Abdul Kareem Nabil Suliman Defendant
Against
Public Prosecutor Plaintiff
Case no. 6677 of the year 2006 A.D. Misdemeanor Court in Mohrram Beik
Introduction: This case is not meant to try some one or hold them accountable for a certain crime or guilt they have committed.
This case is submitted to you neither to preserve society nor to avert sedition. It is essentially a case of freedom of speech, expression, and belief, even if it may apparently seem as a claim of promoting sedition, disparaging Islam, insulting the President, and broadcasting incitements which disturbs the public order.
It is the case of every Egyptian citizen:
The right of citizens to freedom of expression and belief
The right of citizens to announce their opinions even if contradictory to the prevailing view
The right of citizens to criticize and say “NO” to any official whatever his position is
This is the essence of our case. The plaintiff cannot wipe this fact out even if they fight desperately to prove that the suspected has committed crimes against Allah, Prophet Muhammad, Companions of Prophet, the Egyptian president, and the governing regime.
Lawsuit Purging
Court president, we seek your permission to start our memorandum by purging the lawsuit from the many claims filed by the public prosecutor against the suspected, including: “offenses worse than that of Pharaoh and Hamann against Prophet Moses”, “defaming Islam, harming the reputation of the country, and insulting the governing regime”, “inciting hatred against Muslims and disparaging Islam”
These were the accusations filed by the prosecutor to necessitate holding the defendant legally accountable.
Despite the cruelty and severe negative impact of these false accusations, we will turn our defense to the core of charges mentioned in the reference resolution. That is despite the fact that the public prosecutor forgot or apparently neglected the refutations we submitted when we acted as the representatives of the suspected during investigations. The suspected insisted on his rights guaranteed by articles 18 and 19 of the International Covenant on Civil and Political Rights (ICCPR), on which Egypt is a signatory. Egypt signed ICCPR on 1 October 1981 and published it in issue 15 of the official newspapers on 15 April 1982. The said articles of ICCPR, which subsequently became an integral part of the internal law of Egypt, stipulate that:
Article 18
1. Everyone 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 in worship, observance, practice and teaching.
2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.
3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.
4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.
Article 19:
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. ….
In addition, we will overlook the violations committed by the prosecutor during investigation, represented in bias to private beliefs and personal opinions. The prosecutor intended sarcasm while interrogating the suspected.
We – and the prosecutor – hope cautiously to clear up the truth and return the right back to its owners, in this country, through enhancing their right to speech and criticism which is a must for ensuring better statuesque.
Defenses
First: Regarding article 98f of the Penal Code which stipulates “imprisonment for a period of not less than six months and not exceeding five years, or a fine of not less than five hundred thousand pounds and no more than one thousand pounds, of whoever exploit religion in order to promote or advocate, by saying, writing, or any other means, extremist ideas with the purpose to stem sedition or disparaging or insulting one of the divine religions or their affiliated sects, or harming the national unity or social peace.”
This article is loose and flexible to the extent that it may be stretched to fit any person ever made his different thought to the public. This article gives the right to any authority to try any person who, for instance, refuses to comply with governing according to Islamic jurisdiction. If this continues to be a prevailing law, hundreds of Egyptian citizens who belong to political parties calling for democratic, secular, liberal, or other governing system will be put to trial. It might even be applicable on National Democratic Party (NDP) officials; including the president of the republic who stated several times that there is no way for a religious state in Egypt (folder document# 1).
Nevertheless, the abovementioned article is contradictory to article 47 of the constitution which stresses on freedom of speech and expression. It is also contradictory to the principle of personal freedom guaranteed by article 41 of the constitution which stipulates the right to freedom of adopting ideas even if they are false, incorrect, or against the society.
The origin of things is permission and there is neither penalty nor crime without law stipulation. In addition, it is not reasonable that the suspected is convicted upon certain parts extracted from his writings while other parts are neglected. For example, he said during investigation on 6 November 2006; pp. 11: “my words do not include incitement and I did not incite anyone to do anything.”
