Northwestern Journal of International Human Rights
Constitutional Apostasy: e Ambiguities in
Islamic Law Aer the Arab Spring
Brian O'Connell
Constitutional Apostasy: e Ambiguities in Islamic Law Aer the Arab Spring
Vol. 11:1] Brian O’Connell
Constitutional Apostasy: The Ambiguities in
Islamic Law After the Arab Spring
Brian O’Connell
¶1 In October 2009, Iranian Baptist Pastor Youcef Nadarkhan was arrested for
apostasy because he converted from Islam to Christianity.
1
In November 2010, he was
sentenced to death. In December 2010, the Pastor’s case was referred to the Supreme
Court in Qom, Iran.
2
On June 12, 2011, the Supreme Court upheld the conviction of
“turning his back on Islam, the greatest religion the prophesy of Mohammad at the age of
19,” although the Supreme Court remanded to further investigate whether he committed
the crime as an adult as opposed to converting as a child.
3
The Court bluntly stated “[I]f it
can be proved that he was a practicing Muslim as an adult and has not repented, the
execution will be carried out.”
4
¶2 Although the Iranian penal code does not recognize apostasy, the Iranian
Parliament reportedly approved the death penalty for apostasy in 2008, and the U.S. State
Department reports that apostasy is now punishable by death.
5
On September 30, 2011,
Iranian state Farsnews reported that Nadarkhan remains in prison for “security-related
crimes” and “rape” but has not yet been executed.
6
The same press release also referred
to Youcef as a “Zionist.”
7
Despite the recent news asserting that he had been punished for
1
Human Rights Watch, Evangelical Christians Targets of Religious Persecution, HUFFINGTON POST (Sept.
29, 2011, 5:58 PM), http://www.huffingtonpost.com/human-rights-watch/evangelical-christians-
ta_b_987967.html.
2
Jay Sekulow & Jordan Sekulow, Setting the Record Straight—Pastor Youcef’s Life Still Hangs in the
Balance, AMERICAN CENTER FOR LAW AND JUSTICE, (Nov 4, 2011, 2:47 PM), http://aclj.org/iran/setting-
record-straight-pastor-youcef-life-still-hangs-balance.
3
Unofficial Translation of Pastor Youcef Nadarkhan’s Verdict (September 25, 2011),
http://c0391070.cdn2.cloudfiles.rackspacecloud.com/pdf/youcef-nadarkhani-iranian-supreme-court-verdict-
english-translation.pdf (the brief was obtained by CNN from the American Center for Law and Justice and
was translated from its original Farsi by the Confederation of Iranian Students in Washington) (hereinafter
“Unofficial Translation”).
4
Id.
5
Michelle A. Vu, Iran Parliament Approves Death Penalty for Apostasy Bill, CHRISTIAN POST (Sept. 11,
2008 11:02 AM), http://www.christianpost.com/news/iran-parliament-approves-death-penalty-for-
apostasy-bill-34230/; 2010 International Religious Freedom Report: Iran, U.S. DEPARTMENT OF STATE 3
(September 13, 2011), http://www.state.gov/j/drl/rls/irf/2010_5/168264.htm.
6
State Media Reports Iranian Pastor Facing Execution for Rape, Not Religion, FOX NEWS (Oct 1, 2011),
http://www.foxnews.com/world/2011/10/01/state-media-reports-iranian-pastor-facing-execution-for-rape-
not-religion/; A Zionist and Dyer’s House Corruption, FARSNEWS (October 1, 2011),
http://www.microsofttranslator.com/bv.aspx?ref=Internal&from=&to=en&a=http://www.farsnews.com/ne
wstext.php?nn=13900708000751.
7
FARSNEWS, supra note 6.
NORTHWESTERN JOURNAL OF INTERNATIONAL HUMAN RIGHTS [2013
84
a different crime, translations of the original conviction only mentioned apostasy.
8
In
December 2011, the International Campaign for Human Rights in Iran reported the
execution had been delayed.
9
However, CNN reported on February 23, 2012 that a local
court had issued a final verdict ordering the Pastor’s execution.
10
His legal team tried to
appeal, but according to the report, he could have been executed at any time and without
notice to his counsel.
11
¶3 On September 8, 2012, Pastor Youcef was released, having his charges lowered
from apostasy to “evangelizing Muslims.” The “evangelizing Muslims” charge had a
three-year sentence, and Youcef was given credit for time served.
12
However, on
Christmas Day, Pastor Youcef was reportedly re-arrested to complete the remaining 45
days on his three-year sentence.
13
Youcef has since been released again, but was
reportedly ordered to return to prison again to document his final release.
14
¶4 This case has gained a political following from both religious groups and civil
liberties groups in the United States. Republican Congressman Joe Pitts and the first
Muslim Congressman, Keith Ellison, co-sponsored a resolution condemning Pastor
Youcef’s imprisonment and demanding that he be immediately exonerated and released.
15
President Obama, the State Department, and former Republican Presidential candidate
Mitt Romney all condemned the imprisonment.
16
¶5 The problem of criminalizing apostasy in Iran is not limited to this single incident.
The United States Department of State reported in 2012 that since President Mahmoud
Ahmadinejad took office in 2005, the Iranian media have intensified attacks on religious
minorities and police raids against such groups have escalated. In addition to Pastor
8
Dan Merica, Iranian Pastor Faces Death for Rape, Not Apostasy—Report, CNN (September 30, 2011),
http://edition.cnn.com/2011/09/30/world/meast/iran-christian-pastor (explaining that the 2010 Supreme
Court decision where the pastor was sent to death was only on an apostasy charge).
9
Roxana Saberi, Iran Must Stop Persecuting Minority Religions, CNN (December 21, 2011),
http://edition.cnn.com/2011/12/21/opinion/saberi-iran-religion/index.html?hpt=op_t1.
10
Dan Merica, White House, State Department Condemn Iran on Pastor’s Execution Orders, CNN
(February 23, 2012), http://religion.blogs.cnn.com/2012/02/23/white-house-state-department-condemn-
iran-on-pastors-execution-orders/.
11
Id.
12
Meredith Bennett-Smith, Pastor Youcef Nadarkhani Freed: Iranian Pastor Sentenced To Death For
Apostasy Reportedly Released, HUFFINGTON POST, (September 8, 2012),
http://www.huffingtonpost.com/2012/09/08/pastor-youcef-nadarkhani-iranian-pastor-freed-reportedly-
released_n_1867334.html.
13
Kristin Wright, Youcef Nadarkhani, Iranian Pastor, Reportedly Detained on Christmas Day,
HUFFINGTON POST (Dec. 26, 2012), http://www.huffingtonpost.com/kristin-wright/iranian-pastor-youcef-
nad_b_2363155.html.
14
Paul Marshall, Iran’s Religious Crackdown, NATIONAL REVIEW ONLINE, (Jan. 25, 2013),
http://www.nationalreview.com/corner/338864/iran-s-religious-crackdown-paul-marshall#.
15
Caitlin Burgess, House Passes Ellison Resolution Condemning Iran’s Treatment of Pastor Youcef,
RICHFIELD PATCH (Mar. 5, 2012), http://richfield.patch.com/groups/politics-and-elections/p/house-passes-
ellison-resolution-condemning-iran-s-tre6d96ea1584.
16
The White House, Press Release, OFFICE OF THE PRESS SECRETARY (Feb. 23, 2012),
http://www.whitehouse.gov/the-press-office/2012/02/23/statement-press-secretary-case-iranian-pastor-
youcef-nadarkhani; Mark Toner, Execution Order for Iranian Christian Pastor Youcef Nadarkhani, OFFICE
OF DEPARTMENT OF STATE (Feb. 23, 2012), http://www.state.gov/r/pa/prs/ps/2012/02/184566.htm; Mitt
Romney: Pastor Youcef Nadarkhani Death Sentence an Outrage Against Humanity, ROMNEY FOR
PRESIDENT (Oct. 3, 2011), http://www.mittromney.com/news/press/2011/10/mitt-romney-pastor-youcef-
nadarkhani-death-sentence-outrage-against-humanity.
Vol. 11:1] Brian O’Connell
85
Youcef, the State Department reported that in June 2010, Behrouz Sadegh-Khandjani
received a death sentence “for apostasy following his arrest on an unknown date.”
17
Missionary work, or proselytizing Muslims to convert to non-Muslim religions, is
illegal.
18
Criminalization has increased in recent years. Between June 2008 and June
2010, Iran arrested 115 individuals for apostasy or evangelism. In the following six-
month period, July through December 2010, Iran arrested 161 individuals for the same
crimes.
19
The State Department reported that in 2011, 33 of those individuals remained in
prison.
20
Recently, another Pastor who converted from Islam to Christianity was
imprisoned, and reportedly remains imprisoned on charges of evangelizing Muslims.
21
¶6 The problem of apostasy crime is not unique to Iran, but given Iran’s hostile
relationship with the West, this story has drawn much attention. Countries that recognize
Sharia law often recognize apostasy as a crime.
