Will the Muslim Brotherhood and the extremists from Jihad and the Gama’at al-Islamiya make use of the verdict of the Constitutional Court abolishing article 48 of the Penal Code [prosecuting people for crimes they have planned but have not executed]?
They will surely not waste the chance, and will demand to be treated like other criminals and be released according to the decision of the Prosecutor General. They began their campaign by addressing the Minister of Interior, the Prosecutor General, the Minister of Defense, and the Military Prosecutor General, asking for the release of their members from prison. They followed the requests with lawsuits before the Administrative Court trying to overrule the decisions of the officials who refused to release the prisoners.
The first lawsuit was started by 16 members of the Brotherhood, including a number of professional syndicate activists, especially Mokhtar Nuh, the treasurer of the Bar Association, who served two years of a three-year sentence; Mohammed Bishr who received a five-year sentence from a court martial; Khalid Badawi, the former assistant of Nuh; Saad Zaghloul, a member of the board of the Physicians Syndicate; Abdallah Zein Al-Abideen, treasurer of the Pharmacists Syndicate; in addition to another ten people working as physicians, owners of businesses, and university professors.
The people mentioned above were not brought to justice under the now-abolished article 48, but under article 86. Article 48 prosecutes those who plan to commit crimes, while article 86 prosecutes those "who found, organize, or manage, by illegal means, an organization, society, or group aiming at calling for the law not to be enforced, or preventing a public agency from undertaking its duties." Despite the apparent difference between the two articles, the Brotherhood based its lawsuit on the fact that they both prosecute people for their intentions rather than their actions.
The lawsuit was prepared by 13 lawyers from different backgrounds: Nabil Al-Hilali, a leftist; Essam Al-Islamboli, a Nasserist; Mohammed Elwan, Mohammed Asfour, and Atef Al-Banna, all from the Wafd [liberal] Party; in addition to Brotherhood lawyers such as Tharwat Al-Kharbawi, and Mohammed Gharib... They claim that the Constitutional Court abolished not only article 48, but all other articles of the Penal Code that incriminate on intentions not actions...
On the other side of the argument, professor Shawqi Al-Sayyed explains, "there should be no [logical] measurement of the verdicts of the Constitutional Court, even if the articles were similar or served the same purpose. No court has the right not to follow an article of law not abolished by the Constitutional Court. For example, obligatory arbitration was ruled unconstitutional in the customs, and value-added laws. However, it is still applied in the capital market law. It will remain effective until the Constitutional Court states otherwise." ...
In the current disagreement, the lawyers may try to get the Constitutional Court to give its opinion on this. Although this is a process that takes years, and the defendants will be released by then, the lawyers will be happy that none of the defendants will be tried under this article again. It will also give the defendants back the right to run for office in the representative councils, such as parliament and the professional syndicates, something they are prevented from doing now, as they are convicted criminals... Therefore, it is expected that other brotherhood members will follow with similar lawsuits, especially Essam Erian, Abdel-Mona’m Abu Al-Fotouh, Anwar Shehata, and others.
The situation is clearer in the case of Jihad and the Gama’at al-Islamiya. Montasser Al-Zayyat, lawyer for the Gama’at al-Islamiya, announced that he would start lawsuits only for those who were prosecuted under article 48. "The number of lawsuits based on the decision of the Constitutional Court is expected to reach 500." Al-Zayyat explained that among the five cases he had prepared so far were cases for Magdy Salim, leader of Tala’i Al-Fath organization, who is serving 20 years, 10 of which are based on article 48; there is also a case for Nabil Naim, who belongs to the same organization and is currently serving 15 years for criminal intent... He added that he receives tens of requests daily from prisoners, and that he studies each case separately. If he decides to work on one, he writes to the authorities demanding the application of the Constitutional Court’s decision, and in case they refused to enforce the law, this is followed by a case before the Administrative Court... finally Al-Zayyat added that he would not start lawsuits for the assassins of President Sadat, because they will be released next October.
