In September 11, 2004 and on the anniversary of combating death penalty and in the frame of series of Islamic seminars and human rights, HRAAP held an intellectual seminar in the Egyptian penal legislation under the name of “Death Penalty between retention, contraction and abolition”. Twenty main speakers attended the seminar including[1] Dr. Galal Ragab “lawyer and member of the Permanent Bureau of the Arab Layers Union”, Mr. Abdel Azim Al Maghraby “the Assistant Secretary General of the Arab Layers Union and member of the Egyptian Parliament”, Mr. Ahmed Abdel Hafiz “lawyer and member of the Political Bureau of the Naserian Party”, Mr. Sayed Sha’ban “lawyer and member of Bar Association Council”, Mr. Mamdouh Al Sheikh “Islamic thinker”, Dr. Abdel Fattah Asaker, Dr. Mohamed Ra’fat Osman “the previous Dean of Faculty of Islamic Legislation and Law and member of the Islamic Researches Institute”, Dr. Abdallah Al Naggar “lawyer in Cassation Court and member of the Islamic Researches Institute”, the brigadier Mohamed Shebl, Mr. Mahmoud Murtada “the Alternative Development”, Mr. Hassan Yousef “Shemou’ Association For Human Rights Care”, Mr. Husam Bahgat “the Individual Initiative”, Dr. Ezzat Ateyya “professor in Faculty of Religion Origins”, and Mr. Osman Aly “Ibn Khaldoun Center for Developmental Studies” in addition to 70 participants in the hall.

 

According the background paper presented by HRAAP, the seminar was supposed to reply many main questions:

1-         Is it possible to abolish death penalty completely from the Egyptian penal legislation? If yes what is the proposed alternative legislations?

2-         What are the most hazardous crimes that deserve death penalty and what is the assessment of the Egyptian legislator towards this punishment?

3-         Is it possible to follow a way that leads to the actual abolition to death penalty?

4-         Are the legal guarantees for enforcing this punishment in Egypt available in the way that does not wrong an innocent person?

 

HRAAP distributed a background paper edited by Mr. Negad Al Bora’y with the assistance of Sherif Mansour that exposed to crimes punished by death penalty in the Egyptian legislation that come to 37 crimes, without speaking about the mentioned crimes in special laws such as the military rules law and others. The paper exposed also to article 6 of the international covenant for civil and political rights that concerns with the right to life and death penalty. The paper exposed also to the general comment No. 6 issued by human rights committee in UN by virtue of UN document A/37/40, Attachment 5, confirmed by the committee within the tasks of its sixteenth session in 1982 that concluded, “It was assume from article 2-6 and 6-6 that member states are not obliged to abolish death penalty completely, however they are obliged to diminish using it especially in the most dangerous crimes. Therefore, they have to reconsider its criminal legislations in the light of what is above mentioned. Any way these states are obliged to diminish enforcing death penalty to the most dangerous crimes. This article refers also to death penalty abolition generally with words hint at the inclination to abolition. The committee concluded that all measurements concerning the abolition seeking to enjoy the right to life in the frame of article 40 of the covenant”.

 

The paper exposed to the definition of human rights committee in UN to the word “the most dangerous crimes” that concluded that the phrase “the most dangerous crimes” has to be understood restrictedly as death penalty should be an exceptional measurement and it should not be imposed but according rules enforced during committing the crime and not opposing the provisions of the international covenant for civil and political rights, and the procedural guarantees explained in the covenant have to be respected including the right to attend fair hearing sessions in an independent court and assuming not guilty and guarantees of defense right and the right to reconsidering the penalty by high court in addition to the right to petitions. 

 

In addition to the procedural guarantees to the penalty in the Egyptian legislation and crimes worthy of death in the Islamic law.

 

In addition to the background paper, Dr. Abdallah Al Naggar presented a paper on “the legislative controls to death penalty”, he discussed death penalty assigned to killing souls in the Islamic law from the side of the crime corners, controls, trial guarantees and the way of retention and replied to the opinions of the oppossers who support the abolition of death penalty totally even in crimes of premeditated murder.

 

The discussion main inclinations were as follows:

1-       In spite of diversity of participants regarding the abolition of death penalty or retention, there were a general a agreement that the Egyptian law approves death penalty broadly and unprecedented that uses this penalty extravagantly.

2-       Although the Egyptian law secure this penalty with sharp guarantees including the necessity of unanimity of judges opinions to enforce and the inevitability of submitting the case to Appeal court even the suspect did not appeal the ruling. However, these guarantees are not available during the trial of civilians before military courts as through the last fifteen years, these courts sentenced more than 93 civilians to death without providing the fair trial guarantees according to the approved measurements.

3-       The views of participants varied between a group sees death penalty as a type of general deterrence from committing the crime that leads to reducing its rate, another bigger group sees that the modern penal theories changed the philosophy of punishment that is to say the reform became the main target for punishment not retribution and this is a target cannot be enforced in death penalty that aims at uprooting the criminal from society not reforming him/her to be beneficial. In regard, a participant said that there are 80 countries have abolished death penalty completely even in war and there are 15 countries have abolished death penalty but excluded only crimes occurred in war and it is not observed in any of these countries increase in crimes rate but on the contrary the crime rate reduced in some of them such as Canada.

4-       Some participants roused issue that death penalty especially in assault crimes on soul will help in reducing crimes of revenge in tribal societies – upper Egypt – when some others saw that death penalty help in spreading violence in society and spirit of revenge rather than planting tolerance spirit.

5-       Other participants said that death penalty cannot be changed considering it stated in the holy Quran. Some others replied that there is difference between the existence of the punishment and enforcing it, regardless of the legislative controversy took place in the seminar on apostasy  penalty and is it allowed to execute the apostate or not? It is taken for granted that flogging is stated in Quran however, it is not enforced in reality. Accordingly, some participants depended on the experience of Algeria, all population there are Muslims, and however it annulled recently death penalty.

6-       Some participants presented a recommendation to suspend death penalty retention for a while in Egypt till it is possible observe the impact of this suspension and if this suspension will lead to an increase or a decrease in crime rate, afterwards it would be possible to consider abolishing death penalty, enforcing it or contracting it.

 

We can say that the seminar concluded with three points:

1-       the Egyptian legislation enforce death penalty to crimes do not belong to the category of “the most dangerous crimes” as it was mentioned in human rights committee in UN, this entails a complete revision to the Egyptian penal legislation and filtering it from execution punishment for other less dangerous crimes in order to make this penalty an exceptional in the Egyptian penal legislation.  Within this frame, some participants drawn attention that the premeditated murder may be the most dangerous crime and in this case the punishment could be death.

2-       Issuing this mass quantity of death penalties against civilians from military courts lack the minimum guarantees of fair trial asserts the necessity of searching for strong guarantees for suspects who exposed to such punishment.

3-       It is possible to immobilize the retention of death penalty for a while – two years – and then the impact could be considered. In this regard, we can follow steps of Islamic countries went before us in this matter such as Algeria and studying its experience leisurely.