The constitutional court sentenced:
“It is settled that the freedom of expression and interaction of generated views may not be hindered by fetters; in terms of imposing prior restraint on publishing or in terms of fearing from the envisaged punishment resulted from the subsequent suppression. However, citizens are expected to utilize their right to freedom of expression to announce their own views rather than whispering them secretly, although opposed by the public authority. On their part, citizens should seek peaceful means to call for any required change. The facts may not be hidden. It is inconceivable that facts will be accessible in the absence of freedom of expression. Also, those who insist on using Article 47 of the Constitution, not only have the right to defend the issues they believe in, but also to choose the appropriate means which are considered relevant to the area of presentation or publication, even if they can bring other alternatives to promote them. Perhaps, the most serious threat to freedom of expression is to be felt in a formal or negative way. Insistence on the right to freedom of expression leads to accepting its consequences. No one may be silenced even by the force of law.”
< The sentence of the Supreme Constitutional Court in case no. 6 of Constitutional Judicial Year 15 on 15 April 1995 >
Regarding the absence of clear identification of crimes of the suspected, the sentence of appeal no. 114 of Judicial Year 21 Technical Office 9, session dated 2 June 2001 – page 986, said:
“One of the basic principles required by the constitution in penal codes is: the highest and clearest degree of certainty should be considered in dealing with such legalizations more than any other legalization. Penal codes impose the worst fetters on individual liberty. Therefore, to guarantee this freedom, the deeds criminalized by such laws should be desperately limited in order to prevent confusion with other codes. In addition, these laws should be clear in respect with identifying their limitations. Anonymous or ambiguous limitations will not allow users to discover the reality of the deeds that they should avoid.”
Regarding the extraction of certain parts form the statements of the suspected, upon which he was charged with the abovementioned loose accusations, the constitutional court sentenced that:
“The constructive nature of criticism does not imply the necessity of monitoring and evaluating every statement in any publication detached from the whole context and according to rigid measures. What is perceived right by someone in a certain regard, may be the absolute wrong in others’ points of view. There is no suspicion that those who defend their views and beliefs usually resort to exaggeration. If the freedom of expression is allowed to breathe in a certain field, some violations may be committed and subsequently forgiven. It is illogic that exaggeration in adopting some points of view requires hindering their exchange.”
< The sentence of the Supreme Constitutional Court in session dated 20 May 1995 – case no. 42 of Constitutional Judicial Year 16 – The Official Newspaper – Issue 23 on 8 June 1995 >
Second: Regarding article 102(bis) of Penal Code, the reference resolution mentioned that the suspected “intentionally broadcasted some statements aiming at disturbing the public order and harming the public interest according to the shown in documents”
This article is applicable upon the availability of three syndrome pillars of the crime the suspected allegedly committed. They are:
1- Purposeful broadcasting of statements
2- Disturbing public order
3- Harming the public interest
However, the public prosecutor did not identify any of these pillars and to what extent they are related to each other. When the suspected was questioned that he is accused of broadcasting false rumors, he replied: “This did not happen, and I call for democracy.” Then, the prosecutor repeated the same question, and his answer was: “This did not happen. These are not statements. These are personal views.”
The public prosecutor was supposed to clarify how the public order is disturbed as a result of publishing some articles and opinions of the suspected, particularly that he was not arrested while holding a weapon or practicing terrorism. When questioned about harming the reputation of the country, the suspected replied: “I believe that those who harm the reputation of Egypt are my interrogators who illegally question my own personal views,” extracted from the investigations of Public Prosecution dated 6 November 2006, pp. 12 and 13.
The suspected confessed that he is responsible for his writings, although they are published abroad Egypt. It is not a secret that The Modern Discussion website http://www.rezgar.com headquarters locates in Denmark. (folder document# 2).
It is illogic that the suspected confesses his liability to publishing the subjects which led to him being convicted. One of his answers to investigators was: “all what happened is that I want to be frank and transparent. I put my view plainly and declared my identity. This led to connecting these views published in this virtual place to a person who exists in reality, which is “me”. This is the best evidence on my good intentions,” extracted from the public prosecutor’s investigations on 6 November 2006, pp.13
Therefore, the suspected did not violate the law by publishing his own views which the public prosecutor did not clarify how they harmed the public interest. And article 19 of ICCPR stipulates that:
1- …
2- Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
There is a difference between declaring one’s opinion and publishing statements, as claimed by the public prosecutor against the suspected upon no evidence. Attributing this article to the suspected is a mere saying which has no supporting evidence.
Judgments cannot be based upon assumptions or possibilities; they require certainty and assurance. Suspicion should be interpreted for the good of the suspected and consequently requires judicial certainty in terms of conviction.
