Defining art is traditionally the burden of critics, writers and artists themselves, but lawyers and judges are sometimes wont to get involved. In Egypt, approximately 16 laws and 588 articles govern artistic production, from the explicit Artistic Productions Law to syndicate bylaws dictating who can produce each specific art form and seemingly unrelated tax laws that specify how artists can operate and what they can create.
As a result, artists and the law have long been at odds. In a customary law court in 1950, before the unification of Egypt’s judiciary in 1952, a well-known story goes, a musician was called to testify. The judge refused his testimony, referencing an article of Islamic jurisprudence that says the testimonies of musicians or anyone who makes a living from “entertainment” are not valid. When the musician asked if the judge would accept the testimony of the era’s most celebrated musicians, Abdelwahab or Om Kalthoum, the judge responded, “I am a great fan of Om Kalthoum, but that doesn’t change the teachings of Islamic jurisprudence.” Despite significant legal progress, artists remain suspect in the eyes of the state and the law more than half a century onwards.
The current Egyptian Constitution, ratified in 2014 and the fifth since the country became a republic in 1882, is the most specific in terms of artists’ rights. Article 48 enshrines culture as “a right of every citizen” and obliges the state to support cultural production and make it available to “all strata of the people.” Article 67 explicitly guarantees freedom of artistic and literary creativity and forbids imposing any “freedom-restricting sanctions” on an artist as a result of their work, while article 71 guarantees the same protection for “publication or publicity crimes.” In spite of these articles, whose inclusion was due largely to the presence of several artists on the 50-member committee that drafted the constitution (including painter Mohammed Abla and filmmaker Khaled Youssef), verdicts are still issued in flagrant contradiction to these rights.
Several artists were on the 50-member committee that drafted the 2014 Constitution
Last month at a “Creativity in the Constitution” symposium at the American University in Cairo, former Culture Minister Emad Abu Ghazi explained that three years after the constitutional referendum of 2014, many of the laws have not yet been issued to translate the articles of the constitution into law.
To illustrate how artistic production is impeded by the many pitfalls, loopholes and inconsistencies in applying the laws, let us examine four cases, ranging from 1997 to 2016, in which courts have felt entitled to decide what exactly counts as art, and who is allowed to make it.
These cases are derived from a public seminar, Creativity in the Constitution, at given at the American University in Cairo on February 7, attended by Abu Ghazi, film director Hala Lotfy and lawyer for the Association for Freedom of Thought and Expression (AFTE) Mahmoud Othman. Specificities of each case are taken from two reports by AFTE, Security and Censorship over Ten years (2016) and Instruments of Creativity: On the Judiciary’s Evaluation of Creative Works (2017).
In 1990 then 43-year-old film director Samir Seif decided to try his hand out at directing a play, Love in a Holding Cell. In the wake of its commercial and critical success, the head of the Actors Syndicate filed a case against Seif in the misdemeanors court in 1992 to oblige him to pay a punitive fine imposed by the syndicate for what they considered an administrative illegality: Seif was registered as a director with the Cinema Syndicate, and it was not his right to direct a theatrical play. For that, they argued, he would have to be registered under the Actors Syndicate and would have to pay the apparently arbitrary sum of LE40,000 to that syndicate. Seif argued the unconstitutionality of the syndicate’s bylaws, and the case progressed to the Supreme Constitutional Court.
Unsystematically imposing fines based on syndicate bylaws is a method of controlling the industry from within, says Hala Lotfy, who was made to pay LE10,000 for writing her own script for her feature-length film Coming Forth By Day in 2007, because she is registered with the Cinema Syndicate’s directing, not scriptwriting department. “It’s as if the syndicate tries to punish anyone who decides to take on the responsibility of producing their own film,” she says.
In 1997 the Supreme Constitutional Court ruled that the syndicate’s demands were unconstitutional, based on semantics, as directing is the same profession in cinema and theater. It reasoned that syndicate bylaws should be amended to “accommodate a wider meaning of freedom of expression” and that the most important distinction of a work of art is that it is free of “imitation or mimicry.”
Law number 35, the 1978 acting, cinematic and musical professions syndicate law, outlines the syndicates’ powers. Article 2 specifies the artistic professions each syndicate represents, while Article 5 states that nobody can work in these professions without syndicate permission, a restricting clause filmmakers have long struggled to amend. “Permits should not be issued by the syndicate to begin with,” says Lotfy. “The syndicate’s role is to organize the affairs of its members, not to organize the affairs of the entire country.”
“The syndicate’s role is to organize the affairs of its members, not to organize the affairs of the entire country.”
The law was in fact amended in 2003, but in a more restrictive direction. Since then, filmmakers not affiliated with a syndicate can face up to three months in prison and a fine of up to LE20,000 if caught filming without a permit.
