Politics on Trial? Criminal Justice and Egyptʼs Political Opposition in the Aftermath of July 2013

2.4.1 Mass trials and sentencing

Article 96 of the Egyptian Constitution establishes that ‘the accused person is presumed innocent until proven guilty in a fair legal trial in which the right to defend himself is guaranteed.ʼ The duty to respect fair trial rights applies equally when a group of individuals are tried together. According to the Code of Criminal Procedure, judgments must include the reasons upon which it has drawn. Any conviction must state the punishable incident, the circumstances under which it occurred, and must indicate the text of law upon which the judgment was based.³⁹ Egyptian jurisprudence asserts the individual nature of criminal responsibility:

[…] a person can be held responsible only if that person, either as principal or as accomplice, committed the alleged acts […]. Whether an act is wilful or by simple omission, it must be personally attributable in order for the individualʼs responsibility to be engaged. Egyptian jurisprudence continuously refers to this principle.⁴⁰

In the aftermath of the overthrow of President Morsi in mid-2013, mass trials were used to prosecute suspected supporters of the Muslim Brotherhood and activists. Criminal courts imposed life sentences and the death penalty following mass trials violating fair trial rights. In the Matai Police Station Case in 2014, the Supreme Guide of the Brotherhood and 528 others were charged with violence after the Rabaʼa and al-Nahda sit-ins and sentenced to death. The trial lasted for three sessions, two of which were used to read the decisions of the court, with the third session reportedly only lasted 30 minutes. This made it impossible to determine individual criminal responsibility. Of the accused, 398 were tried in absentia. After receiving the opinion of the Grand Mufti, the trial court upheld 37 death sentences while 492 defendants were sentenced to life in prison.⁴¹ In the Adwa Police Station Case of 2014, the same court sentenced a further 683 supporters and members of the Muslim Brotherhood to death for violence at a police station.⁴² Also in this case, most of the accused were absent and the hearing was held in the absence of lawyers. The only hearing lasted a few hours, and the judgment does not explain how evidence supports the convictions. The court considered 681 of the accused charged with intentional killing to be ‘collectively responsible for the crimeʼ.⁴³ Individuals under the age of eighteen at the time of the crime were sentenced to death in both cases.

In the Prison Break Case concerning former President Morsi and other senior leaders of the Muslim Brotherhood in 2015, 107 people were initially sentenced to death. The defendants were denied the right to call and to cross-examine witnesses during the trial, and were convicted despite a lack of credible evidence proving individual guilt beyond reasonable doubt.⁴⁴ In the case of the high-profile activist Alaa Abd el Fattah and Twenty-Four Others in 2015, all defendants were sentenced to fifteen years in prison although none of them were present in the court.⁴⁵

The practice of issuing verdicts in the absence of the defendant – in absentia trials – became widespread from mid-2013. Although the absence of the individual and his or her lawyer when the sentence is given is a serious violation of due process rights protected by the Constitution, the Code of Criminal Procedure allows for this procedure and allows a retrial in such cases. If the person has been legally notified of the committal order and summons, the court may issue a ‘default judgmentʼ and may adjourn the case or order to re-summon the person. The Public Prosecution and defendant are to present their statements and pleadings, and the court hears any witnesses if deemed necessary, after which a judgment is issued. A judgment in absentia may be executed if not objected to by the person convicted within the given time limit.⁴⁶

2.4.2 Other violations of fair trial rights

The Constitution guarantees the right of the accused to a fair trial and to defence, either in person or by proxy. Article 97 of the Constitution prohibits the use of exceptional courts, and establishes that ‘no person may be tried except before the ordinary judge.ʼ Article 98 of the Constitution establishes that ‘the independence of the legal profession and the protection of its rights is a guarantee for the right of defenceʼ. It prohibits the arrest of a lawyer while he or she is exercising the right to defence except in flagrante delicto crimes (Article 198). Article 96 of the Constitution sets out the state duty to provide protection to the victims, witnesses, accused and informants, and the Code of Criminal Procedure sets out the procedures for hearing witnesses.⁴⁷

In the aftermath of July 2013, trials were sometimes held in police facilities. The accused were held in a soundproof glass cage with metal bars obscuring their vision and limiting the opportunity to communicate with counsel and present a defence. Some trials were conducted in the absence of defence attorneys. Lawyers were also subject to verbal and physical abuse by the police, and in some cases, arrest, detention, or prosecution seemingly in response to attempts to uphold the rights of their clients. Judges have refused to allow defence witnesses to present evidence and to cross-examine prosecution witnesses. In the case of the profiled activist Ahmed Douma and 268 others, defence lawyers were referred to investigation for disruption due to their insistence that the Court hear their client. The judge referred a defence lawyer to investigation based on his request to include a statement by the judge in the case file: ‘Do you want military and police forces to be beaten up and not respond?ʼ⁴⁸

