Sunday,17 February, 2019
Current issue | Issue 1230, (22 - 28 January 2015)
Sunday,17 February, 2019
Issue 1230, (22 - 28 January 2015)

Ahram Weekly

Presidential trials and the rule of law

Despite widespread disappointment with the acquittal of Hosni Mubarak, it remains a victory for the principle of the rule of law, writes Azmi Ashour

Al-Ahram Weekly

The verdict acquitting former president Hosni Mubarak of a number of charges brought against him following the 25 January Revolution triggered widespread controversy in Egypt. In revolutionary circles the ruling came as a stunning blow, in view of the many who had paid with their lives for the sake of this revolution.

Those who rejoiced at the verdict had opposed the revolution and sympathised with the ousted president during his imprisonment. This body of opinion is not small, as could be seen at various phases of the interplay during the interim period.

In between these two sides there emerged some edifying facts. One of the most salient is that Egyptian society is multifaceted and complex. No outward phenomena can express its essential composition. It is difficult to read its deeper structures from the perspective of any one political faction or movement.

Perhaps the illusion that this was possible accounts for the shocks received by those who believed they held the keys to this society. Mubarak and his regime were fooled by its amazing composition and met a rude awakening when that society rose up and overthrew them.

By the same token, the Muslim Brotherhood, which came to power through the polls, forgot or turned a blind eye to the fact that in the electoral match they had just won they had barely managed to come out ahead of Ahmed Shafiq, the candidate of the pre-revolutionary regime and a symbol of the Mubarak era.

That near tie was, in itself, a prime indicator of the complexity of this society, a very large segment of which, in spite of the revolution, grew favourably inclined towards the old regime as soon as the Muslim Brotherhood reached power. This was because of the Muslim Brothers’ excessive muscle flexing, out of an apparent belief that through demagoguery and mass rallies they could cow society into submission.

Moreover, once Mohamed Morsi turned to his organisation to mobilise support for him in a provocative manner another layer of society revealed itself. This one, which had not surfaced during the first waves of the revolution, became the main cause of the overthrow of Muslim Brotherhood rule.

What is most striking about the diversified composition of Egyptian society is that it defies all moulds. It is not the property of the revolutionary groups whose thinking stopped after the first 18 days of the January Revolution. It refused to yield to the Islamists whose ideology had them believe that they were divinely ordained to press the whole of society into submission to their superficial ideas.

The past four years have throw into relief those dormant layers of society, largely occupied by the Egyptian middle class, which is associated with a desire for stability, in contrast with revolutionary elements, which are given to radical action, and with working classes, that rebelled due to economic and social circumstances.

Nevertheless, these segments of society as a whole were able to absorb the shocks of the two revolutionary waves of the past four years, together with the economic instability, the growth in violence and the spread of terrorism. In light of this, the prosecution of two former presidents — Mubarak and Morsi — represents a major gain for society and supports a rationalisation of the Egyptian revolution.

For two former presidents to be brought before the judiciary is a precedent of major proportions for a society accustomed to heads of state who only leave office under one of two circumstances: natural death or assassination. The question now is whether the acquittal of Mubarak is a mockery of justice, or a victory for justice.

Mubarak ruled for more than 30 years. The negative aspects of his regime ultimately precipitated the revolution that overthrew it. One of the positive outcomes of the revolution was the prosecution of the former president on a number of charges, most notably those pertaining to his role in the killing of demonstrators.

On the basis of these charges, he was put in jail where he remained for three years; 65 court sessions were convened in his trials during this period. Then the court delivered its final verdict, which was to acquit him of all charges due to the lack of evidence proving that he had incited or ordered the killing of demonstrators.

The ruling flew in the face of a considerable segment of public opinion, which held that Mubarak should have been sentenced to death or life imprisonment. The question here is what would best serve justice: championing public opinion on this case, or following customary judicial procedure, even if the processes of law are ultimately prejudicial to those in the right?

As a general rule, the essence of serving justice through the courts entails the presentation of evidence and argumentation on the basis of the evidence submitted. It would be an affront to justice to condemn a defendant accused of murder on the basis of assumptions unsubstantiated by concrete proof. This is the crux of the matter in the “trial of the century” in which Mubarak was the defendant.

As president he was implicitly responsible for many ills and tragedies, including massacres of demonstrators. However, in order to serve justice the judge needed actual proof and that was not forthcoming, according to the justification of the acquittal verdict that was published in the Egyptian press.

The fault for this could lie with the public prosecutor’s office, which was not exacting enough in corroborating the charges it filed. Other factors may also have been involved in the lack of sufficient evidence. Regardless of the cause, in the end a judge can only issue a ruling on the basis of what has been presented to him, even if a large segment of the public is shocked and dismayed by the verdict.

This leads us to the second positive outcome: progress in the rationalisation of the concept of law in Egyptian society at large. This entails relying on evidence and logical proof, instead of mere suspicion, before hurling accusations. It is a culture that requires practice and familiarisation, especially after a period in a revolutionary climate in which facts are often mixed with fiction.

The question here is not that Mubarak — in the case of the deaths of demonstrators — is found innocent while some revolutionaries are now in prison, but rather how to establish the general rule of justice, which holds that verdicts must be based on the existence of evidence and logical proofs. The victory of this rule is the best guarantee that justice will be served impartially, even if some innocent get hurt.

The procedural process that was followed in these trials constituted a true gain for Egypt. Had the fate that Gaddafi met in Libya been visited on Mubarak and Morsi we would have plunged into the maelstrom of the jungle. Instead, the rule of law prevailed. Regardless of whether or not we agree with the verdict that acquitted Mubarak of a number of charges, we have set a major precedent for Egypt and Arab societies in general.

It is an experience upon which we can build in the event of the need to try any other president in the future. However, in order to be able to build on this we need to introduce some necessary legislation, the absence of which contributed to a major flaw in the Mubarak trial. The required legislation will make it possible to bring a ruler to account politically.

That Egyptian law has lacked such important provisions until now may be understandable, as the circumstances had never arisen to call attention to the gap. Now that the precedent of bringing a president to trial has occurred, we need to round out the system of criminal justice with a system for political justice.

The writer is managing editor of the quarterly journal Al-Demoqrateya, published by Al-Ahram.

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