State Council

State Council
Administrative Court of Justice
First Circuit
In the hearing held in public on Tuesday 13/5/2008;
Chaired by the judge/ Muhammad Ahmed Al Husseiny (deputy chairman of State Council and head of the Administrative Court of Justice);
Along with the members/ Ahmed Muhammad Al Shazli (deputy chairman of the State Council), and Magdi Mahmoud Al Agroudi (deputy chairman of the State Council);
And with the presence of the judge/ Ahmed Ahmed Abdel Fatah (state commissioner);
And the secretary/ Sami Abdullah (secretariat);
The court decided the following;
In the lawsuit No 15844/61 Judicially;
Lodged by the plaintiff Samir Sabry Saad el Din;
Versus
1)Minister of Interior (in his capacity);
2)Mrs. Nawal Al Sa'dawy;
3)Prosecutor-General in his capacity as a party requested to be joined the case;
4)Sheikh of Al Azhr in his capacity as a party requested to be joined the case;
5)Khaled Ali Omar (joining the side of the second defendant).

Facts:
On March 3, 2007 the plaintiff lodged the current lawsuit asking the court to accept reviewing the case, suspend the implementation as well as canceling the negative decision of the third defendant (Prosecutor-General) that desisted from capturing the second defendant Nawal Al Sa'dawi upon her arrival from abroad, drop the Egyptian nationality of Sa'dawi for allegedly spreading debauchery and corruption in the country, and finally obligate the second defendant with paying expenses of litigation along with implementing the judgment in its original draft without notification.

Explaining and interpreting his lawsuit, the plaintiff said in the course of 2007 the second defendant published a play titled "the God Tenders His Resignation in the Summit" from which the plaintiff quoted some lines that allegedly insulted God, revealed religions and Kuran. The play had been discussed by the members of Islamic Research Complex who decided recalling the play from bookstores and forbidding its circulation. The plaintiff had submitted a communiqué to the Prosecutor-General against the second defendant for committing the crime of religion contempt and though this act is a legally punishable crime, as the plaintiff argued, the Prosecutor-General didn't issue a decision for arresting her upon her arrival from abroad in order to be interrogated in regard to the communiqué filed against her from Sheikh of Al Azhr. The decision to be issued by the Prosecutor-general, which he didn't, that enrolls the defendant's name in the blacklist of arrival alert, lies within the mandate of the Public Prosecutor's Office. Though this mandate is not explicitly mentioned by law, it has been based on articles (8, 11) of the law 79/1959 which authorize the minister of interior the right to grant, forbid or suspend passports and his right to enroll the suspect's name in the blacklist of those forbidden from flight abroad or to be captured upon their arrival. Since the Prosecutor-General didn't issue an order, which lay within his capacity, for capturing the second defendant upon her arrival to open interrogation in the communiqué submitted by the sheikh of Al Azhr, therefore his decision not to issue an order constitutes a negative decision. According to the law, the Prosecutor-General has to be abided by issuing an order. On the other hand, the public interest entails dropping the Egyptian nationality of the second defendant for insulting Islam and the God. Based on these facts, the plaintiff demanded the two abovementioned claims to be judicially judged.

A hearing dated 8/5/2007 was determined for reviewing the case for which the plaintiff submitted five portfolios included some essays criticizing the play written by the second defendant "the God Tenders His Resignation in the Summit". In the following two hearings dated 19/6/2007 and 4/12/2007, the plaintiff submitted two memorandums demanding a ruling to be handed down for both demands. A lawyer called Khaled Omar had requested joining the second defendant in her defense. The one who represented Al Azhr submitted two portfolios on 14/6/2007 that purported for forbidding the above-mentioned play from publication and circulation by the Islamic Research Complex. In addition, the two portfolios said that the Islamic Research Complex had no copy of the play to return back to the security apparatus which asked for the Islamic opinion on this play. Further, it has no copy of the illuminating photograph of the Egyptian fatwa house dated 14/2/2007 that asked for the opinion of sheikh Ibrahim Ata Al Fayoumi, the general secretary of the Islamic Research Complex, after reviewing the book "the God Tenders His Resignation in the Summit", which contains 113 pages. The lawyer representing the state submitted a defense memorandum in 22/1/2008 hearing in which he requested dismissing the case totally and abiding the plaintiff with costs, since it was filed in a way contrary to the law as well as the absence of the administrative decision. The lawyer of the second defendant submitted a memorandum in which he requested dismissing the case since it was filed by someone who has no capacity or interest and abiding the plaintiff with costs. The interposing lawyer who joined the second defendant submitted a memorandum in which he requested dismissing the case for the absence of an administrative decision. He also demanded, for precaution reasons, the case to be dismissed for the following reasons:
1) The suitcase had been filed prematurely;
2) The administrative body's commission is null and void;

In 22/1/2008 session the court decided to hand down the verdict in 18/3/2008 session in which the court adjourned the verdict until today's session to complete conference and exchanging opinions. The verdict had been handed down and the draft containing the ruling reasons was settled.