22
Courts using Sharia law have enforced
un-codified apostasy laws in order to protect public policy.
23
However, those countries
that have better records on human rights tend to have superior constitutional protections
for religious minorities.
24
¶7 Apostasy punishment is a serious problem in environments where there is an
absence of the rule of law.
25
In countries experiencing ethnic and religious tension, the
threat of punishment for apostasy outside the scope of law remains a problem. As the
case studies that follow will show, those countries with better records on religious
freedom tend to have stronger language within their constitutions protecting religious
freedom and international norms.
¶8 Part I of this paper will explain Sharia law and the law on apostasy in Islamic and
Muslim-majority countries. Part II will describe the international law on freedom of
religion with specific emphasis on the United Nations Universal Declaration of Human
Rights of 1948 (hereinafter “UDHR”) and the International Covenant on Civil and
Political Rights of 1966 (hereinafter “ICCPR”). Part III discusses how this tension
between Sharia law on apostasy and the international norms promoting religious freedom
is resolved in several Islamic and Muslim-majority countries. This section explains how
constitutional ambiguity on international norms and public safety exceptions to human
rights can be exploited by radicalized regimes at the expense of those who choose to
17
U.S. DEPARTMENT OF STATE, supra note 5, at 14.
18
Id. at 3.
19
Id. at 15.
20
Id.
21
Jordan Sekulow, Pastor Saeed’s Trial: Bail Rejected—Will Iran Uphold Its Obligations to Protect
Religious Liberty?, ACLJ (January 21, 2013), http://aclj.org/iran/pastor-saeed-trial-iran-uphold-obligations-
protect-religious-liberty.
22
Nicholas Garces, Islam, Till Death Do You Part? Rethinking Apostasy Laws Under Islamic Law And
International Legal Obligations, 16 SW. J. INT’L L. 229, 234 (2010).
23
Maurits S. Berger, Apostasy and Public Policy in Contemporary Egypt: An Evaluation of Recent Cases
from Egypt’s Highest Courts, 25 HUM. RTS. Q. 720, 738 (2003).
24
TAD STAHNKE & ROBERT C. BLITT, THE RELIGION-STATE RELATIONSHIP AND THE RIGHT TO FREEDOM
OF RELIGION OR BELIEF: A COMPARATIVE TEXTUAL ANALYSIS OF THE CONSTITUTIONS OF
PREDOMINANTLY MUSLIM COUNTRIES 10 (2005); see also Middle East and North Africa, FREEDOM HOUSE,
http://www.freedomhouse.org/regions/middle-east-and-north-africa.
25
Timothy G. Burroughs, Turning Away From Islam In Iraq, 37 HOFSTRA L. REV. 517, 548 (2009) (“Over
the past twenty-five years, Islamic vigilantes have murdered far more apostates and imputed apostates than
Islamic regimes have executed.”).
NORTHWESTERN JOURNAL OF INTERNATIONAL HUMAN RIGHTS [2013
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leave Islam. Part IV recommends that new and developing democracies in the Middle
East codify a respect for international law and give unqualified grants of religious
freedom within their constitutions to avoid any ambiguity that more radicalized future
regimes could exploit. By protecting freedom of religion in accordance with international
law, the constitution would protect those who change religions from punishment for
apostasy and evangelization.
I. THE CRIME OF APOSTASY
¶9 This paper will examine the crime and punishment of apostasy in the Islamic
world. Apostasy, (“riddah” in Arabic) is the reverting or turning away from the Islamic
faith.
26
The word applies only to former Muslims, whereas non-Muslims are just said to
“change religion.”
27
In the case of Egyptian courts, whether the former Muslim converts
to Christianity, becomes an atheist, or converts to any other religion is irrelevant.
28
The
Pastor Youcef example has gained some attention from the religious right
29
in America
because of the persecution against Christians, but apostasy is neutral as to what religion
the former Muslim becomes after leaving Islam.
30
¶10 Under Sharia law, a person born a Muslim has no choice over his or her religion
because it is a crime to leave Islam once one becomes a Muslim.
31
As a result, there is a
contradiction in the laws of many Muslim countries that enforce Sharia law. Their
constitutions say they allow for freedom of religion, yet the state forbids Muslims from
choosing their religions.
32
¶11 There are twenty-two countries that give Islam an official role in their
constitution.
33
Although each country provides at least nominal protection for religious
minorities in their constitution, in practice, the freedom of religion for individuals is
limited. Such limitations generally include restricting the protection to a selected class of
religious minorities, having public safety exceptions to the constitutional right, and
allowing for normal legislation to trump the constitutional protections.
34
Despite these
constitutional protections for religious minorities, countries that recognize Sharia law
generally consider apostasy to be a crime.
35
26
DR. ABM MAHBUBUL, ISLAM, FREEDOM OF RELIGION IN SHARI’AH: A COMPARATIVE ANALYSIS 179
(2002).
27
Berger, supra note 23, at 721-22.
28
Id.
29
Katherine Weber, Iranian Pastor Youcef Death Sentence: Conflicts Emerge Between US and Iran Media,
CHRISTIAN POST (November 14, 2011, 12:47 PM), http://aclj.org/iran/christian-post-iranian-pastor-youcef-
death-sentence-conflicts-emerge-between-us-iran-media.
30
Johanna Pink, A Post-Qur’anic Religion Between Apostasy And Public Order: Egyptian Muftis And
Courts On The Legal Status Of The Baha’i Faith, 10 ISLAMIC L. & SOC’Y 409, 418 (2009) (“Baha’is are
also considered apostates. Unlike, Christianity, they are not a recognized faith. Therefore, they are either
apostates or Muslims under Sharia law. If their parents are Baha’is, they have until the age of 15 in Egypt
to embrace Islam or they are labeled apostates under the law.”).
31
Berger, supra note 23, at 728.
32
Id.
33
STAHNKE & BLITT, supra note 24, at 10.
34
Id. at 15.
35
Nicholas Garces, Islam, Till Death Do You Part? Rethinking Apostasy Laws Under Islamic Law And
International Legal Obligations, 16 SW. J. INT’L L. 229, 234 (2010); MOHAMED S. EL-AWA, PUNISHMENT
IN ISLAMIC LAW: A COMPARATIVE STUDY 61-62 (1982); MAHBUBUL, supra note 26, at 207.
Vol. 11:1] Brian O’Connell
87
¶12 Although there is no explicit requirement in the Quran ordering the death penalty
for apostasy, those countries that use the death penalty for apostasy rely on classic
Muslim jurists. While the Quran is silent on the death penalty for apostasy, these scholars
cite the Hadith, records of the practice of the prophet Mohammed, in which he reportedly
said “[w]hoever changed his Islamic religion, then kill him.”
36
The Quran itself does not
explicitly mention a punishment for apostasy but it does condemn it and threatens a
“mighty chastisement.”
37
However, the Prophet also reportedly never actually executed
anyone for leaving the Islamic faith.
38
Furthermore, most religious sources only mention
the afterlife as a punishment for conversion from Islam.
39
¶13 Proponents of harsh punishments link the strength of Muslim society to the faith of
its people, and believe that those who leave the Islamic faith are threatening their
security.
40
In a way, the concern is similar to concerns about treason against the state in
secular countries.
41
The Quran also says that those who embrace Islam are obligated to
preserve Islam.
42
Moreover, the strength of Islamic society is tied to the strength of its
faith; apostates threaten Islamic society.
43
Usually, the accused apostate is invited back
into the faith before punishment is dealt out, and the accused is only punished if the
person refuses to repent.
44
This is the current situation in Iran.
II. THE INTERNATIONAL LAW ON FREEDOM OF RELIGION
¶14 International human rights law unequivocally supports the freedom to change
religion. The UDHR states that “[e]veryone has the right to freedom of thought,
conscience and religion; this right includes freedom to change his religion or belief, and
freedom, either alone or in community.”
45
Despite some of the Islamic nations’
objections to a provision that allowed for people to change their beliefs, the Declaration
was unanimously adopted by the 58-member General Assembly.
46
Under the UDHR,
apostasy is a protected right, not a crime.
¶15 That norm of freedom of religion is continued in the ICCPR, which was entered
into force in 1976. The ICCPR, unlike the UDHR, is binding in that it is a ratified
treaty.
47
Iran is also a ratified member of the ICCPR. As a member, Iran has accepted
36
EL-AWA, supra note 35, at 237. El-Awa questions the validity of this statement, suggesting that taken
literally, a Non-Muslim who becomes a Muslim would also need to be killed. Id. at 52-53. However, this
passage is widely cited as justifying death sentences for apostasy.
37
Garces, supra note 35.
38
Donna E. Arzt, The Role of Compulsion in Islamic Conversion: Jihad, Dhimma and Ridda, 8 BUFF.
HUM. RTS. L. REV. 15, 30 (2002).
39
YUNUSA BAMBALE, CRIMES AND PUNISHMENTS UNDER ISLAMIC LAW 74, 80 (2d ed. 2003).
40
Garces, supra note 35, at 238.
