Civilians are still facing military trials despite handing over the power to the first elected civilian president. Article 189 of the new Constitution allows trying civilians before a court martial.
Civilians are still facing military trials despite handing over the power to the first elected civilian president. Article 189 of the new Constitution allows trying civilians before a court martial.
Muhammad Sabri, a Reuters journalist, was the first civilian to be referred to a court martial under the new Constitution which was issued in December 2012. According to Sabri, an army force arrested him while making a reportage in Sinai on banning acquisition of lands within the borderline areas. The military prosecution charged him with existing in and photographing a military zone without a permit, even though there was no warning sign illustrating that. The area residents whom the prosecution subpoenaed testified that their presence there was not banned. After several hearings of the case, Sabri is waiting for the court’s decision which is yet to be issued.
Are port workers military men?
The story of the second case that has been referred to a court martial is narrated by a lawyer of the Egyptian Centre for Economic and Social Rights, Hussam Gundi, saying that on March 20, 2013, military police dispersed a sit-in staged in front of Gate 5 of Port Tawfiq by unemployed Suez youths demanding jobs. They arrested seven of them and referred them to the military prosecution on charges of threatening and using force against civil servants (members of the armed forces). The prosecution decided to put them in custody for 15 days pending investigation.
In his explanation of the case of the Reuters journalist, spokesman for the armed forces, Staff Colonel Ahmad Muhammad Ali, said Sabri was not a journalist and unregistered within the rolls of the Journalists Syndicate, but a freelancer working for Reuters and that he was referred to a court martial for his illegal presence in and photographing of a military zone. He added that Sabri was legitimately referred to a court martial pursuant to the Constitution and the Code of Military Justice.
Setback of the Brotherhood’s military deal
Human rights lawyer and director of the National Community of Human Rights, Ahmad Ragheb, said it was unsurprising to refer Sabri to a court martial considering the new Constitution. According to him, article 63 of the initial constitution draft of November 11, 2012 stated: “No civilian shall be prosecuted before a court martial”. But this article was removed vaguely after the members of the constituent committee complied with the dictations of the military and was replaced with the catastrophic Article 198 as well as Article 197, which entitles them to intervene in the legislations of the laws of a military judiciary through the Defense Council, so that the will of the military overrides the citizens’ right to a fair trial.
Ragheb stressed that the current Constitution gives the military judiciary an unprecedented legitimate cover for trying civilians, making any civilian who provokes the resentment of a member of the armed forces for any reason subject to prosecution before a court martial on charge of “harming the armed forces” or assaulting a civil servant.
Authorizing the military to determine the crime and the accused
Article 197 of the Constitution stipulates that the armed forces may intervene in any legislative amendments that concern the army through the “National Defense Council” whose majority are military commanders.
Muhammad Fouda, an activist of “No to Military Trials for Civilians” group (NMTC) believed that state institutions sided with the military, giving the example of the dissolved People’s Assembly that chose to adopt the legislative proposals of the Military Council and ignored the draft law provided by human rights organizations in order to put an end to those trials and do justice to victims, although some representatives in that Assembly had been themselves victims of military trials under Mubarak. Amended Article 48 of the Code of Military Justice allows court martials to identify their own jurisdiction without any civil or constitutional reference. And even Article 8 that allows militarily prosecuting children has remained.
How did the presidency wash its hand of the trials?
Activist Mona Seif, an NMTC founder said that having recommending amnesty for over 500 civilians imprisoned as a result of military trials, the committee formed by the presidency retracted in the following recommendations and focused only on amnesty for few victims, especially the media-highlighted persons, and ignored about 2,000 victims, including children, some of whom were released later while others were still behind the bars. Although this was followed by the presidency’s general amnesty, which applied to some victims of military trials, the military prosecutor ignored it and those who thought they would be free through this amnesty remained locked in prison.
Seif stressed NMTC’s position which criticized the president’s general amnesty that covered all the accused and arrested people during the events of supporting the January revolution, since the beneficiaries were five militarily prosecuted persons only, while 1,000-2,000 military tried persons were still in prisons, most of them, including all minors, were victims of random arrest campaigns and had nothing to do with the above-mentioned events; thus, uncovered by that amnesty.
Decline in military trials
For his part, Staff Colonel Ali underlined that Article 189 of the Constitution only provided for military trials for civilians in cases where the litigant was the armed forces or a military man, such as attacking armed forces officers, assaulting army units, or trespassing on military zones.
He added that military trials decreased significantly after the handover of power to the elected civilian president, the number of cases became many fewer than that under the Military Council, military trials became legal under the Constitution, and the armed forces should abide by the Constitution when prosecuting civilians.
