The threat of military ‘justice’ in the new constitution

The Constituent Assembly has recently discussed the incorporation of the military justice system with the country’s civil judiciary. It seems that, with its current formation, the assembly is only another negotiating tool in the hands of the Muslim Brotherhood.

I am not therefore astonished to see this assembly produce articles that violate human rights or seek to satisfy a certain political faction or institution, particularly the military institution, in order to have this constitution approved.

Brotherhood hegemony and the lack of transparency in the work of the assembly raise suspicions regardless of the membership of some figures who claim to be liberal. Those suspicions grow with attempts to tailor laws to grant the assembly immunity against dissolution.

When I read about discussions to merge the military judiciary with the normal judiciary, I felt obliged to talk about the military justice system, particularly knowing that while we struggle to abolish military trials for civilians, other nations are having the same struggle — though to abolish military trials for military personnel.

The military judiciary is an exceptional type of judiciary that does not guarantee or safeguard rights and freedoms. In fact, it is humiliating to describe military trials as “judicial” since they do not provide any guarantees for fair trials, such as independently acting judges, fair public trials and other guarantees.

International agreements and the International Covenant on Civil and Political Rights have dubbed military justice an exceptional type of judiciary. It is worth noting that Article 10 of the covenant stipulates that every human being has the right to be treated on equal footing with others and to have his or her case reviewed before an independent and impartial court in a fair and public trial.

Even though civilian judges agree on the unfair nature of military justice, legislators under ex-President Hosni Mubarak did not respect those international agreements and rulings issued by the Court of Cassation, making military trials of civilians who commit certain crimes — such as assaulting military establishments or military personnel — compulsory, and a possible option for other crimes upon the discretion of the ruler.

Even though the provision allowing the president to refer a civilian defendant to military trial was abolished, military courts continue to menace civilians, and the executive authority retains the power to refer a civilian to military trial as the military police and investigators continue to refer suspects to military prosecution. Several violations were committed in this regard, with cases being trumped up against people for political reasons to silence certain figures or settle scores with the opposition.

According to military laws, the military judiciary is under the authority of the defense minister and is formed of Armed Forces officers who have different ranks.

For over a year and a half since the revolution, the military judiciary has been at the forefront of the political scene, demonstrating how it could be abused to achieve political ends and take revenge on political opponents.

We should also take into consideration the fact that a civilian suspect may be subjected to all forms of violations, such as torture and humiliation by military police before trial or referral to the prosecution. This is often the case because the torturer believes that torturing the suspect is a patriotic mission, as the suspect is seen to merit punishment, having committed a crime against the state.

Even if an investigation takes place, accusations of partiality are never considered and there are several examples to prove this point. Among the most prominent examples are the Maspero clashes, the virginity tests case and several other cases in which suspects were arrested randomly, such as in the forcible breakup of the 9 March 2011 sit-in in Tahrir, the 9 April 2011 massacre, the first Israeli Embassy clashes on 15 May 2011, the Balloon stage incidents on 28 June 2011, the second Israeli Embassy clashes on 9 September 2011 and the Abbasseya clashes on 4 May this year.

In all of those incidents in which people were arrested randomly, not a single officer has been punished for using excessive force during the arrest or detention, even though human rights lawyers have filed several reports to call for investigations. In fact, the trials themselves constitute a series of violations of the rights of the civilian suspects.

All talk about merging the military judiciary as it is now with the normal judiciary is farcical. Instead of discussing that, we should more appropriately be talking about abolishing its role with regard to trying civilians.

President Mohamed Morsy said on 6 September that there were about 2,000 civilians awaiting military trial. There is a need to swiftly release and compensate them. In fact, some civilians have been acquitted but never got compensation after losing their jobs.

The military judiciary’s existence is a grave violation of the right of citizens to have a fair trial before their normal judge. It is also a violation of the principle of the independence of the judiciary because it creates a parallel system of justice that submits itself to the executive authority.

Mohamed Abdelaziz is a lawyer and human rights activist.

This article was originally published in Egypt Independent's weekly print editon and has been translated by Dina Zafer.

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