41
MASHOOD A. BADERIN, INTERNATIONAL HUMAN RIGHTS AND ISLAMIC LAW 124 (2003); EL-AWA, supra
note 35, at 49-56; S.A. RAHMAN, PUNISHMENT OF APOSTASY IN ISLAM (1978).
42
Garces, supra note 35, at 238.
43
BADERIN, supra note 41, at 124.
44
BAMBALE, supra note 39, at 79.
45
Universal Declaration of Human Rights, G.A. Res. 217 (III) A, U.N. Doc. A/RES/217(III) (Dec. 10,
1948), art. 18 (emphasis added) (hereinafter “UDHR”).
46
A United Nations Priority: Declaration of Human Rights, UNITED NATIONS,
http://www.un.org/rights/HRToday/declar.htm.
47
International Covenant on Civil and Political Rights, Dec. 16, 1966, S. Treaty Doc. No. 95-20, 6 I.L.M.
368, 999 U.N.T.S. 171 (1967) (ratified by Iran on June 24, 1975) (hereinafter “ICCPR”).
NORTHWESTERN JOURNAL OF INTERNATIONAL HUMAN RIGHTS [2013
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Article 18.1 which declares that “[e]veryone shall have the right to freedom of thought,
conscience and religion.
This right shall include freedom to have or to adopt a religion or
belief of his choice, and freedom either individually or in community with others and in
public or private, to manifest his religion or belief, observance, practice and teaching.”
48
¶16 Because there were more Muslim states involved in the creation of the ICCPR than
in the UDHR, the language of the rights guaranteed was watered-down to reflect a more
Sharia-friendly version of human rights law.
Unlike the UDHR, the ICCPR does not
expressly guarantee the freedom to “change” one’s belief.
49
However, the Office of the
High Commissioner in General Comment 22 interprets the language in Article 18.1 to
“necessarily entail[] the freedom to choose a religion or belief, including the right to
replace one’s current religion or belief with another or to adopt atheistic views, as well as
the right to retain one’s religious belief.”
50
¶17 Following Article 18.1, the next clause of the ICCPR expressly states that “[n]o one
shall be subject to coercion which would impair his freedom to have or to adopt a religion
or belief of his choice.”
51
Such a law should presumably bar forcing a former Muslim to
return to Islam or face punishment. The General Comment gives some examples of
violations including “policies or practices having the same intention or effect, such as, for
example, those restricting access to education, medical care, employment or [other rights]
. . . are similarly inconsistent with article.”
52
The Comment also asserts that Article 18.2
bars penal sanctions.
53
Unless these exceptions are read extremely narrowly and without
an inference that the threat of penal sanctions includes the threat of execution, the threat
of execution would constitute a violation of Article 18.2. In any case, Iran’s incarceration
of Pastor Youcef for apostasy is itself a violation of Article 18.2, regardless of the intent
to execute him.
¶18 However, Sharia law nations have largely ignored the General Comments and
relied on their own narrow interpretation of the text of the ICCPR.
54
While the UDHR
granted all people the right to “change” their beliefs, the ICCPR uses the more
ambiguous language “freedom to have or adopt a religion or belief of one’s choice.”
55
Most Muslim countries are of the opinion that it gives a non-Muslim the freedom to
choose a non-Muslim religion or to embrace Islam, but these courts believe that in
48
Id. at art. 18.1.
49
Id.
50
Office of the High Commissioner for Human Rights, General Comment No. 22: The right to freedom of
thought, conscience and religion, U.N. Doc. CCPR/C/21/Rev.1/Add.4 (Sep. 30, 1993),
http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/9a30112c27d1167cc12563ed004d8f15?Opendocument (on
“the right to freedom of thought, conscience and religion, which includes the freedom to hold beliefs”)
(hereinafter “General Comment 22”).
51
ICCPR, supra note 47, at art. 18.2.
52
General Comment 22, supra note 50.
53
Id.
54
It is worth noting that the General Comments were created in 1993 while the ICCPR text was
promulgated in 1966. Iran had signed the ICCPR before these comments were written.
55
See, e.g. Donna E. Arzt, The Application of International Human Rights in Islamic States, 12 HUM. RTS.
Q. 214-18 (1990); Brice Dickson, The United Nations and Freedom of Religion, 44 INT’L & COMP. L. Q.
342 (1995).
Vol. 11:1] Brian O’Connell
89
accordance with Sharia, the ICCPR does not require the freedom to abandon the Muslim
faith once someone has embraced Islam.
56
¶19 Although the ICCPR does have some express limitations on freedom of religion,
those limitations are to be interpreted strictly. Article 18.3 allows states to restrict
freedom to manifest one’s religion “to such limitations as are prescribed by law and are
necessary to protect public safety, order, health, or morals or the fundamental rights and
freedom of others.”
57
General Comment 22 says Article 18.3 is to be “strictly interpreted”
and that exceptions must be spelled out in law rather than applied in an arbitrary
manner.
58
As the Iranian example shows, apostasy crimes can become intertwined with
crimes against public order and safety.
59
However, General Comment 22, paragraph 8
notes that national security concerns are not exempted from the Treaty.
60
¶20 The “moral” exception must also be construed strictly against allowing religious
restriction.
61
The Committee notes that moral restrictions must derive from several
factors, including, social, philosophical, and religious traditions. Moreover, a moral
exception must rely on more than one religious tradition.
62
¶21 Although the ICCPR and the UDHR speak in universal terms, just because human
rights laws are written down by international bodies does not mean that nation states will
recognize them. Sam Huntington has argued that Western culture and the Islamic culture
have been clashing for the last 1300 years.
63
He argued that the United Nations and
international human rights laws are a Western construct, and that under his theory,
Islamic nations would naturally resist international pressures. These cultural differences
create policy differences and different interpretations of human rights.
64
According to
Huntington, pressing for Islamic countries to comply with Western norms, such as in the
case of apostasy, would instead create an adverse reaction against Western norms.
65
He
refers to this reaction as a resistance to “human rights imperialism” and hastens a
regression to indigenous values by the non-Western culture.
66
¶22 A response to the problem of cultural relativism is to address the conflict during
times of transition, particularly when new Constitutions are drafted. Because of this
cultural conflict between international norms and national norms, weaving international
norms into the constitutions of emerging Islamic democracies might further the goals of
human rights laws. The norms become provisions in the Constitutions, which then
become the founding documents for the nations, a source of cultural identity, and a
56
Berger, supra note 23, at 734 (“Egypt, upon ratification of the covenant in 1982, added the following
statement: ‘Taking into consideration the provisions of the Islamic Sharia and the fact that they do not
conflict with the text [i.e. the Covenant] . . . we accept, support and ratify it.’ This could be explained as an
exception clause, but is more likely to be an assurance that the ICCPR is consistent with the Islamic
Sharia.”).
57
ICCPR, supra note 47, at art. 18.3.
58
General Comment 22, supra note 50, at ¶ 8.
59
See FOX NEWS, supra note 6.
60
General Comment 22, supra note 50.
61
Id. at ¶ 8.
62
Id.
63
Samuel P. Huntington, The Clash of Civilizations?,72 FOREIGN AFFAIRS 22, 31 (1993).
64
Id. at 29.
65
Id. at 40.
66
Id. at 41.
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template for the nations’ aspirations.
67
The Constitutions are generally obeyed because
those in power have a stake in maintaining the rules for the Constitution. Undermining
any particular rule undermines the greater Constitutional game and the government’s
legitimacy to power.
68
As the case studies show, infra, the nations with respect for
international law tend to be those with superior records in human rights and freedom of
religion.
III. THE CONSTITUTIONAL AMBIGUITIES
A. How a Muslim to Christian Convert can be Imprisoned Despite a Constitution
Guaranteeing Freedom of Belief
¶23 At first glance, it would appear that the Iranian Constitution promotes religious
freedom. Article 23 states “[t]he investigation of individuals’ beliefs is forbidden, and no
one may be molested or taken to task simply for holding a certain belief.”
69
Article 26
also suggests that Iran gives the freedom to hold religious societies to non-Muslim
groups.
70
The Article concludes by saying no one can be prevented from participating in
such groups. Article 13 recognizes Christians as a religious minority, and Article 14
orders Muslims to “respect the human rights” of non-Muslims that are recognized
religious minorities.
71
¶24 While a cursory read of the Iranian Constitution might suggest that the document is
innocuous and grants religious freedom, the limiting provisos following the grants of
freedom allow for a different interpretation. Following Article 13 of the Iranian
Constitution, which recognizes the right of Christians to practice their religion inside
Iran, the next Article in the Iranian Constitution states that the principle of protecting
non-Muslims’ human rights applies only “to all who refrain from engaging in conspiracy
or activity against Islam and the Islamic Republic of Iran.”
72
Because different
67
See Vicki C. Jackson, Constitution Drafting In Post-Conflict States Symposium: What’s In A Name?
