Save the Judiciary, Save the Revolution


By Moataz El Fegiery

The appearance of Hosni Mubarak in the opening of his trial this week reassured millions of Egyptians that their revolutionary struggle was not in vain. But the truth about Mubarak’s ability to participate in his trial is still unclear. It is unusual for a defendant to appear in court on a stretcher—a defendant’s health is either good enough for him to stand trial or not. With the public doubting the court’s seriousness, Mubarak’s appearance could have been a political decision aimed at boosting confidence. If this is the case, the judiciary risks appearing politicized in the eyes of Egyptians.

Domestic trials to address crimes of past regimes in transitional societies almost always face major challenges, especially when political transformation is still underway and vetting of state institutions is not complete, as is the case in Egypt. The desire to seek justice early is understandable given the gravity of alleged crimes, yet the rush to get trials underway could bring undesired results.

Judiciary Challenges

Human rights organizations, lawyers, judges, and families of victims have expressed doubts about investigations carried out by the general prosecutor since Mubarak’s downfall. This can be attributed to a number of factors, not least that Mubarak himself appointed the prosecutor overseeing inquiries before leaving power. Under Mubarak’s rule, the prosecutor’s office was regularly criticized for being used as a tool to silence opposition. According to human rights activists, the office was complicit with the policy of impunity.

Investigations are also affected by the continued abuse of power by the police, which still has not undergone a serious vetting process, despite the interior minister’s measures aimed at changing its image. Human rights organizations have discovered numerous cases of witnesses and relatives of victims being pressured by police officers accused of killing protesters to change their statements, or to prevent them from filing complaints.

Egyptian society suffers from a growing discourse of political vengeance and popular pressure on judges to expedite trials. The public demand to accelerate judicial procedures is understandable given the gravity of violations, the lack of transparency in prosecution strategy, and the big hurdles to victim participation. But the demand to expedite trials does not take into consideration guarantees granted to the defense nor the complicated nature of investigating this magnitude of political and economic crimes. It is hard to imagine a thorough professional investigation into such grave abuses in these circumstances.

Nonetheless, the judiciary must be able to work calmly to ensure a sound process, and to accomplish justice that is not vengeful. Justice and the rule of law were at the heart of the Egyptian revolution. If Egyptians want to break with the past they must encourage a fair judicial process. Moreover, trials will constitute a historical documentation of the transition period. Thus, a fair and careful process is in the interest of present and future generations.

The Egyptian judiciary is not accustomed to communicating with the public and the media. The attempts at providing details and procedures therefore feed speculation and rumors about inquiries and trials. Despite the importance of some steps recently taken by the Supreme Judicial Council to make trials public and ensure victim participation, other outreach measures are still needed to mend the bridge of confidence with the public.

The Absence of Strategy

Mubarak’s trial cannot be seen as part of a comprehensive strategic framework to address violations of the past regime. Most reformative steps taken by the transitional government have been in reaction to public pressure, rather than based on a clear strategy that would attend to the various challenges of the transition.

Inquiries and charges pressed against members of the former regime thus far have not gone beyond crimes that occurred during the 18 days of the Egyptian revolution. There has been no effort to draw a picture of Egypt’s decades of repression and the rights of those victimized by it.

Local and international human rights organizations and UN human rights bodies have been documenting human rights violations in Egypt, including in the framework of combating terrorism, such as torture, extrajudicial killing, long-term arbitrary detention, and forced disappearance. So far there seems to be no political will to investigate these crimes and hold perpetrators accountable despite calls from civil society to address these violations.

Achieving justice and accountability has contributed to bringing together other societies torn by conflict and authoritarianism. It is not a panacea to all of a society’s problems, but it can help society express its past grievances and re-establish trust in state institutions—two necessary pieces in moving to a more open society. The political moment in Egypt can be built upon to strengthen the rule of law and human rights. Trials of the symbols of the former regime, with Mubarak at their head, might give impetus in that direction. Nevertheless, if the challenges threatening the integrity of these trials are not addressed, the course of criminal trials may seriously undermine the transition, as well as the people’s confidence in the judiciary.

Moataz El Fegiery is Deputy Director Director of International Center for Transitional Justice's MENA Program.

This article appeared in Ahram Online and Al Jazeera.

Photo: August 4, 2011 - A screen erected outside the Cairo Criminal Court shows the trial of former interior minister Habib al-Adly. Marwan Naamani/AFP/Getty Images