian engages in actions or words with the child that result in his becoming habituated to a religion other than Islam.” The court added another reason that would affect the non-Muslim mother's custody: fears that the child would be corrupted by his non-Muslim custodian who might “feed him pork or give him alcohol to drink.” In such cases, the mother will have to share the custody of the child with Muslims “so that they may monitors her actions,” but the child would not be taken away from the mother.

From this and the case papers, the court concluded that Kamilia Lutfi has the right to custody of her children and that the contested ruling violated the law when it ordered the twins to go to their father without justifying its reasons for revoking the mother’s right to custody. “The papers contained nothing indicating that the court had ascertained that [Andrew and Mario] were capable of engaging in rational thought to distinguish between different religions,” the court said, “and it was not established that [their mother] engaged in words or deeds that would habituate the young children to a religion other than Islam. If the contested ruling erred in this respect…it is marred by its violation of the law and is wrong in its application of Article 250 of the Code of Court Proceedings, which requires that it be overturned.”

In the appeal brief, the Public Prosecutor argued that the Alexandria Appellate Court for Family Affairs should have allowed the two children to choose, since they had passed the age of seven, “so that they could exercise their role as defended by Islamic law [to choose] between remaining in the faith [Christianity] on which they were raised or voluntarily accepting the conversion to Islam.” The Court of Cassation did not accept this argument and cleaved to its former rulings that held that if one parent converts to Islam, the children must follow that parent in Islam, “the best of religions,” until they reach adulthood at age 15. The Court of Cassation returned custody of the children to their mother, although the children will remain Muslims on official documents following their father’s conversion to Islam.