Fair trial is a principle guaranteed in the Egyptian Constitution. It is also guaranteed in international treaties and conventions. One of the most important implications of this principle is that the judiciary should be “competent, independent and impartial”. This means that any exceptional judiciary should be rejected on the grounds that it is not independent and does not have the impartiality necessary to issue fair rulings. One of the most important forms of an exceptional judiciary is the military judiciary. The military judiciary is considered a special judiciary when it tries Armed Forces personnel and an exceptional judiciary when it tries civilians or examines cases of crimes that fall under ordinary law.
Between October 2014 and March 2016, around 7,400 civilians were court-martialed. This calls for a debate about the guarantees that civilians enjoy when tried before the military judiciary. This topic will be the focus of the article, with reference to the Egyptian legislator’s attempts following the revolution to improve the military judiciary’s image via legislative amendments aimed at giving the impression that it has become fair and independent.
1. The Military Judiciary: An Independent Judiciary?
One of the fair trial requirements stipulated in Article 14 of the International Covenant on Civil and Political Rights is that the court be competent, independent, and impartial.
a) The Natural Judge
The natural judge principle is one of the most important guarantees of a fair trial, based on “the dual principle of equality before the law and the courts”. The natural judge principle can be defined as litigants’ right “to be tried equally before the same courts, in accordance with the same procedural rules, and pursuant to the same legal provisions. A person may only be prosecuted by a regular, pre-established, and competent court”. This principle prohibits the executive and legislative authorities from establishing exceptional courts to try specific persons or cases. It also prohibits subjecting litigants to different court procedures, which would undermine fairness. Hence, civilians must be tried before regular courts, not exceptional or military courts. The Egyptian Constitution prohibited trying any person before anyone other than their natural judge, as well as the establishment of exceptional courts. However, this did not stop the court-martialing of civilians in contravention of the natural judge principle.
The Military Courts’ Jurisdiction over Civilians
Currently, Article 204 of the Constitution allows civilians to be court-martialed. The article enumerates the cases in which such trials can occur as an exception to the natural judge principle. The 2014 Constitution follows the same approach as the 2012 Constitution, which stipulated in Article 198 that civilians may be court-martialed for crimes that harm the Armed Forces. The Military Justice Law also stipulates cases in which civilians can be court-martialed, giving the military judiciary both subject-matter and personal jurisdiction. Article 5 stipulates that crimes be examined by the military judiciary irrespective of whether their perpetrators are military personnel or civilians. Article 4 subjects civilians working “in the Ministry of Defense or for the Armed Forces in any manner” to court-martialing, which is an unjustified expansion of the military judiciary’s jurisdiction.
Note that most jurisprudence considers military courts’ jurisdiction over civilians to be an exceptional jurisdiction. This is also what the Constitutional Court contended when it deemed that the ordinary courts are the ones competent to examine cases that fall under ordinary law (the Penal Code) and that the military courts’ jurisdiction in this regard is merely an exceptional jurisdiction. The Court of Cassation has concluded the same.
The Increase in Referral to Military Courts
In 2012, the Egyptian Parliament abolished Article 6 of the Military Justice Law, removing the president’s ability to refer whichever cases he likes to the military judiciary. This was a step in the right direction. The amendment also obliged the Military Prosecution to refer the cases it was examining, in accordance with Article 6, to the Public Prosecution. The amendment constituted an adaptation to the principle that courts must be established in accordance with the law and prior to the occurrence of the offense, rather than established to try a specific person or a specific case.
However, the amendment did not abolish the court-martialing of civilians. Rather, such trials continued under Article 198 of the 2012 Constitution and Article 204 of the 2014 Constitution. Because the Armed Forces help secure facilities and some vital areas, anyone deemed a threat to these places could be referred to the military judiciary. For example, Ahmed Abudraa, a journalist in North Sinai, was court-martialed on the charge of publishing false news because he reported on the military campaign in Sinai. Similarly, 73 people in Suez were court-martialed [between the fall of President Mohamed Morsi and October of 2013, mostly] on charges of attacking a public official or member of the Armed Forces.
Moreover, in 2014, President Abdel Fattah el-Sisi issued a decree-law stipulating that the Armed Forces help secure vital public facilities, property and the like, and that crimes that occur on these facilities fall under the military judiciary’s jurisdiction. The decree-law also stipulated that the Public Prosecution must automatically refer such crimes to the competent military prosecution office, thus opening the door widely for court-martialing civilians and expanding the application of the constitutional provision. It must be noted that there is a difference between the Mubarak era and the current era: under Mubarak, court-martials were used politically and the ruling regime referred specific cases or people to the military court, whereas now, any person can be court-martialed. This change constitutes a step backward and an expansion of the court-martialing of civilians.
