Will the trial of Mubarak underline that no one is above the law, or will it degenerate into a thirst for vengeance at any cost, asks Abdel-Moneim Said
Former president Hosni Mubarak is now scheduled to face trial at the Police Academy in Cairo. Whether his health allows him to appear in court or not, he is already on trial in the court of history. This, in a way, was his choice. He didn't flee the country in the days that followed the revolution, when he would have been allowed -- if not encouraged -- to do so. To run away, he must have concluded, would have amounted to an implicit admission of guilt. Instead, he checked into a first class hospital, one in which he knew he would be well treated. He was given the chance to leave and instead he decided to stay. The decision he took led to him, and his two sons, facing trial.
I recall having several meetings with someone quite close to Mubarak, during which we discussed the matter of the "bequest" of power, as well as the fact that the president had been in power for over 30 years. The answer I got from that person was that the president was a soldier and that soldiers don't run away from battle. It wasn't a good argument, for Mubarak's health was deteriorating and people around him were taking advantage of this fact. And yet I was told that the man was patriotic, concerned to do what is right, and would bow out of the political scene at the right time. I was told that he was having regular check-ups and would retire if his health no longer allowed him to go on.
The outcome of such reasoning has proved to be dire. Mubarak's biggest mistake was that he stayed for 30 years in power. And for the past five years of these he gradually allowed his aides to grab the reins. Lacking political insight, those aides couldn't fill the power vacuum that ensued. Instead, they formed a so-called "circle of fire" around the president, keeping him in isolation and warning others to stay away.
Mubarak held on to power until he fell victim to it. He ended up being a prisoner of a clique that kept him in the dark. Consequently, he failed to realise what was going on in the country even in the middle of a full-fledged revolution. When Hossam Badrawi, secretary-general of the now defunct National Democratic Party, finally had a face-to-face meeting with Mubarak on Wednesday, 9 February, he addressed the president in English: "Mr President, you're facing a situation not unlike that of Ceausescu in Romania." The president, obviously baffled, replied in English: "Is it that bad?"
Two days later, Mubarak stepped down. Six months later he faces a trial, which is likely to be both legal and political.
From a purely legal perspective, Mubarak has two points in his favour. One is that a presidential decree passed by president Anwar El-Sadat stipulates that once Mubarak steps down from the presidency he is immediately considered a member of the Air Force with the rank of colonel general. This means that he should be tried before a military rather than a civilian court. In turn, this means that the case against him will have to be put together from scratch.
The other point is that at the time Mubarak committed the crimes for which he is being tried -- profiteering, financial corruption, and ordering demonstrators shot -- he was president of the republic. Under Article 85 of the 1971 constitution, a president accused of high treason or criminal offences should be tried by the People's Assembly, not a regular court of law.
Legal experts have argued, however, that Article 85 doesn't apply now that the president has resigned and with the constitution suspended. Mubarak, accordingly, is a regular citizen subject to ordinary law. The problem here, other experts say, is that laws cannot be enforced retroactively, and people cannot be tried under laws introduced following the commitment of the crime. A bit of legal wrangling is therefore to be expected in connection with this particular trial.
More importantly, the trial is likely to bring Egypt's judiciary face-to-face with local and foreign media and legal experts. Considering that everyone involved in the revolution wants Mubarak and his regime to be found guilty, the court may find itself under pressure. Egyptian and Arab media, and people taking part in million man protests are unlikely to abandon their interest in the case.
In addition, revelations made at the court may involve disclosures and testimonies that some officials want to keep classified for the sake of national security. But the trial is starting soon, and there is no going back now.
This is all so new to Egypt, indeed to the entire region. Over the past two centuries, since the creation of modern Egypt, our rulers have tended to die, get killed, or be sent into exile. Mohamed Ali remained in power until he developed a serious case of Alzheimer's was replaced during his lifetime with Ibrahim, his son. Abbas Helmi I was murdered in his palace, allegedly by his servants, in mysterious circumstances. Said Pasha died in bed. Khedive Ismail died in exile; so did Abbas Helmi II. Khedive Tawfiq and King Fouad died in bed. King Farouk abdicated and was given a 21-gun salute by navy units as he sailed away.
In republican times, Gamal Abdel-Nasser died, El-Sadat was assassinated, and now Mubarak is facing trial. Is this a sign that no one will be above the law in this country from now on? Or is it a sign that the Arab Spring is developing an appetite for vengeance? Soon enough we will know.