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1/6/2002
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Egypt: Capital Punishment Between Islamic Shari'a and Human Rights International Standards
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Calling upon the abolishment of the capital punishment started somewhere in the mid 19th century in the USA, and reached its peak in the 1920's and 1930's, extending to include the current European Union states and many other countries around the world.
The movement calling upon the abolishment of the death sentence drew a potential push forward from the culminating influence of the movement defending human rights and world peace, as local and international human rights organizations participated in promoting the development of awareness and concern regarding the human rights issues, leading to the increase in number and capacity of organizations working against the death penalty and for abolishing it, as Amnesty International, and the International Federation for Human Rights (FIDH).
The 10th of October of each year is considered a global day against the capital punishment, the day in which the sentence was abolished in some American states for the first time on 1786.
The call for abolishing the death sentence is based on many considerations, first of which is that the first and foremost foundation for the law-governed-states is that the penalty imposed shall be for reform and rehabilitation, not for revenge. The scientific studies didn't prove so far that death penalty leads to decreasing the rate of homicides, or decrease crimes in the society, or even being a deterrent for criminals. Referring to numbers and statistics, we can easily find out that the crime rates in a country like the USA, which is applying the capital punishment in cruel and brutal methods, is much more higher than the rates in an abolitionist state like France.
Second, abolishing the death penalty promotes supporting the human dignity, and the gradual development for human rights, referring to Article 3 of the Universal Declaration of Human Rights endorsed on December 10th 1948, Article 6 of the International Covenant on Civil and Political Rights endorsed December 16th 1966, and Article 6 of the same Covenant, we find that these Articles are referring to abolishing the death penalty in a figure of speech indicating the inevitability of such abolishment, being convinced that all instruments aiming at abolishing the capital punishment shall be considered a development in the right to life, and wishing to reach international commitment to the abolishment, and bear such responsibility.
Third, the Islamic Shari'a does not include the so-called death penalty, but there is the just retribution system, applied in offences of intentional murder with premeditated design that can be replaced by a non-capital punishment, which is "Deya", or paying a financial remedy by the convicted to the family of the victim. While in homicide per infortunium, the just retribution shall not be applied at all, and the penalty is only paying the "Deya".
In spite of the international trend towards abolishing the death penalty, we find some people refusing any arguments or suggestions towards the total abolishment of death sentences, or replacing it by other forms of punishment like life imprisonment, indicating that calling for such a thing under the banner of (human rights) is in itself a damage to man's right to life.
They hold that the death sentence is a sound translation for the just retribution principal, which Islam made a safeguard for the human soul, which was dignified by God, "for, in [the law of] just retribution, O you who are endowed with insight, there is life for you", confirming that this is not consistent with the Islamic jurisprudence principal of leaving the blood of "Muslims" without retaliation against those who committed murder and breached the right to life without a reason. As whoever get killed without any right shall have his rights and the rights of his children protected, by sentencing the murderer, or else life will be total chaos and people will assault each others, and that justice necessitates punishing the killer by killing him, to have equality, and deterrence, because when the killer know his fate if he kill others, he will stop killing and security prevails.
They also confirm that the death penalty as enacted by the Islamic Shari'a is applied only to those who commit intentional murder with premeditated design to others.
With the increase in the number of states applying moratorium to death penalty in order to abolish it for good, and with the culminating concern about human rights issues and democracy in the Arab region in general and Egypt in particular, with those calling for applying the death penalty and not to abolish it, in such context, we had to participate in the argument about the capital punishment in Egypt. EOHR report, "Egypt: Capital Punishment Between Islamic Shari'a and Human Rights International Standards", includes the following:
First: What's the death penalty and its philosophy?
Second: Legal reference of the death penalty in Egypt
Third: Death penalty between the Islamic Shari'a and the international standards of human rights
Fourth: Capital punishment cases
Fifth: Conclusion and recommendations
Sixth: Annexes
First: What is the death penalty and its philosophy?
Death penalty is defined as "destruction", as said, "So and so was sentenced to the destruction penalty". It's a sentence that looks more sound than saying "death sentence" "ei'daam" in Arabic literally means ceasing to exist, as it is a word referring to transferring someone from a state of being to a state of nothingness, while destruction refers to the physical harm inflicted on the body, until the soul departs the sentenced body.
What's death penalty?
The death penalty is defined as intentional murder on basis of the law or legitimacy (justifiable homicide). Thus, it's a sentence produced by a certain authority or state, and the death penalty is issued by the state to be imposed on a person for committing an offence criminalized by the law inside such a state, which necessitates taking the life of the person concerned.
According to the Egyptian Prisons Law 396/1956 the death penalty is defined as "taking the life of the sentenced to death by hanging".
In fact, the death sentence is not new or generated by the contemporary man-made laws, but it was there since God created man on earth, drawing its foundation from the just retribution principal, and that the killer is condemned by societies and the codes practiced in them since ancient times, even before the Hamorabi laws stipulating killing the killer. Peoples tended since dawn of time to accept such practice and work by it (as a conventional social code).
