Ousted Egyptian president Mohamed Morsi is to be tried for inciting violence against protesters. He will be also tried, along with many other public figures, for “insulting the judicial authority.”
Will this trial change the judicial system of Egypt? Two months ago, many judges withdrew from trying many Islamist leaders. While some people attributed this to these judges’ scruples about trying innocent people on fabricated charges, others thought the judges were afraid of the Islamists’ reaction if their leaders were found guilty.
Muslim Brotherhood activists, like millions of Egyptians, feel that Egypt’s judge-only system is unfair and biased, and claim that the trials of, for example, ousted president Hosni Mubarak and his regime, were show trials. They see that the rights of the victims of January 25 Revolution have been deliberately damaged by Egyptian judges (whose appointments, in the eyes of so many Egyptian people, involve bribery and corruption).
The Egyptian constitution depicts the judge as a strict father, who has legal authority and legal knowledge. The judge conducts the trial, knows right from wrong, and commands respect. He is both judge and jury. He is both peer-reviewer and scientific committee.
You’re not allowed to comment on his verdicts. If you do, you will be punished.
However, the large majority of Egyptian people, as can be seen everywhere, on streets, the TV, and newspaper pages, are not happy with this judge-only system. So isn’t it time for ordinary people to have a say in how the justice system operates? In other words, won’t it be more democratic to apply the jury system in Egypt? Furthermore, haven’t juries played an essential role around the world, especially in big cases, such as mafia trials in Italy? In an answer via email to my question, Prof. Laurence H. Tribe, Professor of Constitutional Law at Harvard University, said: “It would be presumptuous of me to offer an opinion on how fair or unfair your current judge-only system is or how much it might be improved (or, conceivably, changed for the worse) by the adoption of a jury system.
In our country, and in light of our traditions, juries have proven to be essential to what we deem fair both in criminal trials and in civil trials, but it’s not possible to translate that experience into your setting without taking the entire context into account.”
Prof. David Rossman of Boston University School of Law, however, said: “Selecting juries from the community gives ordinary people a say in how the justice system operates.
That makes it more legitimate in the eyes of the people. In the American jury system, if the jury finds a defendant not guilty, no judge can overturn that decision. So the people are the ultimate check on the exercise of state power.
“Anyone charged with a crime that has a punishment of more than six months imprisonment is entitled to a jury. And yes, juries are used in mafia trials as well as every other type of criminal case.”
Likewise, Prof. Stanley Z. Fisher of Boston University School of Law stated: “Overall, I believe that the availability of jury trial (although the jury is, in fact, rarely used in the US) is a blessing for upholding the individual’s right to a fair trial. The jury system is more expensive to operate than trial by professional judges, but it is also more democratic: lay persons drawn from the community are less vulnerable to political pressure from above, and more reflective of community sentiment.
“That has both advantages and disadvantages, depending on the case. In the US, the parties, if agreed, can decide in any case to be tried by the judge, rather than by a jury, which gives some flexibility.”
My next question was: if the jury system is fairer, shouldn’t it be used in trials of Egypt’s deposed presidents (e.g., Mubarak and Morsi, if Morsi should be tried) and public figures? In a phone conversation with Prof. Aled Wyn Griffiths of Bangor University School of Law, he agreed that the premise is good; but that the problem would be in how to guarantee the neutrality of the jury. As such, he recommends that, “we should take into account the jury selection procedures in Canada,”’ as a good example.
Similarly, Prof. Stanley Z. Fisher argues that “Selecting any jury requires special procedures to guarantee its neutrality. Given all of the publicity regarding a deposed political figure, it would no doubt be very difficult to find jurors who had not already formed their opinions based on media reports, etc. So the case you pose is both rare and especially difficult.”
Prof. Rossman, however, sees that: “In cases where it is reasonable to fear that the jury may be influenced by fear of the consequences to them if they return an unpopular verdict, the identities of the jurors are kept confidential, so that is one possibility. As for choosing the jury, the law in the US requires that the selection process be inclusive (so that all segments of the community are eligible) and random. That is only possible in a system with a well-developed rule of law and with vigorous defense attorneys who ensure that the selection process works the way it is designed.
“The US, unlike Great Britain, also allows the lawyers the opportunity to question the jurors to discover any hidden bias. If the questioning process reveals that a juror cannot be fair, either to the state or the defendant, the judge is supposed to remove that juror. And, courts in this country typically give the lawyers from both sides the right to remove a certain number of jurors without having to give a reason. All of this contributes to a jury that is, hopefully, the voice of the community.”
Likewise, though she said she had no comment on Morsi trial, Prof. Nancy King of Vanderbilt University School of Law confirmed that, “In cases in which jurors may be targeted, the judge is allowed to keep the identities of the jurors secret.”
Finally, the jury system might be “about the worst of democracy,” but it is also about “the best of democracy,” as Jeffery Abramson, Professor of Law at Texas University, states in his book, We, the Jury: The Jury system and The Ideal of Democracy: A New Face. In this book, Abramson stresses that democracy in America has developed over the years in tandem with the jury system. We, the Egyptians, need to have a voice in achieving justice.
The writer is an Egyptian poet, actor and a PhD student at Lodz University. He is also an affiliated member of Euroacademia and a former lecturer at Um Al-Qura University, Mecca, Saudi Arabia.
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