To make matters more complicated, heads of artistic syndicates were briefly granted powers of arrest in 2015, a decision that was later appealed by AFTE in collaboration with musicians, and revoked in 2016. “In this case the syndicate was acting like a police officer. It is not their job to implement the law in this way,” says Mahmoud Othman, the AFTE lawyer, who considers AFTE’S success in suspending the powers of arrest a significant victory.
Of course filmmakers can disregard permits and attempt to make films without them, but this means they will not be able to obtain screening licenses. This was the case with Ibrahim El Battout’s 2007 film Ein Shams — which eventually received a permit as a foreign film (by registering in Morocco), but was not able to represent Egypt in international film festivals or get a full cinematic release here, as no more than eight copies of a foreign film can be distributed in Egypt. The other option is private screenings and online releases, making films unprofitable and audiences smaller.
“It may seem like everything is great on paper, but in reality the situation now is worse than it was in the early 2000s,” says Lotfy. “Changing it requires a long struggle through filing cases against the state to say that these laws are unconstitutional, and through practice — people challenging these laws and going out on the street anyways to make their films.”
In 2008, director Khaled Youssef and late screenwriter Mamdouh al-Leithy were barred from making their film The Field Marshall and the President, about late President Gamal Abdel Nasser’s relationship with then Field Marshal Abdelhakim Amer. After submitting the script to the censorship board, the only government authority with the legal right to censor art works (according to Article 430 of bylaws issued by prime ministerial decision no. 126 of 1993), they were informed, in writing, that the ministries of interior and defense had objected to the film’s political content and asked them to remove references to Amer’s controversial death (he allegedly committed suicide by drinking poison, but rumor had it he was murdered).
Using this written refusal, Youssef filed a case against the censorship board for violating the law by involving security apparatuses in their decision making. After two rounds of appeal, Youssef won the right to make the film on March 10, 2010.
In its reasoning, the court stated, “If the lawmakers entrusted an administrative body with a certain authority, this body is obliged to adhere to the limits of its authority. It is not permissible for any other administrative body, without the backing of the law to compete for this authority, or to assign itself an authority not granted to it by the law.” Othman sees this as an important legal precedent in exposing security entities’ involvement in cultural production.
Despite this, attempted security censorship of artistic productions persist, particularly with films. A more recent example is director Amir Ramsis’ 2013 documentary Jews of Egypt, which struggled to obtain general screening permits, as Ramsis was told by the head of the censorship authority, because National Security objected to its content. The film was the first major cinematic work to focus on a favorable portrayal of the Egyptian Jewish community and the persecution they were subjected to under Gamal Abdel Nasser. After a lengthy media campaign, the censorship board and security entities relented and allowed the film to be released, two weeks after its original release date, with a Culture Ministry disclaimer added to the film’s introduction, stating that the characters and events portrayed in the film were all fictional — despite it very clearly being a documentary.
In January 2016, Rana al-Sobky was sentenced to a year in prison and fined LE15,000 for offending public morality with her film Regata (2015), which tells a tale of drugs and crime in a middle-class Cairo neighborhood, and was controversial for its sexual content and profane language. The Penal Code’s public morality clauses explicitly state that any “crime” is directly related to the “public nature” of an artistic product: to be criminal, immoral acts or representations must be committed in a space accessible to the public. The director’s father — veteran film producer Mohamed al-Sobky, also part of the lawsuit — was found innocent, although he produced and distributed the film to cinemas, because his lawyers were able to prove that he had signed the rights over to his daughter.
In the court’s reasoning the judge said he found the film not illegal, but “un-Islamic.” “If creativity is a right enshrined in the constitution,” reads the text, “then this creativity is also put in check by the Constitution, in which Article 2 mentions Islam as the religion of the nation, and the basis of Sharia law as the source of legislation. Therefore creativity must be limited by what Sharia has imposed on us.”
Law 103/1961 gives Al-Azhar, the highest authority on Sunni Islam, the right to have final say in censoring of artistic content that broaches religion. Although this film did not explicitly do that and was not referred to Al-Azhar for approval, the judge resorted to a religious reasoning in his verdict. Moreover, he professed his own opinion on art’s purpose: “Art in all its forms aims to elevate society and its morals and public taste, and should aim to instill the good principles society has inherited over many eras and teach them to younger generations.”
On April 27, 2016 the verdict was overturned, and Sobky cleared of all charges. But Othman says the case set a dangerous precedent for criminalizing artists. The Criminal Procedures Law dictates how investigations should proceed, and how evidence of crimes should be gathered. But it says nothing of artistic or publishing crimes, leaving the interpretation of what constitutes damning evidence largely up to the specific prosecutor’s narrative.
