Association of Freedom of Thought and Expression

Creativity certificates: about the judiciary assessment of creative works

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The Association for Freedom of Thought and Expression (AFTE) issued a legal paper entitled “Creativity certificates: about the judiciary assessment of creative works“, on the 20th of March 2017.

The paper discussed a number of lawsuits related to the freedom of creativity in the Egyptian courts. It reviewed examples of the prosecution and courts’ interference in evaluating creativity. It also presented the philosophy of the judgments of the judiciary in evaluating creative works, the role of the judge as the highest expert in evaluating creativity, and the reliance on religious institutions as a reference to the judiciary in assessing creativity.

Article 67 of the Constitution – issued in 2014 – on the freedom of creativity, represents a remarkable development in relation to the protection of the freedom of creativity -compared to the history of Egyptian constitutions- especially if we add two paragraphs that prohibited the filling of lawsuits to stop or confiscate works of art, or lawsuits against its creators, except through the public prosecution. They also stated that it is impermissible to impose a deprivation of freedom penalty for crimes committed because of the publicity of the artistic, literary or intellectual product. The only exception to that is for crimes related to incitement to violence or discrimination.

Hence, the problem is not in the constitutional text, but in the subsequent judicial practices that contradicted it in courts.

The paper discussed examples of persecution and judiciary interference in evaluating creative works. It highlighted two examples for such interference.

First, the case of Taha Hussein and his book “In Pre-Islamic Poetry” nearly a century ago, which led him to investigation before the prosecution on charges of contempt of the Islamic religion.

The second is the case of the television program “Nafshana” in late 2015, in which the complainant called for the suspension of the program because it calls –in his opinion- for moral turpitude that cannot be included under the concept of freedom of opinion and creativity.

The paper highlighted how the judiciary and the prosecution intervened in both cases to evaluate the creative work. And although the prosecution dismissed the investigations in Taha Hussein’s case, and the court had rejected the demand to stop the TV program, yet this did not prevent the prosecution from criticizing Hussein’s literary and research method and some of the words he used, and did not prevent the court from describing the program’s content as amateurish.

This is not only interference in a purely artistic matter, but it also reflects the inferior view of the judiciary of the new artistic forms. So even when a judge rules to protect the freedom of creativity, he makes a technical assessment of the work,based on his personal opinion.

It was necessary then for the paper to take a broader view at the philosophy of the judiciary in evaluating creative works. This view illustrated a conservative moral philosophy adopted by the judiciary in its rulings, in different political eras. Historically, the Islamic courts which existed before July 23rd revolution refused to accept testimonies from artists, on the pretext of their involvement in entertainment.

Most recently after January 25th revolution the Supreme Administrative Court in 2015 ruled to prevent the nomination of artist Sama al-Masri for parliamentary elections because she does not adhere to the modesty necessary for women, as creativity should take into account values ​​and ethics. The court added that this is also the message of the MP who should -according to the court- defend the right path, and act against corrupt morals. The court has moved here from evaluating the creative work to the stigmatization of the creator himself, and thus depriving him of his political rights, basing its judgment on elusive laws and standards such as “good manners”.

In the case of author Ahmad Naji, who was sentenced to two years in prison for publishing chapters of his novel “The Use of Life” in a state-owned newspaper, the ruling’s rationale again considered that the role of literature is advocating virtues and good morals to be accepted by society.

The judge presided himself as a novelist choosing for the writer the literary methods he should use. In the rationale of the verdict the judge says, “Eloquence and metaphor are from the sciences of the Arabic language. If the defendant was aware of the methods of language and literature, he would have used either of them to express what he wanted, if the context of the novel required that”.

This leads to an analysis of the idea that the judiciary sets itself as a higher expert in evaluating creativity. The concept of expertise before the court is regulated by Law 96 of the year 1952, which determines who has the right to express their opinions before the courts in technical and scientific matters;they are divided into experts, experts from the Ministry of Justice, and forensic experts. It also allows the Minister of Justice to introduce other branches of expertise and to attach them to the courts, or to use other experts whom the judiciary considers important to explore their technical opinion when necessary.

However, the importance of the reports submitted by the experts is determined by the judge alone, according to a ruling by the court of cassation. The ruling has determined that the judge -as a higher expert-can assess the value of the expert’s opinion. The court may put the expert’s opinion aside altogether, or consider the opinion of one expert not the other, or even use part of the expert’s report and put aside the rest of the report without giving reasons.

The paradox created by this approach to the opinions of specialists was clear in the contradiction between acquitting novelist Ahmad Naji by the court of first instance and the maximum sentence of two years’ imprisonment from the court of appeal. The first ruling was based on the opinion of the authors Mohammad Salmawi and Sunallah Ibrahim, while in the second, the court put their opinions aside and stated in the reasoning of its verdict that what they said “is not one of the reasons for permissibility or prevention of punishment.”

The problem does not stop at the way judiciary deals with creativity as the higher expert, or at the conservative philosophy it adopts; it extends to the fact that it builds its judgment on a religious perspective driven from the formal religious institution. In 1994, the State Council’s Fatwa and Legislation Committee issued a decree stating that Al-Azharis the sole author of the binding opinions for the Ministry of Culture in assessing the Islamic issue of licensing, or the refusal to license audiovisual works. And in 2012 a final text amended the second article of the law of Al-Azhar to become “Al Azhar is the final reference in all matters related to Islam and its sciences”. Hence, Al-Azhar has the right to assess whether the artistic work touches on the Islamic issues or not. Its opinion is binding on all ministries of the state, including the Ministry of Culture and the sections falling under it.

The paper refers here to the issue of the TV series “Youssef Al-Seddiq”, as an example of the role of Al-Azhar in evaluating creative works through judicial frameworks. A lawsuit was presented to the administrative court demanding to stop showing the series on all Egyptian TV channels. The court referred the case to the State Commissioners authority, which in turn decided to refer it to the Egyptian House of Fatwa. The later nominated three people specialized in fatwa to give an opinion in the matter.

The examples presented by the paper illustrate the importance of refusing to put creativity into trial or limiting it through flawed legal procedures and texts that do not conform to the provisions of the constitution. The law should not, in any way, be turned into a tool for suppressing freedoms and enforcing moral slogans and allegations, and it should not substitute the constitution.

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