Reflections On Timing, Naming, And Constitution-Making, 49 WM. & MARY L. REV. 1249, 1296 (“Despite
the inward focus of much discussion about constitutions, national constitutions also matter to a
transnational community: they help define state sovereignty for purposes of recognition, they structure the
state’s capacities to deal with other states, and they may affect the capacity of the states to comply with
international norms of interest to all member nations, including those against offensive war and those
protecting human rights.”).
68
Jack Goldsmith and Daryl Levinson, Law for States: International Law, Constitutional Law, Public Law,
122 HARV. L. REV. 1791, 1836 (citing RUSSELL HARDIN, LIBERALISM, CONSTITUTIONALISM, AND
DEMOCRACY 82–140 (1999)).
69
ISLAHAT VA TAQYYRATI VA TATMIMAH QANUNI ASSASSI [Amendment to the Constitution], art. 23
[1989] (Iran) (hereinafter “Iranian Constitution”).
70
Id. at art. 26 (“The formation of parties, societies, political or professional associations, as well as
religious societies, whether Islamic or pertaining to one of the recognized religious minorities, is permitted
provided they do not violate the principles of independence, freedom, national unity, the criteria of Islam,
or the basis of the Islamic Republic.”). Likewise, Egyptian courts have held that apostasy deals not with
freedom of belief to the individual, but the practice of belief, which is left to be regulated by the specific
religious groups. See Berger, supra note 23, at 737.
71
Iranian Constitution, supra note 69, at art. 14.
72
Id. at art. 14; See also id. at art. 26 (providing freedom of association provided they do not “violate . . .
the basis of the Islamic Republic”).
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91
viewpoints disagree
73
on whether apostasy, the act of leaving Islam as an adult as
opposed to simply being born Christian, is a punishable activity against Islam,
74
there is
uncertainty as to the Iranian Constitution’s stance on apostasy. Unlike the UDHR and the
General Comments to the ICCPR, the Iranian Constitution is silent on whether one can
change religions.
¶25 The Iranian Constitution is ambiguous as to protections for religious minorities.
Because Article 13 and Article 14
75
are in tension with each other, a radicalized Iranian
regime is free to take aggressive steps against its citizens when they renounce Islam. In
other nations of Islamic faith, populist democracy is likely to be a threat rather than a
cure to the problem of apostasy because in many nations over eighty percent of the
population favors the death penalty for those who leave Islam.
76
This problem persists
despite a theological debate over whether the Quran permits the death penalty or
imprisonment for apostasy.
77
The solution going forward for nations of Islamic faith is to
provide more explicit protection for religious freedom within their Constitutions so
legislatures and courts are constrained from exercising a radicalized interpretation of
Islam. In addition, demanding respect for international law within the text of the
Constitution would be helpful.
¶26 Because the Iranian Constitution’s ambiguities are problematic, a comparison of
other Muslim majority countries’ Constitutions with superior human rights records could
be beneficial. Turkey, Lebanon, and Morocco, while not possessing perfect records on
human rights, are examples of Muslim countries with a significant level of respect for the
human rights community
78
that emerging Arab Spring democracies could look to while
drafting and amending their own Constitutions. This section will engage in a comparison
of Iran’s Constitution to those of nations that have recently experienced unrest: Syria and
Libya. The section will conclude with a discussion of how constitutional courts can
undermine constitutional freedom of religion in order to show that vague, though
seemingly innocuous, grants of religious freedom can be manipulated by the courts.
73
Harris Zafar, Iran’s Death Penalty for Christian Pastor Violates Treaties, Koran, HOUSTON CHRONICLE
(Oct. 4, 2011), http://blog.chron.com/spiritedchat/2011/10/iran%E2%80%99s-death-penalty-for-christian-
pastor-violates-treaties-koran/.
74
Dan Merica, Pastor’s Possible Execution Reveals Nuances of Islamic Law, CNN (October 7, 2011),
http://religion.blogs.cnn.com/2011/10/07/pastors-possible-execution-reveals-nuances-of-islamic-law/.
75
The Iranian constitution has several limiting provisos following a guarantee of rights. For example,
Article 26 also limits Freedom of Association to those that “do not violate . . . the criteria of Islam, or the
basis of the Islamic Republic.”
76
Most Embrace a Role for Islam in Politics, PEW RESEARCH CENTER (Dec. 2, 2010),
http://www.pewglobal.org/2010/12/02/muslims-around-the-world-divided-on-hamas-and-hezbollah/.
77
Qashim Rashid, ‘Muslim’ Nations and The Problem of Christian Persecution, HUFFINGTON POST (Oct.
19, 2011), http://www.huffingtonpost.com/qasim-rashid/the-problem-of-christian-
persecution_b_1012010.html.
78
Case studies are based on Freedom House Rankings. For information on their methodology, see Freedom
in the World 2011, FREEDOM HOUSE (2011), http://www.freedomhouse.org/report/freedom-world-
2011/methodology (“The methodology of the survey is grounded in basic standards of political rights and
civil liberties, derived in large measure from relevant portions of the Universal Declaration of Human
Rights.”).
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92
B. The Turkish Constitution: Muslim Majority and Partly Free
¶27 The Turkish example is noteworthy, given its above average Freedom House
ranking with regards to political and civil rights.
79
Although Turkey has recently had
political turmoil, its rankings have consistently been average or above average for the last
decade.
80
As a percentage of population, Turkey is actually more Muslim than Iran, with
99.8 percent of the population in Turkey consisting of Muslims,
81
while Iran is only 98
percent Muslim.
82
The two nations are also nearly identical in terms of population.
83
However, their constitutions are different, as are their human rights records.
¶28 The Turkish Constitution provides more protection to freedom of religious thought
than does its Iranian counterpart. The Turkish Constitution says that “no one may be
compelled to reveal his or her religion, conscience, thought or opinion, nor be accused on
account of them.”
84
This clause falls under Part II of the Turkish Constitution, which is
titled “Fundamental Rights and Duties.”
85
¶29 However, like Iran’s Constitution, the Turkish Constitution does allow for the
suspension of rights under certain circumstances. The Turkish Constitution allows for
partial or entire suspension of fundamental rights in times of “war, mobilization, martial
law, or state[s] of emergency.”
86
Yet, that paragraph appears before the guarantee that no
one may be compelled to reveal his religion. Under the construction that the general
should not detract from the specific guarantee of protection, the Turkish Constitution
would be more protective of religious freedom than the Iranian Constitution. The Turkish
Constitution says when referring to those times of emergency “[e]ven under the
circumstances indicated in the first paragraph . . . no one may be compelled to reveal his
or her religion.”
87
While the Iranian Constitution restricts its grants of freedoms, the
Turkish Constitution actually restricts its restrictions of freedoms.
¶30 Another difference is that the Turkish Constitution seems to protect specific people,
while the Iranian Constitution protects mainly religious groups. The Iranian Constitution
says in Article 13 that it protects Zorastrians, Jews, and Christians, but leaves out other
minority faiths such as Bahais.
88
That protection in the Iranian Constitution given to those
three faiths can be viewed more as a protection of ethnic groups as opposed to religions
because the enumerated protection would not apply to a Muslim who decides to leave his
or her faith for another or when one decides to abandon his or her religion. Although Iran
79
Id. Turkey has ranked above average worldwide in both civil and political Rights. Turkey: Freedom in
the World 2011, FREEDOM HOUSE (2011), http://www.freedomhouse.org/report/freedom-
world/2011/turkey. By contrast, Iran is near the bottom in both civil and political rights, ranking below
Mubarak’s Egypt in civil liberties. Iran: Freedom in the World 2011, FREEDOM HOUSE (2011),
http://www.freedomhouse.org/report/freedom-world/2011/iran.
80
Id.
81
Turkey, CIA WORLD FACTBOOK, https://www.cia.gov/library/publications/the-world-
factbook/geos/tu.html.
82
Iran, CIA WORLD FACTBOOK, https://www.cia.gov/library/publications/the-world-factbook/geos/ir.html.
83
Country Comparison: Population, CIA WORLD FACTBOOK, https://www.cia.gov/library/publications/the-
world-factbook/rankorder/2119rank.html.
84
Constitution of the Republic of Turkey, art. 15 (1982) (hereinafter “Turkish Constitution”).
85
Id.
86
Id.
87
Id. at art. 15(2).
88
U.S. DEPARTMENT OF STATE, supra note 5 (the Iranian government considers Baha’i, a religion of five to
six million people founded in Iran, to be apostates).
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93
does have a section of its Constitution devoted to the rights of the people, the provisions
on religion fall outside that section.
89
By contrast, the Turkish requirement that no one be
compelled to reveal his religion is under the Fundamental Rights section.
90
The rights fall
under Chapter II of Part II, the Rights and Duties of the Individual.
91
¶31 Unlike Turkey, many of the Iranian grants of religious freedoms are written in
limiting terms: “Zoroastrian, Jewish, and Christian Iranians are the only recognized
religious minorities.”
92
Article 20 of the Iranian Constitution provides specific equality to
people, as opposed to groups, but the language implies that the protections are
subordinate to Islamic law.
