As I have said ever since February 11, the January 25 Revolution achieved in 18 days what Egyptian reformists failed to accomplish in 30 years, in spite of all their attempts to promote development and steer Egypt to the age of democracy, rule of law and the respect for universal rights as enshrined in international conventions. I cannot begin to describe how heart- warming and inspiring it was to hear people in revolutionary circles speak of a new constitution and free and fair elections, and then to see Egyptians heading to the polls to cast their vote in a referendum on constitutional amendments I had advocated for years.
However, the revolution's chants for such great ideals as freedom, equality, justice, rule of law, rotation of authority and respect for the majority opinion will remain no more than great historical echoes until they are tested on the ground. That will be the true test of the revolution's success and, moreover, of the faith in its slogans. When push comes to shove, will the revolutionaries prove true to the ideals they espoused? Or will they find it opportune to twist words, skip the fine print or skip the text altogether on the grounds of the injustices that were perpetrated by a former regime and that triggered a revolution whose ultimate aim was to end these ills?
It is impossible, here, to discuss the many demands and issues that were voiced in last Friday's march of millions. But the core issue, which was eventually overshadowed by that day's violent end, was the call for the prosecution of the former president. Of course, Mr. Mubarak has already been tried by the people, but since he had no defense, sentencing was deferred. However, everyone knows that this popular political trial is no substitute for a proper legal trial held in a competent court, which has long been a central demand in Tahrir Square, both before and after the president left for Sharm El-Sheikh.
In fact, the public prosecutor's office has already begun to collect documents and other evidence on the former president's assets and financial transactions. Also, the former president attempted to defend himself through a competent attorney, which is perfectly consistent with the legal and constitutional conventions and provisions that have applied in Egypt from the 1923 Constitution through the 1971 Constitution, all of which agree that a defendant has the right to a lawyer to defend him and guide him through the relevant legal channels. Our most recent constitution devoted its fourth section to the judicial authority. It reads:
"Chapter IV: Sovereignty of Law
Article 64: The Sovereignty of the law is the basis of State rule.
Article 65: The State shall be subject to law. The independence and immunity of the judicature are two basic guarantees to safeguard rights and liberties.
Article 66: Penalty shall be personal. There shall be no crime or penalty except by virtue of the law. No penalty shall be inflicted except by a judicial sentence. Penalty shall be inflicted only for acts committed subsequent to the promulgation of the law prescribing them.
Article 67: Any defendant is innocent until he is proved guilty before a legal court, in which he is granted the right to defend himself. Every person accused of a crime must be provided with counsel for his defense.
Article 68: The right to litigation is inalienable for all, and every citizen has the right to refer to his competent judge. The State shall guarantee the accessibility of the judicature organs to litigants, and the rapidity of statuting on cases. Any provision in the law stipulating the immunity of any act or administrative decision from the control of the judicature shall be prohibited.
Article 69: The right of defense in person or by power of attorney shall be guaranteed. The law shall grant the financially incapable citizens the means to resort to justice and defend their rights.
Article 70: No penal lawsuit shall be sued except by an order from a judicature organ with the exception of cases defined by law.
Article 71: Any person arrested or detained shall be informed forthwith of the reasons for his arrest or his detention. He shall have the right to communicate with whomever he sees fit and inform them of what has taken place and to ask for help in the way organized by law. He must be notified, as soon as possible, of the charges directed against him. Any person may lodge a complaint to the courts against any measure taken to restrict his personal freedom. The Law shall regulate the right of complaint in a manner ensuring a decision regarding it is within a definite period or else release shall be imperative."
The problem, however, is that not only was no attorney available in Tahrir Square, but also, all Egyptian attorneys have refused to defend the former president in a normal court of law. History will not judge this kindly. The duty of a lawyer to defend the accused is as sacred as the Hippocratic oath is to the physician, who is thereby sworn to tend to the ill regardless of whether they are criminals or saints. In all events, unable to find a local lawyer to act in his defense, "the accused" -- former president Mr. Mubarak -- was forced to turn elsewhere and, as we learn from the newspapers, he engaged a team of five British lawyers to do the job.
