Continuing EgyptSource’s constitutional coverage, in this installment we look at the articles relating to the military, namely the debate over military trials in the constitution, the appointment of the minister of defense, and the armed forces’ budget.
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On the issue of military trials, the wording in the amended constitution is almost identical to the 2012 Constitution. The amended version goes one step further in defining crimes that harm the armed forces as those that “represent a direct assault against the armed forces.”
Article 174 states:
Sessions on Military Trials
The Constituent Assembly has held several sessions to discuss the issue of military trials, as requested by the No to Military Trials group. The first one was held on September 20, the Constituent Assembly, where it hosted Medhat Radwan, the head of the military judiciary authority, for three hours.
A second session was held on September 23, in which the No to Military Trials group addressed the Freedoms and Rights sub-committee. Human rights lawyer and founding member of the group, Ragia Omran called on the committee to amend article 174, saying that some members of the committee agreed with the group’s reasoning.
The most recent session, held on September 30, lasted for four hours, with military representative Major General Mohamed al-Assar and Major General Mamdouh Shahin, and the committee members remain deadlocked on the issue.
The No to Military Trials Position
The No to Military Trials group has three main demands.
1. It has continued to call for an amendment to Article 174 to explicitly state that no civilians will be tried in military tribunals, without exception.
2. They are also calling for Article 75 of the 2012 constitution to remain unchanged. It is now Article 71 in the amended draft prepared by the ten-member committee.The article, which prohibits the use of exceptional courts, states:
3. Their third demand is to include an article on transitional justice. The proposed amendment would give all civilians that have been subjected to military trials the right to compensation as well as giving them the right to sue.
They are opposed to military trials for several reasons, among them the fact that military verdicts cannot be appealed, unlike verdicts issued by civilian judges. They also question the ability of a military judge to remain neutral in cases that directly involve the military, particularly as all military judges are originally military officers.
Following the September 23 meeting, the group described the meeting as “successful.” Omran said, “The meeting with committee members was successful. We responded to all arguments justifying military trials for civilians and our input was well received by attending members.”
The Military Position
On September 20, Medhat Radwan, the head of the military judiciary authority defended military trials saying that the fundamentals were no different from those of the civilian judiciary, and that the personnel follow the same training path as civilian personnel.
He denied figures that state that as many as 350 civilians are in military prisons, adding that since 2011, around 800 civilians have been tried in military courts due to their involvement in border smuggling or attacks on military institutions. Earlier figures place the number of civilians referred to military courts as high as 11,000 to 12,000, from Mubarak’s ouster until January 2012.
On September 30, the military representative in the constituent assembly Mohamed al-Assar said that removing military trials for civilians from the constitution would “undermine the army’s status.”
He offered a compromise, which was rejected, of making Article 174 more explicit to state that civilians would be referred to military trials only if they were charged with “assaulting military property.”
The Constituent Assembly Position
On September 25, Mohamed Salmawy, committee spokesman, said that the committee is leaning towards to prohibiting military trials. However, to date, the Constituent Assembly remains divided on the issue. In addition to the position to refer civilians to military trials when charged with assaulting military property, some support the No to Military Trials and are completely opposed to civilians being tried in military tribunals. Others argue that Article 174 should remain exactly as is, while another group believes that the issue should not be addressed by the constitution at all, and rather should be left to the law.
During a meeting with the No to Military Trials group, some members of the rights and freedoms sub-committee made the same suggestion offered by Assar – that only civilians charged with assaulting military institutions or vehicles should be referred to a military tribunal. The No to Military Trials group rejected the proposal.
The loose definition of ‘military property,’ has been criticized, as this could encompass buildings that are part of the military economic empire – hotels, bakeries, factories and more. Committee member Gaber Nassar has suggested including explicit wording such as ‘combat units’ in the article.
During that session, members of the committee expressed concern over the “exceptional circumstances” Egypt is currently going through and felt that it justified the need for the use of military trials.
Due to the continued deadlock, committee head Amr Moussa has proposed forming a sub-committee to discuss this issue.
Tamarod has been a vocal participant in the discussion surrounding military trials. Hassan Shahin, a founding member of the group, expressed his opposition to trying civilians in military courts. He did, however, add that the penal code should be amended to all speedy civilian trials for those who threaten national security, referencing trials of former Mubarak regime members as an example.
Founding member Mahmoud Badr, who is one of four youth representatives in the constituent assembly, however recently argued that banning military trials for civilians should not “come at the expense of army’s prestige,” echoing members of the armed forces in the constituent assembly.
Defense Minister and Military Budget
The section on the Armed Forces in the amended constitution contains three articles.
Article 170 is identical to the 2012 wording:
Article 171 on the appointment of the minister of defense adds the condition of approval by the Supreme Council of the Armed Forces.
Mohamed al-Assar has defended this wording, saying that if the judiciary has the right to choose its leader, the same right should be afforded to the armed forces.
Article 172 is identical to the 2012 wording:
Article 173 on the National Defense Council is almost identical, removing only from its members the Shura Council representative (as the Shura Council as a whole was removed from the ten-member committee’s amended draft), and adding the explicit wording that the armed forces budget is incorporated in the state budget as a single figure. This maintains the existing secrecy the military has over its budget.