Third: Regarding article 179 of the Penal Code which stipulates “imprisonment for whoever insults the president of the republic by any of the abovementioned means”
While replying to this charge claimed by the public prosecutor for writing an op-ed titled “Recognize President Mubark as the Prince of Believers”, the suspected confessed that his article aimed at criticizing the Sheikh of Al-Azhar who called upon other professors in Al-Azhar University to issue a Recognition Statement for President Hosni Mubark in the last presidential elections. The professors refused. Then, a group named “Supporters of Mohammed Sunnah” [Ansar Al-Sunnah Al-Mohammadya] hanged a huge signboard in Damanhour city calling for recognizing Mohamed Hosni Mubarak as the Prince of Believers! (folder documents#3 and 4). What the suspected wrote does not exceed comment on the event. In other words, the sentence “Prince of Believers” is not attributed to the suspected. It was an ironic comment against Sheikh Al-Azhar and Ansar Al-Sunnah group in Damanhour, who attempted to give this title to the President.
Nevertheless, the continuity of this article which was set in the royal era is a mere attempt to give strange position to the president of the republic and subsequently attributing false sanctity to his acts. He is only the president of the executive authority whom his acts, behaviors, and resolutions are subject to criticism, according to law. The crimes stipulated in article 179 of the Penal Code are derived from insulting crimes which were dropped by modern jurisprudence and legislative development in many of world countries. The crime of insult is similar to defaming and breaching the rank – which can be hardly identified. Jurisprudence requires that the deeds criminalized by law to be definitely identified and not anonymous. Anonymous or ambiguous limitations will not allow users to discover the reality of the deeds that they should avoid. Also, the ambiguity of penal stipulations makes it impossible to set trials upon issues and activate certain rules for crime and penalty. This will lead the court to take inconvenient actions which subsequently will lead to innovating crimes other than those intended by the legislator.
The President of the republic, as president of the executive authority, may not be beyond criticism. The Court of Cassation sentenced that:
“It is agreed that in all constitutional countries, claiming against political adversaries may be accepted in general and on broader scale more than appealing against an appointed employee. The person who nominates himself to act in behalf of the country must be aware that all of his acts may be targeted in claiming and criticism. Public discussions, whatever harsh they are in respect with criticizing the acts and opinions of political parties, are for the good of the nation which is capable of forming a correct opinion regarding the party which deserves to be trusted and supported.”
< The sentence of Cassation Court dated 6 November 1924 – Dr. Mohamed Abdullah, Crimes of Publishing, pp. 289 >
The Criminal Court sentenced that “as long as the political writer did not affect the personal entity of the said, any criticism – even if violent and burning – cannot be deemed insult or defamation”
< The sentence of Egypt Criminal Court on 14 June 1948 in claim no. 3557 of the year 1946 >
Regarding the situation of the Public Prosecutor
We seek to draw court’s attention to the fact that the reasons why the suspected refused to sign the interrogations made by the Prosecutor deserves reconsideration. The suspected felt, as we previously mentioned, the bias of the prosecutor against him. This bias is represented in refusing to record our refutations which we submitted during investigation, in addition to laughing at the suspected. The Supreme State Security Court “Emergency” mentioned in the case of Public Prosecution no. 2830 of the year 1986 Abdien Station, registered with no. 198 of the year 1986 Total, downtown, that:
“The court while offended because insults were extended to the public prosecutor’s minutes, calls for amending legalizations so that prosecution judges alone shall be entitled to investigate into opinion claims. The suspected in political cases should be entitled to ask for having an investigation judge. Any procedures to be taken in the investigation shall be void if the suspected receives no response to his demand or if some obstacles were made to prevent investigation judges from attending. This legislative amendment is the sole guarantee for the rights of the suspected in opinion and political cases.”
Conclusion:
We call upon you to restore peace. Thought – whether we agree or disagree with – may not be criminalized. Confiscating or trying Thoughts was the habit of Middle Centuries and Fascist regimes which used to burn books in public squares. We deem Egypt far above.
Therefore,
The suspected seeks:
Basically: acquittal
Precautionary: considering the utmost clemency.
Lawyers of the defendant:
Gamal Abdul Aziz Eid, Lawyer
Rawda Ahmed Said, Lawyer