When religious texts came, they stipulated the death penalty as a manifestation for the principal "eye for eye, and the murderer shall be murdered". Therefore, death penalty is found in the ancient social system before being codified and entered into laws, and following up the stages of the social thought in this concern, for all peoples, will show the people's natural hate for crimes, and trying to stop them by shedding the blood of the offender and murderer in public spaces in front of people, and in various methods that changed from time to time, like crucifying, burning, using the guillotine, beheading, using bows, leaving the person to beasts, hanging, shooting, electric chair, or injecting poison, and the likes. As execution methods are many, and death is singular.
According to Amnesty International's study of March 1989, there are 6 principle methods for execution all around the world:
1. Shooting: most used during war times, applied to military personnel in particular. Applied in China, North Korea, Thailand, Indonesia, Armenia and Vietnam.
2. Hanging: most used all over the world, as in Iran, North Korea, Singapore, India, Pakistan, Libya, Egypt and Syria.
3. Lethal Injection: A poisonous material is injected in the vein, leading to rapid death. Used in China, Philippines, USA.
4. Throwing stones until death "Stoning": used in states applying the Islamic Shari'a, especially in adultery crimes; as in the Iranian Islamic Republic law, "Stones shall not be so big leading to the death of the convicted on the first or second hit, nor small so as not to be soundly called stones".
5. Beheading: used in Islamic Shari'a states, especially in Saudi Arabia, and some districts of Nigeria. According to the testimony of the Saudi executioner Said Ibn Abdullah Ibn Mabrouk Al Bieshy, "I use the sword to kill male murderers, and arms, especially the pistol, to kill convicted women. This is, in my opinion, a good method, considering the necessity of hiding the woman's body, and considering that using the sword needs removing the head scarf and showing the neck and a part of the back without cover".
6. Gas chamber and the electric chair: Used in the USA.
All these methods can go wrong. In 1998, and on the execution of the first death sentence by lethal injection in Guatemala, the death of the convicted Manuel Martinis Coronado, of Indian origin, took 18 minutes because of an error in the injection device. He faced a lot of torture during that period.
On the other hand, the argument about the death penalty is not new, as it was handled by the philosophers and thinkers like Jan Jacque Roseau, Bentham, Bacaria and others, as each of the two parties supported their argument by proofs and ideas, and the pro-abolishment of death penalty provided the following arguments:
1- Executing the convicted will not have any positive return to the society, and it is better to reform him and gain a good member in the society.
2- There is no equality between the harm of applying death penalty and the crimes committed by the convicted.
3- Death penalty is irrecoverable and irreversible once it is executed, if the convicted is proven innocent.
4- Death penalty is not deterrent to the criminals and does not add anything to the human society.
While the retentionists argue that:
1- Death penalty is only applied on horrible crimes that indicate in itself the grave danger of the convicted and the evil deep rooted inside him, and that he is not murdered only for what he did, but also to defend the right of the society to retaliate any member in it that threatens its foundation and systems, and that makes the capital punishment necessary for preserving the integrity of the society.
2- It is hard to find total consistency between the crime committed and the penalty granted, either regarding the death penalty or other penalties. And as the death penalty is applied only in grave offences like intentional murder with premeditated design, we can thus say that consistency is found between the crime and the penalty applied to it.
3- If the society didn't grant the individual his life and does not have the right to take it from him, it also didn't give him freedom to take it from him. And if we follow this reasoning it will finally lead to abolishing all penalties in all forms and shapes.
4- Penalty must be as the same genre as the crime committed.
Philosophy of the death penalty
They say that killing the killer helps healing the family of the victim, because they can not bear seeing the murderer alive while their loved one is buried. The question here is: why heal the family members by killing and destructing another person? And can the human society base its penalizing prospect on retaliation and revenge?
The retentionists of the penalty consider this as justice in a negative prospect, because it means sharing grave incidents and suffering by many, while justice is a positive notion and a deep human need. Therefore, there must be a human prospect in dealing with such cases, while revenge is a notion that lacks any prospect.
The homicides and death penalty can not be seen as two faces of the same coin. The death penalty is more horrible than the homicide. Actually, the death penalty is an intentional murder, a murder with a determined date, day and method for killing. The convicted in homicides, when executed, is totally unable to do anything. If the victim in homicides can resist, defend himself, escape, call for help or scream, the convicted murderer is unable to do any of these simple things trying to save his life. And while the victim, until the minute he is killed, has hope that somebody or something will save him, the convicted murderer has no such simple hope.
The death penalty is not just about penalizing people for what they do, but also to make people afraid and terrorized. As the saying goes, "executing the murderer is necessary to make others afraid". But is there another more humane and better way, other than death penalty, to teach humanity the horrible outcome of the murder? Is execution the solution to the problem?
