Withdrawal of the Egyptian lawyer Ragaae Atiya from the case of 40 Muslim Brotherhood leaders standing trial in front of the Military Tribunal, topped by MB second deputy chairman Khairat Al-Shater, stirred a controversy in the political arenas. This withdrawal underlined the farcical attitude upon which the tribunal is steered, clearly manifested through the rulings which have been tailored in advance against the accused. The court repeatedly denied the defence team the right to present its pleading, and gave its rulings giving a deaf ear to any thing said by the defence team.
This withdrawal raised many question marks over this court and its fate. Why has Ragaae Atiya accepted to join the defense team in the case although he knows it will be a farce:
Ikhwanweb: First, why have withdrawn from the Military Tribunal"s defense team?
Ragaae Atiya: A flagrant status quo forced me to leave this case, reaching its peak in the session dated Nov, 26th, 2007. The court is actually not competent to the hear the case. The judicial system is generally based on a full divorce between the job of a prosecution and the job of a judge. A prosecutor isn"t allowed to be a judge in the case he is referring to justice. This was raised in the session of Dec, 16th, 2007. After giving an outline of my pleading, that the military justice isn"t authorized to heart this lawsuit, that the decree of referring the MB leaders to the military justice is null and void, both because of the unconstitutionality of article 6 of the military law, and because this article is- in addition to its unconstitutionality- is related to referring specific crimes and specific cases while the referral decision is related to the kind of crimes, not a specific case or a specific detainee.
As for the decree of referral in the case in question, it is a decree of referring a specific case and specific persons. This actually excludes them from the content of article 6 of the military law, deeming the decision of referral a null and void, let alone the unconstitutionality of the article, because it clashes with a constitutional principle stated in article 68 of the constitution that every citizen has the right to stand trial before his competent judge. The military judge is not the competent judge for civilians in general or for the accused in this case. The accused in this case include university professors in Faculties of Medicine, engineers, pharmacists and vets, and workers in other professions. I pointed out also that it isn"t a must to have a ruling that this stated article is unconstitutional. It is the court"s job to ignore it because it is actually contradicting with a higher text in the constitution. The Court of Cassation and the Supreme Constitutional Court issued rulings stating that when a lower text clashes with a higher text, the judge must ignore the lower text to respect the higher text. This, we should respect and apply our constitution.
I also pointed out in the outline of my pleading that the arrest and search warrants of the Higher State Security Prosecution and any ensuing measures are illegal. This is because the investigations that led to them were not based on legal foundations and can never be seen as a crime. Arrest warrants are issued from the prosecution only when there is a criminal or a misdemeanor case in which someone is suspected to be involved in it. Nothing of the kind was in this case when successive arrest warrants were issued from the state security prosecution, starting from Feb, 13th, 2006. This means that any ensuing measure based on them is considered null and void. I also stated as a broad judgment that there is no crime to accuse the defendants. However, I was surprised that the court held what it called an amendment to the bill of indictment. It actually added two more charges which are outside the original bill of indictment.
The first new charge was that defendants from no. 22 to no. 27 provided what the court named the Muslim Brotherhood Organization with financial information through the financial committee abroad. This charge hasn"t been mentioned in the original bill of indictment when the defendants were referred to the court.
The second new charge which the court added was that the first defendant Mohamed Khairat Al Shater and the second defendant Hassan Malek ran and invested the group money in companies and institutions for this group, although this charge also wasn"t mentioned in the original bill of indictment or even the case papers. The claims of the investigations and the experts committee that the money of both Khairat Al-Shater and Hassan Malek is owned by the Muslim Brotherhood group are untrue. This money constitutes lands and real estates which are mostly inherited in addition to movables, joint stock companies and joint ventures and partnerships which include shareholders and partners to every defendant. Every one of them has his own and independent financial statement an all of them are outside the circle of suspicion. The court"s decision of considering all this money, companies and properties-owned by tens of persons- owned only by the Muslim Brotherhood group adds more charges and also contradicts with all rules and principles. An expropriation mustn"t be taken like this except upon rules.
I pointed out in the session on Dec, 23rd, 2007, that an expropriation shouldn"t be upheld unless they are supported by the Proof Law or according to article 225 of the code of criminal procedure, which is applicable in the military decision according to article 10 of the law. These rules stipulated in the Proof law and in article 225 of the code of criminal procedures and article 10 of the military law, oblige all kinds of courts- criminal or natural, ordinary or military- not to expropriate except through papers. Thus, the court ruling of considering all this money as owned by the Muslim Brotherhood group is a groundless claim. The court should at least assign a committee of experts to the study this serious amendment to the bill of indictment.
However, the court ratified and insisted on these new charges in contravention to the principle of not allowing one authority to direct charges and judge them. This means that the court is no longer competent to hear the case and it should either refer it to the prosecution to see these newly added charges or refer it to another circuit after it took the job of a prosecutor which automatically strips it of the job of a judge. All this was ignored by the court. When I even submitted to the court in session on Dec, 16th, 2007, an official copy of a ruling issued against Khairat Al-Shater, Mohamed Ali Beshr and Medhat Al-Haddad on a charge similar to the one for which they are standing trial, to prove that it is illegal to hear a case which was previously heard and received a ruling, the court ignored the official paper and accepted only a statement from the the military Attorney General stating that Khairat Al-Shater was tried in the case no. 8 of the year of 95 military cases and was sentenced to five years in prison and that he was released in early 2001. However, this statement which satisfied the court premeditatedly dropped the bill of indictment of that case in the previous trial to deny the accused his right to consider the current case groundless because they were previously tried and received sentences.
