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The elephant in the room (part 2): The state and sectarian violence

The first part of this article dealt with the main triggers of sectarian violence in Egypt, particularly in the period after January 2011, concluding that issues the state has failed to adequately deal with, such as the stalling of draft legislation, has only exacerbated sectarian incidents in recent years.

Other factors overseen by the state, such as limitations on freedom of expression or religious conversion, have also fuelled sectarian conflict. In its attempts to tackle sectarianism, the Egyptian state has focused primarily on addressing societal attitudes. Where it has addressed the laws dealing with sectarianism, any changes made do not seem to have eased tensions.

Part 2 of this article will examine the history and nature of legislation and legal practices associated with tackling sectarian conflict in Egypt, and its limitations.

Building churches: Privilege or right?

The building of churches has been subject to legislation since the mid-19th century. As the Ottoman state was exposed more to international capitalism and its centers in the West, authorities expanded the privileges of foreign residents, such as their exclusion from being subject to the jurisdiction of local courts. Foreigners were given the freedom to worship as they pleased, which, at a later stage, under the pressure of their respective governments, included non-Muslim minorities in the British Empire.

This went against the prevalent interpretation of Islamic jurisprudence, which did not permit the building of new churches in Muslim lands conquered by force. In this context, the Hamayouni Decree of 1865 was issued, permitting the construction of churches at the agreement of the sovereign ruler, who was the religious authority at the time.

The construction of churches was permitted as a privilege issued by the governor to a number of local communities, not a right of citizenship to individuals equal under the law. This privilege was based on a progressive interpretation of jurisprudential heritage that perceived minority groups as “people of Dhimmi” (literally meaning a protected person), accorded protection and safety as a cohesive group, but neither free nor equal as citizens.

These arrangements were later transferred to the domain of modern sovereignty — the nation state and its new governor, the king — after the official independence of 1922 and the new Constitution of 1923, which stipulated the right to practice religious rituals in accordance with the “customs observed in Egyptian lands.”

What is known as the “Conditions of the Undersecretary to Interior Minister Ezabi Pasha” came later, in 1943, to complement the process of placing certain requirements on requests for the construction or renovation of churches. The conditions stipulated that a church had to be a specified distance away from a mosque or religious shrine, and had to ensure a degree of proportionality to the number of Christian residents in its vicinity. The conditions also mandated that there should be no objections from the local community if the majority of residents are Muslim. In other words, Ezabi’s conditions made the construction of churches dependent on the will of the Muslim majority.

Egyptian courts approved these arrangements in a series of early administrative court orders in 1952, and again in the mid-1960s, despite the passing of different constitutions, including the 1971 Constitution, which subscribed in principle to the right to freedom of religion and the right to practice religious rituals without restriction. So, the final decision regarding the construction or renovation of churches was in the hands of administrative entities, and later the security apparatus as the population grew and needed more places of worship.

In this context, particularly since the Khanka incident in 1972, in which a number of Muslims destroyed buildings they deemed were being used by Christians as unauthorized churches, the issue of building churches has become a point of blackmail and has been used to exert pressure on the Coptic Orthodox Church by Islamic currents and security entities.

Commonly the process of seeking approval for the construction of churches is a cyclical process that provokes tension: A request is submitted for security clearance to construct, renovate or expand a church. Then, there are delays and hindrances to acquiring a security permit. In such cases, people often begin to worship in their homes or makeshift churches, which are commonly attacked by local residents, with security forces intervening sporadically, but rarely altering the situation significantly.

There have been several incidents typical of this process: Fatal clashes in Omraneya, Giza over church construction in December 2010, broke out around a month before the eruption of the January 2011 Revolution. There was also a fatal incident in the Upper Egyptian village of Marinab concerning the burning of a church in September 2011, and the suppression of a Coptic protest over the demolition of a church in Upper Egypt in front of the Maspero television building in downtown Cairo in October 2011, which resulted in the deaths of 28 people, mostly Coptic protesters.

Calls for a revised law regulating the construction of houses of worship intensified following these incidents. More representatives from among the political and legal elite also adopted this demand after the Gamal al-Oteify parliamentary commission was tasked with examining the reasons for the Khanka incident. However, consecutive governments stalled on passing and implementing the law.

Presidential Decree 13, in 1998, gave the governor authority to accept or reject a request to renovate a church, and Decree 453, in 1999, gave local councils the authority to accept or reject requests for constructing new churches, although these presidential decrees never actually amended Ezabi Pasha’s discriminatory conditions in practice.