Additionally, Article 4 of the Military Justice Law opens the door to intimidation of civilians working in Armed Forces institutions, especially as the Armed Forces have many economic ventures and their activity is not limited to martial matters. For example, workers of the Alexandria Shipyard Company were court-martialed for holding a protest within the company to demand some of their overdue financial entitlements. Evidently, the objective was to intimidate them into abandoning their demands by referring them to the military court.
b) How Does the Military Court’s Composition Undermine Its Independence?
َUntil 2007, Article 1 of the Military Justice Law stipulated that the public administration of the military judiciary is subordinate to the High Command of the Armed Forces. This demonstrates that the military judiciary was subject to the principle of obeying orders and hierarchy, and couldn’t be considered an independent judiciary.
The amendment does not render military courts independent due to the latter’s composition and the way judges are appointed. The composition of the military courts is based primarily on its members’ military ranks. Article 25 of the Military Justice Law stipulates that the public prosecutor must be at least a brigadier, and his assistants must be at least lieutenants. The law also specifies the ranks of the military courts’ judges without explaining other requirements, such as having law degrees. Hence, military court judges might not be versed in the law, which portends misapplication of the law during trials.
Moreover, military judges are appointed via a decision by the minister of defense based on a proposal by the director of the military judiciary. They are sworn in before the minister of defense. Additionally, Article 57 of the Military Justice Law stipulates that military judges are subject to all the regulations stipulated in the military service laws. Hence, they are subject to the principle of hierarchy and obeying orders that applies in the military system. This erases any independence that the military judiciary might enjoy. Note that only in 2010 did the Military Justice Law stipulate that the judges are independent and cannot be dismissed. Previously, it stipulated that the director of the military judiciary exercises the powers granted to him by the laws and regulations of the Armed Forces. In other words, he had the right to discipline, transfer, and dismiss the judges, which directly undermined their independence. The 2014 Constitution re-stipulated [the military judges’ independence], granting them the same guarantees and rights enjoyed by the members of the judicial branch.
c) The Power to Confirm Rulings
Unlike in the regular judiciary, military rulings are only final once they have been ratified. Article 97 stipulates that the president of the republic, or a person he delegates, has the right to ratify the rulings issued by the military courts. It must be noted that ratification of a military ruling is a judicial action complementary to the ruling and therefore cannot be contested before the State Council. This power of ratification shows that the military judiciary lacks independence, for the person entitled to exercise it has a right to reduce the punishment, substitute it for a lighter one, cancel or stay its execution, and to annul the ruling, dismiss the case or order a retrial. Hence, it is clear that the president or the delegated officer can intervene in the military judiciary’s rulings, and the rulings are subject to review by a non-judicial authority and are not executed without its approval.
2. The Court-Martials’ Violation of Defense Rights
The right of defense is one of the essential guarantees of a fair and equitable trial. The Military Justice Law guarantees defendants’ right to a lawyer if they are charged with a felony or misdemeanor punishable by imprisonment. It also stipulates that a lawyer must be assigned to a defendant who does not have one. However, the right of defense encompasses more than just the presence of a lawyer alongside the defendant.
a) Hearing the Defendants and Lawyers
The military courts’ application of [defendants’ right to be heard] differs from one case to another. In some cases, the judges have insisted on guaranteeing all defense rights, but in other cases the judges have ignored these guarantees. For example, in the case pertaining to former president Anwar Sadat’s assassination, the military prosecution allowed the defendants to deliver their statements freely and questioned them in accordance with the Code of Criminal Procedure. Similarly, their injuries from torture during detention were demonstrated before the court, and the court duly heard their oral defense via their lawyers. On the other hand, consider the 1993 “Vanguards of Conquest” case. Although the court issued a decision referring the defendants to forensic doctors because they bore signs of beating and torture, this decision was not carried out and the court did not follow up on it. Ultimately, the court ruled to execute eight defendants.
Presently, the military judiciary is eager to show its full commitment to the established rights of defense in order to improve its image with the Egyptian public. Consequently, lawyers have been treated well. They have been allowed to attend interrogations and photocopy transcripts. However, we believe that the right of defense has only been recognized in theory and not applied in reality. One example is the Arab Sharkas case. The lawyers argued that their clients’ statements had been extracted under duress and asked that they be ruled inadmissible. The lawyers also pointed out that the defendants were actually in the Ministry of Interior’s prisons at the time they supposedly committed the crime in question. Nevertheless, the court sentenced all but two of the defendants to death.
b) The Right to Litigate on Two Levels
In 2007, the Military Justice Law was amended. The amendment altered the structure of the military courts so that they more closely resemble criminal courts. It also enabled persons to contest military rulings issued against them, thus guaranteeing them the right to litigate on two levels. Before these amendments, the military judiciary did not accept two-level litigation, as the legislature had not adopted the system of allowing the rulings of lower courts to be appealed before and reviewed by higher courts. Rather, each court was competent to examine a specific types of cases, which was a direct violation of the right to litigate on two levels.
