Who’s Afraid of Shari’a?

A. Dacey: Human Rights and Shari’a

IN JUNE 2009, the delicate matter of apostasy came before the United Nations Human Rights Council (UNHRC). During a discussion of freedom of religion, the floor was opened to comments from representatives of the many non-governmental organizations affiliated with the Council. One such group, the Cairo Institute for Human Rights Studies, presented a brief statement about the discrimination suffered by Egyptian members of the Baha’i faith and converts from Islam when attempting to obtain mandatory identification documents such as birth certificates and identity cards.

“Without any basis in statutory law,” explained the statement, which was delivered by a young Cairo-based activist named Hossam Bahgat, “the government refuses to recognize conversion from Islam to any other religion, and limits available choices to the three state-recognized religions of Judaism, Christianity or Islam….Although Islamic law is always invoked by the government as the justification for these discriminatory practices, many court rulings and authoritative scholarly opinions have shown clearly that this government practice is a result of a selective and restrictive interpretation of Shari’a, in conflict with the state’s obligation to promote and protect the rights of all its citizens without discrimination.”

To the uninitiated, this event would seem unremarkable: a civil society activist publicly discussing a clear case of religious discrimination and the infringement on the freedom of religion or belief, which are prohibited under international human rights law. But that would assume that the UNHRC is doing its job. Instead, as a growing number of observers have pointed out, the institution has effectively been turned upside down by the Organization of the Islamic Conference (OIC) and its allies. Casting themselves as victims of rampant discrimination and “Islamaphobia” in the United States and Europe in the post-9/11 climate, the OIC leadership has campaigned to silence critical voices that it deems anti-Islamic—both in U.N. member states around the world and in the proceedings of the Council itself.

For example, in a March 2008 debacle, a three-minute long statement about women’s rights under Shari’a took an hour and a half of real time to complete. OIC countries repeatedly derailed the speaker, angrily insisting that even to bring up Shari’a in this context was “an insult” to the faith. The speaker was David Littman, a
longtime UNHRC provocateur and representative of the World Union for Progressive Judaism. The current and succeeding presidents of the Council apparently concurred and admonished non-governmental organizations (NGOs, in U.N. parlance) not to pass judgment on religious matters.

Bahgat’s statement, however, was exceptional not only because it defied the OIC by talking about Shari’a; it also attempted to make its case through Shari’a by contending that the human rights violation in Egypt was the result of a “selective and restrictive” interpretation of Islamic law.

When faced with the creaking legal architecture of Islamic states, human rights organizations have had three options: dereliction, demolition, or renovation—abandon it and hope that it will fall on its own without hurting anyone; stand back to burn, tear, or blow it down; or reconstruct it. Some, including most of U.N officialdom and many mainstream international human rights organizations, have tried dereliction. Fearful of being charged with cultural chauvinism, they have come to imagine that they can fight for human rights in Islamic states without touching on the religious strictures that encroach on them. Others, like the incendiary Littman, have tried demolition, convinced that people must choose between the alleged evils of Islam and the democratic virtues of the Judeo-Christian or Enlightenment tradition. The experience of the young man from Cairo testifies to the promise of the third strategy.

HOSSAM BAHGAT is a leading advocate for individual liberty in Egypt. For over seven years, he has directed an organization called the Egyptian Initiative for Personal Rights (EIPR), which he started at the age of twenty-two after losing his job with another human rights group. A journalist by trade (now studying law), he was dismissed for publishing a story about the government arrest of fifty-two men on a floating nightclub on the Nile, the Queen Boat, for sexual perversion. His former employer didn’t want to touch the subject of homosexuality.

I had the opportunity to get to know Bahgat while I was in Geneva working with one of the many NGOs resisting the OIC’s agenda. He explained that the EIPR had been involved in five years of legal battles on behalf of Baha’i citizens, and the final Supreme Court ruling was expected in less than a week’s time. The Baha’i, who number around 2,000 in Egypt, began in mid-nineteenth century Iran when a prophet claimed to have a new revelation that completed the Abrahamic faiths. From the beginning, they endured persecution by orthodox Muslims who consider them guilty of leaving Islam, and in 1960, President Nasser issued a decree revoking the community’s corporate status and confiscating their property. In a 1975 decision upholding that law, the Egyptian Supreme Court found that any practice of a religion other than the three “heavenly” or “revealed” faiths represents a “threat to public order” and therefore does not enjoy a government guarantee of free exercise.

