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With human rights organizations reporting a spike in defamation charges, concerns are piling up over the effect of such charges on freedoms of belief and expression. And while the social and political environment may be conducive to more defamation cases, the laws governing them, as well as judicial reasoning, tell of legal exacerbations of the problem.
Defamation laws “spring from the concept of the divine right of kings — that the king can do no wrong,” James H. Ottaway, Jr. and Leonard H. Marks say in their introduction to a World Press Freedom Committee global survey of these laws.
“Before the age of revolutions and modern republics, the offense was based on the concept of lese majeste, which meant an offense to the dignity of the sovereign. Since kings were held to be sovereign by divine right, it was related to blasphemy, another legal anachronism.”
Crimes of defaming the president and religion remain on Egypt’s statute book — the latter has existed since 1882, while the crime of defaming the president has gone through several permutations as the nature of the state itself changed, including “disgracing the ruler” and “disgracing the royal personage.”
In his book “Insulting the President,” rights lawyer Hamdy al-Assiouty notes that Egyptians have a long history of making fun of their rulers (dating back to pharaonic times), and that incidents of prosecuting defamation cases increase when the state and its institutions are weak.
There were very few such prosecutions between 1923 and 1950, but between 1950 and 1952 “they spread [as if they were] traffic fines,” Assiouty writes. In the last days of his rule, former President Hosni Mubarak used the offense as a “sword” to silence his political opponents; and more recently, the crime has reappeared with the rise of Islamist currents.
The crime of defaming religion, meanwhile, has been levied against several high profile Egyptians.
In 1925, Sheikh Ali Abdel-Razeq was put on trial by the Senior Scholars Authority of Al-Azhar and lost his position as a judge in the Sharia court after he published his book “Islam and the Origins of Rule,” viewed by some as advocating the separation of religion from political life.
A case was brought against intellectual Taha Hussein in 1927 in connection with his book on pre-Islamic poetry but, Assiouty says, the case was shelved because the public prosecutor at the time was “cultured and aware.”
More recently, Kareem Amer became the first Egyptian to be jailed for online content when he was imprisoned in 2006 for defaming both religion and Mubarak.
Following attacks by Salafi groups on Christian-owned shops in Alexandria, Amer wrote a blog post in which he demanded that the companion of the Prophet Mohamed, Omar Ibn al-Khattab, and “modern terrorist figures” be put on trial, as well as writing that Mubarak was a symbol of oppression.
Amer’s conviction perhaps gives credence to Assiouty’s suggestion that “the prevailing political, cultural and social climate heavily influences the understanding of … insult crimes. It also influences the extent of faith in freedom of opinion and expression.”
A “climate driven” interpretation of defamation crimes is facilitated by the absence of any clear definition of what actually constitutes the offenses; the matter is left to the court’s discretion.
Article 179 of the Penal Code criminalizes defaming the president of the republic, but provides no definition of what constitutes defamation.
Article 98 (w), which deals with defaming religion, was added to the Penal Code in June 1981 in response to sectarian violence in the Zawya al-Hamra area of Cairo. Eighty-one Copts died in what is considered to be one of the bloodiest incidents of violence against Christians in Egypt.
It criminalizes the “use” of religion to “promote extremist thoughts with the intention of creating dissent or insulting an Abrahamic religion” or “undermining national unity.” None of these terms are defined, however, and the Egyptian Initiative for Personal Rights (EIPR) group says in a study on the article that this lack of clarity renders the article unconstitutional.
EIPR lawyer Adel Ramadan attempted to present this argument during a hearing of the case of Alber Saber, currently being tried on charges of blaspheming religion.
The presiding judge interrupted Ramadan, saying that the court does not have the jurisdiction to discuss the constitutionality of penal code articles — which Ramadan says is incorrect.
In a 2002 case, the Nasr City State Security Court said “extremist thoughts” in the context of religion means straying from established truths about religion whether concerning prayers, dealings, religious figures or the sacred.
The implication of this definition is that every citizen must know the “established truths” of all the heavenly religions, Ramadan says in the EIPR report.
“There are two possible solutions for this problem: either this provision is cancelled or the state issues an official guide that is obligatory reading for all citizens that makes clear of [which] ideas it approves,” he writes.