The only way to have a defendant’s case reexamined had been to petition for reexamination. The 2007 amendments introduced a new system into the military judiciary: the Supreme Military Court of Appeals, which is competent to examine appeals against military rulings issued by all courts on civilian or military personnel for crimes that fall under ordinary law. The procedures of appeal stipulated in the Code of Criminal Procedure apply to these appeals. This court is also competent to examine the petitions to reexamine rulings issued in crimes that fall under ordinary law, in accordance with the rules stipulated in the Code of Criminal Procedure. In 2014, the legislator also established the Military Court of Appeals for Misdemeanors, which serves as an appellate court competent to examine appeals against rulings issued by the Misdemeanor Military Court.
c) Trials in absentia
Article 395 of the Code of Criminal Procedure stipulates that a felony case in which a ruling has been issued in absentia must be reexamined if the accused appears before the court. In the military judiciary, on the other hand, the accused must file a petition for reexamination of a ruling issued against him in absentia in order for it to be re-examined.
Despite the attempts to make the military judiciary more like the regular judiciary and to market its respect for fair trial principles, it remains in conflict with these principles. This is because it fails to fulfill the principal requirement, namely that of the natural judge. When the military judiciary tries civilians, it constitutes an exceptional judge. This is an immutable legal fact.
Moreover, marketing the military judiciary as a swifter and more effective deterrent of terrorism and crimes that harm the state’s interest will not benefit the Egyptian state, for it will cause citizens to lose faith in the regular judiciary’s deterrent ability and thereby damage the image of the Egyptian judicial institution. Creating this behind-the-scenes rivalry between the regular and military judiciaries also places a burden on regular judges examining cases that pertain to national security and terrorism, as they will feel compelled to tackle such cases very firmly and issue deterrent rulings. This undermines the independence of the judge and of the judicial institution in general.
Additionally, while the recent amendments to the Military Justice Law are good in that military personnel now enjoy fair trial guarantees, they – along with the new Constitution – constitute a consecration of not only the court-martialing of civilians, but also the existence of a second judiciary parallel to the regular judiciary. This cannot benefit the judicial institution in the short or long term.
This article is an edited translation from Arabic.
 See Article 96 of the Egyptian Constitution.
 See Counselor Umar Ali Najm, “Dusturiyyat al-Qada’ al-‘Askari bayna al-Itlaq wa-l-Taqyid”, Dar al-Nahda.
 See “Egypt: 7,400 Civilians Tried in Military Courts”, Human Rights Watch, April 13, 2016.
 In this regard, see The Legal Agenda’s 2016 guide on standards of judicial independence (“Dalil Hawla Ma’ayir Istiqlaliyyat al-Qada’”), prepared by Myriam Mehanna and edited by Nizar Saghieh.
 See “Droit Et pratique de la procédure civile», Titre 21 «les garanties d’une bonne justice»” Dalloz Action, 2015.
 See Article 97 of the Egyptian Constitution.
 See Muhamad Mahmud Hasan and Ahmad Husam, “Al-Madaniyyin wa-l-Qada’ al-‘Askari: Tada’iyat al-Thawra”, Front of Defense for Egyptian Protesters, 2011.
 See Dr. Bakri Yusuf Muhammad, “Muhakamat al-Madaniyyin amama al-Qada’ al-‘Askari wa-Mada Ittisaqiha ma’a al-Mawathiq al-Duwaliyya wa-l-Shar’iyya al-Dakhiliyya”, Maktabat Dar al-Wafa’ al-Qanuniyya, 2013.
 Law no. 21 of 2012 (On Amending Some Provisions of the Military Justice Law Issued by Law no. 25 of 1966).
 See Naira Antoun, “In Search of Fair Trial”, Mada Masr, November 5, 2013.
 Decree-Law no. 136 of 2014.
 Based on an interview I conducted with Sherif Mohy Eldeen, a researcher in the Egyptian Initiative for Personal Rights, on December 6, 2016.
 See Mohamed Adel Soliman, “Al-Jash al-Misri Yuwassi’ Nashatahu al-Iqtisadi, wa-l-Mahkama al-‘Askariyya Tuwwasi’ Salahiyyataha Aydan”, The Legal Agenda, September 16, 2016.
 See Article 54 of the Military Justice Law.
 See Article 56 of the Military Justice Law.
 The law was amended on June 29, 2010.
 Article 204 of the Constitution.
 See Article 84 of the Military Justice Law.
 See Bakri Yusuf Muhammad, op. cit.
 See Articles 99-101 of the Military Justice Law.
 See Article 74 of the Military Justice Law.
 See Umar Ali Najm, ibid.
 Sherif Mohy Eldeen interview, op. cit.
 See Hossam Bahgat, “The Arab Sharkas Cell: The Quasi-Covert Military Trial of Ansar Beit al-Maqdes”, Mada Masr, August 27, 2014.
 See Umar Ali Najm, ibid.
 See Article 43 of the Military Justice Law.
 See Article 45 of the Military Justice Law.
 See Article 78 of the Military Justice Law.