In the appeal of the Matai Police Station Case, the Court of Cassation pointed out the violation of the right to defence and other due process violations in the trial court. The Court of Cassation highlighted how defendants with felony charges have the right to a genuine defence. Many of the accused did not have legal representation and the trial court continued with the hearing without appointing lawyers and without informing the accused of the right to a defence attorney. In spite of this, the lower court had continued the trial and found them guilty. The Court of Cassation found that this invalidated the procedures, necessitating a retrial. The Court also struck down the decision of the lower court to impose the death penalty on a minor.⁴⁹

There has been an escalation in the use of military trials for civilians since mid-2013, which further curtail due process rights. Defendants have been accused of belonging to the Muslim Brotherhood or charged for taking part in student protests.⁵⁰ Civilians have been sentenced to death and executions have been carried out. On 17 May 2015, six civilians were executed following conviction in a military court. They were accused of participating in attacks on security services and killing two officers. In addition to violating the right to an independent and impartial tribunal, there was evidence that three of the accused were already in detention when the attacks they were convicted for took place. There was no opportunity for appeal.⁵¹

3.1.1 Judging with vengeance?

The political context, particularly the one-year rule of the Muslim Brotherhood, helps to explain the judicial excesses that transpired in criminal trials in the aftermath of July 2013. The Brotherhoodʼs year in power was characterised by attacks on the judiciary that served to exacerbate the ‘crisis of governance and justiceʼ.⁶⁴ A provision in the new Constitution reduced the Supreme Constitutional Court by almost one half, and President Morsi pushed legislation that would force senior judges into retirement.⁶⁵ Perhaps most notable was Morsiʼs declaration of November 2012 that his edicts would be above judicial review.⁶⁶

The Morsi presidency has been described as ‘one of the most colossal failures in the Brotherhoodʼs historyʼ.⁶⁷ A key aspect of this failure was that the attacks on the judiciary served to provoke and unite judges against the Muslim Brotherhood. What evolved subsequently was effectively a judicial war against former President Morsi and his supporters. The ruling of the Cairo Court of Urgent Matters banning the Muslim Brotherhood organisation and ordering its assets to be frozen deemed the Brotherhood a threat to national security and ‘a deviation from public values and public order.ʼ According to the ruling, the organisation extends beyond Egypt and its members have a ‘dual loyaltyʼ:

The Egyptian people realized that the Muslim Brotherhood is an odd body that does not belong. Therefore, they took to the streets to take them away. The Egyptian people were victorious with the support of the armed forces.⁶⁸

The ruling goes on to claim that the Brotherhood ‘[…] did ikhwanisation of all the public positions in the country, which further worsened living conditions.ʼ Ikhwan is the Arabic word for ‘brotherʼ, suggesting that the Muslim Brotherhood sought to insert themselves throughout the administration. The judge narrated the events of the summer of 2013, and in doing so went beyond the realm of legal reasoning to express overtly political convictions:

The revolution of June 30th, 2013 went peacefully and was unprecedented in the history of the world. They went to reject this unjust entity, and they revolted against it to remove it and end its injustice and its rule. And they were supported by the army, the courageous army, which is a strand of this nation that cannot be separated from its people and will only stand for the people […] to stand against this unjust regime that was deaf to the peopleʼs demands and blind in seeing the truth of whatʼs happening […].⁶⁹

The Brotherhood was essentially deemed a threat to what it means to be Egyptian, and rejecting the Muslim Brotherhood thereby became a patriotic duty. The ideological opposition to the Muslim Brotherhood is reflected in rulings from criminal courts. In the Rabaʼa Operations Room Case, the 51 defendants, including the Supreme Guide of the Brotherhood Mohamed Badie, were charged with ‘forming an operations room to direct the Muslim Brotherhood terrorist group to defy the government during the Rabaʼa sit-in dispersal, and to spread chaos in the country.ʼ Of the defendants, 14 were sentenced to death and 37 to life imprisonment on 11 April 2015. The judge reasoned that the defendants:

