A tale of two trials in Egypt

Cairo, Egypt - Few legal systems could easily cope with the trial of one ex-president, let alone two. But in Egypt four separate trials are underway involving Hosni Mubarak, and in the coming days his successor Mohamed Morsi is expected to appear in court on a variety of charges as well.

This takes place against the backdrop of  a justice system that can appear as inscrutable as the Sphinx.

Stripped to its bare elements it all seems quite straightforward. In major criminal cases the prosecutor general’s office will investigate, draw up charges and present them before a court. The defense lawyers will draft their rebuttal in reply. The judges will then rule in terms of the papers before them. It is a cherished principle of the justice system that the judge’s decision is determined by the written argument presented, not by any personal belief.

That’s the system in theory -- one that is equitable, transparent and protective of the rights of all.

In practice, though, there are many variables -- not least the role played by the prosecutor general, and the vigor with which he approaches the investigation and trial.

In Mubarak's case, for example, the then-Prosecutor General Abdel Meguid Mahmoud was seen as slow in even beginning an investigation. It was only two months after Mubarak’s fall from power that any formal investigation got underway, and it came only in response to mass public protests demanding that justice be done.

When charges were finally formulated and presented to the court, there appeared to be significant gaps in the quality of evidence offered. Some state records had segments removed, and CDs with records of conversations among state and security officials at the time of the revolution were mysteriously wiped. While there was popular celebration when Mubarak was sentenced to life imprisonment, some independent legal observers expressed surprise that the court found sufficient basis for conviction in what many viewed as a shoddy and incompetent prosecution case.

It was no surprise to these legal experts when the decision was struck aside on appeal, and a retrial was ordered. Significantly that decision was welcomed by a new prosecution team, as well as by the defense. A new prosecutor general, appointed by the Morsi government, stated publically that the full truth of what happened could now be revealed in court.

The specific charges of the new trial that resumes on Sunday allege that Mubarak was complicit in the deaths of civilians during the revolution that removed him from power, and that he profited illegally from a gas deal signed with neighboring Israel. The two strangely different cases -- focusing on both alleged corruption and political violence -- are once again entwined, as they were in the original case.

There are also three other separate legal proceedings against Mubarak still underway involving corruption charges.

As the Mubarak trial resumes, the trial of men that opposed him vehemently for decades was set to begin. Six leaders of the Muslim Brotherhood, including the movement’s General Guide Mohamed Badie, were to appear in court. In this case yet another new prosecutor general, appointed by the interim government, has acted with considerable speed and vigor.

Yet on Sunday, the court adjourned the proceedings until Oct. 29, saying the defendants were unable to appear because of unspecified security reasons.

A spokesman for the prosecutor, Hisham Barakat, said earlier: "Investigations revealed the availability of evidence that the accused committed murder and attempted murder of citizens before the Guidance Office."

This relates to the violence that occurred during mass protests outside the offices of the Muslim Brotherhood in Cairo after the military deposed the elected government. Further charges are likely to be introduced as the trial continues.

The investigation into crimes allegedly committed by the deposed President Morsi is continuing. There is no indication of when he will appear in court -- and unlike his former colleagues in the Muslim Brotherhood, it is widely believed that he is in military rather than police detention at a location that remains unknown.

The public prosecutor’s office, however, has been outspoken about developments in the Morsi investigation.

In addition to being subject to the same charges being brought against the Muslim Brotherhood leaders, he is also likely to be formally accused of murder and conspiracy charges relating to his escape from prison during the 2011 revolution and events that followed.

It is in this that the trials of the two ex-presidents may become entwined.

It is entirely possible that the defence lawyers in the Mubarak trial will argue that it is not their client who was responsible for the deaths of civilians, but the man who ultimately replaced him as president.

The thrust of the allegations, according to prosecution sources, is that Morsi and what were then his Muslim Brotherhood colleagues were part of a conspiracy that directly resulted in civilian deaths during the 2011 revolution, as well as in recent weeks.

Ultimately, however, the prosecutor general can only investigate, draw up the charges, and present them to the court. It is then up to the judges to decide on the outcome.

This is the other variable in what is, on the face of it, a simple justice system. Egypt’s judges were clearly less than enamored by moves to reform the judicial system in the one year that the Morsi government was in power. The proposal that judges’ retirement age be reduced from 70 to 60 was just one point of major differences between the executive and judicial arms of the government.

The powerful Cairo Judges Club says as many as 90 percent of the country’s judges refused to supervise the constitutional referendum held in December last year. This was as much a protest against the government that drew it up as against the contents of the document.

When the Mubarak regime was at the height of its power, the country’s judges were regarded, in the words of one Egyptian who wishes to remain anonymous, "the last bastion of decency in Egypt."

Few would agree with that description now -- particularly given what many regard as the intense politicization of the judicial system during the last of the Mubarak years, and the more recent post-revolution period.

Add to this the fact that the newly appointed interim president was for decades a highly respected member of the close judicial fraternity. Ironically, Adly Mansour was appointed as head of the Constitutional Court by Mohamed Morsi, though he only served in that position for two days before being appointed acting president.

For many people, all these factors cast doubt on the principle that an Egyptian judge will rule only on the evidence presented before the court, and that his emotions and personal opinions will be held in check during judgment and sentencing.

And as legal proceedings against the presidents and their allies continue, it is clear that the judicial system as a whole is also on trial.