21 - 27 June 2001
Issue No.539
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Al-Ahram Weekly Online 21 - 27 June 2001 Issue No.539 |
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A question of intent
"Criminal complicity" stipulated in article 48 of the Penal Code was struck down by the Supreme Constitutional Court. But, as Rana Allamreports, an avenue of appeal exists
On 2 June, the Supreme Constitutional Court ruled that Article 48 of the Penal Code is unconstitutional. This article can be invoked to penalise anyone entering into an agreement with one or more persons to commit a felony or a misdemeanour. Complicity to commit a felony is punishable by between three and 15 years imprisonment; complicity to commit a misdemeanour is punishable by up to three years behind bars. Article 48 also penalises anybody who agrees to facilitate or be involved in the planning of a crime.
The ruling has been welcomed by some legal experts and opposed by others. If the prosecutor-general implements the ruling, those who were convicted and imprisoned on the basis of Article 48 will be released. However, the prosecutor- general also has the option to send the ruling back to the Constitutional Court, asking that it be re-examined.
"When the Constitutional Court rules against any penal provision, all court rulings based on it are annulled," said Fathi Ragab, deputy-chairman of the Shura Council's Legal Committee.
Fawzia Abdel-Sattar, a law professor and former chairperson of the Legislative Committee of the People's Assembly, is opposed to the ruling. "Article 48 serves as a first-line defence against criminals. It stops many crimes before they are actually committed," she said.
Abdel-Sattar's interpretation of the article is that it was not directed towards penalising people on the basis of their intentions. "However, when intent becomes an agreement to commit a crime, it should be considered a crime," she argued.
On the other hand, Mohamed El- Guindi, chairman of the Permanent Penal Legislation Committee at the Ministry of Justice, believes that "this article punishes people for their intentions, not their actions." He explained that Article 48 was originally intended to combat "political crimes, but its application was expanded," to include other crimes.
Although Ragab believes that the Constitutional Court's ruling is an unprecedented step, El-Guindi says that "it will have no serious consequences because there are other articles in the Penal Code that cover criminal complicity."
Justice Minister Farouk Seif El-Nasr has asked the ministry's Permanent Penal Legislation Committee to study the consequences of the ruling and "fill the void, if there is any." The committee has been directed to come up with a new article that avoids the ambiguities of Article 48.
But, in fact, the ball is in the prosecutor-general's court. He can ask the Constitutional Court to re-consider the ruling or he can go ahead and order the release of all those convicted on the basis of Article 48 that has been declared unconstitutional. "We are still studying the situation and have not yet decided on our next move," said Adel El-Said, an aide to the prosecutor-general.
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