After the government introduced electronic processing of identification documents around the year 2000, officials in the Interior Ministry Civil Status Department started to refuse to issue or renew documents for Baha’is unless they changed their religious affiliation to a recognized faith, sometimes confiscating the documents of those who presented them for renewal. Similarly, the department discriminated against citizens who converted from Islam to Christianity, refusing or obstructing their requests to change their official religious status. Those forced to go without official documents would expose themselves to risk of arrest (for failure to carry a mandatory ID card) and would lose access to many basic social services. These citizens faced a terrible choice: to violate their conscience and deny their identity or to have their identity denied to them.

The Civil Status Department’s discriminatory policies were not mandated by any Egyptian law and, in fact, appeared to contradict the Civil Status Law, which enables citizens to change their identification information—including their religious affiliation—and does not limit that affiliation to any particular religions. But officials used Shari’a as a justification, citing Article 2 of the national constitution that recognizes Shari’a as the principal source of legislation. Generally, the judiciary has supported this notion, and discrimination against apostates has been legitimized “on the grounds of preserving public order and moral values.”

So the question is: what to do about Shari’a in this case? Ignore it, denounce it, or engage it?

IN AN article for the Harvard Human Rights Journal, Naz Modirzadeh surveyed the reports, press releases, and letters of protest used over the last fifteen years by the two leading international human rights organizations, Amnesty International and Human Rights Watch, whenever they encountered Shari’a in connection with a human rights violation. She found that throughout the texts, the authors issued disclaimers to the effect that the organization had no position on Islamic law. A 2004 report on the Shari’a-based discriminatory divorce laws in Egypt begins with the caution that the authors do not “advocate for or against Shari’a per se, or any other system of religious belief or ideology; nor do we seek to judge or interpret the principles of any religion or faith. We are simply concerned about human rights violations resulting from the implementation of any legal system, in any country.”

Of course, such reports then proceed to document precisely how the religion-entangled practices violate the standards of international human rights law and call on government to ensure that these standards prevail. And yet, writes Modirzadeh, “if all of the recommendations of a typical human rights report that deals with Islamic law were actually implemented, the effect would be to thoroughly secularize the law. There would be no Shari’a as currently understood by mainstream Islamic jurisprudence.”

Modirzadeh argues that if we “take Islamic law seriously as a force in the region, both as domestic law and as a central part of the lives of millions of Muslims (as something they alternately organize against, embrace wholeheartedly, seek to change, and, in some cases, want more of), then attempting to engage in a sleight of hand…is intellectually weak at best and harmful at worst.”

Instead, Islamic law needs to be engaged head on. In their campaign on behalf of Egyptian apostates, the EIPR and its international partner, Human Rights Watch, have done exactly this. They maintain that the persecution of Baha’is results from a “selective and restrictive” interpretation of Shari’a, even going as far as to say in one press release that the government policy “contravened the precepts of Shari’a.”

In 2006, Egypt’s Court of Administrative Justice found in favor of the Baha’is’ request to receive ID cards and birth certificates. But the government appealed, and the Supreme Administrative Court reversed the decision for reasons of public order. The campaigners conducted interviews and released a damning report in November 2007, highlighting the abuses in the Egyptian and international press. That same year, another case was brought and won by the Baha’i and was also followed by another legal challenge in 2008.

In their legal and public debates, the campaigners pointed out that while virtually all Shari’a scholars regard apostasy as a grave sin, there is no consensus within Islamic law on whether it should be prohibited by the state. Furthermore, they invoked a 1996 Supreme Constitutional Court ruling that in the absence of scholarly consensus, the state should not simply favor the interpretation that enjoys majority support; it must seek the least restrictive interpretation—the one that best protects people’s interests (masalih al-nas).

