CAIRO: The Cairo-based Maat Center for Juridical and Constitutional Studies held a workshop Sunday on limiting the application of the death penalty in Egyptian legislation.
Jurist Emad El-Fiqy and vice-head of the Court of Cassation judge Hisham El-Bastawissi spoke during the workshop.
El-Fiqy made reference to a landmark December 2007 resolution passed by the General Assembly of the United Nations. The resolution called for a moratorium on executions with a view to reducing the number of offences for which the death penalty may be imposed, and its eventual abolition.
Egypt voted against the resolution. El-Fiqy said that Egypt’s delegate to the General Assembly cited three reasons why he rejected the resolution. Firstly, that the death penalty is only applied to the most serious crimes; secondly that to abolish it would be in contravention of Sharia law; and, thirdly, that procedural guarantees protect miscarriages of justice involving the death penalty.
El-Fiqy contested the use of Sharia as a pretext for not abolishing the death penalty.
“Does abolishing, or limiting the application of the death penalty contradict Sharia law? Sharia law only imposes it for three crimes: fornication/adultery, murder and highway robbery. El-Fiqy explained.
“The application of the death penalty to one of these offences, fornication/adultery [zenna] lays down such stringent conditions before it can be imposed as to make its application virtually impossible. In murder cases, meanwhile, judges have discretionary powers as to whether to apply the death penalty of not.
El-Fiqy also argued that Egypt legislators do not in any case strictly apply Sharia and pointed to the wide array of offences to which the death penalty is applied as illustration of this.
“Under the counter-narcotics law someone found guilty of providing a venue for drug-dealing may receive the death penalty – even if the person himself has nothing to do with drugs. This has nothing to do with Sharia law, El-Fiqy explained.
El-Fiqy recommended that the death penalty be abolished for all but a very limited range of crimes and that its application should be at the court’s discretion.
El-Bastawissi argued that the death penalty in Egypt should only be abolished when Egyptian society itself calls for this.
“It is not the job of legislators and legislation to change society – this can only be done by civil society institutions, the media, NGOs etc. Many laws are applied which are out of step with society’s norms and the law loses value as a result when people ignore such legislation, El-Bastawissi explained.
“The death penalty shouldn’t be abolished just because countries in Europe are abolishing it. People themselves must accept the abolition of the death penalty, he continued.
Like El-Fiqy, El-Bastawissi rejected claims related to Sharia law as a justification for the non-abolition of the death penalty, saying that Egyptian legislators’ selective application of the tenets of Sharia law cannot properly be termed Sharia law.
As for claims that the possibility of mistakes during the legal process counsels against the application of the death penalty, El-Bastawissi said that strong procedural guarantees prevent the possibility of mistakes.
“Two out of three members of the court must be a hundred percent certain of the defendant’s guilt. In order for the death penalty to be handed down there must be consensus among all three judges that this is the most appropriate penalty, he explained.
“Furthermore, the court must take the Mufti’s opinion in death penalty cases. While his opinion is non-binding this stage of the process gives the court time to review its verdict and the chances of a mistake happening are greatly reduced by this passage of time – though of course mistakes will happen because judges are human, after all.
He, too, argued that the application of the death penalty should be limited to the most serious crimes, pointing to the negative effect of its application in the offence of drug-dealing has had.
“Drug-dealing carries the punishment of the death penalty so when a policeman pursues a drug-dealer one of two things happens. Either the drug-dealer manages to flee or, if he doesn’t, he kills the policeman trying to arrest him because if he’s caught he realizes he’ll get the death penalty and so has nothing to lose, El-Bastawissi explained.
