A Fair Trial For Austin?


Journalist and New Matilda contributor Austin Mackell will have been subject to travel restrictions in Egypt for six months as of this weekend. He was arrested in February for allegedly inciting a riot in the town of Mahalla while visiting a prominent union leader in the midst of a general strike.

Since then, Mackell has consistently maintained that the charges against him have been political in nature — from the absurd "shell game" the Egyptian authorities played following his arrest to keep him and his colleagues from lawyers and support, to his face being displayed on State TV with accusations of spying. He also says his equipment was confiscated and searched, and a sensitive source (a dissident police officer who spoke out about corruption and brutality) was later harassed by the authorities.

His case progresses slowly. Recent news that his case file had reached the Cairo office of the General Prosecutor seems to have stalled during Ramadan, Mackell told New Matilda.

But back in Australia, media attention and political support have been minimal, although the Media and Entertainment Alliance and others have continued to press his case. While Mackell has received assistance from the consulate in Egypt, Foreign Minister Bob Carr told him (in "one or two very uncommunicative letters") that he is unable to interfere in the judicial processes of another country, and that consular support means securing the right to a fair trial. Carr is yet to make a public statement in support of Mackell, or respond to the petition collected on his behalf.

Following Carr’s dramatic intervention in the case of Melinda Taylor, who was imprisoned in Libya, New Matilda contacted the Foreign Minister’s office to ask for more information on Mackell’s case — and whether efforts would be stepped on his behalf.

"Mr Mackell is subject to a ‘travel restriction’ and cannot leave Egypt until investigations are completed — Melinda Taylor was in a prison," a spokeswoman for the Foreign Minister’s office said. She also listed a number of instances where contact had been made on Mackell’s behalf:

"On 31 May, I wrote to the Egyptian Foreign Minister, Mohamed Kamel Amir, requesting advice on Mr Mackell’s legal situation, including the reason he is barred from leaving the country.

"The Australian Ambassador to Egypt personally raised Mr Mackell’s situation with the Egyptian Minister for Justice on 21 February 2012 and 4 July 2012.

"Consular officers have regularly followed up with the Ministry of Justice, most recently on 4 July — we have been asked to revert to the Ministry again next week."

In response to NM’s questions as to whether Mackell could be guaranteed a fair trial in Egypt’s current political situation, Carr’s spokeswoman reiterated that "We cannot intervene in the legal issues of the case or the judicial processes of Egypt but we can — and will continue to — request further information and make enquiries to ensure due process is followed."

Mackell is not so sure:

"I am certain that the embassy staff understand that my case is much more about Egypt’s internal politics, in particular an info-war waged by the old regime to discredit protesters and strikers (by claiming foreign agents like me are paying them), than about any legal niceties.

"Apart from receiving much initial attention in the propagandistic state media, my case was even mentioned during the highly publicised Mubarak trial by the defence, as evidence of an ongoing plot against Egypt, which was responsible for the deaths of protesters (rather than security forces acting on the former president’s orders)," he said in a recent email to supporters.

Adel Abdel Ghafar, a postdoctoral researcher at the Australian National University’s Centre for Arab and Islamic Studies who is completing a dissertation on the 2011 Egyptian revolution and the final 10 years of the Mubarak regime, agrees with Mackell’s characterisation of the situation:

"It’s not just the court system but effectively Egypt is still partially dominated by Mubarak’s people. Of course you see that in the military and of course, its manifestation in the judiciary and the police. In the context of Austin’s case, of course parts of the judiciary act as an arm of the military council. A lot of the cases are politically motivated," he told NM.

Ghafar says there are grassroots movements in Egypt attempting to cleanse the judiciary of former regime cronies, but the situation is very complex. Some independent members of Egypt’s regime-dominated "Judges club", have transferred their political sympathies to the Muslim Brotherhood.

"You see the political affiliation of certain judges that potentially might have an impact on certain rulings… By Austin going to where strikes are, this is something against the regime and isn’t to be taken lightly," Ghafar said.

Foreign expert analysis supports the idea that Egypt’s judiciary is politically compromised.

A June article by Mara Revkin in the prestigious international relations magazine Foreign Policy says "the lines separating Egypt’s legal and political realm have gone from blurry to invisible" and speculates as to whether the judiciary have "replaced politicians as Egypt’s reigning power-brokers":

"Over the past few months, elements of the Egyptian judiciary have taken on seemingly contradictory roles: Intermittently reinforcing the SCAF’s agenda and transitional roadmap, while at other times making decisions that fundamentally challenge the legitimacy of the interim period. Far from a monolithic institution, the infrastructure of Egypt’s judiciary has been aptly described by Nathan Brown as a "maze," in which jurisdiction is divided among separate court systems dealing with constitutional questions, administrative disputes, military cases, and everything in between.

"Given the diversity and depth of the system, it makes sense that its component institutions have often pursued opposing interests and imperatives, when weighing in on disputes in the political realm — an area that in theory should be off-limits to the ostensibly neutral judiciary, but since the revolution has been appropriated as a platform for judicial influence over the transition."

Similarly, Erin Cunningham, the respected Middle East correspondent for Canada’s Global Post, believes "It’s difficult to argue that any judiciary could maintain its sovereignty when a military junta is at the helm — whether in ruling for or against oppressive practices."

The experts continue. Nathan J. Brown, in an extensive story for the Carnegie Endowment for International Peace, describes Egypt’s judiciary as "politically exposed and uncertain of their future, with some concerned not only for their institutional autonomy but even for their physical security".

"An effort to legislate the demands for an independent judiciary in the form of a new judicial law has embroiled them in internal battles and external rivalries," Brown writes. "…For all their confidence in their own impartiality, judges have certainly been affected by the wave of revolutionary fervour."

Back in Australia, Greens Senator Scott Ludlam recently spoke in Parliament on Mackell’s behalf, reiterating the point that Egypt’s courts cannot be relied upon to judge impartially in the middle of a revolution and urging support:

"I think it is not going too far to say that, at the very least, we will take the minister on good faith to look at the remarkable events in Egypt over the last couple of days and say that it must be very difficult to prosecute or to take up these kinds of cases with the turmoil that is occurring at the moment."

"But, really, it is time now to stand up for this Australian citizen who has found himself in trouble a long way from home for doing the work that we rely on journalists to do — to tell the stories, to hold the powerful to account and, when necessary, to put themselves in harm’s way," Senator Ludlam said.

But at this stage Mackell is still potentially facing a jail term, which would put him in the same position as Melinda Taylor in the eyes of the Foreign Minister. He applauds Carr’s work to securing her release, but wonders whether he has to wait that long for real consular help.

"Should I take this as a guarantee that should I be taken back into custody I will be the recipient of the same ardent efforts?" he told NM.

Launched in 2004, New Matilda is one of Australia's oldest online independent publications. It's focus is on investigative journalism and analysis, with occasional smart arsery thrown in for reasons of sanity. New Matilda is owned and edited by Walkley Award and Human Rights Award winning journalist Chris Graham.