Judges and jurists demand curbs on the enforcement of the capital punishment (Death Penalty)

As part of the activities of the Maat Center for Jurist and Constitutional studies aimed at the codification of the use of capital punishment (death penalty) as a penal instrument, the Maat Center in collaboration with the Amman Center for Human Rights Studies [ACHRS] held a workshop on Sunday, 30 March 2008, aboard the ship "Imperial" in the Zamalik under the title: "placing curbs on the enforcement of the death penalty in the Egyptian legislation."

A number of justices, jurists, representatives of the Egyptian political parties, and a representative of the ACHRS participated in the workshop.

At the beginning of the workshop, Director of the Maat Center for Jurist and Constitutional Studies, Ayman Aqeel, made a speech explaining the activity that is taking place in the Egyptian civil society to curb the enforcement of the death penalty. This activity has materialized into the formation of the Egyptian Alliance Against the Death Penalty. The alliance is affiliated with the nine Arab states that constitute the regional alliance for curbing the enforcement of the death penalty.

Aqeel pointed out that the resolutions and recommendations of the workshop will be submitted to the conference that will be held at the Swedish Institute in Alexandria on 12 May 2008 by the Maat Center for Jurist and Constitutional Studies, Penal Reform International [PRI], and the Amman Center for Human Rights Studies [ACHRS] in Jordan.

Aqeel said in his speech that the death penalty was used in some countries as a means of getting rid of political enemies. Consequently, it is unreasonable to use the defense of human rights by some people as a justification for assaulting the rights of others, all the more so because the death penalty is the only penalty where the mistake cannot be rectified if it is proven that the penalty was carried out against an innocent person.

Aqeel pointed out that the aim of the penalty is deterrence and reform, not vengeance and reprisal. This was confirmed by he international covenants and charters which demanded that curbs be placed on the death penalty, that its enforcement be minimized, and this is what some Arab countries like Tunisia, Palestine, Algeria, Lebanon, and Morocco are trying to do. These countries have in fact, stopped issuing death sentences on the various cases since 1993.

Aqeel said that in Egypt, there are two teams; one team is   supporting the notion that the death penalty should be enforced because it is an instrument of deterrence and for creating the feeling of reassurance in society. This has prompted three members of the People’s Assembly to demand that the death penalty be applied in the street for the public to see.

Meanwhile, the other team which is demanding the revoking of the death penalty argued that the judge could be deceived by evidence and proofs which could be doubted. Moreover, the Social Contract between the people and the government was based on the people’s authorization of the government to work for the benefit of citizens, not to destroy the lives of these citizens.

Addressing the workshop, ACHRS Representative Manhal El Sidah explained the experiences of the ACHRS in the field of forging the Arab Alliance Against the Death Penalty and noted that local forms emerged in Jordan, Yemen, Morocco, Egypt, Palestine and Lebanon.

El Sidah said that among the goals of the alliance is to merge the various Arab countries in the alliance, to prepare studies to measure the impact of applying the penalty to achieve deterrence, and to prepare studies on the alternative punishments if the death penalty is revoked, together with asserting the importance of the role of the civil society organizations in achieving this required goal of protecting human rights in the various Arab countries.

Meanwhile, in his paper, Dr. Imad El Fiqqi discussed the controversy that is generated by the death penalty on all levels. He asserted that Pharaoh Egypt was the first state in history to abrogate the death penalty and to replace it with imprisonment at hard labor or work that is beneficial to the public.

He criticized Egypt‘s attitude that was declared by the Egyptian representative to the United Nations refusing to suspend the death penalty. El Fiqqi declared his rejection of the justifications offered by the Egyptian representative to the United Nations in his rejection of the suspension of the enforcement of the death penalty which the representative called a means of deterrence, achievement of justice, and minimizing the spirit of vengeance. The representative said that the abrogation of the death penalty is a violation of the Islamic Shari’ah.

El Fiqqi refuted these justifications which he thought were non-convincing. He called the death penalty an instrument of punishment in which a mistake could not be corrected if it is proven later that there was a mistake in the enforcement of the penalty. Moreover, its impact in achieving public deterrence is highly doubted. He cited the fact that the countries which revoked the death penalty did not witness an increase in the rates of crime warranting the death penalty.

