Calling All the Statesmen: The (Not) Mubarak Trial

Lama Abu-Odeh

Calling All the Statesmen: The (Not) Mubarak Trial

2017

Abstract

I read the decision that exonerated ex-Minister of Interior of Egypt and his assistants from the charge of giving orders to kill demonstrators textually. Shortcomings known to lawyers and journalists who were following the case about failure of performance on the part either of prosecutors, lawyers, or the judge overseeing the trial are not considered in my reading. You might call it a close reading — specifically, a reading of the rationalizing language used by the judge writing the decision to explain his verdict.

When Egyptian courts sentenced over 1,000 defendants to death in the spring of 2014, and when former President Hosni Mubarak was months earlier acquitted of human rights violations despite decades of documented torture, serious questions arose about the independence of the judiciary. Of all Egyptian institutions, the judiciary’s history of resisting executive interference caused many to believe it to be the least likely to partake in such affronts to individual rights. A closer look, however, reveals that Mubarak’s efforts to curtail judicial independence successfully produced a conservative body whose top echelon supported the law and order narrative that facilitated the generals’ return to rule. As a result, legal reforms are unlikely to come from within the judiciary. This chapter argues that transitional justice did not occur in Egypt following 2011 and stood little chance of occurring for three reasons. First, despite valiant efforts by revolutionary opposition groups that triggered the January 25th uprising, a political transition never materialized. And without a political transition, transitional justice is improbable. Second, a conservative judiciary whose top echelon had been effectively coopted by Mubarak’s centralized executive played a key role in ensuring that no political transition could occur. Finally, the different opposition groups calling for transitional justice, and in effect a political transition, diverged in their expectations of what that entailed. Revolutionary groups including youth activists, labor activists, and progressives called for thick rule of law that would overhaul the legal system substantively, rather than only procedurally. As they chanted “The People Want the Fall of the Regime,” they demanded that government affirmatively improve the lives of Egyptians through distributive justice. In contrast, established secular liberal opposition groups and the Muslim Brotherhood (MB) were satisfied with establishing thin rule of law that enforced procedural protections against everyone, including the political elite. The established opposition was focused on reforming the existing legal system rather than developing new structures to redress decades of political suppression and corruption. In the end, transitional justice proved elusive, denying many Egyptians a remedy for decades of tyranny under Mubarak. In analyzing why the courts failed to meaningfully hold Mubarak era officials accountable, Section I begins by examining rule of law as a contested concept whose definition depends on the proponent’s ideological leanings. Section II proceeds to describe the restraints on Egypt’s judiciary leading up to January 25th which contributed towards its circumspect stance toward the uprising. The executive branch had put in place various structural mechanisms to restrain the judicial leadership from being led by judges acculturated and empowered to uphold the law irrespective of its impact on the executive’s power. Indeed, independent adjudication entailed prohibitively high costs to a judge’s professional and personal life, including unfavorable judicial appointments, disparate disciplining and transfers, and denials of certain promotions. The Judicial Authority Law of 1972 that governs the judiciary coupled with informal coercive tactics incentivize judicial self-censorship and voluntary compliance with executive branch expectations. Finally, Section III examines how Egypt’s judiciary impeded the transitional process through its cooperation with the Supreme Council for the Armed Forces (SCAF) and defiance of Morsi. Specifically, the SCAF’s constitutional declarations and executive decrees were consistently upheld as lawful while the Morsi regime’s actions were heavily scrutinized by a skeptical judiciary with an apparently obstructionist agenda. Indeed, the Supreme Constitutional Court issued decisions clearly aimed at handicapping a president from the long distrusted MB. Although the judiciary is not monolithic, a sufficient number of judges at the helm of a centralized governance structure, coupled with a powerful and politicized prosecutor-general, had vested interests in cooperating with the military-security apparatus to sabotage the young revolutionaries’ reform efforts and prevent any systemic restructuring of the political and economic system.

The January 25th Egyptian revolution was initiated in the public square and defeated in the courts. In the months following the forced resignation of longtime president Hosni Mubarak, a protracted power struggle ensued between a people demanding self-governance and a chronically authoritarian regime. As the various stakeholders within the “deep state” realized their political disadvantage in mass street mobilizations by youth activists and opposition groups, they strategically transferred the conflict to the courts. Cognizant of Mubarak’s success in co-opting significant portions of the judiciary, the military-led interim government trusted the judges to deploy thin notions of rule of law to quash Egyptians’ demands for substantive justice and populist democracy. Thus, an assessment of Egypt’s so-called January 25th Revolution warrants an inquiry into the role that courts played in the retrenchment of a centralized, authoritarian state and what ultimately became a stillborn revolution. In the heady days following Mubarak’s forced resignation, youth activists and the Muslim Brotherhood had few qualms with litigating the revolution. In the 1990s, the judiciary had been the only state institution that dared to check executive powers through rights-protective rulings and public condemnations of fraud in the 2005 parliamentary elections. Indeed, the Egyptian judiciary had a long history of fighting for its independence from executive branch interference such that both secular activists and Muslim Brotherhood supporters viewed it as a liberal institution that would side with their calls for social justice. What transpired since 2011, however, has exposed the fallacy of these assumptions and called into question the liberal underpinnings of Egypt’s judiciary. In the end, the judges’ self-ascribed roles as the guardians of social order and political stability has proven to be more rhetorical than substantive. Accordingly, this article examines how a critical mass of Egyptian judges have strayed from the judiciary’s liberal roots dating back to the 19th century, resulting in the legitimation of the same authoritarian regime but for a new military elite coalition at the helm. Through mass death sentences of Muslim Brotherhood (MB) leaders and alleged supporters, convictions of dissident journalists, and punitive sentences of youth activists for protesting; the judiciary has signaled support for illiberal authoritarian practices that systematically quash personal, political, and legal liberty.

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