In the absence of this, both the police and the judiciary have a wide scope for interpretation. The police have arrested and detained various groups under this article, including Shia Muslims, Quranists, Ahmadis and alleged atheists. The common factor in these arrests is a perception that the suspect has rejected an unquestionable norm. These norms are decided upon by the arresting police officer or the deciding judge, and have no basis in law.
There have been a flurry of cases involving charges of insulting religion since Egypt’s 2011 revolution, with four men, Ayman Youssef Mansour, Gamal Abdo Massoud, Makarem Diab Saad and Bishoy Kameel — all Coptic Christians — convicted and handed down prison sentences in separate cases.
It is a trend that coincides with the Muslim Brotherhood’s ascent to power and the appearance of Egypt’s long suppressed ultraconservative Islamists in the political arena. These very vocal groups are currently leading a battle for Egypt’s draft constitution to reflect the Sharia tenets they think should shape the document. On Friday, 8 November, advocates of this cause put on a show of force in Tahrir Square, when thousands demanded the implementation of Sharia.
It has been suggested that the spike in cases of blasphemy — the Association for Freedom of Thought said in an October report that 15 cases had been filed in the space of two months — reflects a growing religiosity that threatens to restrict minority freedoms. This growth is aided by the ambiguity of Article 98 (w) and the fact that in Egypt’s civil law system, lower courts do not follow precedent, only bound by Supreme Constitutional Court decisions.
The case law reflects this ambiguity. Kameel, a Coptic Christian teacher from Sohag in Upper Egypt, was sentenced to three years imprisonment earlier this year when a court found him guilty of insulting religion by publishing deprecatory pictures of the Prophet Mohamed on his Facebook page.
In its argument to the court, the Public Prosecution began with a lengthy description of the pre-Islamic period, “when babies and women were treated despicably and men were slaves.” This was followed by a lengthy exhortation of the Prophet Mohamed and a stern admonition of Kameel, who is described as a man who has “rejected society’s customs, the law and the legitimacy of religion.”
The Public Prosecution said Kameel “got on a ship of arrogance and calumny… behind the devil as ship captain.”
Furthermore, rather than using the Internet “for society’s best interests,” he “exploited the incredible technological advances in the world of communications and the Internet in order to carry out his wicked endeavors.”
In sentencing Kameel, the court said that while freedom of belief is guaranteed by the Constitution, individuals who ridicule or insult religion “cannot protect themselves with [by invoking] freedom of belief.”
“Discussion of religious matters must stop at treating religion with contempt or insulting it,” the court said, ruling that by insulting Islam, Kameel had satisfied the intent element of the crime. It rejected the defendant’s claim that he had been a victim of identity theft and that the Facebook page in question did not actually belong to him.
The Agouza Court that in April rejected a lawyer’s civil claim that veteran actor Adel Imam and others’ works had defamed Islam had a very different interpretation of Article 98 (w).
Judge Ahmed Samih al-Rehany’s 27-page reasoning is an in-depth examination of freedom of expression and its limits that references Sharia, international human rights law and intellectuals such as Nasr Hamed Abu Zeid. The late renowned scholar Abu Zeid was charged with apostasy in 1993, which led him to leave the country.
The court found that since the section of the Penal Code in which Article 98 (w) is placed concerns national security, protection of national security is the primary objective of the article, thus establishing intent to undermine national security is essential for a conviction and defaming religion is merely the means by which this is done.
Crucially, the court stated that the vague language used in the article “threatens to turn the legal system into confessional courts” and that the acts that constitute a crime under the article must be clearly delineated.
Religious thought is not inviolable, the court found. Making reference to Quranic verses, the court said that there is no compulsion to believe in Islam, and therefore discussion or criticism of religion that defames its adherents does not constitute a crime.
Rejecting the plaintiff’s claim that Imam’s depiction of conservative Muslims in his films defamed Islam, the court said that it is necessary to differentiate between the sacred and the non-sacred, and that people who have nominated themselves as religious figures cannot be considered sacred and inviolable. To do so, the court said, would prevent their ideas from being challenged or discussed, and therefore their ideas could be conflated with the tenets of religion itself.