Case Summary and Outcome

The Court of Administrative Judiciary in Egypt ordered the cancellation of the administrative decision of Sheikh El Azhar prohibiting the publication of three books written by the Plaintiff. El Azhar, the institution responsible for authorizing printing and distribution of Islamic literature, initially refused the Plaintiff’s request for permission to publish abroad his third book in a series.  The Plaintiff then petitioned Sheikh El Azhar, the head of El Azhar, who not only affirmed the refusal on the ground that the books were full of errors that could confuse readers, but also issued a decision to ban all three domestically.  The Court noted that both the Egyptian constitution and Islamic Principles protect and promote freedom of opinion and expression. The Court found that the contents of the books represented the Plaintiff’s opinions and that the ideas neither encroached upon the foundations of Islam nor the fundamentals of Islamic culture. Accordingly, the Court cancelled the contested decision finding it incompatible with the law and the constitution and awarded the Plaintiff 5000 Egyptian pounds in damages.

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Facts

The Plaintiff wrote three books (An opinion on Islamic Thought; Facts of Israa and Meraaj; and Faith and Israa and Meraaj) discussing issues related to Islamic Thought by addressing the incident of Israa and Meraaj – also known as prophet Mohamed’s journey to Al-Aqsa or The Night Journey and Ascension to heaven- which is considered a well-established belief in Islam. He also criticised the opinion adopted by the majority of Islamic scholars about this incident.

The Plaintiff submitted a request to El Azhar for permission to publish one of his books abroad (the third book), but his request was refused. Consequently, the Plaintiff submitted a petition to Shiekh El Azhar clarifying that the book was the third part of a book series, attaching the other two books. After that, Sheikh El Azhar referred the three books to the Islamic Research Academy (Majmaa Albohuth Al Islamia) for review. The latter subsequently issued a report concluding that the first book was full of scientific errors and incorrect conclusions, while the second book failed to adopt a scientific research methodology and included nothing but a distorted superficial chatter, echoed by seculars. Finally, the third book was described as pointless and only seeking to instill confusion in the reader’s mind. Based on that, the Defendant “Sheikh El Azhar” issued a decision prohibiting the publication of the three books.

As a result, on November  17, 1996, the Plaintiff filed the case before the Court of Administrative Judiciary demanding 1) the suspension of the implementation of the decision of Sheikh El Azhar to ban publication of the books; 2) cancellation the decision; and 3) compensation of 100.000 Egyptian Pounds for the moral and physical damages. The Plaintiff argued that the decision of Sheikh Al Azhar failed to comply with the law and violated his constitutionally protected right of freedom of opinion and expression resulting in physical and moral damages.

The Defendant asked the Court to 1) reject the Plaintiff’s demand since the case was filed before the Court after the specified legal period, and 2) dismiss the case based on the report issued by the Islamic Research Academy on behalf of El Azhar as the competent authority to issue the contested administrative decision. The report disapproved most of the ideas tackled in the books for their incompatibility with the well-established opinions of the majority of Islamic scholars.

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Decision Overview

The First Chamber of the Administrative Court issued its ruling on May 20 2003.

There were four main issues before the Court:

1. Whether to dismiss the case on the ground that it was filed after the specified legal period;
2. Whether to suspend the administrative decision by Sheikh El Azhar;
3. Whether to cancel the decision; and
4. Whether to award damages claimed by the Plaintiff.

The Court first rejected the Defendant’s argument that the case was filed after the specified legal time-limit since there was no proof that the Plaintiff had knowledge of the issuance date of the contested decision. Second, the Court rejected the Plaintiff’s demand to urgently suspend the administrative decision of Shiekh El Azhar, which would have acted as an interim injunction.

Before ruling on whether to cancel the decision issued by Sheikh El Azhar and as a legal prerequisite, the Court had to refer the dispute to the Commissioners Department (Commissioner) which first has to look into the case and prepare a non-binding legal opinion before the Court can proceed and examine the case. In the case at hand, the Commissioners Department recommended accepting the case on procedural grounds but dismissing it based on the merits.

Pursuant to receiving the Opinion of the Commissioner, the Court proceeded to hear the case, specifically evaluating the Plaintiff’s requests to cancel the contested decision and for compensation.