Second: Legal reference of the death penalty in Egypt
Accepting the death penalty is sheer torture, and is considered one of the humiliating penalties that damages human dignity. There is no graver psychological torture than the one the convicted murderer is subjected to while waiting for execution for months, that may get extended to years, in a solitary cell, waiting for the execution. Thus, the penalty is notably damaging one of the most important values defended by the human rights activists, which is "physical integrity", included in Article (5) of the Universal Declaration for Human Rights, "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment".
However, the immunity granting the right to life, confirmed by international conventions, is not absolute, as there are some exceptional cases, when killing is in a defensive war, or on applying the death penalty. These exceptions are mentioned in the international law for human rights, but with restrictions and safeguards protecting the human life from being arbitrarily wasted and misusing the exceptional usages of such right. Therefore, the Universal Declaration for Human Rights, in its third Article, and the Sixth Article of the International Covenant, focus on that the collective target is restricting the application of the death penalty to a minimum limit, in order to gradually abolish it.
*Death penalty in the Egyptian Constitution
The Egyptian Constitution it totally free of any text related to the death penalty, beside promoting the human dignity, and stressing on the respect of citizens, beside providing safeguards to protect their rights from being wasted, freedom, and the right to life. The Constitution enacted a wide spectrum of guarantees and safeguards to protect the human life, freedom, personal safety, and equality among all citizens, men and women, in Article 41 of the Constitution, "Individual freedom is a natural right and shall not be touched", beside providing some principle safeguarding the citizen's right to defense, and the principal of assuming the defendant innocent until proven guilty.
The Constitution also provided many provisions in this concern, banning the arbitrary arrest and torture, which was confirmed in Article 42, "Any person arrested, detained or his freedom restricted shall be treated in the manner concomitant with the preservation of his dignity. No physical or moral harm is to be inflicted upon him. He may not be detained or imprisoned except in places defined by laws organizing prisons". While Article 57 reaffirms the integrity of private life and personal freedom, "Any assault on individual freedom or on the inviolability of private life of citizens and any other public rights and liberties guaranteed by the Constitution and the law shall be considered a crime, whose criminal and civil lawsuit is not liable to prescription. The State shall grant a fair compensation to the victim of such an assault".
The Constitution once again confirmed in Article 65 the protection of rights, freedoms and the Independence of the judiciary, and in Article 66 stipulated that each crime is personal, and there is no crime or penalty unless drawing on a law, "Penalty shall be personal. There shall be no crime or penalty except by virtue of the law. No penalty shall be inflicted except by a judicial sentence.
Penalty shall be inflicted only for acts committed subsequent to the promulgation of the law prescribing them".
The Constitutional Articles illustrated the necessity of providing safeguards for access to legal counsel for each defendant, and that the defendant is innocent until proven guilty by a court of law, as stipulated in Article 67, and other Articles regulating filing criminal lawsuits, that are not to be filed without a decision from the Office of the Public Prosecutor, and according to the law, it also regulated the arrests and how to execute arrest warrants. However, all such rights and safeguards are continuously and regularly subjected to various breaches, in the presence of exceptional laws and the emergency law.
*Death Penalty in the Egyptian Legislation
First of all, we find that the Egyptian legislator used notions with political indications, which can not be measured subjectively, and the meaning of which can not be strictly defined, so that it can not be soundly used in the field of criminalizing and punishment inflicted upon a certain person who committed a certain offence. For example in Article 77 of the Penal Code, the word "safety of the state" was used without any determination for what is meant by the safety of the state. Article 83 also used the phrase "Safety of the state and integrity of its territories", while Article 78 included undefined notions like, "Shaking loyalty to the armed forces, weakening its spirit and the People's spirit".
Moreover, the Egyptian legislator uses the capital punishment in dealing with offences not on the same level (Article 34 of Penal Code), such a thing as preparing a place for taking drugs is not as harmful as the death penalty, also Article 86 bis uses the capital punishment against anyone who establish, finds, or directs an association, authority, organization, group or cell aiming at hindering, by any possible means, the application of Constitution or Laws, if terrorism is noticed in its activities", also Article 89 uses the death penalty against any group that attacks a certain sect of the people or resists the law enforcements, while Article 93 states that capital punishment is inflicted upon, "Anyone whoever become a head for an armed bandit or take the lead in any of its divisions, aiming at taking or stealing lands, government-owned money, or that belonging to any of the people, or to resist a military force assigned to pursue the committers of such offences".
While article 102 inflicts the death penalty upon, "anyone who uses explosives intending to abduct a transportation facility, either by air, land or water, or to commit political assassination, or harming buildings and facilities prepared for public utilities, public utility institutions, those prepared for public meetings or any other buildings designated for the public"
All of the aforementioned Articles do not stipulate a condition of actual assault on others, or the fall of real victims, either from the police, civilians or others. However, the law fell short to the limit of the probable result of the offence, and at such limit it inflicts the penalty. Such result, and even if it is not fulfilled, is a reason suffice for the infliction of the death sentence, something that can only be considered as putting the lives of people at stake just to avoid potential dangers that didn't occur yet and may not occur.
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