Criticism of public servants (Is Hisham Kassem’s speech protected by freedom of expression?)
How can the prosecution’s decisions against Hisham Kassem be interpreted?
Point of order
The Economic Court in Cairo has decided to adjourn the trial of liberal human rights activist Hisham Kassem to 9 September 2023, while keeping him on remand. The decision sparked widespread controversy and sharp divisions among the Egyptian public over the determinants of the right to freedom of expression, especially in the case of criticizing public servants.
In this context, the Association for Freedom of Thought and Expression (AFTE) would like to establish a point of order regarding the ongoing debate on freedom of expression, its real content, the umbrella of protection guaranteed for it, and the exceptions to that protection. AFTE bears in mind the arbitrary use of the Penal Code articles related to slander and defamation with the aim of restricting the right to freedom of expression. It also takes into account suspicions that the Egyptian authorities are exploiting the legal dispute between Kassem and Kamal Abu Eita, the former minister of manpower and member of the Presidential Pardon Committee, to abuse the former.
The crisis began after the establishment of a liberal political alliance, known as the “Free Current”, which includes a number of liberal parties and opposition figures, most notably writer and publisher Hisham Kassem, who headed the alliance’s board of trustees.
A number of media outlets relayed statements attributed to nationalist and leftist public figures, some of whom accused Kassem of working according to a foreign agenda. Abu Eita, also a member of the Karama Party, was among those who leveled accusations at Kassem. Commenting on the establishment of the Free Current, Abu Eita said in press statements that he smells “a foreign agenda for the current because of the presence of Hisham Kassem on its top”.
Kassem replied in a Facebook post on 29 July 2023 in which he reminded Abu Eita of being previously accused of corruption and embezzling public funds, before reconciling with the authorities by returning those funds. In his post, Kassem attached photos and links to news articles about the corruption case and the investigation of Abu Eita.
On 20 August 2023, the Sayeda Zeinab Prosecution began investigating Kassem based on complaint No. 5007 of 2023 submitted by Abu Eita accusing Kassem of slander and defamation. The prosecution decided to release Kassem on bail of 5,000 pounds, but he refused to pay the bail, asserting that he had not committed any violation that required the payment of the bail. His defence lawyer appealed against the bail. Meanwhile, Kassem published a post on Facebook criticizing President Sisi and various state agencies and announcing his refusal to pay the bail.
In a qualitative development, some police officers from the Sayeda Zeinab Police Station filed complaint No. 5284 of 2023 accusing Kassem of insulting, slandering and assaulting a public servant. They claimed that Kassem insulted an officer and two non-commissioned officers. The prosecution remanded Kassem in custody for 4 days pending investigation into the complaint. The prosecution also decided to refer him – while in detention – to trial before the Economic Court on 2 September. The Misdemeanor Economic Court adjourned the trial to 9 September, while Kassem remained in detention and went on hunger strike to protest the measures taken against him.
Is Kassem’s speech protected by freedom of expression? (Right to criticize public servants):
It should be noted that acknowledging freedom of expression means acknowledging the right of others to hold the beliefs and ideas they want without restriction or prohibition, regardless of the nature of those beliefs, and acknowledging their right to dissent. Acknowledging freedom of expression also means the right to impart all forms of opinions and ideas to others, or to receive those opinions and ideas through all channels and means without regard to geographical boundaries. The right to freedom of expression includes the right to access and disseminate information, as this allows individuals to obtain all types of information. Thus, their opinions on a particular issue would crystallize without interference or coercion from a certain body. The right to freedom of expression also includes the expression of opinions and ideas that others may find highly offensive, and discriminatory expressions.
Article 65 of the Egyptian constitution stipulates that “freedom of thought and opinion is guaranteed, and all individuals have the right to express their opinions through speech, writing, imagery, or any other means of expression and publication”.
Article 19 of the International Covenant on Civil and Political Rights states:
- Everyone shall have the right to hold opinions without interference.
- Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
So, Kassem’s Facebook post in which he expressed his opinion and replied to Abu Eita is at the heart of freedom of thought and expression. Therefore, Kassem should not be held accountable for that post or be prevented from expressing his opinion, otherwise this will considered a violation of the right to freedom of thought and expression.
Freedom of thought and expression also applies to ideas of all kinds, including those that may be deeply offensive. While international law protects free speech, there are instances where speech can be legitimately restricted under the same law – such as when it violates the rights of others, or advocates hatred and incites discrimination or violence. However, any restrictions on freedom of expression must be provided by law, protect certain public interests or the rights of others and be clearly necessary for that purpose.
Some legitimate restrictions and exceptions to freedom of thought and expression, like other rights and freedoms, are stipulated in Article 29 of the Universal Declaration of Human Rights and the third paragraph of Article 19 of the International Covenant on Civil and Political Rights, which collectively protect the rights and reputation of others, national security, public order or public health and morals. Protecting these purposes is a legitimate restriction of the right to freedom of expression, especially press freedom.