Bahgat recounted to me how during one televised debate with a prominent sheikh from Al-Azar, his opponent was taken aback when he produced authoritative Islamic legal scholarship to support his opinion. Robbed of a conversation-stopping appeal to Islamic law, the sheikh was forced to retreat to the ground of secular political reasons, where Bahgat had the natural upper hand. In just a few days, the Supreme Administrative Court was to decide on the success of the latest legal challenge and, by extension, the effectiveness of EIPR’s strategy.

SPINOZA, IN his day, ran up against a similar wall of religiously sanctified law used to fence in individual freedoms. Much as Egyptian human rights advocates face the choice of what to do with Shari’a, Spinoza faced the choice of what to do with the Bible: forget it, torch it, or rewrite it. He chose to rewrite it.

In the opening of his majestic essay on freedom of conscience and expression, the Theological-Political Treatise, Spinoza notes the doctrinal and metaphysical controversies tearing apart Christendom, setting believer against believer and enlisting the heavy hand of the state in crushing heresy. He tells us he discovered “the way in which the Bible should be interpreted,” not as a scientific or philosophical dissertation but rather as a command issued by the author to all peoples of all epochs. Accordingly, it “demands nothing from men but obedience”: “The message of the Gospel is one of simple faith; that is, belief in God and reverence for God, or—which is the same thing—obedience to God….the entire Law consists in this alone, to love one’s neighbor.”

And what does love of neighbor demand? Only “the practice of justice and charity.” It is the business of the state to enforce this “universal religion,” but the universal religion has nothing to say about baptism, transubstantiation, or predestination. It is not the task of government to make us avoid every sin and schism but rather to make us good neighbors: “wherever justice and charity have the force of law and ordinance, there is God’s kingdom.” In all other religious and moral matters, the state must leave believers free to think what they like and say what they think.

In the hands of dissident Protestant sects such as the Anabaptists, it was arguments of this kind that carved out the public space for freedom of conscience, religion, and expression in Europe. Spinoza locked himself inside the tortuous maze of Biblical theology in order to escape, but not by tracing a thread back to its entrance. He made a way out for himself, and for all the West, by reconstructing the maze itself. We should not be surprised if today’s advocates of greater freedom in the Islamic world must construct a similar path.

As strategies for dealing with religion and human rights, both dereliction and demolition have powerful seductions. But when human rights campaigners refuse to grapple with Islamic law, their noble rhetoric never descends into the tangled avenues where people’s lives actually unfold. Meanwhile, those who would deal with Islam by denouncing it can enjoy that special brand of confidence we reserve for solutions that can never truly be attempted and so can never fail.

Nothing I have said should be taken to detract from the importance, or the nobility, of standing outside of religion and trying to tear it down. The world is immeasurably better because Ayaan Hirsi Ali is alive and telling her story, and it will be a great day when living without religion is a viable option for all people, no matter where they happen to be born. Yet when it comes to concrete human rights work, the demolition strategy often has limited practical value. The public square is broad enough to contain both strategies.

Hossam Bahgat is no Ayaan. But neither is he a Tariq Ramadan, who, when faced with a clear choice between human rights and Islamic law cannot seem to make up his mind (witness his refusal, in a 2003 televised debate with Nicolas Sarkozy, to straightforwardly condemn stoning as a punishment for adultery). Bahgat unapologetically chooses universal rights, but he is not afraid to use Islamic law to make his case, although this is not without risk. In Surah 88, the Qur’an describes heaven as a quiet place, a serene garden where at last we can escape the “babble” of disputation and counter-disputation that fills this world. But that is not where we live.

LESS THAN a week after the Human Rights Council deliberations on freedom of religion, I had stopped for coffee and email at Bar Serpent, the café and informal gathering place two floors below the Council chambers, when Hossam Bahgat appeared to announce the news from Cairo: they had won the case. By law, Baha’is in Egypt could now be themselves without giving up their rights. Then he disappeared into another meeting. He was already looking ahead to the next legal battle, this one for full citizenship for converts from Islam to Christianity, and maybe one day, for converts to no religion at all.

Austin Dacey is a philosopher and human rights advocate based in New York City. He is the author of The Secular Conscience: Why Belief Belongs in Public Life (Prometheus Books) and an adviser to Freemuse: The World Forum on Music and Censorship. Photo: Sultan al-Mu’ayyad Mosque, Cairo (Zishansheikh / creative commons / wikimedia commons)