93
Contrast this with the Turkish Constitution, which states:
“[e]veryone possesses inherent fundamental rights and freedoms which are inviolable and
inalienable.”
94
In the Turkish Constitution, there is no qualification that the freedom of
religion must be “in conformity with Islamic law.”
¶32 Turkey also goes further than Iran by providing remedies within the Constitution
for violations of fundamental rights. Article 40 of the Turkish Constitution allows for the
“right to request prompt access” to authorities when such rights have been violated, and
also gives the injured person a right to receive damages for the injury, which will be paid
for by the State.
95
The Iranian Constitution provides no such right to sue for damages for
infringements on these rights.
¶33 Beyond respect for religious minorities, the Turkish Constitution contains more
respect for international law than its Iranian counterpart. The Turkish Constitution says
that even when fundamental rights must be suspended, they are limited by a proviso,
which requires that “obligations under international law are not violated.”
96
The Iranian
Constitution does not possess a similar command that international treaties or law be
respected. Rather, it demands that Islamic law be complied with in order to restrict rights,
rather than expand them.
97
This greater protection for international law in the Turkish
Constitution contains the lesser protection for religious minorities.
¶34 Although both countries are under equal obligation to obey international law,
Turkey has a better record of doing so. The Turkish Constitution also contains more
explicit respect for international law than the Iranian Constitution, suggesting why one
country is more in accord with international norms than the other, even though both
89
Iranian Constitution, Part III (the section on the rights of people begins with Article 19, while the
recognizing of religious groups is earlier, in Article 13).
90
Turkish Constitution, Part II.
91
Id. at Part II, Chapter II, art. 24.
92
Iranian Constitution, supra note 69, at art. 13 (emphasis added).
93
Iranian Constitution, supra note 69, art. 20 (“All citizens of the country, both men and women, equally
enjoy the protection of the law and enjoy all human, political, economic, social, and cultural rights, in
conformity with Islamic criteria.”).
94
Turkish Constitution, supra note 52, at art. 12.
95
Id. at art. 40.
96
Id. at art. 15.
97
See Iranian Constitution, at art. 26 (“The formation of parties, societies, political or professional
associations, as well as religious societies, whether Islamic or pertaining to one of the recognized religious
minorities, is permitted provided they do not violate the principles of independence, freedom, national
unity, the criteria of Islam”); see also id. at art. 21 (“The government must ensure the rights of women in all
respects, in conformity with Islamic criteria”).
NORTHWESTERN JOURNAL OF INTERNATIONAL HUMAN RIGHTS [2013
94
countries have ratified the ICCPR.
98
Article 90 of the Turkish Constitution states that,
“[i]nternational agreements duly put into effect bear the force of law. No appeal to the
Constitutional Court shall be made with regard to these agreements, on the grounds that
they are unconstitutional.”
99
Article 90 also adds emphasis to Article 15, which provides
for the supremacy of international law when there is a tension between international
human rights law and the need to suspend fundamental rights in a time of war or
emergency.
100
The Turkish Constitution maintains that, “[i]n the case of a conflict
between international agreements in the area of fundamental rights and freedoms duly put
into effect and the domestic laws due to differences in provisions on the same matter, the
provisions of international agreements shall prevail.”
101
The Iranian Constitution contains
no such provision.
C. Lebanon: A Muslim-Majority Country in Favor of the UDHR
¶35 Respect for religious minorities and international law in the constitutions of
Muslim majority nations is not limited to the Turkish Constitution. The Lebanese
Constitution likewise respects religious freedom and the supremacy of international
human rights law.
102
According to the CIA Factbook, 59.7 percent of the Lebanese
population is Muslim, although it does not consider itself an Islamic nation.
103
Freedom
House ranks Lebanon with an above average worldwide score in civil liberties, and
Lebanon is the highest ranked Muslim-majority country in the Middle East.
104
In
Lebanon, only six percent of Muslims surveyed by Pew Research supported the Death
Penalty as punishment for apostasy.
105
¶36 The Lebanese Constitution is different from its Iranian counterpart in that the
Lebanese version is framed around the importance of human rights law. The Lebanese
Constitution’s preamble establishes that it is a “founding and active member of the
United Nations Organization and abides by its covenants and by the Universal
Declaration of Human Rights.”
106
The next sentence requires that the government abide
by these principles “without exception.”
107
98
Turkey ratified ICCPR on September 23, 2003. International Covenant on Civil and Political Rights,
UNITED NATIONS TREATY COLLECTION (Aug. 8, 2013),
http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en.
99
Turkish Constitution, supra note 84, at art. 90.
100
Id.
101
Id.
102
Lebanese Constitution (1990), Preamble
http://www.servat.unibe.ch/icl/le00000_.html.
103
Lebanon, CIA WORLD FACTBOOK, https://www.cia.gov/library/publications/the-world-
factbook/geos/le.html#.
104
Middle East and North Africa, FREEDOM HOUSE, (The only regional country ranked higher is Israel.
Turkey is tied with Lebanon, but classified as part of Southern Europe)
http://www.freedomhouse.org/regions/middle-east-and-north-africa. ; See also, COUNTRY REPORT:
LEBANON, http://www.freedomhouse.org/report/freedom-world/2012/lebanon.
105
Survey Report, Most Embrace a Role for Islam in Politics, PEW RESEARCH CENTER, (Dec. 2, 2010)
http://www.pewglobal.org/2010/12/02/muslims-around-the-world-divided-on-hamas-and-hezbollah/
106
Lebanese Constitution (1990) (Lebanon) (hereinafter “Lebanese Constitution”).
107
Id.
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95
¶37 Both Lebanon and Iran have a titled article of their respective Constitutions
guaranteeing equality before the law.
108
The Lebanese Constitution, after guaranteeing
that everyone will be equal, says that all Lebanese citizens “equally enjoy civil and
political rights and equally are bound by public obligations and duties without any
distinction.”
109
Compare that provision with the counterpart in the Iranian Constitution:
rather than emphasize that equality is guaranteed without distinction, equality is
guaranteed only if it is “in conformity with Islamic criteria.”
110
Once again, the Iranian
Constitution provides limiting language where its counterpart Constitution, which is more
liberal, inserts language that puts emphasis on the freedom given earlier in the provision.
¶38 Article 9 of the Lebanese Constitution then guarantees “absolute” freedom of
religion, with the “guarantees that the personal status and religious interests of the
population, to whatever religious sect they belong, is respected.”
111
While Article 23 of
the Iranian Constitution does provide for freedom of religious belief, the Constitution
contains several limiting statements whereby the regime limits rights to those who do not
“engage in conspiracy or activity against Islam.”
112
Moreover, as the Egyptian discussion
will show, infra, Sharia courts have justified apostasy punishments despite guarantees of
freedom of belief because the laws of Islam require obedience to the faith once someone
decides to join that faith.
113
Since Iran is an Islamic Republic, and the state and the
religion are intertwined, to betray one’s religion in Islam would be similar to treason or
“engag[ing] in conspiracy” against Islam.
114
¶39 Meanwhile, Lebanon, like Turkey, is not an Islamic republic, and even provided in
its first Parliament that there would be equal representation between Muslims and
Christians and therefore does not have this entanglement of the religion and the state that
allows for religious abandonment to be conflated with a threat to the state’s authority.
115
D. Morocco: A Sharia Law Constitution
¶40 Although the Lebanese and Turkish examples exhibit higher-rated levels of civil
rights success than that of Morocco, the Moroccan example might have more in common
with Iran because Morocco has declared Islam the state religion.
116
Morocco scores a
middle ranking of 4 out of 7 under the Freedom House civil liberties category, and is the
108
Lebanese Constitution, supra note 107, at art. 7.
109
Id. (emphasis added).
110
Iranian Constitution supra note 69, at art. 20 (“All citizens of the country, both men and women, equally
enjoy the protection of the law and enjoy all human, political, economic, social, and cultural rights, in
conformity with Islamic criteria”).
111
Lebanese Constitution, supra note 106, at art. 9.
112
Iranian Constitution, supra note 69, at art. 14.
113
Berger, supra note 23, at 736.
114
Iranian Constitution, supra note 69, at art. 14.
115
Lebanese Constitution, supra note 106, at art. 95.
116
Constitution of Morocco (1992) (Morocco) (hereinafter “Moroccan Constitution”). The Constitution of
Morocco was amended in 2011-2012 as a response to the Arab Spring. However, this analysis will focus on
the 1992-1996 amended Constitution. For a discussion of the 2012 Constitution, see INTERNATIONAL
INSTITUTE FOR DEMOCRACY AND ELECTORAL ASSISTANCE, THE 2011 MOROCCAN CONSTITUTION: A
CRITICAL ANALYSIS (2012),
http://www.constitutionnet.org/files/the_2011_moroccan_constitution_english.pdf.
NORTHWESTERN JOURNAL OF INTERNATIONAL HUMAN RIGHTS [2013
96
highest-rated officially Muslim nation in the Middle East region.