As for the notion that revoking the death penalty contradicts the Islamic Shari’ah, El Fiqqi pointed out that the death penalty is applied in Islam in three cases only, namely, adultery, premeditated murder, and the crime of mischief in the earth.

Al-Fiqqi then moved on to the discussion of the penalty in contemporary legislation. He said that he was against expansion in the use of the death penalty. He demanded that the death penalty be revoked in the crimes of drugs and that it should not be included, as a rule, in legislation. He also demanded that the restriction of the application of the death penalty to four or five crimes only.

He pointed out that the guarantees introduced by the legislator were not sufficient, all the more so because the consensus among judges could be theoretical, that the opinion of the Mufti could be only consultative and that it might not be taken into account, and that the Court of Cassation is not an advantage because anyone could file a lawsuit with it. Moreover, the Court of Cassation could look into a court decision that has already been made, not re-try once again a person who has been convicted, because it is a court of law, not a court dealing with specific situations.

In his comments on the paper, Vice President of the Court of Cassation, Hisham El Bastawisi, pointed out that that the discussion is proceeding in a subjective fashion because we are sponsoring an idea with no evidence to substantiate it. This is a non-objective way of thinking. He explained that the function of legislation is being mixed with the requirements of the death sentence, because the function of legislation is not to change society, which is the function of other bodies. He said that here we are employing legislation in the wrong context. He added that there are in Egypt many laws that are enacted for a specific goal, particularly as relates to the penal aspect, which in turn causes the non-enforcement of these laws because people ignore them, such as the cleanliness law and the traffic law.

El Bastawisi said that what is being enforced in Egypt was not the Islamic Shari’ah, but the visualization of some people of what the Shari’ah is like. We must either comply with the Shar’iah or abandon it for good without selecting parts of it only, particularly that the Shari’ah has given the judge full freedom within the framework of restraints guaranteeing the freedom of the judge and non-interference in his private affairs because the duty of the judge is to administer justice, not to enforce the law, since the law is an instrument for the achievement of justice.

El Bastawisi explained that not only the Arab states are refusing to revoke the death penalty. There are other countries such as Japan, China and the East Asian states which are more rigid in their refusal to revoke the death penalty because of their beliefs. 

Discussing the guarantees that a defendant may have, El Bastawisi said that the judge would not convict the defendant if he has doubts about the charges and that the Mufti’s counsel is not binding, but gives the judge the opportunity to make a self-review. He added that the Court of Cassation is not a court of law as much as it is a guarantee of the availability of more expertise to view the lawsuit. 

El Bastawisi declared his rejection of the stipulations contained in the crimes of drugs. He said that these stipulations have a negative impact on the achievement of justice. He demanded the codification of the death sentences, not revoking them. He said that it was necessary to keep the death sentence valid in the case of premeditated murder and the cases of abduction and rape of females, because the death sentence in such cases is in harmony with the culture of society and that failure to apply the death sentence might make the decision subject to criticism.

El Bastawisi demanded that the death penalty be revoked in lawsuits pertaining to State security issues, with the exception of espionage or making contacts with the enemy at wartime.

El Bastawisi affirmed in conclusion that some judges were persuaded by the State that their function is to apply the law, and this has caused numerous societal problems.

The second session was addressed by member of the Higher Commission of the Wafd Party, attorney Isam Shehah; Secretary of the Freedoms Committee at the Progressive National Unionist Grouping Party, attorney Hamdi El Asyuti; and member of the Political Bureau of the Nasserite Arab Party, attorney Ahmad Abdul Hafiz. Discussion at the session dealt with the articles stipulating the death penalty in the Egyptian law.

At the end of the workshop, the participants agreed to keep the death penalty in four cases only:

1. The kidnapping and raping of a female.
2. Premeditated murder.
3. High treason.
4. Espionage and contacts for the benefit of a foreign country in wartimes.

The participants called for the review of the remaining articles for the sake of revoking them as long as they are extra articles that are not needed. A committee was formed of Ayman Aqeel, Isam Shehah, and Hamdi El Asyuti to draft the final recommendations.

It should be recalled that the Maat Center and the ACHRS are members of the Regional Alliance Against the Death Penalty. The Alliance was formed at the initiative of the Penal Reform International [PRI] and the ACHRS in July 2007.