[…] purposefully spread news statements and false rumours abroad on the internal situation in Egypt by propagating on the internet and some satellite channels video clips, pictures and news to give the impression for the external public opinion that the current regime is incapable of running the country and that led to weakening the countryʼs prestige and damaged the national interests of the country.⁷⁰

In the Prison Break Case, former President Morsi and other leaders of the Muslim Brotherhood were sentenced to death. Nationalism and state sovereignty were again at the forefront of the judgment:

After looking at the evidence and the documents, the Court has no doubt whatsoever that the scheme brought together the accused from inside and outside the country to intentionally commit acts to undermine the independence and territorial integrity of the country, coinciding with the outbreak of the January 25 Revolution to bring chaos to the country, benefiting from the countryʼs preoccupation with securing the inside so it can infiltrate from abroad.⁷¹

The ruling states that it was proven that the defendantsʼ plans to commit crimes were at the instigation and support of terrorist organisations outside the country, and that they participated in a conspiracy against Egypt and implemented the criminal scheme in cooperation with the Palestinian Hamas movement and the Lebanese Hezbollah. The verdict in the Prison Break Case notes that the Egyptian State had a tight grip on the Brotherhood before the revolution, indicating that third parties were involved. The court suggests evidence of coordination between the Brotherhood and foreign intelligence services, particularly American intelligence, to rally support for the Brotherhood in the implementation of its plan and secure its future in the Middle East.

Other political opponents, activists and the media were characterised as a challenge to Egyptian statehood and subject to judicial ‘vengeanceʼ in trial courts. In the decision declaring the April 6 Youth Movement illegal, national interest was again central:

Members of these movements are helped by a superpower which is the US and April 6 wanted to cut the US aid to Egypt […]. They spread chaos and threaten public security, and this was clear after several rulings have been issued against their members for violating the law, claiming that they are defending rights or freedoms. They conspire against the nation for the benefit of foreign entities and the protests organized by this group is to humiliate national security and to blatantly threaten the tourism sector and the Egyptian economy.⁷²

In the Marriott Cell Case, the Al-Jazeera English journalists were charged with aiding or being members of a terrorist group and harming Egyptʼs national interest by broadcasting false news. The defendants were sentenced to seven to ten years in prison, and the judge elaborated a counter-revolutionary narrative in the verdict:

During a dark time which the country passed through and state institutions struggled, they seized the opportunity and attacked the Egyptian State thinking that this was going to be the end of the nation […]. However, amidst all this the Egyptian State soon woke up and converted darkness into light. And soon the state institutions recovered and took over its sovereignty once again and managed to impose its authority nationwide and to stand against all the messing around with the destiny of the nation, that would disturb its security and stability and stand against anything that spreads chaos and jeopardizes security and tranquillity of the people […]. However, a minority of people rejected this stability in the country and on purpose decided to challenge the prestige of the State and they kept spreading corruption, forgetting that the Egyptian State is one with sovereignty.⁷³

The use of narrative in the practice of law has been a feature in other transitional contexts. Law is a way to maintain continuity over time. Legal conflict arises when a state of affairs is challenged, calling for the judiciary to set matters right. When sudden or significant change occurs, the use of narrative may entail framing legal issues as a fight for the survival of the State and its institutions, thereby justifying oppressive means.⁷⁴ Parts of the criminal justice system portrayed the stakes for Egypt as though its very survival hinged on it.

The verdicts in criminal courts create a narrative where opposing the Muslim Brotherhood and revolutionary activists is a patriotic duty. Judges have sometimes gone beyond this, characterising the duty as religious. The ruling banning the Brotherhood quotes several verses from the Quran, finding that the Brotherhood ‘used Islam as a curtain to cover their acts and wasted the rights of Egyptian citizensʼ.⁷⁵ The narrative is similar in the verdict banning the April 6 Movement. In the Adwa Police Station Case, the court referred to the accused as ‘the devil Mohamed Badie, who has come out of the core of hell along with the other devil accusedʼ.⁷⁶ Cloaking the narrative not just in political or nationalistic but also in religious terms makes it more powerful: loyalty to the nation and the State is bolstered when its rightness is given a religious basis.

3.1.2 Security context

The verdicts from criminal courts since mid-2013 also reflect the security situation at the time. Studies from other contexts have found that ‘when judges share the view of the government that drastic measures are required to combat dangers to society, individual rights are placed in a subordinate positionʼ.⁷⁷ Such dangers, perceived or real, were on the minds of Egyptian judges.