In the aftermath of the tragic events of Maspero, the Supreme Council of the Armed Forces introduced the idea of a bill regulating the building of places of worship, in an attempt to deal with rising sectarian tension. The conditions of the draft law were limited to requiring that the size of churches be relative to the number of people in its congregation, along with a number of other technical conditions. However, this draft received an outright rejection from Al-Azhar, represented by the Supreme Council for Islamic Affairs, and a rejection from the Ministry of Religious Endowments, which is assigned the comprehensive supervision of mosques. Al-Azhar suggested issuing an independent law to regulate the building of churches, in stark contrast to the principle of equality stipulated in the Constitution. The Coptic Church followed suit by calling for an independent law, maybe in the spirit of political compromise.

In a chapter on transitional periods, Egypt’s current Constitution, issued in January 2014, mandates Parliament must pass a law regulating the building of churches during its first round of convening. At the end of August 2016, after months of negotiations between Church leaders and government representatives, Parliament approved a 13-article church building law. Despite agreement on the law, critics have said its ambiguous language reproduces the same dominant discriminatory logic, as it gives the executive authority broad discretion to determine the right to build and repair churches. It also gives the security apparatus a say in granting permits, and allows it to monitor activities and any modifications to religious buildings.

Personal status: Difficult to divorce, impossible to marry

The regulation of interreligious romantic or sexual relationships was dealt with in a similar way to the construction of churches. Despite the adoption of new legal mechanisms, inherited jurisprudential rulings were still prevalent in dealing with personal status issues.

Modern personal status laws maintained the same historical separation between Muslims and followers of other religions. Initial legislation was formulated based on the rulings of the four schools of Islamic jurisprudence, with courts looking into their degrees of compliance, while decisions on personal status issues of non-Muslims were left to the denominational courts. The content of these laws remained a matter of contestation between the denominational councils, which included the dignitaries of the modern Christian elites — including professionals, and landowners — in addition to the leadership of the church, which tended to tighten the rules governing divorce or second marriage, as well as marriage to those belonging to other religions or sects.

In 1938, a charter was released by the Coptic Church regarding personal status issues for Copts, including nine reasons for divorce. These included: absence, where death is a prevalent reason; adultery, which included any suspicious relationships between one of the spouses and another party, and unfavorable companionship. This charter laid the foundations for Law 462 in 1955, which organized personal status issues for non-Muslims. Its application started after the annulling of denominational courts and the unification of litigation in personal status issues. There wasn’t consensus on this law among the leaders of the Coptic Church. In light of the July 1952 Republic, and the tendency of the elite to deal directly with the Coptic religious leadership, rather than with civilian organizations, the views of the Coptic Church were favored.

Researcher Karima Kamal highlights the controversy over personal status laws within the church in her book, Copt’s Personal Status Laws (From Shenouda’s Daughter’s Apple to Wafaa and Camilia). Pope Shenouda III, the former Coptic patriarch, submitted a study to the seminary college in 1958 regarding the legality of the one marriage rule, expressing his opinion regarding the inadmissibility of divorce except in cases of “actual adultery.” The crisis heightened when Pope Shenouda III took over the papal chair in 1971 and issued Decree 7 for the seminary council, preventing a second marriage for those who are divorced for reasons other than “actual adultery.”

The stand off brought about a clash between the State Council and Pope Shenouda III, when the Pope refused to comply with a Supreme Administrative Court order issued in 2010 that obliges the church to grant second marriages to any divorcee.

In 1979, representatives of the three Christian sects of Egypt had formulated a unified law for personal status issues for non-Muslims that included adultery as a reason for divorce. The bill, which was submitted to Parliament at the time, never saw the light of day.

Yet, despite the unequivocal constitutional provision regarding the freedom of marriage and the right to form a family, the legal position remained ambiguous, and successive governments did not make sufficient effort to resolve the crisis, given their alliances with the leaders of the Coptic Orthodox Church. This legislative calcification is the reason why a number of Christians seeking divorce changed sects or even converted to Islam, as the provisions of Islamic Sharia applies to them in this case.

This legislative framework became a source of sectarian tension, due to its rejection of the principle of interreligious civil marriage and the maintenance of separate rules for Muslims and Christians. It also upheld the limitations on divorce and second marriages for Copts, in accordance with the desires of the Coptic Church.

Incidents of sectarian violence stemming from inter-religious relations usually erupt as a result of one of the partners being romantically involved with someone of a different religion, or the impossibility of divorce, in the case of Copts. Often such incidents escalate, with family and community members, who see women’s bodies as sites of honor and loyalty, usually becoming involved.

