Military trials in Egypt undermine civil law

CAIRO — Egyptian President Abdel Fattah al-Sisi enacted a law on Oct. 27 to enhance sanctions against those who vandalize public and government facilities. The law states that the police shall protect public facilities and refer assaulting parties to the military public prosecution as a preliminary step for their referral before the military courts. This law will go into effect for two years.

In the last two months, Egypt has witnessed repeated assaults on public facilities, including a roadside bomb incident near the Foreign Ministry, an explosion in downtown Cairo a few meters away from metro stations, and an explosion in the vicinity of Cairo University. However, the law was issued immediately after the Sheikh Zuweid bombing, which killed dozens of members of the armed forces on Oct. 24.

The law protecting public facilities sparked widespread debate about its constitutionality and feasibility, as it shows that the police and the judiciary have been unable to control terrorism a year and a half after the revolution of June 30, 2013.

Brig. Gen. Khaled Okasha, a security expert, told Al-Monitor that the law came after the situation in Egypt went from simple terrorist operations, with the police being able to arrest the perpetrators and protect public facilities, to a real war between the state and terrorism. “Waging wars and defending national security is initially the responsibility of the armed forces, while the police alone are unable to handle such missions,” Okasha said.

Legal expert Mahmoud Kebaish shared this opinion. He told Al-Monitor that the law comes as a result of the poor capacities of the civil courts, since every judicial department is currently examining hundreds of terrorism cases. The settlement of these cases, which should be expedited, may take years because of the limited number of judges.

Mohammad Zare, a human rights activist and head of the Arab Organization for Penal Reform, told Al-Monitor that the Egyptian civil courts are able to deter and discipline terrorists without resorting to military justice. “The alternative is to increase the number of judges and not refer some cases to the military courts, which undermines and infringes upon the powers of the judiciary system,” Zare said.

Article 204 of the Egyptian Constitution stipulates that the military court is exclusively competent to adjudicate all crimes pertaining to the armed forces, and no civilian shall face trial before a military court, except for crimes that constitute a direct assault against military facilities or their equivalents.

The expression “or its equivalent” raises a constitutional debate about the public facilities law and the military trial of assaulting parties. Kebaish said that the fact that the armed forces are assuming the role of protecting public facilities renders these facilities military ones, and the military trials of the assaulting parties shall be thus deemed constitutional.

However, Zare believes that the law is unconstitutional since the expression “or its equivalent” may not be construed as public utilities or transportation, or government services used by millions of citizens on a daily basis, since they are inherently different from military facilities used almost exclusively by the armed forces.

“There are fears that the application of the law will expand if public facilities are considered military ones," Zare said. "Any quarrel between two students at university or between two public transportation passengers that causes any damage to the premises, shall be deemed a crime whose perpetrator shall be referred to the military court.”

Kebaish said: “These fears are unfounded, as the application of any law is based on the reasons mandating its issuance. This is the case of this law, the reason behind its issuance being the fight against terrorism and holding fair trials. Therefore, there will be no expansion of the application of the law, as some fear,” adding: “The fears from the military courts is not based on any ground since these courts are governed, according to the current constitution, by the Code of Criminal Procedure and the penal code applied by the civil courts.”

Kebaish further said, “The constitution also provides for the independence of military judges, even from the minister of defense, as is the case of civil judges. The High Military Appeals Court allows to challenge military judgments and hold retrials, just like the civil Court of Cassation.”

Despite the approval of the law, its impact is yet to be seen, as only limited numbers of assaulting parties have already faced trial.

Okasha said that most assaults against public facilities are carried out by a perpetrator who plants improvised explosive devices and escapes. Most of the perpetrators have not been caught so far. “We cannot measure the efficiency of military courts in terms of deterring parties assaulting public facilities, since no military trial of any perpetrator has been settled so far,” he said.

So far, 15 human rights organizations have condemned the law and demanded its withdrawal. This could be explained by jurists' negative impressions of military trials since the Supreme Council of the Armed Forces assumed power in Egypt in 2011 and 2012.

It's uncertain that the law will be able to protect public facilities, and its negative effects are still unknown. However, the law undermines the powers of civil courts encumbered with hundreds of terrorism cases, as well as the police's powers.

The armed forces face both the challenge of securing public facilities against terrorist attacks and ensuring fair and absolute trials of assaulting parties. They must also make more sizeable achievements than those accomplished by the police and the judiciary apparatus over the past year and a half. Otherwise, the new law will be devoid of any value and will only serve to provoke its opponents who fear the law's expanded application.