(The Court)
After reading papers, listening to interpretations and explanations and legally conferring each other;
And since the plaintiff has requested ruling the following:
First: the court to accept reviewing the case, suspends the implementation as well as canceling the negative decision of the third defendant (Prosecutor-General) who desisted from capturing the second defendant Nawal Al Sa'dawi upon her arrival from abroad;
Second: the court to drop the Egyptian nationality of Sa'dawi for allegedly spreading debauchery and corruption in the country, and finally obligating the second defendant with expenses of litigation along with implementing the judgment in its original draft without notification.
Since the case was conferred and the lawyers delivered their speeches as mentioned before;
Concerning the request for joining the second defendant's defense submitted by Khaled Omar, the article 126 of Procedure Law provides that "to whom who may interest he may interpose joining one of the parties to the case or joining the case as an independent party. The interposition shall be conducted either by usual procedures or by submitting an oral request to be confirmed in the minutes";
The prerequisite for interposition is the existence of a connection linking the interposition requests and the case's demands. The vision of this court is consistent with the judgment of the Supreme Administrative Court in which the court said, though, the interest should be a direct personal interest, in the case of abolishment the condition of interest is expanded in all abolishment cases in which the one who filed it enjoys a special legal status in terms of the challenged decision.
(The ruling of the Administrative Court of Justice in case No 7691/55 judicially, session 4/3/2008, and the ruling of the Supreme Administrative Court in the challenges No 16834, 18971/52 judicially, session 16/12/2006);

Since the lawyer who interposed joining the second defendant Nawal Al Sa'dawy has shown in his memorandum, submitted in 4/12/2007 hearing, that the aim for joining Al Sa'dawy's side has come as an Egyptian citizen believing in the capabilities of the second defendant as one of the most important thinkers who raise controversy and debate around rights and liberties. His memorandum has also shown that allowing the first defendant, minister of interior, to drop or suspend the second defendant's nationality is deemed an encroachment on her rights for merely disagreeing with her over opinions and that the freedom of Al Sa'dawy to express her opinions without chasing her for punishment. As shown above, the interest of the lawyer joining the second defendant is a serious interest as an Egyptian interested in human rights and freedom of thought, a matter that makes his request to join the second defendant has completed the formal and procedural conditions, and therefore, the court accepts his interposition.
Since the lawsuit has been completed in terms of the formal and procedural conditions, so it is accepted in terms of the form;
Since the request of suspending the implementation of the challenged decision, it has been judicially settled that to accept this procedure is to have two folds:
First: seriousness: the claim is to be based on a serious pillar.
Second: urgency: when implementing the challenged decision will lead to unresolved results.
For the first plaintiff's request related to suspending the negative implementation of the negative decision which means the third defendant's desisting from issuing an order that enrolls the second defendant's name in the blacklists of those to arrive the Egyptian soil, the seriousness fold in this request is to be consistent with the verdicts of administrative justice at the head of it the Supreme Administrative Court which provided that every administrative decision shall be based on a justifiable reason, i.e. the existence of a real or legal case that makes the administration intervenes to issue an administrative decision. Needless to say, the justifiable reason in the administrative decision is more necessary in the decisions that limit the citizens' personal freedoms, including forbidding citizens from flight abroad or enrolling their names in blacklists for capturing them upon arrival, is the narrow exception to the original rule that has to be prevailed in consistent with the law and constitution (see the ruling of the Supreme Administrative Court in the challenge No 1550/33 judicially, session 24/11/1990).