Taking into account those restrictions that can be placed on free speech, we find that Kassem’s Facebook post does not conflict with freedom of thought and expression. The post did not incite violence or discrimination, either directly or indirectly. International law grants the right to prohibit any speech aimed at direct and public incitement of genocide, or partial or total acts such as killing a person or a group of people, causing injury to the body, and causing material damage intentionally. None of these was included in Kassem’s post, which also did not violate the rights or reputation of others. Kassem cited evidence published on websites and newspapers, and his post did not harm the public order, health or morals.
According to international conventions, speech that is believed to offend the feelings of a person or a group does not constitute a criminal offense and does not justify a civil or administrative action. The fact that a speech is offensive or discriminatory is not sufficient to prohibit or restrict it, and restricting it in this case would violate the right to freedom of expression.
Despite our disagreement over some provisions of law, it allows criticism of public and political figures, taking into account several conditions that the law deduced from the rules relating to public order, public morals, customs or the rules of justice. These conditions include:
- If the criticism affects the actions and behaviors of public persons, not their honor and personal dignity:
Most jurists argue that the boundary between the exercise of the right to criticism and slander is the distinction between blaming or harshly criticizing the honor and dignity of a person and criticizing his behavior and acts without prejudice to his honor and dignity. This represents the boundary between the circle of criticism, which is the exercise of scientific, literary and cultural freedom, and the circle of conduct, which is considered slander or insult. So, if criticism is directed at a governmental act, plan or procedures, political doctrine, scientific research, literary or artistic work, determines their value, and is focused on the works, procedures and ideas without prejudice to the esteem or honor of the persons who hold, say or believe in them, even if their names are mentioned, then there will be no elements of slander in this case.
Law cites examples of that kind of criticism, such as saying that the performance of a certain minister is weak, that he was not at the expected level when he was appointed, that he is responsible for the fall of victims, or that his ministry is corrupt and he should be dismissed. As long as the purpose of criticism is to highlight and clarify these acts to the public in a way that enables them to understand their dimensions, such criticism is not considered a crime and the matter should be left to the discretion of the court according to the circumstances of each case.
However, if the criticism is focused on acts that – if they are true – are considered crimes according to the law in force, names should not be mentioned, as this may be considered slander and libel when other elements are proven. If a political analyst or journalist criticizes the spread of bribery, negligence or incompetence in a particular ministry without mentioning names or a specific incident that the public can know the names of those involved in it, then this is not considered slander or libel, even if the critic was inspired by a certain act done by a certain person who the critic did not mention but the public could know his name easily.
- If the incident is true or believed to be true:
Critics and political or literary analysts are supposed to address the public interest and social development and assess public and private performance, but they should not do so by fraud, deception and falsification of facts. Impartial critics are those who tell the truth of what happened along with the surrounding circumstances. According to the general rules of criminal intent, it is sufficient to believe that an incident is true, even if it is later found to be untrue. However, the belief in this case must be based on reasons, accurate and justified.
- If the incident under criticism has social significance:
Criticism has social significance, and this is why it is permissible. It will not have social significance unless it deals with matters of interest to society whose value and dimensions are known. The society would have no benefit if a critic tackles the private lives of others, but this may constitute a violation of the private lives of individuals as a human right.
The significance of an incident does not require that it be directly related to a political or economic event existing at the time of criticism, but it is sufficient that it is addressed to an indefinite number of people with the aim of achieving their benefit or interest.
Examples of this include the criticism of the acts, behaviors, sayings, performance and opinions of political figures. This kind of criticism is useful for the community, and the right to respond to it is available.
- The right of criticism should not be abused:
It is not permissible to abuse the right of criticism or deviate from the limits of its requirements. Critics should abide by the limits of public order and morals, as criticism is an act of culture and civilization, not a means of attack and revenge against others. The right of criticism does not allow the use of phrases harsher than those required by the rules of analyzing the incident and evaluating the performance of the criticized person.
- Critics should have good faith:
This condition is derived from the general rules of permissibility. Everyone is assumed to have good faith by nature, and whoever claims otherwise must prove it. The basis of good faith is that a critic believes in the validity of the incident he attributes to the person he criticizes and that the goal of criticism is to achieve the public interest and not just slander or defamation. One of the most important clues to bad faith and intended slander is the use of harsh phrases without necessity and their inconsistency with the goal of criticism. It is not required to extract bad faith from the phrases used in an article or research. It can be extracted from other sources, such as a threat from the journalist or the researcher to the victim before publishing the article and requesting a sum of money in exchange for not publishing it.