117
While the nation does
have sectarian problems with respect to religion, and has had power concentrated in the
monarchy, it scores significantly higher than Iran in terms of civil liberties and is worth
comparing constitutionally.
¶41 Although the 1992 Moroccan Constitution declares the nation a “Muslim Sovereign
State,” the Moroccan Constitution contains some key differences from its Iranian
counterpart.
118
Unlike the Iranian Constitution, which uses Islam to limit freedom of
religion, the Moroccan Constitution asserts that Islam “guarantees to all freedom of
worship.”
119
Article 6 of the Moroccan Constitution guarantees an unqualified freedom of
religion. Article 9 then guarantees the rights of citizens “freedom of opinion, freedom of
expression under all its forms, and freedom to assemble,” and orders that no restrictions
can be imposed on such freedoms other than by law.
120
Article 44 indicates that “law” is
that which is voted on by the Chamber of Representatives, rather than something imposed
by an administrative agency.
121
While the “by law” exemption does have some
vagueness, it contrasts with the Iranian grants of liberties that are qualified by imposed
Islamic criteria. The Moroccan equality article is different from its Iranian counterpart in
that its grant is not qualified.
122
The Moroccan equality article simply states that “[a]ll
Moroccans are equal before law.”
123
The Iranian counterpart contains the proviso that the
equality must be “in conformity with Islamic criteria.”
124
¶42 The Moroccan Constitution is far from perfect. The Moroccan Constitution does
have religious limitations for government officials,
125
but no restrictions on freedom of
religion for lay people. Article 37 suggests that members of the Chambers of
Representative can be imprisoned for questioning the Muslim religion.
126
However, that
limitation applies only to the Chamber of Representatives under Title III of the Moroccan
Constitution.
¶43 The more acute difference between the Moroccan and the Iranian Constitutions is
that the Moroccan version respects international law.
127
The Moroccan Constitution,
although endorsing Sharia, demonstrates that a Sharia law country is capable of
endorsing international norms. In its third sentence, the preamble of the Moroccan
Constitution declares that Morocco is an “active and energetic member” of international
organizations and that it is “aware of the necessity of setting its actions” within the
117
Freedom in the World 2011, FREEDOM HOUSE, http://www.freedomhouse.org/report/freedom-
world/2011/morocco (the report mentions, however, that religious intolerance is a problem in the country).
118
Moroccan Constitution, supra note 117, at Preamble.
119
Id. at art. 6.
120
Moroccan Constitution, supra note 117, at art. 6.
121
Id. at art. 44 (“The law is voted on by the Chamber of Representatives. The same may authorize the
Government, for a limited period and determined objective, to take measures that are normally in the
legislative domain. Decrees come into force as soon as they are published; however, they have to be
referred to the Chamber of Representatives for ratification on the expiry date determined by habilitation
law. The habilitation law becomes inoperative if the Chamber of Representatives is dissolved.”).
122
Id at art. 6.
123
Id.
124
Iranian Constitution supra note 69, at art. 20.
125
Moroccan Constitution, supra note 117, at art. 37.
126
Id.
127
Id. at Preamble.
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context of such organizations.
128
Further, the preamble “subscribes to the principles,
rights, and obligations resulting from the charters of the aforesaid organizations and
reaffirms its attachment to the Human Rights as they are universally recognized.”
129
¶44 While not a perfect document with respect to religious freedom, the Moroccan
Constitution is distinguishable from the Iranian Constitution in its explicit respect for
international human rights and its unqualified grant of religious freedoms.
130
Despite
being an Islamic country, the Moroccan Constitution asserts a respect for international
human rights treaties like the more liberal non-Muslim, Muslim-majority nations of
Turkey and Libya.
E. Bad Constitutional Examples: Libya and Syria
¶45 The Iranian Constitution more closely resembles that of countries that are
experiencing unrest at the moment. Neither Syria, a country experiencing civil war, nor
Libya, another country in transition, allows unqualified freedom of religion.
131
Furthermore, neither country’s Constitution expresses respect for international
organizations or international norms.
132
¶46 The Syrian and Libyan Constitutions are like the Iranian Constitution in that each
country expressly limits its grants of religious freedom in their respective constitutions.
For example, the Syrian Constitution guarantees freedom to hold any religious rites
“provided they do not disturb the public order.”
133
The Libyan Constitution under
Colonel Qaddafi gave religious freedom, but “in accordance with established
customs.”
134
However, the previous sentence notes that Islam is the religion of the
state.
135
¶47 Syria and Libya are also like Iran in that neither Constitution asserts a respect for
international human rights law. Not surprisingly, the word “international” does not even
appear in the Libyan Constitution, making it similar to the Iranian Constitution in that
neither gives explicit support to abiding by international treaties. Likewise, in the Syrian
Constitution, the word “international” only appears in the context that the People’s
Assembly must approve such treaties.
136
F. Sharia Courts
¶48 Admittedly, there is more to constitutional interpretation than the text itself. Some
constitutions give nominal protection to religion, but also give deference to courts to
interpret Sharia law.
137
128
Id.
129
Id.
130
Id.
131
Constitution of Syria (1973) (Syria) (hereinafter “Syrian Constitution”); Constitution of Libya (1969)
(Libya) (hereinafter “Libyan Constitution”).
132
Id.
133
Syrian Constitution, supra note 132, at art. 35.
134
Libyan Constitution, supra note 132, at art. 2.
135
Id.
136
Syrian Constitution, supra note 132, at art. 71.
137
STAHNKE AND BLITT, supra note 33, at 959 (“In Egypt, the role of interpreting the meaning of Sharia
has fallen to the Supreme Constitutional Court.”).
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98
¶49 There is a dispute over the breadth to which apostasy laws are intended to apply
under Sharia law. Some argue that under the Quran, apostasy was only meant to apply to
national security concerns such as treason or rebellion.
138
When drafters create
ambiguous constitutional language, legislatures, agencies, and courts are given more
room to make assertions, such as the Iranian regime is now doing, that the apostate is a
threat to national security and the Islamic state. Article 14 of the Iranian Constitution
gives interpreters discretion if they can successfully argue that the person is a threat
against the state.
139
Likewise, in the Pastor Youcef case, the Iranian regime has declared
Youcef a Zionist and a threat to national security.
140
¶50 The sanctioning of some Sharia courts also undermines private law and order with
respect to apostasy. In Palestine, for instance, Sharia courts have frequently publicized an
act of apostasy and named the guilty party a threat to the community.
141
The courts
further declare the apostate to be an outcast.
142
The Sharia courts do not have legal effect,
but instead rely on their tradition and popularity in carrying out their decrees.
143
Although
they do not order private killings, Sharia courts generally do not prosecute instances of
private punishment for apostasy, meaning that those individuals outside the government
who take issue with a person choosing to leave Islam are generally free to punish those
persons.
144
Given the public support for such acts of punishment, there are no negative
legal consequences for such acts of vigilante justice.
¶51 Simply because a constitution protects different religious groups does not mean a
court will protect an individual from apostasy punishment. For example, in Egypt, the
Constitution prior to the Arab Spring guaranteed freedom for “religious rites.”
145
While it
protected the rite or the group, its protection for the individual was not as broad. Like
Iran, the courts have often read acts of apostasy as threats to the national security of the
nation and a threat to the religion of Islam.
146
¶52 While the Egyptian Constitution did preserve the “freedom of belief,” the
interpretation by the courts has been that the freedom of belief only applies to non-
Muslims.
147
In 1980, the Egyptian Administrative Court reasoned that the “State’s
religion is Islam . . . Since the plaintiff has embraced Islam, he must then submit to its
138
MASHOOD A. BADERIN, INTERNATIONAL HUMAN RIGHTS AND ISLAMIC LAW 124 (2003) (“It constitutes
a politico-religious rebellion.”).
139
Iranian Constitution, supra note 69, at art. 14 (“[T]his principle [of non-Muslims’ Rights] applies to all
who refrain from engaging in conspiracy or activity against Islam and the Islamic Republic of Iran”).
140
Patrick Goodenough, Case of Pastor Sentenced to Death for Apostasy Referred to Iran’s Supreme
Leader, CNSNEWS (Oct. 11, 2011), http://cnsnews.com/news/article/case-pastor-sentenced-death-apostasy-
referred-iran-s-supreme-leader.
141
Justus R. Weiner, Human Rights Trends in the Emerging Palestinian State: Problems Encountered by
Muslim Converts to Christianity, 8 MICH. ST. U.-DCL J. INT’L L. 539, 567-69 (1999).
142
Id.
143
Id. at 568.
144
Id. at 569.
145
CONSTITUTION OF THE ARAB REPUBLIC OF EGYPT, 11 Sept. 1971, as amended, May 22, 1980, May 25,
2005, March 26, 2007, at art. 46 (hereinafter “Egyptian Constitution”).
146
Berger, supra note 23, at 736.