According to the interior minister's decree 2214/1994 issued on March 5, 1994 concerning the regulation of the forbidden lists, article 1 provides that since the issue is related to the citizens' personal freedom, (forbidding from traveling abroad or enrolling the comers in blacklists to capture them upon their arrival), the bodies authorized to ask for enrolling a name in the forbidden lists, among them the Prosecutor-general, have to file their demand by the body's head. Due to the impact of this measure on restricting citizen's freedom, the whole process has to be under investigations conducted by the Public Prosecutor's Office, which requires the one under investigations to be forbidden or captured upon arrival. The citizen's right to travel from and to their homeland has become not only a right secured by the constitution (articles 50 and 51), but also has become a universal right enshrined in the Universal Declaration of Human Rights, adopted and proclaimed by united nations general assembly resolution of 10 December 1948, in which article 13 provided that:
1)Everyone has the right to freedom of movement and residence within the borders of each state.
2)Everyone has the right to leave any country, including his own, and to return to his country.
This meaning has been confirmed by the International Covenant on Civil and Political Rights signed by Egypt in August 1967 in which the Covenant said everyone lawfully within the territory of a state shall, within that territory, have the right to liberty of movement and freedom to choose his residence; everyone shall be free to leave any country, including his own; no one shall be arbitrarily deprived of the right to enter his own country. Therefore, as long as the investigation authorities didn't order enrolling a person in forbidden lists or arrival waiting for investigation process, anyone has the right to leave his country and to return to his country at any time. This fundamental right shall not be subjected to any restrictions except those which are provided by law.

The above-mentioned facts and documents show that the plaintiff claims for obligating the Prosecutor-General to order enrolling the name of the second defendant Nawal Al Sa'dawy in arrival lists for authoring a play titled "the God Tenders His Resignation in the Summit" in which the author did insult the God and the constants of Islamic religion. From papers, it was transcribed that a report was filed against printing this play on January 1, 2007 and referred to the Supreme State Security Prosecution which decided on the report 23/2007 and released the publishers Ra'fat Ali Al Sayed Al Toghy and Abdel Fatah Salem Abdel Fatah from prosecutor office along with returning the report to Kerdasa police center for re-registration. Further, the Islamic Research Complex decided to forbid the book from publication and circulation. Therefore, the Prosecutor-General is not abided, as the head of public prosecutor's office, to issue a decision forbidding from travel or enrolling on arrival lists because there was no justifiable reason after the state security prosecution released the play's publisher, not to mention that the papers show that the investigations didn't include any charges of insulting God or contempt for religions. Since the plaintiff's claims lack seriousness, therefore, the claim is refused without any need to research the urgency fold.

Concerning the plaintiff's second request related to suspending the implementation of the negative decision that made the first defendant (interior minister) desists from dropping the Egyptian nationality of the second defendant Nawal Al Sa'dawy for allegedly spreading corruption and disturbance nationwide by her books. Article 16 of law 26/1975 concerning Egyptian nationality had specified once and for all the conditions of dropping nationality: if the person gained nationality of other country in contrary to laws' provisions; if the person go on military service for foreign country without prior permit from the Egyptian relevant bodies; if the person works for a country in belligerent operations with Egypt or has cut diplomatic relations with Egypt in a way that jeopardizes Egypt's military, diplomatic or economic interests or jeopardizes the national interest. The case in our hands has nothing to do with all the above-mentioned conditions. The court confirms that holding opinions and expressing them in a shape of a cultural creativity is deemed a free and conscience position that addresses colors of arts undertaken by the creator and spread to others in a way that enrich nations' life and work for changing lifestyle. All cultural creativity works for improving people's minds through discussing and arguing and activating thoughts, this creativity doesn't in any way separate from cultural legacy, customs and ideals and can't be an axe of destruction. Regardless of the kind of thoughts posed by the second defendant Nawal Al Sa'dawy and their controversial manner that divided her readers into two camps, one camp considers her creative work as part of the freedom of expression and the other one considers her work as a destructive tool leads to moral corruption and distorting creeds and values. Despite all this, the flying thoughts and visions of the second defendant can't be a reason to drop her nationality since her act doesn't fall within the scope of the abovementioned conditions. After ruling on the criminal fold, the two camps can discuss together her ideas within the scope of freedom of opinion upheld in the constitution. Finally, the issue of nationality is a link of loyalty and affiliation between the individual and his homeland and can't be confined to a material link that secures the citizen a place in his own country, but rather it is a moral link that nobody except the relevant authorities can limit with the purpose of protecting the citizen's rights, personality, and duties.

Draw on the above-mentioned facts, the challenge against the administrative body's negative decision, i.e. desisting from dropping the Egyptian nationality of the second defendant lacks the right base in reality and law and lacks the seriousness condition. Therefore, the plaintiff's request has been turned down without the need to review the urgency condition.

Under article 184 of Procedural Law the loser of the suitcase is the one who has to pay the costs.

For all these reasons,
The court decided the following: accepting the interposition of Khaled Omer joining the second defendant, accepting the lawsuit formally and turning down the plaintiff's request for suspending the implementation of the challenged decisions for the reasons mentioned earlier, the plaintiff shall pay the costs concerning the urgency fold of the lawsuit, and finally referring the suitcase to the State Commissioners Body for preparing a report holding the legal opinion concerning the suitcase's subject.