Did you know that according to current Egyptian laws, particularly the Code of Military Justice, the commander-in-chief of the Egyptian Armed Forces cannot be put to trial for any offence before any court, be it civilian or military? 

The provision that allows for military trials in the 2012 Constitution, even after the slight amendments it has gone through in the latest constitutional draft, is a significant and perilous shift in the history of the Egyptian legal and judicial system. In addition to constitutionalizing military trials of civilians before military courts, it is a blatant infringement on the judiciary, its mandate, jurisdiction and administration of justice.  But more importantly, it lays down the foundation for a heavily fortified military state.

The immunity granted to the military in the 2012 Constitution and the current amended draft is unprecedented. Historically, Egyptian constitutions, barring that of 2012, have explicitly spelled out and defined the power of judicial bodies. For example, stating, “The State Council is an independent judicial body that specializes in..." and “The law regulates the military judicial system…” This seems logical, so it never crossed anyone's mind to dare name a branch within the Armed Forces, or one of its divisions, "an independent judicial body," either in the 2012 Constitution or the current draft. The amended version sought vigorously to provide all possible guarantees for the independence of the Armed Forces and to make it immune to the authority of the people. Among those guarantees, is the establishment of what can be called a "military judicial authority," which has unprecedented power over everyone, and falls under no one’s control but that of the commander-in-chief and the commanders of the military zones of the Egyptian Armed Forces.

Over and above the establishment of a parallel military judicial authority, article 204 of the amended constitution infringes on judicial power in two ways. Firstly, it grants members and officers of the Armed Forces protection and immunity from any accountability before civilian judiciaries. And secondly, it challenges the judiciary’s inherent responsibility for administering justice among society.

Regarding the first point, Article 204 states that the military judiciary “adjudicates exclusively in all crimes related to the Armed Forces, its officers, personnel, and their equals." This is precisely what the draft constitution sought to do: that no member of the Armed Forces shall be tried before a civilian court, not even for a crime that is non-military in nature, and not even if the said crime is committed against a civilian. The Armed Forces are determined to protect their members from the authority of the people, from being accused by the public prosecutor and from standing before court, or more concisely, from yielding to justice. The Armed Forces, supported by constitutional article 204, might as well have said, “Your judicial power means nothing to us.” 

One wonders about the reasons behind this dismissal of the civilian justice system. Is it a reflection of the military’s vanity and their condescending views towards civilian institutions? Is it a lack of trust in the loyalty and national allegiance of members of the civilian justice system?  Do the Armed Forces doubt the civilian judiciary’s competence or integrity?  

By virtue of this draft constitution, one should not be surprised then, to find a military court looking into a fight between a married couple because the husband happens to be an army officer — this is, incidentally, a real case and not some imagined story for the purpose of giving an example. By the same token, we have never forgotten how the public prosecutor turned a blind eye to the atrocities committed against citizens in front of the Maspero television building in 2011, simply because the killers followed their own “code of military justice.” We will never forget the passive role the public prosecutor played and how he stood there incapable of speaking a word against the killing of citizens who are presumably subject to his jurisdiction, and how the civilian judiciary failed to rectify the injustice and protect citizens from crimes committed against them by the executive branch of power.

In Egypt we tend to forget that individuals are not subject to judicial authority only when they are guilty of committing a crime. That same judiciary is responsible for protecting civilians from any aggression towards them, whatever the source of that aggression may be. And, if the judicial authority is unable to provide that protection, then it is of no value. The judiciary is not a tool for punishment, but is above all an instrument that guarantees justice, fairness and protection. Anything that stands between the judiciary and its ability to achieve the purpose for its existence and social function, renders it without value, and should not be called a true “authority.” The judiciary should either have jurisdiction over all the people, or none at all.  

Now, why is it that the commander-in-chief can never be prosecuted, before any court, for any offence? First, as a member of the Armed Forces, he can only be tried before a military court. Secondly, as the highest ranked member of the Armed Forces, and in accordance with the provisions of Article 44 of the Code of Military Justice, he "may not be tried before a military court, whose president is of a lower rank.” Thirdly, how can he ever be tried when he controls all the court referral decisions?

Therefore, we are left with a situation where judicial authority in Egypt does not apply to everyone, only to those without any shiny stars on the shoulders of their uniforms.

The public prosecutor only has jurisdiction over the public, but those who have their very own “special” judicial authority are out of his reach. “Your Honor, in light of the above: if you are unable to bring me justice when I have been wronged, you have no right to judge me when I am the offender.”

The question now is what would stop the police force from creating their own independent judiciary — under the jurisdiction of the Interior Ministry — to examine crimes committed by police officers and personnel in the course of their work, especially, for example, when they are torturing citizens?

At any rate, Article 204 of the draft amendment of the constitution did not stop at shackling the hands of the judiciary, and providing constitutional immunity for members of the Armed Forces. It punctured the judicial umbrella that protects all citizens. It particularly granted the military a share of the civilian judiciary’s power and jurisdiction over civilians.

Similar to the “Mubarak era,” when provisions were tailored to constitutionalize violations, the Armed Forces ensured that its powers under the Code of Military Justice are now enshrined in the constitution. Perhaps it has done so fearing a day when a democratically elected parliament, with popular support, would attempt to amend the military code or shrink its power. This prospect is no longer possible.

According to the amended constitution, the Armed Forces has the right to try any citizen before its courts, if they are considered to have committed an offence against any of its members, its property, or any other issue that affects it.

Essentially, citizens refrain from breaking the law fearing justice, but the amended constitution creates a situation where citizens’ actions are driven by their fear of military trials. Threatening citizens with the possibility of standing military trials reinforces the notion that the military judiciary is unlike the rest of the judicial system, and that citizens should fear something that is much different and more dreadful than justice.

To sum it up, we are now facing a constitutional draft that creates a situation where the Armed Forces cannot be questioned in front of the judicial authority, nor can the legislature attempt to alter military powers and jurisdiction under its code. On the other hand, the military has the right to try civilians, including members of the judiciary and the legislature, who, according to the law, have the right to serve sentences they receive from a military court in a civilian prison, pursuant to the principle of the separation of powers. This is, ironically, the extent of the “civilian” nature of Egypt’s government.

Note: The Military Judiciary in Egypt is under the authority of the Defense Ministry. All the judges are military personnel of varying ranks and are subject to all disciplinary regulations set forth in the military service laws. The minister of defense, based on recommendations from the head of the military judiciary authority, appoints military judges. Officers appointed as judges are sworn-in before the deputy supreme commander of the Armed Forces, in the presence of the head of the military judiciary authority. Their verdicts are not final until approved by the military officer (charged with ratifying the decision) and the military judiciary in Egypt is "an independent judicial body."