147
The Egyptian Courts have differentiated the freedom of belief from the freedom of practice within the
faith. For instance, Muslim women are obligated to wear the veil. See Berger, supra note 23, at 736 (“[T]he
freedom of belief implies that one could never be forced to become a Muslim, once a person is a Muslim,
he has to submit to the rules of Islam as a matter of the practice of that religion.”).
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99
law which does not condone apostasy.”
148
Likewise, Egypt’s highest court, the Court of
Cassation,
149
has said that a prohibition on apostasy does not violate “freedom of
belief.”
150
Rather, the Constitutional Court has interpreted “freedom of belief” as the right
to practice one’s religion, rather than the right to change such a religion.
151
¶53 Egypt ratified the ICCPR and believes it is in compliance with the international
law. When Egypt ratified the ICCPR, it did so only on the belief that it did not conflict
with Sharia, so it still believes it can enforce apostasy laws under international law.
152
Therefore, the Egyptian constitutional courts have said that Sharia trumps freedom of
belief.
153
However, the ICCPR makes no allowance for reservations on the norms of the
treaty.
154
¶54 Although democracy is often seen as a protector of individual rights,
155
the Arab
Spring could actually threaten the rights of those who choose to leave the Muslim faith.
The threat of punishment for apostasy could become more acute in Muslim countries
experiencing unrest. As mentioned, supra, over three quarters of Muslims in Egypt and
Pakistan favor the death penalty for those who leave Islam.
156
Up until the Egyptian
revolution of 2011, apostasy was in a status of “limbo” in Egypt.
157
Although Egyptian
statutory law is silent on apostasy, the Egyptian Court of Cassation has understood there
to be a ban on apostasy.
158
In 1980, the Egyptian Administrative Court also said that “[i]t
148
Case No. 20/1980/Court of Cassation.
149
Court of Cassation, EGYPTIAN STATE INFORMATION SERVICE,
http://www.sis.gov.eg/En/Story.aspx?sid=473.
150
Berger, supra note 23, at 737 (citing Case Nos. 475, 478, 481/1996/Court of Cassation).
151
Berger, supra note 23, at 736 (citing Case No. 8/1996/Constitutional Court). See Kilian Balz, The
Secular Reconstruction of Islamic Law: The Egyptian Supreme Constitutional Court and the ‘Battle over
the Veil’ in State-Run Schools, in LEGAL PLURALISM IN THE ARAB WORLD 229-244 (Baudoin Dupret et al.
eds., 1999). Before the case came before the Supreme Constitutional Court, the Supreme Administrative
Court had ruled that the decree did not conflict with the freedom of belief, but declared the decree void
because it contravened the personal freedom to dress oneself according to one’s wishes (Case No.
4237/1994/Supreme Administrative Court).
152
Berger, supra note 23, at 734 (“Egypt, upon ratification of the covenant in 1982, added the following
statement: ‘Taking into consideration the provisions of the Islamic Sharia and the fact that they do not
conflict with the text [i.e. the Covenant] . . . we accept, support and ratify it.’ This could be explained as an
exception clause, but is more likely to be an assurance that the ICCPR is consistent with the Islamic
Sharia.”); Donna E. Arzt, Heroes or Heretics: Religious Dissidents Under Islamic Law, 14 WIS. INT’L L. J.
397 (1996).
153
Freedom of Religion and Human Rights Law, EGYPT INITIATIVE FOR PERSONAL RIGHTS
http://eipr.org/en/report/2009/12/06/261/275 (The Human Rights Committee further stated”Reservations
that offend peremptory norms would not be compatible with the object and purpose of the Covenant.”).
154
General Comment 22, supra note 50.
155
See generally, MICHAEL MCFAUL, ADVANCING DEMOCRACY ABROAD: WHY WE SHOULD AND HOW WE
CAN (2010).
156
PEW RESEARCH CENTER, supra note 76 (reporting that at least three-quarters of Muslims in Egypt and
Pakistan say they would favor making each of the following the law in their countries: stoning people who
commit adultery, whippings and cutting off of hands for crimes like theft and robbery and the death penalty
for those who leave the Muslim religion).
157
Berger, supra note 23, at 722.
158
Case No. 28/1966/Court of Cassation; Case No. 240/1973/Supreme Administrative Court. See also
Berger, supra note 23, at 723.
NORTHWESTERN JOURNAL OF INTERNATIONAL HUMAN RIGHTS [2013
100
is completely acceptable for non-Muslims to embrace Islam but by consensus Muslims
are not allowed to embrace another religion or to become of no religion at all.”
159
¶55 Courts have applied apostasy punishments in Egypt in the context of family law.
Since there are co-existing legal structures for different religions in Egypt and no civil
marriages, apostasy results in “civil death” when one leaves the Muslim faith.
160
An act
of apostasy renders marriage between a former Muslim and a Muslim null, requires
separation, and severs all inheritance rights.
161
Moreover, the apostate is forbidden from
remarrying, and all blood ties with existing family members, including children, become
null and void.
¶56 Egyptian apostasy punishments often have a political motive.
162
Egyptian law has
routinely imposed punishment for apostasy in the past. The most public example
occurred in 1996, when Egyptian Scholar Nasr Hamed Abu Zayd was implicated by his
fellow scholars for his revisionist writings on the Quran.
163
The court of Cassation ruled
that his writings constituted apostasy, which led to a divorce from his wife, since a
Muslim could not be married to a non-Muslim.
164
The ruling forced Zayd to flee Egypt to
avoid civil death.
165
¶57 Despite Zayd’s attempt to argue that he could not be an apostate because he still
claimed to be a Muslim, the Court ruled that because he affirmed his belief in his
writings, which were non-Muslim, he was an apostate:
[h]e is an apostate, because he has revealed his unbelief after having been
a believer, even if he claims to be a Muslim . . . An apostate cannot be
excused when he claims to be a Muslim, because he has adopted a stance
contrary to Islam. But then a heretic (al-zandiq) usually talks about his
infidelity and proclaims his wrong faith while at the same time claiming
that he is a Muslim.
166
¶58 Accusations and punishments of blasphemy have been leveled against revisionist
scholars.
167
However, this case was the first in Egypt where a scholar was branded an
apostate for his writings.
159
Case No. 20/1980/Supreme Administrative Court (discussed by Ahmed Seif al-Islam Hamad, Legal
Plurality and Legitimation of Human Rights Abuses: A Case Study of State Council Rulings Concerning the
Rights of Apostates, in LEGAL PLURALISM IN THE ARAB WORLD 222-24 (Baudouin Dupret et al. eds.,
1999)).
160
Berger, supra note 23, at 723.
161
Id.
162
Id. at 728-29 (“It appears that the Abu Zayd case served no other purpose than settling personal or
political scores.”).
163
The Battle For A Religion’s Heart: In An Ideological Contest Between Radicals, Populists And
Moderates, Speaking Out Can Still Carry A Heavy Personal Cost, THE ECONOMIST (Apr. 6, 2009),
http://www.economist.com/node/14179219.
164
Case Nos. 475, 478, 481/1996/Court of Cassation (hereinafter “1996 Court of Cassation”).
165
Berger, supra note 23, at 722.
166
1996 Court of Cassation, supra note 164.
167
Berger, supra note 23, at 730.
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101
IV. THE NEW CONSTITUTIONS IN THE AFTERMATH OF ARAB SPRING SHOULD EXPLICITLY
RECOGNIZE INTERNATIONAL HUMAN RIGHTS LAW AND GIVE UNQUALIFIED FREEDOM OF
RELIGION
¶59 The Arab world’s constitutions are currently under construction in the aftermath of
2011’s Arab Spring. Tunisia, the first Arab Spring nation, is currently drafting a new
Constitution.
168
In Egypt, a newly elected parliament in 2012 drafted the new
Constitution, which is now in doubt after the July 3, 2013 ouster of Mohamed Morsi.
169
Likewise, the new Libyan parliament was scheduled to draft a new Constitution
following June 2012 elections.
170
Given the volatility of the region, the next decade could
see several additional constitutional amendments if more regimes fall.
171
¶60 Although the Arab Spring brought about great optimism in the world, the outcome
of the Constitution of Egypt and ultimately its future as a democracy remains uncertain,
as the version that passed under Morsi was ambiguous. The Egyptian military has
scheduled revisions for the constitution in the coming months.
172
On March 30, 2011,
Egypt’s military leadership announced a provisional Constitution, which was set to
remain in effect until after the 2012 Parliamentary elections.
173
However, the language of
the provisional Egyptian Constitution read similarly to that of the pre-revolution 1971
Constitution. Article II declared Islam as the State religion. Article 6 declared there
would be no religious inequality.
174
Article 11 granted the “freedom of creed.”
175
¶61 When matched with other Muslim Constitutions, it would appear that the
provisional Egyptian Constitution more closely resembled the Iranian Constitution than
168
Patrick Goodenough, Shari’a Rises in Tunisia’s Constitution-Drafting Process, CNSNEWS (March 2,
2012),
http://cnsnews.com/news/article/Sharia-rises-tunisia-s-constitution-drafting-process.