Taking these jurisprudential conditions into account, it can be said that Kassem’s post did not exceed the line between the right of criticism and slander. He did not direct harsh words at the honor, dignity or personal life of Abu Eita. He just addressed Abu Eita’s political conduct and his performance when he was minister of manpower, providing evidence for that. This leads us to the second condition of the permissibility of criticism, which is the validity of information and accuracy. Kassem relayed what had been published in national newspapers about the case. So, his opinion was based on reasons, justifications, and facts. Moreover, he did not use harsh words that harm Abu Eita’s honor, personal life, or political behavior.
Why are the prosecution’s decisions against Hisham Kassem arbitrary (how can the prosecution’s decisions against Hisham Kassem be interpreted?):
The case of Hisham Kassem’s detention has raised the issue of how the regime deals with dissidents, how the authorities see themselves, and how they crack down on the political opposition. Kassem’s Facebook posts reflect his position towards the political system and its policy. He does not hesitate to express this freely, clearly and continuously by criticizing the president of the republic and the ruling elite. Kassem’s stance on the current political system is an extension of his historical stance on authoritarianism and repression and his support for independent press. He founded the Cairo Times and Al-Masry Al-Youm as independent opposition newspapers exposing corruption, authoritarianism, and the absence of democracy. He was also opposed to the polices of late president Mubarak and the Muslim Brotherhood later. However, his opposition to the current regime is stronger, especially in light of the worsening political, economic, and social conditions.
It can be said that Kassem is facing political punishment for his political positions and continuous opposition. This is confirmed by the escalatory measures taken against him and the difficulty that Kassem’s lawyers is facing to obtain a copy of the case papers, or even get access to them or to the referral decision.
Detention in this type of slander cases is an exceptional decision, as the accused is usually released under the guarantee of his place of residence. The accused is usually punished with a fine, except in extreme cases where both detention and fine are applied. According to Article 303 of the Penal Code, “a slanderer shall be punished with a fine of not less than 5,000 pounds and not more than 15,000 pounds”. Article 306 defines the crime of insult and the penalty prescribed for it. It states that “any cursing that comprises no attribution of a specific incident, but constitutes in any aspect an outrage of one’s honor or dignity, shall be punished, in the cases prescribed in Article 171, with a fine of not less than 2,000 pounds and not exceeding 10,000 pounds”.
Article 308 of the Penal Code stipulates that “if the vilification, insult, slander, or cursing comprises an attack against the dignity and honor of individuals, or an outrage of the reputation of families, the penalty inflicted shall be that of detention together with the payment of a fine…”. But this does not apply to Kassem’s post, which made no mention of the honor, dignity, or reputation of Abu Eita’s family. Therefore, Kassem should not be detained pending trial.
Looking at the behavior of the authorities and the security services, we find that fabrication of charges at police stations against opposition figures and human rights defenders is a common pattern that the authorities frequently use against those they wish to imprison without reason. The security services probably took advantage of Abu Eita’s complaint to punish Kassem for his political positions and opinions, and to emphasize that they alone set the boundaries and control them.
Point of order:
AFTE is concerned with freedom of expression and stresses that it is a right guaranteed to individuals in the national constitution and international conventions. It stresses that Kassem’s Facebook post is protected by the right to freedom of thought and expression and that he should not be punished or held accountable for this right, otherwise it would be considered a violation of basic human rights. AFTE’s position is based on several considerations, mainly including:
First: Thought should be faced with thought, and courts and complaints should not be resorted to in these cases.
Second: Kassem’s post is protected by freedom of thought and expression, as it did not incite violence or discrimination, nor did it cause harm to others or endanger their lives in any way. It did not also affect the personal life, honor, dignity and rights of Abu Eita. It certainly did not threaten public order, stability and national security.
Third: Both Abu Eita and Kassem are public political figures. Law has allowed criticism of public figures under specific conditions, the most important of which are: not to cross the boundaries between criticism and slander, by criticizing the general or political behavior of a person without prejudice to his personal life, honor, dignity or the reputation of his family; to observe accuracy when publishing information and facts; not to exaggerate the use of harsh words; and to have good faith. It can be said that Kassem’s post did not go beyond the limits of legitimate criticism. It just criticized Abu Eita’s political position and performance when he was minister of manpower. In his post, Kassem cited reports previously published on news websites about a case in which Abu Eita was accused, without compromising Abu Eita’s honor, dignity, or personal life, or the reputation of his family.
Fourth: The authorities took advantage of the complaint filed against Kassem to punish him for his anti-government positions. They also used police officers to implicate Kassem in a new case, and used pretrial detention in cases where detention is not often used. It can be said that the authorities aim to abuse Kassem, silence him, and silence and intimidate the opposition ahead of the presidential elections.
Conclusion and recommendations:
AFTE rejects the escalation between Abu Eita and Kassem as well as resorting to the judiciary. It believes in the right to freedom of thought and expression and the permissibility of legitimate criticism of public and political figures without exceeding the limits. AFTE highlights the authorities’ use of certain tools to suppress dissent and violate its rights.
Accordingly, AFTE calls on the judicial authorities to release Kassem immediately and stop all measures taken against him.
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