To Televise or Not to Televise (the Mubarak Trial)

by Michael Scharf

While the world waits to learn the fate of embattled Libyan leader Muammar Gaddafi, the trial of another former Mid East Leader, President Hosni Mubarak of Egypt, is currently underway.  In terms of international interest, Mubarak may be no Gaddafi.  But since the Mubarak trial concerns the former President of a strategicly important country charged with ordering the killing of unarmed protesters challenging his rule, it has the potential to rank with some of the most important world trials of all time — Goering, Eichmann, Ceausescu, Milosevic, Saddam.

On the eve of the Mubarak trial, I appeared on Public Radio International’s “The World” to discuss the proceedings, drawing from lessons learned from the Saddam Hussein Trial for which I served as a trainer and adviser to the Judges. Listen here . Opinio Juris readers may be surprised to hear that I suggested that the judge not broadcast the proceedings on live television if he wishes to maintain control of his courtroom and the solemnity of the process.

Egypt, like most countries around the world, does not ordinarily televise its criminal trials. Even in the United States, the use of television cameras in the courtroom has been the subject of much debate and controversy. In the 1965 case of Estes v. Texas, the U.S. Supreme Court ruled that the Sixth Amendment right to a public trial does not mean that a trial should be televised.

While U.S. federal courts to this day do not permit the televising of criminal trials, several state courts have experimented with televised trials with mixed results. For example, the presence of broadcast media can inhibit witnesses from testifying, thereby, impairing the ability of the prosecution and defense from obtaining evidence; the presence of broadcast media can encourage some judges, lawyers, and witnesses to play to the cameras, creating a celebrity status for them and thus depriving defendants of effective counsel and fair and impartial decisions by judges; and heightened public clamor resulting from television coverage inevitably results in some level of prejudice. Moreover, the media tend to air only the most dramatic moments of a trial when they use the footage for news broadcasts, so viewers are left with an incomplete and often misleading portrayal of justice in action.

Despite the fact that few countries allow television cameras in their courtrooms, since the first trial before the International Criminal Tribunal for the former Yugoslavia, all of the modern atrocity crimes trials have been televised. The theory behind televising such trials is that it will promote the perception of fairness if ordinary people can watch what is going on in the courtroom, and that it will help deter future atrocities by educating the population about what occurred through the use of testimony and evidence that they can themselves view and assess.

The Iraqi High Tribunal judges felt that they needed to follow the international tribunal approach if the trial of Saddam Hussein and the other regime leaders was to be seen as credible. As I detail in my book, “Enemy of the State” (St. Martin’s Press, 2008), the decision to televise the Saddam trial had disastrous results, as Saddam and the other defendants were able to use the televised proceedings as a means of promoting violence against the new democratically elected government and its supporters. In addition, the defendants’ disruptive antics before the cameras (including coming to court in their pajamas, sitting with their backs to the judges, shouting at witnesses and the judge, and insisting on prayer breaks in the middle of witness testimony), together with the judge’s futile and at times overly aggressive attempts to impose order, turned the proceedings into a veritable circus.

Nor has the televising of international trials gone smoothly. Slobodan Milosevic, Vojislov Seselj, and Radavan Karadzic have each adopted disruptive tactics and played to the cameras throughout their trials at the The Hague.

Like the judges who presided over the Saddam Hussein Trial, Judge Ahmed Refaat, who was selected to preside over the trial of Hosni Mubarak, initially decided to televise the Mubarak proceedings gavel to gavel. Snippets of the broadcast of the first day of the trial, including images of the 83 year-old Mubarak being wheeled into the courtroom on a gurney and placed into the metal cage that constitutes the Egyptian version of the “dock,” can be viewed on YouTube here.
From this footage, viewers around the world were left with an indelible (yet misplaced) perception of injustice. In this context, it should not be so surprising that Judge Refaat reversed himself on the second day of trial, and declared that he was turning the cameras off “to protect the public interest.” New York Times, August 16, 2011.

While I support Judge Refaat’s decision not to continue to broadcast the trial gavel to gavel, I don’t think the best solution was to bar television cameras altogether. Rather, the Egyptian court should film the trial and release periodic televised highlights to the media pool. And at the end of the trial, a documentary should be produced with extensive footage from the trial, so that a video record of the case can be made available to the Egyptian public in an easily accessible form.

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