A few days ago, the 50-member committee in charge of drafting Egypt’s post-Islamist constitution approved article 174 that permits the “conditional” trial of civilians before military courts. Out of the 50 people, 30 approved the article, 11 rejected it, two abstained from voting, and 11 were absent. According to the article, civilians will only be tried by the military under very exceptional circumstances.
These include attacking military facilities, vehicles, and staff as well as offences targeting military documents, classified information, and funds. Attacks on border areas and military zones also fall under the category of crimes against the military. The voting was followed by a heated debate in Egypt’s political circles and a protest was organized by activists in front of the Consultative Assembly’s headquarters, where the committee holds its sessions, calling for the controversial article and all articles deemed contrary to the demands of the Jan. 25 revolution to be crossed out of the draft.
The protest was called for and led by “No to Military Trials,” a group of lawyers and activists that was formed in 2011 following a series of arrests and trials of civilians by the military when the Supreme Council of the Armed Forces was the de facto ruler of Egypt.
Following the approval of the article, the movement issued a statement detailing the reasons for its objection which it started by accusing the committee of repeating the mistakes of the Muslim Brotherhood and even drafting an article that is more draconic than its Islamist predecessor because it expands the powers of military courts. While the 2012 constitution stated that the military judiciary is in charge of handling crimes that involve army officers and personnel, the 2013 draft adds the phrase “and those considered as such,” which, the statement argues, would include civilians working in military institutions as well as students in military schools and colleges.
The 2012 constitution states that civilians can only be tried before military courts if involved in crimes that harm the Armed Forces and that such crimes are to be determined by the law whereas the new articles broaden the spectrum of these crimes to include all facilities owned by the Armed Forces and given the number of businesses the Armed Forces owns and runs, the article would apply to a large number of facilities. Lawyer and activist Zyad al-Eleimy commented on this point: “Article 174 means that if I get into a fight in one of the gas stations owned by the army, I face military trial; if I crash into a truck loaded with pasta or water manufactured by army factories, I face military trial.”
The No to Military Trials statement also notes that the article puts at risk Egyptians living in border cities and close to military zones and rules out the public disclosure of the military budget. The statement adds that the article curbs freedom of the press through making information about the army confidential: “This way the army would have the right to bring to a military court any journalist who attempts to make the truth known to the people and this happened before.” No to Military Trials also voiced its objection to the first phrase of the article, the same as in the 2012 constitution, and which states that “the military judiciary is independent.” This, the group asserts, is a contradiction in terms since military courts are by definition affiliated to the Armed Forces and report to the Minister of Defense: “The court pledges allegiance to the army and this is contrasted to the concept of the independence of the judiciary.” Eleimy draws attention to another issue that makes the trial unfair by definition: “It is a trial in which the judge and the plaintiff are one and the same person.”
A large portion of activities vehemently rejected the article and criticized members of the committee who approved it, especially those among them who were generally regarded as revolutionary. Activist and blogger Alaa Abdel Fattah, previously accused of inciting violence against the military and known for his refusal to acknowledge the military’s right to interrogate him, said that the new article proves “that the army is determined to bring back the Mubarak regime.” Abdel Fattah explained that military trials “offer a pretext for torturing and humiliating civilians” and creates of the army “a state within a state.” He also accused anyone who approves of the article to be “a traitor to the revolution and the people.”
Activist Mosaad Abu Fagr, who represents the Sinai Peninsula in the drafting committee, called the article “twisted” and insisted that it should not have been considered in the first place: “I don’t care if the whole world votes for it. Nothing will make it right.” After rejecting the article, Abu Fagr withdrew from the session as the committee went ahead with the voting and announced he was considering withdrawing from the committee altogether. Mohammad Abul Ghar, head of the Egyptian Social Democratic Party and one of the committee members who voted against the article, said that he was against amending the article to specify the circumstances under which civilians can stand trial before military courts and demanded that the article be crossed out altogether, arguing that this article would subject the constitution to strong criticism on both the international and local levels: “Keeping this article would compromise the constitution of the revolution internationally and this is something we definitely don’t want at such a critical time. It would also infuriate revolutionary youths and several political factions and would give certain groups the opportunity to persuade people to vote no in the public referendum.”
Several members of the committee who voted in favor of the article defended their decision. Mohammad Abdel Aziz, co-founder of the signature collection campaign that triggered the ouster of Islamist President Mohammad Mursi, downplayed the danger posed by military trials since the conditions according to which they might take place were “very specific.” He also argued that the article, as it stands, is the best that could have been reached at a time when stability has not been yet achieved, especially as it managed to strike a balance between the aspirations of the revolution and the realities on the ground: “We responded to the revolutionaries’ objection to trying civilians before military courts and to the people’s demand that the state eliminates terrorism and which specifically targets the Armed Forces.” Abdel Aziz noted that this article was not drafted to stay forever in the constitution and can be changed as soon as normalcy is resorted: “When stability returns and a real democracy is established, two thirds of the parliament can amend this article.”
Unlike most activists, member and spokesman of the committee Mohammad Salmawy sees the comparison between the new article and its counterpart in the 2012 constitution in favor of the former: “The 2012 constitution said that civilians involved in crimes that ‘harm the Armed Forces’ are to be tried before military courts while the new article specifies the cases and therefore is not as broad or vague.”
Director Khaled Youssef, one of the members who voted yes and was accordingly slammed by his fellow filmmakers, did not defend the article, but rather described it as “the lesser of two evils.” Youssef explained that crossing out the article altogether, thus categorically banning the trial of civilians before military courts, was not an option in the first place: “It was either we leave it for the law to determine the cases that necessitate a military trial for civilians or we specify those cases from the start in the constitution so we chose the second option.” Youssef justifies this choice by noting that it would have been up to next parliament to pass a law that specifies offences against the military: “And since there is no way we can predict what kind of a parliament we’ll be getting next time, we preferred to do that now instead of crying over spilt milk later. I had hoped that constitution would be an ideal one that sees our dreams come true, but looks like it’s not time yet.” Youssef was kicked out of the protest organized by No to Military Trials.
Although this article was passed, the 50 members of the committee still have to vote on the entire constitution. This is to be done as soon as “the remaining controversial articles are agreed upon and a final version of the introduction is drafted,” said former Arab League chief and current chairman of the committee Amr Moussa. A no-vote is the hope before the last for detractors of this article and other articles seen as repressive and contrary to the demands of the revolution, the last hope being the public referendum.
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