Immediately following the overthrow of former President Morsi, there was a significant spike in terrorist attacks.⁷⁸ Known terrorists were released in 2013, and analysts point to the ousting of President Morsi as a catalyst for this proliferation of terrorist violence. The spike in terrorist attacks might be an expression of seizing an opportune moment of turmoil to launch attacks.⁷⁹

The case against Ansar Beit Al-Maqdis of April 2014 illustrates how the broader security situation shaped the minds of parts of the Egyptian judiciary. The judge in charge of the case claimed that the fall of Morsi led to the resurgence of attacks because, to the Muslim Brotherhood, the fall meant ‘destroying the chances of having Shariʼa law in Egyptʼ.⁸⁰ The judge concluded that the targeting of security checkpoints in Sinai began when Morsi fell:

They shifted from fighting Israel to fighting the Egyptian army and police […]. The group was aiming to abort efforts of Egyptian state to instil democracy and establish a strong economy that is based on flow of FDI and also wanted to weaken the national spirit that was made by the revolution, negatively affecting all activities in the country. It made the tourism sector deteriorate, and the Egyptian economy in general, seeing that these acts pose an imminent threat to security of the nation-state, people, state institutions […].⁸¹

While it is beyond the scope of this article to analyse terrorist attacks and their perpetrators, it is clear that some judges made the connection between terrorism and the end of the rule of the Brotherhood. Judges in criminal courts furthermore made little distinction between those who use violence and those who use peaceful means to express themselves. The rulings banning the terrorist group Ansar Beit Al-Maqdis, the Muslim Brotherhood, and the April 6 Youth Movement applied reasoning that differs only marginally in respect of the various groups, indicating how parts of the judiciary equated these groups despite their marked ideological and tactical differences and their divergent goals. The enemy became all those who sought to overturn the established order, whether they be violent terrorists, Islamists or youth activists. The power wielded by the judiciary is in part definitional. Parts of the judiciary engaged in defining the State against its enemies, producing a narrative that at times reads like a political manifesto stating their ideology and interests.

3.1.3 The interests and self-perceptions of judges

The interests and self-perceptions of judges also help to explain their comportment subsequent to mid-2013. Prosecutors and judges generally are part of the establishment that places a high value on maintaining order and security. Egyptian judges generally have a strong sense of loyalty to State sovereignty and to political and social order.⁸² This loyalty is especially common in legal systems in countries where the judiciary benefits from other elites.⁸³ Most judges in Egypt are members of the political elite that benefited financially and politically under Mubarak.⁸⁴ Loyalty to the State may be accentuated in extreme situations, where judges may replace their professional logic with class logic to maintain their paradigm and serve their interests.⁸⁵ In responding to what they see as attacks on the State and threats to national security, they have consciously cast themselves as statesmen and not simply jurists.⁸⁶ The ruling banning the Muslim Brotherhood illustrates this self-perception. The Court of Urgent Matters found that the Brotherhood:

[…] filled their stomachs and filled the brains of their followers using their abundance of money and their powers. It was therefore necessary for the court to believe that this is an issue that needs to be looked into urgently due to the imminent threat to the country. [The Muslim Brotherhood] threaten national unity, bring destruction to the country, and it is a must to protect the country from this threat and danger.⁸⁷

Further, judges have interests as members of a unique fraternity with a strong sense of identity, and their verdicts against members of the political opposition can be seen as defending these interests. Islamists seemingly threaten the judiciaryʼs power, and the Brotherhoodʼs attacks on the judiciary during their year in government helps to explain this sense of threat. The judiciary may also feel threatened by pro-democracy activists inasmuch as their demands for political and socio-economic change entail judicial accountability.⁸⁸

Further to this, it has been argued that judges in Egypt ‘never put forward their discourse from a liberal perspective based on individual, citizensʼ, or votersʼ rightsʼ.⁸⁹ This may be seen in part as reflecting decades of authoritarian rule. If individual rights never were the rationale undergirding the courts, a time of crisis would not be expected to bring such concerns to the forefront.

However, the verdicts from the Court of Cassation presented in the previous section run counter to the assumption that times of crisis make upholding individual rights less likely. How do we explain these verdicts? The self-perception and ideology of the judges in that particular court are undoubtedly an important factor. In the Court of Cassation, the judiciary is often seen as an independent institution tasked with enforcing the rule of law in a ‘separation of powersʼ paradigm, and this perception is held by the judges themselves.⁹⁰ Overturning sentences from lower courts for violating fair trial rights may thus in part be motivated by an interest in retaining professional and institutional integrity, and the rule of law, in a time of perceived crisis.