Othman thinks the law doesn’t mention artistic crimes because when it was issued in 1950 “lawmakers didn’t imagine that art would be criminalized in the way it is today.”
The well publicized and still ongoing case of writer Ahmed Naji brings this question — of the courts’ role in evaluating artworks — to the fore. In February 2016, Naji was sentenced to two years in prison on charges of offending public morality after an excerpt of his novel The Use of Life was published in state-affiliated weekly culture magazine Akhbar al-Adab. He served 10 months before being released in December on a suspended sentence. The final ruling is expected on May 7.
Set in the year 2050 in a half-buried Cairo, the novel tells of a young journalist’s escapades with drugs, sex, friends and a secret society of urban planners bent on changing the city’s face.
Akhbar al-Adab’s editor, Tarek al-Taher, was sentenced to a fine of LE10,000, even though he was technically responsible for publishing the segment, thereby making the “immoral” acts it describes public, and thus criminal. The fact that the creator, not the publisher, of the work received a harsher sentence “shows that the judges themselves don’t really understand this law and apply it arbitrarily,” says Othman.
The judge said he considered Naji’s work a “flagrant erotic article in which the charged writer published a text that spewed sexual lust and transient pleasures, using his mind and pen to violate public decency and good morals, inciting promiscuity.” This was not literature, said the judge, because literature’s purpose is to give us “a moral lesson or a piece of advice or a story from which we can derive a useful lesson for our lives.”
The crux of the prosecution’s case lay in the notion that this text was not “art” but journalistic smut, and therefore did not deserve the protections the constitution guarantees artists. Naji’s defense set out to prove otherwise, calling on several respected writers to testify at the initial trial, the only point in the case at which they could present an alternative opinion, since Egyptian courts rarely accept non-legal counsel on artistic matters.
Experts who are sought by courts usually work in engineering, accounting or agriculture
Although Law 96/1952 outlines the court’s right to consult experts on technical matters, and the channels through which the court can solicit their advice, in reality the public prosecutor and judges alike often rely instead on their own understanding of art to pass moral and legal judgment on a work. According to the AFTE report, experts who are sought usually work in engineering, accounting or agriculture, and a 2004 verdict by the Court of Cassation found that a judge still has the right to consider or discard the advice of any expert panel at his discretion.
So, although the Justice Ministry has lists of experts from several fields, none include experts on artistic, literary or intellectual matters, and regardless, any experts’ recommendations would not be binding. But Othman is wary of formalizing the process of evaluating works of art even further by calling on panels of experts. “The state can easily get artists aligned with its agenda to say ‘this is not art’,” he points out.
Naji’s case illustrates another pitfall of the legal system, the inclusion of a clause in Article 67 of the 2014 Constitution stating that no lawsuits can be instigated against creators of artistic works except through a public prosecutor. Added as a protective measure to ensure the law’s implementation and limit the number of cases that make it to court, says Othman, it leaves much to the discretion of the individual prosecutor.
Former Culture Minister Abu Ghazi says this article is dangerous and should have been left out of the constitution and organized by the Penal Code instead. Its degree of specificity, meant to protect artists, could actually harm them, he says. “This is perhaps the only shortcoming related to culture in the 2014 constitution,” he says. “Prosecution has been ‘constitutionalized’, the idea that works of art can be prosecuted to begin with is now in the text of the constitution.” While Abu Ghazi approves of the amendment to the second half of the article banning prison terms for artists as a result of their work, he believes this requires amendments to the Penal Code to “create a clear clause that bans imprisoning an artist because of his art under any circumstances.”
In November 2016, parliamentarians Nadia Henry and Ahmed al-Saeed proposed an amendment to the public morality law, which was used to prosecute Sobky and Naji, to bring it in line with Article 67 in general, as it explicitly states that no “freedom restricting sanction” should be imposed on artists as a result of their work. Their draft law proposed removing jail time altogether and replacing it with fines of between LE5000 and LE50,000. Only six MPs voted for the law and 21 voted against it so it remains, unconstitutionally, as is.
The restrictive syndicate bylaws have been appealed multiple times since Samir Seif’s 1997 case, and are currently being reexamined by the Supreme Constitutional Court as part of a 2016 case to revoke the amendment to the artistic syndicates law, which allows a syndicate to imprison an artist for up to three months and levy fines of up to LE20,000 if they do not work exclusively through that syndicate (and pay the expensive permit fees).
Othman cites the recent success in repealing the syndicates’ powers of arrest and cautions against despair. Others, like Lotfy, think the best route is to disregard restrictive laws, and go ahead and create anyways, irrespective of the legal mechanisms used to impose direct and indirect censorship on creative works.
“It’s funny that in this day and age someone thinks censorship is still possible,” she says. “It’s gone the way of the dinosaur, it’s extinct.”