Journalists are again vying with the government as promises not to imprison for alleged publication offences have evaporated, writes Mohamed Nour Farahat* When the penal code was amended last year in fulfilment of the president's promise to abolish detention for publication crimes, the journalist community thought that the press and press freedoms had been freed from heavy chains. They were right, in theory. I personally served as one of the four representatives of the Journalists' Syndicate on the committee formed by the prime minister to consider the required amendment. On the other side of the table around which we held our evening meetings sat government representatives from the ministries of justice and the interior, the Supreme Press Council and the prosecutor- general's office. The talks were more in the nature of a tug-of-war, with the syndicate team pulling as much as possible towards the goal of freedom of opinion and expression and the government trying to grind its heels into the area of the status quo. The offences for which journalists have been most frequently detained are defamation and slander, covered in articles 302, 303 and 306 of the penal code. The majority of these cases revolved around criticisms of government officials on the grounds of delinquency and corruption. Indeed, a former prime minister filed 14 suits, demanding the arrests of journalists who criticised him. In the amendment committee I pressed for the abolition of detention in cases related to slander, arguing that this would come as a considerable gain for freedom of opinion and expression. Our side won this round over considerable resistance on the part of the government team. However, many other articles still retained imprisonment clauses, which severely restrict press freedoms especially when these clash with institutional and personality symbols of the regime. There are laws against insulting the presidency, the armed forces, government bodies, the People's Assembly, the Shura Council and the judiciary, and against offending representatives of foreign representational agencies and foreign heads of state, and against spreading rumours aimed at instigating terror, harming the public welfare and inciting hatred against religions. These and other such laws have been introduced into the penal code at various phases since its promulgation in 1937. With regard to the latter articles (which have only been applied rarely) we managed to reword the articles to ensure the narrowest possible basis for an accusation. It also came as some relief that under these provisions the accused can only be brought to trial through the offices of the prosecutor-general, which generally does not take a decision to this effect until after studying all legal and political considerations. Many journalists facing lawsuits benefited from the amendment of articles concerning crimes of slander and defamation. Instead of imprisonment, they were sentenced to fines and, in some cases, acquitted. But suddenly we discovered how easy it was to circumvent the new amendments by resorting to articles that still contain imprisonment clauses, notably Article 102 and Article 108, both of which pertain to the dissemination of rumours detrimental to the public welfare. We have to grant that the private and independent press have experienced an unprecedented degree of freedom over the past few years. The red lines that once inhibited criticism of senior officials and exposure of corruption have almost vanished, or at least receded considerably. Now not only do various acts of foul play and electoral tampering appear daily in the independent press, but even the president and his family are not immune to criticism. Against this climate of relative freedom, some newspapers have indeed veered beyond the bounds of objectivity into the realm of slander and defamation, and it is clear that some checks on the exercise of journalistic freedom, such as those that exist in liberal democratic societies, are in order. We had expected the Press Syndicate to put into effect a journalistic code of ethics; however, for various reasons this never came about. No one knows what exactly drove the government to attack the independent press after such a long period of restraint. But few are taken in by the staging of this attack, whereby several lawyers filed suits demanding the arrest of several editors-in-chief and journalists in the independent press on the grounds they had disseminated offensive rumours against prominent members of the National Democratic Party (NDP), of which the lawyers claimed they were members. The courts, indeed, found the defendants guilty of the charges and sentenced four editors-in-chief to terms of imprisonment. In a subsequent ruling the court issued similar sentences against the editor-in- chief and several journalists of Al-Wafd newspaper. Thus, the ruling party took away with the left hand what the government had given with the right. In spite of cautions, aired by some, that it was illegal to criticise the rulings on the grounds that it constituted a slight against the prestige of the courts and could influence appellate hearings, the sentences triggered an angry outcry in political and intellectual circles, reflecting a widespread fear that these rulings are only the prelude of a drive to clampdown on the freedom of the press and suppress political opposition forces. Although the president's assurances to the independent press that there would be no turning back from the freedom of the press restored an element of calm among members of the press, subsequent cases resulting in prison sentences and the recent case filed by the prosecutor-general against the editor-in-chief of Al-Dostour on the charge of spreading the rumour about the president's illness have reignited fears of a campaign against press freedoms and triggered another round of impassioned controversy. Many lawyers believe that the rulings are legally invalid because the courts should not have accepted suits from the NDP lawyers to begin with. Technically, the prosecutor-general's office must file such suits. This grave -- according to some -- legal oversight caused some to suspect a government hand, leading debate into the realm of the autonomy and impartiality of the courts. I will not comment here on the court ruling since it is currently under appeal. However, I do not believe that I will be falling afoul of the law in discussing the question of the legality of criticising court rulings in general. Two articles in the Egyptian penal code apply in this regard: Article 186, which penalises demeaning the status, prestige or authority of a judge involved in a case by means of publishing comments to this effect in the press, and Article 187, which penalises the publication of remarks that might influence judges in the course of arbitration. Neither of these articles prohibits commentary in the press on judicial rulings, unless the commentary contains remarks offensive to a judge or the courts or that could influence judicial proceedings in progress. Nevertheless, opinion is divided over the implications of these articles. One camp holds that one may not comment on judicial rulings in the press, the only legitimate criticism being the act of appeal to a higher court. A statement recently released by the Supreme Council of Judges affirmed this principle. There has also been a spate of articles penned by NDP officials and their pundits in the press urging the prosecutor-general to combat the criticism of judges in the press. The opposing camp, represented by some lawyers concerned with civil liberties issues and some senior judges fighting for the autonomy of the judiciary, agree that there exists no law prohibiting criticism of judicial rulings. Some of these have gone so far as to state that the alleged sanctity of judicial rulings is a principle concocted by despotic rulers determined to use the courts to protect and perpetuate their despotism. Independent journalists whose freedoms are threatened and human rights organisations have had little time for such legal fineries, as they lashed out at the court rulings and the judges who issued them. To them, the wave of prosecutions against journalists is no more or less than an assault being waged by the government and its ruling party against the margin of press freedoms available in Egypt. The regime is fed up with criticism of government officials at a time when it wants a calm and peaceful backdrop to the leadership succession scenario it is trying to engineer, they say. Just before I sat down to write this article, the prosecutor-general issued a decree to prosecute Ibrahim Eissa in the Boulaq preliminary court on the charge of publishing false rumours concerning the president's health. The story of the trials of journalists thus continues to unfold. If these developments tell us anything it is that the demands for true autonomy of the judiciary, for effective guarantees of the freedom of the press and for the amendment of laws restricting freedoms of opinion and expression are intrinsically related. Ultimately much depends on the influence and skills of the players at either end of the rope of press freedoms and judicial autonomy. Will journalists manage to tug it towards greater liberty or will the other side succeed in pulling it towards tyranny? And how many more rounds in this game are we to expect? * The writer is a professor of law at Zagazig University.