In the cases of the wives of Coptic Christian priests, Wafaa Constantine (in 2004) and Camelia Shehata (in 2010), the consequences of their decisions extended until after the January 2011 Revolution. In Constantine’s case, security forces and the Coptic Church clashed as security reportedly refused to hand her over to the Church after she converted to Islam. In the case of Shehata, violent clashes broke out in Imbaba in May 2011 when Islamic representatives refused to hand her over to the Church after her reported conversion.

There was also the more recent incident in Karm Village, Minya, in which angry Muslim residents stripped naked an elderly Coptic woman after a rumor that her son and a divorced Muslim woman were in a romantic relationship.

Under societal pressure, the Coptic Church took a step back and accepted the adoption of a unified law for personal status issues for followers of Christian sects. However, the law doesn’t adequately deal with the crisis: A divorcee still has to obtain a second marriage permit from the leader of his/her religious sect. That is to say that, what the bill allowed in one of its articles, it restricted in another. The draft law also forbids a Christian man from marrying someone from a different religion, or someone who adheres to any sect other than those the church recognizes. Such unrecognized sects include Jehovah’s Witnesses, Seventh Day Adventists, Baha’is and Mormons. Civil marriage also remains an issue of contention between the representatives of different churches.

Contempt of religion: Punishing the victims

Expressing opinions on faith has been a reason for sectarian violence since the beginnings of modern law. Despite the introduction of Article 98 to Egypt’s Penal Code in 1981, criminalizing contempt of religion, judicial culture has often imposed restrictions on expressing opinions pertaining to doctrine and jurisprudence, citing the necessity of maintaining general order as its motivation. This violates constitutional principles enshrined in successive Egyptian constitutions.

Governing elites have used legislative tools to ensure a certain kind of religiosity that is sponsored by official state religious institutions, curtailing various forms of expression. The aim has always been to curb radical tendencies in any direction. The administrative and constitutional courts, for example, have dealt with citizens embracing unrecognized Islamic sects by recalling the concept of apostasy, which prohibits the religious conversion of Muslims. This is evident in the rulings of the administrative courts, where apostasy has been cited since the 1940s as a threat to public order.

The Supreme Constitutional Court took a similar position in 1975, after the adoption of Article 2 in the 1971 Constitution, which considered the principles of Islamic Sharia the main source of legislation, and dealt with the right of Baha’is to have space to practice their religious observances by considering them as apostates, and apostasy itself as a breach of public order. This is the same basis for the majority of administrative court rulings that have dealt with cases of conversion to Christianity, a practice that wasn’t prohibited by the Constitution or the law, but was considered a breach of public order in a series of rulings in 2007 by an administrative court.

A number of citizens have filed legal cases against others based on articles in the Penal Code that allow Hisba lawsuits against anyone providing evidence of personal harm. This is the article by which the late thinker Nasr Hamed Abu Zeid and director Youssef Shaheen were sued for views that go against “what is known as religion,” according to the plaintiff’s claims. Censorship laws restricting audio and visual content in the name of preserving public decency and order have also been used to convict people for their personal opinions.

What is interesting about Article 98 (f) of the Penal Code concerning the contempt of religion, is that it was passed at the end of 1980, after the sectarian incidents of Zawya al-Hamra, where many Copts were killed in sectarian clashes over the incitement of sectarian tension by Islamic leaders. A considerable number of sectarian incidents erupted, particularly after January 2011, when Coptic citizens were accused of publishing material online “in contempt of Islam.” This was often followed by a group of Muslims attacking the houses of Coptic Christians and their neighbors.

Security forces often accuse the victims in such incidents, for example in the case of an attack on the family houses and properties of four Coptic students in Bani Mazar, Minya, in April 2015, after they published a video mocking the Islamic State. The incident resulted in the arrest of the four students and their referral to court, where they were charged with contempt of Islam and sentenced to five years in prison. Four of the teens recently arrived in Switzerland seeking asylum.

Several calls have been made recently, including by a number of members of parliament, to just rely on articles 160 and 161 of the Penal Code, which criminalize the incitement of violence. But Magdy al-Agaty, minister for parliamentary affairs, called for harsher punishments in incidents pertaining to contempt of religion.

What future?

Sectarian violence is rooted in a contradiction between paternalistic legislative frameworks and a society that is undergoing major transformations that transcend traditionally held values. Consequently, state attempts to modernize a “backward society” in order to deal with the issue come up against a contradiction. In order to grant individuals complete freedom of expression, a new social contract between citizens and the state and its institutions is required.

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