169
Egyptian Government, Constitutional Declaration 2011, at art. 60 (2011),
http://www.egypt.gov.eg/english/laws/Constitution/ (“The members of the first People’s Assembly and
Shoura Councils (except the appointed members) will meet in a joint session following an invitation from
the Supreme Council of Armed Forces within 6 months of their election to elect a provisional assembly
composed of 100 members which will prepare a new draft constitution for the country to be completed
within 6 months of the formation of this assembly. The draft constitution will be presented within 15 days
of its preparation to the people who will vote in a referendum on the matter. The constitution will take
effect from the date on which the people approve the referendum.”) (hereinafter “Provisional Egyptian
Constitution”); Egypt’s Old Guard Takes the Reins After Overthrow of Mohamed Morsi, THE GUARDIAN
(July 23, 2013), http://www.theguardian.com/world/2013/jul/23/egypt-old-guard-mubarak-ruler.
170
Ali Shuaib, Libya’s Muslim Brotherhood Sets up Political Party, CHI. TRIBUNE (Mar. 2, 2012),
http://www.chicagotribune.com/news/sns-rt-us-libya-islamists-partytre8211xi-20120302,0,5853441.story.
171
Wikistrat, an international consultancy group projects Algeria, Bahrain, Iran, Uganda, and the greater
Kurdistan region as at-risk areas for Arab Spring. Wikistrat, Five Countries That May Rise Up Next, CNN
(Mar. 9, 2012), http://globalpublicsquare.blogs.cnn.com/2012/03/09/five-countries-that-may-rise-up-next/.
172
Maggie Fick and Noah Browning, Egypt starts amending constitution despite political divisions,
REUTERS (July 21, 2013), http://www.reuters.com/article/2013/07/21/us-egypt-protests-
idUSBRE96J0BZ20130721.
173
Amir Ahmed, Egypt To Announce New Working Constitution, CNNWORLD (Mar. 30, 2011),
http://articles.cnn.com/2011-03-30/world/egypt.constitution_1_new-constitution-emergency-laws-
egypt?_s=PM:WORLD.
174
Provisional Egyptian Constitution, supra note 169, at art. 7 (“Law applies equally to all citizens, and
they are equal in rights and general duties. They may not be discriminated against due to race, origin,
language, religion, or creed.”).
175
Id.
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those of Lebanon and Turkey in that the provisional Constitution declares Islam to be the
state religion. Moreover, it declared Sharia the “principal source of legislation.”
176
Furthermore, there was nothing in the provisional Constitution recognizing international
treaties or the supremacy of international human rights law.
177
Like the 1971
Constitution, the Egyptian Constitution affords protection to “religious rites” but does not
protect the right for individuals to practice or change their beliefs.
178
¶62 However, the Constitution uses broader language in favor of religious freedom
than Iran’s Constitution uses. Unlike the Iranian Constitution, the Egyptian Constitution
does not have qualifying language that the grants of rights must be in accordance with
“Islamic criteria.”
179
The grant of equality in Article 6 of the provisional Egyptian
Constitution is unqualified, and says that citizens may not be discriminated against based
on religion.
180
However, without a respect for international law and an unqualified grant
of freedom of religion, the Egyptian Constitution could be more like those of Turkey and
Lebanon.
¶63 With prominent Islamists being released from prison under the provisional
government, there exists a danger that the apostasy laws could become worse in a new
constitutional regime.
181
On October 9, 2011, Christian protests in Egypt resulted in a
clash with police that left 24 dead.
182
¶64 On December 26, 2012, Egyptian President Mohamed Morsi replaced the
provisional Constitution when he signed the new Constitution into law, following the
Constitution passing a referendum and being approved by the Constituent Assembly.
183
The Constitution would likely not protect against apostasy punishment. The Constitution
forbids “[i]nsult or abuse of all religious messengers and prophets.”
184
The Constitution
declares that Islam is the state religion and that Sharia is the main source of legislation.
185
However, there is some encouraging language about the “respect for human rights and
freedoms” and a ban on political parties from discrimination based on religion.
186
The
Constitution also allows freedom of belief, but “as regulated by law” and for “divine
religions.”
187
The Iranian example shows that those could imply limitation and a selective
view on which religions are acceptable. The legality of apostasy is ambiguous as the right
176
Id. at art. 2
177
Id.
178
Id.
179
But see Egyptian Constitution, supra note 145, which contained the same language.
180
Id.
181
Aboud And Tarek El-Zomor Amongst Released Prisoners, AHRAM ONLINE (March 11, 2011),
http://english.ahram.org.eg/NewsContent/1/64/7445/Egypt/Politics-Aboud-and-Tarek-ElZomor-amongst-
released-prisoners.aspx.
182
David D. Kirkpatrick, Church Protests in Cairo Turn Deadly, N.Y. TIMES (Oct. 9, 2011),
http://www.nytimes.com/2011/10/10/world/middleeast/deadly-protests-over-church-attack-in-
cairo.html?_r=1.
183
Salma Abdelaziz, Morsy Signs Egypt’s Constitution into Law, CNN (Dec. 26, 2012),
http://www.cnn.com/2012/12/25/world/africa/egypt-constitution.
184
Egypt’s Draft Constitution Translated, EGYPT INDEPENDENT, at art. 44 (Dec. 2, 2012),
http://www.egyptindependent.com/news/egypt-s-draft-constitution-translated.
185
Id. at art. 2.
186
Id. at art. 6.
187
Id. at art. 43.
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103
to change one’s religion is not enumerated, nor is there an affirmation of international
treaties and declarations such as the UDHR or the ICCPR.
¶65 Likewise, Sharia law and the issue of religious freedom are being debated in the
Tunisian constitutional convention. As CNS reports, the first draft under consideration
used Sharia law.
188
The draft, released in August 2012, was subsequently redone in
December 2012. However, human rights concerns continue to abound.
189
Moreover, it
does not affirm a commitment to international treaties, the UN, or the ICCPR like the
Turkish and Lebanese Constitutions. Rather, it says that “[r]espect for international
conventions is compulsory if they do not contravene this constitution”—potentially
subordinating the international conventions to domestic interpretations of the
Constitution.
190
¶66 The Constitution of Libya remains uncertain, as the Libyan Transitional Counsel
has been mired in sectarian conflict and its own allegations of human rights abuses.
191
While constitutional change can be effective, it is not easy. The drafting of the
constitution has been mired in delays, although currently the Libyans will directly elect a
committee to draft its new constitution.
192
¶67 On November 24, 2011, Yemeni President Ali Abdullah Saleh resigned after nine
months of protests. However, the Parliament remained.
193
On March 18, Yemeni political
factions met to begin drafting a new constitution.
194
V. CONSTITUTIONAL CHANGE
¶68 If the Middle East continues to transform with more young people demanding
freedom, economic upward mobility, and equality, changes to their constitutions will be
demanded. These emerging democracies should keep in mind that unqualified grants of
religious freedoms as well as specifically enumerated human rights consistent with
international law could be beneficial in framing their new national identities.
¶69 Changing the text of a constitution will not immediately change a culture, but it can
guide it in future generations as legislatures and courts look to their founding documents
in interpreting the laws. While a future radicalized regime could try to ignore the
constitution, granting human rights in accordance with international law makes those
rights more difficult to take away since the population then becomes used to exercising
them. Disobeying the constitution and laws would likely result in stronger outrage and
reprimand from the public, relevant interest groups, and political opponents.
188
Goodenough, supra note 140.
189
Tunisia Draft Constitution Still Slights Rights, HUMAN RIGHTS WATCH (Jan 23, 2013),
http://www.hrw.org/news/2013/01/22/tunisia-draft-constitution-still-slights-rights.
190
Id.
191
Umar Khan, Libya Has Made Great Progress—The Acts Of A Few Don’t Change That, THE GUARDIAN,
(Mar. 9, 2012), http://www.guardian.co.uk/commentisfree/2012/mar/09/libya-great-progress.
192
Christopher Stephen, Libyans to Vote for Constitutional Drafting Committee, BLOOMBERG (Feb. 7,
2013), http://www.bloomberg.com/news/2013-02-07/libyans-to-vote-for-constitutional-drafting-
committee.html.
193
Brian Whitaker, Yemen’s Ali Abdullah Saleh Resigns—but it changes little, THE GUARDIAN (Nov. 24
2011), http://www.guardian.co.uk/commentisfree/2011/nov/24/yemen-ali-abdullah-saleh-resigns.
194
Mohammed Ghobari, Yemen factions to mull constitution, reforms in March, REUTERS (Feb 6, 2013),
http://www.reuters.com/article/2013/02/06/us-yemen-dialogue-idUSBRE9150YD20130206.
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¶70 While there is more to a nation than the text of its constitution, as its founding
document, it can specify its norms and values for coming generations. Although apostasy
is a difficult issue in the Arab world, these emerging democracies will want to maintain
their good standing in the international community while also retaining their identities as
Muslim nations. These coming years could slowly undo the tension between those two
goals. If a nation wants human rights and the freedom of religion to be promoted, now is
the time to codify those aspirations.
