Post-Revolutionary Trials for Corruption in Egypt and Elsewhere in the Arab World: Political, Legal, or Both?

July 12, 2011

By Roger Owen

The city of Boston where I live is going though one of its periodic confrontations with the endemic corruption of its political and administrative systems. Three successive speakers of the Massachusetts lower house have been indicted for taking bribes in exchange for favors. And now comes the trial of Boston’s most notorious criminal, James Bulger, who, apart from his many murders, also managed to corrupt the local agents of the Federal Bureau of Investigation for almost twenty years.

Given the blatant illegality of most of Bulger’s crimes, it is clearly correct that he, like the corrupt politicians, should be tried in a criminal court. Nevertheless, given the great sense of public outrage, as well as the desire of the families of his victims for a proper public reckoning, there is a sense that the narrow procedures of a court do not serve them as well as they would like. To cite just one example, due to a legal maneuver, the names of his murdered victims were not able to be read out in court. In the case of the politicians, what seems to be needed is a major public inquiry aimed at revealing the full extent of the culture of corruption. Without such a political intervention there seems no reason why this type of corruption should ever come to an end.

It is with such thoughts in mind that I began thinking about two of the arguments put forward by Mohamed Hasanain Heikel in his May interview with the Chairman of the Board of Al-Ahram. One was that under the Mubarak regime corruption in Egypt had become “all but the legal norm” and so required something more than the traditional legal approach to its punishment. And the second, that Mubarak himself committed what were essentially political crimes against the Egyptian people—such as his attempt to pass on the succession to his son; his exaggerated political, economic, and security alliance with Israel; and the gross violations of political and human rights—far worse than those of which he was now being accused in court.

Heikel’s answer: a “political prosecution” of the Mubarak regime to be conducted, not by the country’s lawyers and judges, but by parliament itself.

The points he makes are good ones. For one thing, the harm done to the Egyptian people by the Mubarak regime extended far beyond his family’s expropriation of public property or even the killings in Midan Tahrir. It blighted their lives, removed hopes for a better future, and forced them to live in constant fear of the brutal attentions of an out-of-control police force. For another, these same people not only want, and need, a political trial of the workings of the old regime but also one that is conducted openly in such a way that they can more fully participate, as witnesses and victims, in the wholesale purging of the old regime.

Nevertheless, the problems posed by taking such a political line are quite formidable. Not many democracies have a well-defined category of political crimes—and with very good reason. Apart from the international notions of genocide and crimes against humanity, such acts are notoriously difficult to pin down.

To make matters more complex still, past attempts to indict members of an ancien régime for acts of general wickedness have usually degenerated into some kind of vulgar farce: witness the unseemly activities of the early Nasser-period revolutionary tribunals presided over in such a cavalier and vindictive fashion by the likes of Anwar Sadat. And this is not to speak of the notion of revolutionary justice deployed in the early days of the Iranian revolution when judges took only a few minutes to convict those supporters of the deposed Shah whose evil they were so convinced of even before the trials began.

Perhaps one answer is, as Heikel suggests, to try to combine the political and the legal at the same time. This would seem to be the course now to be followed in Britain in the case of the News of the World, where criminal prosecutions of individuals accused of hacking and bribing the police will take place in tandem with a more political inquiry into the whole culture of journalistic wrongdoing.

Returning to the Arab world it might also be both educational and popular to try the deposed leaders for crimes against the constitutions they had themselves sworn to uphold. This would have the effect of reminding people as to what these constitutions themselves contained, a subject of which most are, not surprisingly, entirely ignorant. It would also assist the makers of the new republican constitutions in drafting clauses which make politically-motivated amendments more difficult, while helping to raise the status of any constitutional court that they plan to create, perhaps along the lines of the United States Supreme Court.

As set out in the legal textbooks, ideas of justice can come in many forms: as exemplary, as retribution, as acts of pure revenge. And all three seem of particular relevance when it comes to the case of the deposed Arab dictators. But it also increases the problem of finding a satisfactory forum for coming to judgment, as the Tunisians have already begun to find out as far as Ben Ali and his family are concerned, involving, as it does, finding ways to accommodate accusations couched in political, popular, legal, and perhaps even historical terms. And then how to maintain a proper sense of priorities as far as the weightiness of the alleged crimes are concerned, combined with an equally proper sense of decorum?

Gamal Abd al-Nasser has always been praised for the way he allowed King Farouk to sail away from Alexandria in July 1952 rather than face a political trial followed by almost certain execution. But this meant that there was no real attempt to come to terms with what was seriously wrong with the deposed regime, other than the corruption of some of its leading members. As it was, when it finally came to be addressed in the new revolutionary narrative, it was accused of being both more and less wicked than it really was, for fitna, on the one hand, and frivolity on the other.

Getting it right this time around remains a hugely difficult task.

This article was published in Arabic in Al-Hayat in July 2011. Read more of Professor Owen's Al-Hayat columns in English here.