The Trial of the Century
Look beyond the cage. The problems facing Hosni Mubarak’s trial lie elsewhere.
In the 1990s, I accompanied a group of U.S. federal judges on a tour of Egypt. We managed to pay a visit to the country’s military court, an institution famous to this day for handling troubling political cases with ruthless dispatch. The American judges were surprised by what they saw — a cage to hold the defendants. Such a thing would never be allowed in an American courtroom; for a jury to see the defendant behind bars would be deeply prejudicial.
They were right to be suspicious, but overlooked the real issues. Egypt has no jury trials. Judges, civilian or military, always see defendants held behind bars, and are hardly swayed. But any Egyptian legal observer could have pointed to the real problems: lack of adequate time to prepare, extremely limited rights of appeal, the absence of most procedural guarantees, and a dubious constitutional basis for military trials of civilians.
With the beginning of former President Hosni Mubarak’s trial on Aug. 3, the world watched as the octogenarian deposed leader appeared stretched out on a hospital bed inside the cage — which he shared with his sons Alaa and Gamal, former Interior Minister Habib al-Adly, and six other defendants — while the presiding judge recited the charges against him. Mubarak, who faces accusations of corruption and ordering the killing of protesters, denied all the charges against him. The spectacle was an odd one — but what is merely different and what is truly troubling?
In a series of conversations with Egyptian judges in June of this year, I found enormous self-confidence that the judiciary will be up to the procedural task of trying Mubarak. But there are two factors that should give even proud Egyptian judges cause for concern.
First, the enormous number of cases of corruption and abuse is daunting. One Egyptian judge remarked that if all cases were pursued at once, one half of the country would be trying the other half. The former president’s case appears to be fast-tracked because of political pressure. This fact is unfortunate in itself — but also worrying because it risks obscuring how much the system is overwhelmed with the mountains of corruption the old system was built upon.
And that leads to the second problem — in very prominent cases, characterized by numerous angry victims and high public passions, some judges I spoke to were uncertain whether the courts could provide a secure atmosphere for the trial. They were less concerned about judges succumbing to mob pressures than the judges and courthouses themselves being mobbed. Hence the unusual venue for today’s session — the highly guarded police academy building. Nevertheless, the clashes outside the academy between Mubarak loyalists and his critics — who repeatedly lobbed stones and bottles at one other before and during the hearing — suggest that the judges’ fears are well-justified. But not all is anarchy. When assessing the credibility of the Egyptian court system, outsiders often need a little guidance on what to look for. The good news is this: Egyptian justice is lumbering but often credible. While the opening session of Mubarak’s trial may have appeared to be a media circus, it in fact had several laudable aspects.
For starters, the trial is being held by the regular judiciary. Indeed, for all the talk of the unprecedented nature of the trial, this is the real novel element. Post-revolutionary regimes have tried former political leaders many times in the Arab world — but never before a regular court of law. What’s more, the president is being tried in accordance with normal laws, not according to some vaguely specified and highly political "revolutionary" decree.
What about the apparent hyper speed of the trial? Or the bouts of shouting, rapid-fire tumble of claims from lawyers, and other strange procedures, which made the courtroom look a bit more like a train station than the set of Perry Mason?
The wheels of Egyptian justice can turn very slowly, though they tend to move much quicker for criminal than civil trials. And, yes, the courtroom scene was a bit unusual, but criminal cases are not handled in a way Americans would immediately recognize — less a discrete trial in which testimony is delivered orally over several days than a series of brief sessions, dispersed over several months, in which papers are filed, motions are made, and judges plow through cases in quick sequence.
Even the looniest element — when an attorney claimed that Mubarak had actually died and it was his double in the courtroom — may simply have been an outlandish version of a standard Egyptian lawyer’s ruse. Anyone wishing to delay a case can often do so by demanding some expert investigation before the trial can proceed. (Generally, the lawyer seeking delay will request something like the authentication of a signature rather than demand a DNA test to prove that the defendant isn’t a doppelgänger, but perhaps in this case the attorney felt the occasion called for something special.)
This is not to say that the Mubarak trial will be an unqualified boon for Egypt’s future. Experts in transitional justice would likely find the Egyptian procedures — and even more the public atmosphere — too focused on justice for the past and not attuned enough to the need for reconciliation in the future. While they would not argue that former leaders should be treated with kid gloves, they would likely privilege truth-telling and accounting over retribution and punishment.
There will be more procedural oddities as Mubarak’s case winds its way forward. Some of the features of the trial that seem strangest will be normal, while elements that are surprising — most notably the use of the regular judiciary — will sometimes escape outsiders’ notice. But for better or worse (and a mixture of both), the trial will simply be a thoroughly Egyptian proceeding.