This court ignorance violates the tights of the defense and deprives the accused of their legitimate rights. Fortunately, my papers included a copy of the bill of indictment of the previous case issued by the management of the military Attorney General, and I submitted it to the court. This proves that the trial has lost legitimacy and the defense has become a mere décor. I saw that to continue with such paralyzed job, the defence gives legitimacy to a court which has lost it. So I decided to withdraw from the defense team.
Ikhwanweb: But some attributed to this to reported disagreements between you and the defence team over the defense for the defendants?
Ragaae Atiya: There is no disagreement between me and any member of the defence team. I believe that every one has the right to defend in the way he sees as most suitable for him and his client. The defendant hs the right to choose for his defence which brings him his innocence. Thus, there was no rows whatsoever between me and the defence specially that the defnces which I presented were approved by all members of the defence team who supported me in what I said in the session of Dec, 23rd, 2007.
The Case Is Politically Motivated
Ikhwanweb: You said in previous statements that the military case trying the Muslim Brotherhood top figures is mainly politically motivated, why?
Ragaae Atiya: This case is definitely politically motivated, a case in which politics and justice are mixed up. There is no criminal foundation for this trial. Khairat Al-Shater, Mohamed Ali Beshr, and Medhat al Haddad faced a previous similar trial on the same fake charges. The most striking common feature among these military trials against the MB leaders is that there is no criminal foundation in any of them. Every case includes charges of embracing an ideology which is against the regime"s policy or even a charge of joining an organization adopting this ideology. However, law rulings topped by the ruling of the Supreme Constitutional Court in its session on June, 20th, 2001 in lawsuit no. 114/21 constitutional and judicial, it ruled that law does not punish for ideas, directions, trends or beliefs or hopes and that it punishes for an activity, a behaviour or action of specific criminal incidents that has a time and place.
Thus, the military court hears a case not a new incident. The insistence on referring the accused to the military tribunal hasn"t happened against even top criminals, spies or those involved in premeditated murders. Thus, this proves that the case is politically motivated.
Why have you joined it?
Ikhwanweb: Why have you joined the defence team although your know in advance that the court will issue such charges and won"t hear your pleading?
Ragaae Atiya: The session on Dec, 16th, 2007, was the first for me to attend. I said above that the court started the session with adding two more charges, snowballing the situation an obliging me to withdraw.
Ikhwanweb: Some report other reasons for your withdrawal other than those related to the Military Tribunal. You participated in the defense of the Muslim Brotherhood leaders in the military case in 2000.
Ragaae Atiya: In the case that I defended in 2000, dubbed the Unionists Case, in which I defended lawyers : Khaled Badawi, Ibrahim Rashidi and Mokhtar Nouh, nothing happened like that in the session of Dec, 16th, 2007, of adding more charges preventing the right of the defense. The court in the 2000 case complied with all fair dubmitted by the defense, making the ne think that its ruling would be fair. The defense does not withdraw except when it is denied its right to defend, its demands aren"t met or that the court carries out the job of a prosecutor.
Ikhwanweb: But some see that your accepting to present a pleading embarrassed you inside the National democratic Party, specially that the regime started to feel the siege of the defence.
Ragaae Atiya: I am not a member in the National democratic Party, and I have never joint any party before or after 1952. I am not concerned with or embarrassed by any body. I am not interested in what the NDP believes or does not believe. I even declare my criticism to the NDP or the government in my articles which are sometimes published in state-run newspapers. The first article in my book "National Pathos" was entitled "why do men humiliate themselves" in which I attacked those hiding their attitudes to reach higher positions. I only follow what"s right. My slogan is the prophet"s Prophet"s Hadith" The one shouldn"t be flunky, to do good when people do good, or do bad when people do bad." And I find solace also in Abbas Al Akkad when he said:" If people loved you deceitfully, don"t be happy and if people hated you deceitfully don"t be sad, some hating may be better than some loving".
Ikhwanweb: How do you expect the court to move during the coming sessions?
Ragaae Atiya: I think that the court will accelerate the process and measures in the lawsuit to issue the ruling which is prepared in advance. A ruling which may be disappointing.
Ikhwanweb: Do you expect a specific ruling in this case?
Ragaae Atiya: It is difficult to expect a specific ruling.
Ikhwanweb: But some attributed your withdrawal to knowing that tough rulings may be issued against the accused.
Ragaae Atiya: How can I know a ruling which hasn"t been issued yet. This is against all norms of reason and judgment. The judge doesn"t know the ruling which he will issue and he doesn"t make his intentions public till he utters it in the court.
Ikhwanweb: How do you see the relation between the Muslim Brotherhood and the regime before and after the trial?
Ragaae Atiya: I do not know, because the sources of my information are from the press and other media services and I don"t know what"s happening behind the scenes. Such a relation is well known for policy-makers.
Ikhwanweb: Do you see that issuing sentences against defendants in this case will affect this relation?
Ragaae Atiya: The relation is already so bad due to the repeated trials over a repeated charge, sending from time to time university professors and professionals to Military Tribunalsw which, I see, unconstitutional and lack legitimacy. This made write a book entitled "Will there be a normalization with Egyptians?".
Ikhwanweb: Some see that there is a trading of innocence rulings for these defendants and the government"s approval to the hereditary transfer of power for the son of the president.
Ragaae Atiya: The National Democratic Party and the Muslim Brotherhood know this better, but I don"t think so.