I am uncertain whether foreign lawyers are permitted in such a case or not. If they are, we can look forward to an international trial par excellence. Audiences around the world will be on the edge their seats, judging the performance of Egyptian lawyers and Egyptian justice in general and gauging the extent to which the Egyptian revolution measures up to the principles of the sovereignty of law and established rights and conventions in legal proceedings. All forthcoming presidential candidates, human rights organizations and political parties, the liberal ones above all, will be put to the test.
Obviously, the first question the lawyers hailing from London will ask is: What laws is the former president to be tried under? The answer, of course, is that his alleged crimes were committed during the efficacy of a permanent constitution with its various amendments. Again, this is the 1971 Constitution, which lays out procedures for prosecuting a president:
"Article 85: Any charge against the President of high treason or of committing a criminal act shall be made upon a proposal by at least one third of the members of the People's Assembly. No impeachment shall be issued except upon the approval of a majority of two-thirds of the Assembly members. The President of the Republic shall be suspended form the exercise of his duties as from the issuance of the impeachment. The Vice-President shall take over the Presidency temporarily until the decision concerning the impeachment is taken. The President of the Republic shall be tried by a special Tribunal set up by law. The law shall also organize the trial procedures and define the penalty. In case he is found guilty, he shall be relieved of his post without prejudice to other penalties."
Clearly, the provisions of this article cannot be applied, because the People's Assembly has been dissolved. There can be no proposal by one third of its members to bring a charge and no approval of two- thirds of its members to issue impeachment proceedings. Therefore, either the trial will have to be put off until a new People's Assembly is voted in or a new law governing the prosecution of former presidents will have to be issued, or the former president will have to be tried as an ordinary citizen in an ordinary court. But prosecuting the president as an ordinary citizen would raise other legal conundrums. Most of Mr. Mubarak's alleged crimes took place when he was serving as president. How can a different law be brought into play on actions that contravened an earlier law that was specifically created to prevent a president from abusing his office, violating the rights of the nation by treasonable acts and violating the rights of the people by criminal acts?
Note that the foregoing only addressed preliminary matters of form. Questions of substance will undoubtedly be equally if not more complex. The revolution's list of charges against the former president is very long. It will require considerable thought and effort to frame these legally in a way that could counter what will most likely be the British defense team's most frequent argument that this or that charge can not, logically at least, be tried in an ordinary court. For example, the abuse of office for personal gain could only have occurred when Mr. Mubarak was president and when the crime would have been in violation of Article 80 of the constitution, which states, "The salary of the President of the Republic shall be fixed by law. Any amendment in the salary shall not be applicable during the presidential term in which such an amendment is decided upon. The President of the Republic may not receive any other salary or remunerations," and Article 81, which states, "During his term of office the President of the Republic may not exercise any free profession or undertake any commercial, financial or industrial activity. Nor may he acquire or take or lease any state property, sell to or exchange with the State any property of his whatsoever."
If Mr. Mubarak is to be tried and condemned for acts in his capacity as president, then the abovementioned constitutional articles must apply. If he is to be tried as an ordinary citizen, then another set of laws, having to do with commercial and industrial gains and activities, come into play and bring us to a different level of litigation. Whatever the case, considerable rational and informed thinking is the order of the day. I imagine that the revolutionaries, and Egyptian lawyers and judges in particular, will be doing quite a bit of this, as will the British counsel of the defense. As the world watches what the sovereignty of law now means in Egypt, the Egyptian people will trust the January revolution to demonstrate the standards of justice that will win the admiration of all, from British lawyers to international public opinion. Let Egyptian justice show its most majestic robes.
Published in AL AHRAM WEEKLY's April 14-20 issue.