“If the penalty of incarceration in cases of indecency contradicts the Constitution, then the Constitution is flawed.” This is how member of Parliament Abul Maaty Mostafa justifies his vote against amending the penalties for indecency in Egypt’s Penal Code during a session on Monday.
The majority of the parliamentary committee for constitutional and legislative affairs voted in line with Mostafa, maintaining the provisions which outline imprisonment as a potential punishment in publishing cases involving indecency, despite the fact this contradicts parts of the Constitution.
Article 71 of the 2014 Constitution stipulates: “No custodial sentences may be imposed for crimes committed in publishing or publicity. As for crimes relating to inciting violence, discrimination between citizens or the defamation of individuals, penalties shall be determined by the law.”
Similarly Article 67 outlines: “It is not permitted to raise or file lawsuits to stop or confiscate literary, intellectual or artistic work, or against their creators, except through the public prosecution. No custodial sentences may be imposed for crimes committed by the public display of literary, intellectual or artistic work.” Both articles emphasize that the law shall determine the penalties for crimes pertaining to the incitement of violence, discrimination between citizens or the defamation of individuals.
Monday also saw Mostafa stoke controversy when he described the literary works of Egyptian Nobel laureate Naguib Mahfouz as being “indecent.” He added that if he were still alive today, Mahfouz should be imprisoned.
He stands by his comments, stating during a follow-up interview: “I think that Naguib Mahfouz is a great author, but an indecent one.”
In the wake of the 2011 Revolution, comments issued by political Islamists led to widespread concern that representatives would run roughshod over rights and freedoms, particularly the freedom of expression. However, Monday’s remarks are reminiscent of this discourse, recalling in particular comments made by Abdel Moneim al-Shahat, a leader of the Salafi Dawah group, who argued that the works of Naguib Mahfouz “lead to immorality.”
As fellow MP Nadia Henry highlights: “We must remember that this is the same Parliament that refused to amend the penalty for the defamation of religion.” Henry had previously drafted amendments to the criminal code hoping to scrap the penalty of incarceration in publishing cases involving charges of indecency. However these amendments were also rejected by the committee for constitutional and legislative affairs, alongside another draft presented by MP Ahmad Said.
Earlier this month the committee rejected another amendment to abolish the clause in Article 98 (F) of the Penal Code which stipulates a penalty of between six months and five years in prison, or fines ranging between LE500 and LE1000 for “any person who uses or exploits religion for the purpose of instigating – verbally, in writing or in ideology – extremist ideas with the aim of provoking sectarian unrest or contempt of heavenly religions or sects with the aim of harming national unity.”
An example of this article in action, TV preacher and researcher of religious affairs Islam al-Beheiry was jailed for nearly one year on charges of contempt of religion, based on a lawsuit filed by Al-Azhar which accused him of disseminating ideas that were “a perversion of the Islamic religion.” Beheiry was released in November by virtue of a recent presidential pardon.
Henry argues that Parliament’s performance in terms of respecting public freedoms indicates the reach of what she describes as “Wahhabi ideas.” She adds that the Cabinet sent a memorandum to Parliament announcing that legislators should refrain from attempts at amending the Penal Code in its provisions pertaining to cases of public indecency, “without including their definition of the crime of public indecency.”
Emad Mubarak, the former director of the Association for Freedom of Thought and Expression, argues that: “Under the current circumstances, there is a greater threat to civil liberties and the freedom of opinion and expression than there was during the rule of the Muslim Brotherhood.”
Mubarak points to the examples of Beheiry and the jailed writer Ahmed Naji. Naji is currently serving a two-year prison sentence on charges of violating public decency due to his novel The Use of Life, segments of which were published in the literary journal Akhbar al-Adab.
The sentence was based on the provisions of Article 178 of the Penal Code, which stipulates a punishment of up to two years in prison, or fines of between LE5,000 and LE10,000 for individuals who “publish, create or possess publications, manuscripts, drawings, advertisements or images which violate public decency with the intention of trafficking, distributing, leasing, pasting or displaying them.”
He claims that “in terms of such threats, there has not been a reaction from intellectuals equal to that expressed in light of similar threats during the rule of Mohamed Morsi.” He references the 2013 sit-in organized to protest the appointment of Alaa Abdel Aziz as minister of culture, as an example.
However, looking at the discourse around public freedoms in today’s Parliament alongside that of Morsi’s presidency, Mostafa says “such a comparison must be rejected, because the Brotherhood is a terrorist group. However, was the Brotherhood alone entrusted with the protection of public decency in society? This is the responsibility of every decent citizen.”
Mubarak states that “Parliament stands in total support of the political authority, to the extent that its hostility towards freedom cannot be understood as anything other than a reflection of the attitudes of the executive authority itself,” concluding that “the judiciary has proved, beyond any reasonable doubt, its complete bias towards conservative values, and its hostility to any diversion from the prevalent or ruling values.”
Translated by Jano Charbel