The Court founded its decision based on the following provisions:

The Egyptian constitution of 1971:

• Article 47 stipulated that “Freedom of opinion is guaranteed. Everyone has the right to express his opinion and publish it by saying, writing, photographing, or other means of expression within the limits of the law. Self-criticism and constructive criticism are a guarantee of the integrity of the national building”
• Article 49 stated that “The state guarantees to citizens freedom of scientific research and literary, artistic and cultural creativity, and provides the means of encouragement necessary to achieve this”.

Law No. 103/1961 in concern of reorganizing El Azhar and its entities:

• Art (2) stipulated that “El Azhar is the greatest Islamic scientific entity that undertakes to maintain the Islamic heritage, its study and dissemination, and carries faithfulness of the Islamic message for all people. It works to show the truth of Islam and its impact on the development of human beings, the progress of civilization, and the guarantee of security, tranquility and rest of the soul for all people in life and afterlife……….. ”.
• Art (15) stated that “The Islamic Research Academy is the high body of Islamic research. It studies all what is linked to this research and works on renewing Islamic culture, to strip it of curiosity, impurities, and the effects of political fanaticism, and sectarianism, …and clarifying the opinion regarding religious or social problems it finds related to the faith and carries the responsibility of calling for the path of God with wisdom and good advice………..The executive regulations of this law specify the duties of the Islamic Research Academy in detail, which helps to achieve the purpose of its creation”.

The Executive Regulation of El Azhar law:

• Art (38) stipulated that “The department of Islamic research and culture is the technical body of the Islamic Research Academy and the Secretary-General of the academy is its manager”.
• Art (40) stated that “The department of research and publishing will specifically undertake the following: 1) Review the Holy Qur’an and the authorization of its printing and circulation, 2) Examination of Islamic literature and works that address Islam, and express its opinion in respect to its publishing, showing and circulation, following on everything written about Islam inside and outside, and reply on all that may prejudice Islam, ……… 9) Work on disseminating Islamic knowledge through books and Journals”.

On the merits, the Court stated that “the constitutional provisions guarantee the right to express and publish opinions through talking, writing, photography or other means of expression as long as it is within the limitation of the law”. The Court continued by stating that “individuals’ right to express their opinion is not limited to the correctness of this opinion nor should it be in line with the opinion of the majority and doesn’t need to accomplish any benefit”.

The Court further stated that “the abovementioned constitutional trend is based on the fact that the right to express opinion freely is the only way to present it to society and interact with it”. The Court also stated that “this right is the basis of every democratic organization. Therefore, it was necessary not to limit freedom of expression through restrictive legislations or suppressive sanctions”.

Moreover, the Court explicitly commented on the “authority” given to the Islamic Research Academy, especially – inter alia– to review and give opinions on publishing, showing and circulation of Islamic literature and works that address Islam; the Court emphasized that “this authority is restricted by the aligned constitutional principles with Islamic Shari’a in protecting and promoting freedom of expression and opinion”.

Accordingly, the Court elaborated that the books at issue represented merely the Plaintiff’s opinions since the concerning report clarified that the books neither encroached upon the foundations of Islam nor the fundamentals of Islamic culture.

Furthermore, the Court noted that even though the book adopts an opinion that contradicts the view of the majority of Islamic scholars, this still does not amount to a sufficient ground to restrict the Plaintiff’s right to freedom of opinion and expression.

Therefore, the Court held that the report issued by the Islamic Research Academy, which resulted in the rejection of publishing the book(s), was not compatible with the constitutional and legal principles upholding freedom of opinion and expression.

As to the compensation request, the Court stated that the publication ban caused the Plaintiff physical damages on the ground it prevented him from gaining the outcomes of his intellect, and morally, in refusing his intellectual production. Further,  there were damages associated with his litigation to challenge the decision. However, the Court estimated the compensation at 5000 Egyptian Pounds, instead of the 100.000 requested by the Plaintiff, and held that this amount was adequate for reparation for the physical and moral damages.

In conclusion, the Court rendered its judgement cancelling the contested decision and obliging Al Azhar to pay 5000 Egyptian Pounds to the Plaintiff as compensation.

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