Constitution-drafting committee makes its move against the civilian state

Political and legal experts have claimed that the Committee of 50 appointed by the coup-appointed government in Egypt has added articles to the constitution that effectively to militarise the state and tighten the grip of the army over the country and its national institutions. These clauses lead to what they described as “constitutionalising” the power of the military so that it becomes a “state above the state” and not subject to any civilian monitoring. Army officers take precedence over civilian officials and even the judiciary.

The experts told the Freedom and Justice Party that the coup authority is trying to cement its position into the constitution, which technically should be valid for decades, and is adding new clauses to give it unprecedented privileges and authority of a kind not found in any other constitution around the world. The committee has formulated a clause that appoints the minister of defence for two presidential terms and stipulates the approval of the military for the appointment. This is unprecedented and makes the president subject to the military institution, which becomes the de facto ruler. It is no coincidence that General Abdel Fattah Al-Sisi is the minister of defence.

The proposed constitutional clause making civilians subject to military courts and the liberal use of the word “terrorism” indicates the coup leaders’ efforts to give constitutional legitimacy to the oppression of Islamists. By politicising the constitution in this way the committee drafting the new text and any of its decisions are rendered null and void.

The essence of the conflict

It should be remembered that the 2012 Egyptian Constitution was passed by a strong majority of the public in a referendum. The bundle of new and revised articles added by the coup-appointed Committee of 50 to deform the document form the essence of the current conflict between the January 25 Revolution and the coup-organisers and so-called counter-revolution. Every aspect of this conflict revolves around the constitution.

The intention is to restrict the growth of civilian institutions in Egypt. Such an approach was rejected by the Muslim Brotherhood, the Freedom and Justice Party, and a number of Islamic groups, not least because it will led to a military council dissolving the elected parliament and having full control over what is supposed to be a transitional phase leading to full democracy. President Mohamed Morsi surprised the military when he cancelled the declaration issued by the interim Armed Forces government in the aftermath of the January 25 Revolution prior to putting a new Constitution to the country in the referendum. Six months later, the coup was under way.

Sources within the Committee of 50 said that the pro-military lobby amongst its members, led by the Head of the Lawyers’ Syndicate, Sameh Ashour, was able to pass the new clauses without any changes thanks to a number of trade offs and deals. They added that it has been made impossible for elected officials to control the constitutional council or having any form of complete authority within the country. Again, the intention is to weaken positions such as the head of state, prime minister and so on, leaving the military at the top of the pile running the country.

The following is the article introduced by the coup-led Committee of 50 granting the minister of defence legal immunity, subjecting civilians to military trials and an amended version of the “fighting terrorism” article:

Chapter Four (Defence, National Security and Military Judiciary)

Branch 1: Armed Forces

Article (171)

The defence minister is the general commander of the Armed Forces, and will be appointed from among the armed forces’ officers.

Transitional article: for two presidential terms starting from the date the constitution is passed. The minister of defence is appointed after the approval of the Supreme Council of the Armed Forces.

Branch 3: Military Judiciary

Article (174) the military judiciary is an independent judicial party tasked solely with the prosecution regarding all crimes related to the frmed forces, its officers, and members, as well as the crimes committed by members of the intelligence during or due to their duties.

No civilians will be tried by military courts except in cases which represent a direct assault on armed forces’ institutions, their camps or anything that falls under their authority, alongside assaults on military or border zones, and military institutions, vehicles, weapons, ammunition, documents, secrets, public funds, factories, or in crimes involving conscription or those considered a direct attack on military officers or personnel as a result of carrying out their duties, and the law will determine such crimes.

Members of the military judiciary are independent and cannot be deposed. They will have all the guarantees, rights, and duties of the members of the judiciary branch.

Anti-terrorism article

A new article was drafted into the constitution regarding the fight against terrorism, making it the first Egyptian constitution with an article that “requires the state to confront terrorism based on the standards of the UN definition of it in every form. The state must also eliminate its intellectual, social, and financial sources, as it is considered a threat to the country and society, it must be done without violating public rights and freedoms.” The law will organise counter-terrorism and fair compensation for any damages resulting from such operations.

Non-state era

In the beginning, Ambassador Ibrahim Yousry, the former Assistant Foreign Minister and leader of the National Conscience Front, confirmed that the goal of the armed forces articles is to make the military higher than the state and in full control of it. He also said that these articles were unsuitable for a 21st century state and do not exist in any other country in the world, as they convey the military establishment as a higher power than the state in the sense that it oversees it instead of being subject to its authority.

Yousry also said that giving the military institution the chance to choose the defence minister rather than the president only has one meaning; there is no state in Egypt and we are living in a time of a non-state. Moreover, the anti-terrorism article is derived from the philosophy of ex-US president George W. Bush who created and fostered the modern definitions of what are called terrorism and Islamophobia. Unfortunately, Muslims have given in over this illusion, and this article aims to tighten the security agencies’ grip on the Islamist political trend. However, the fact that it has been deemed necessary to include such a clause illustrates the fear and insecurity felt by those who have drafted them.

According to Yousry, he does not approve of the articles regarding the military judiciary, neither in the amendments of the Committee of 50 nor the 2012 constitution because in his opinion, the military judiciary is one of the army’s formations in the constitution, as it is not called a judicial committee. Moreover, civilians can only be tried before their natural judge, even if they have committed a crime involving the armed forces, and they will be sentenced by a normal judge. All of these articles are a result of the military institution’s desire for the state to be subject to army officers and not the other way around.

A state above the state

With regard to the article protecting the post of defence minister for two presidential terms, professor of public law Dr Ahmed Mehran said that the military wants to be a state above the state, which is the net result of such a clause. Such executive posts are normally filled through appointment by the head of the executive, that is, the president. The Committee of 50 could have stipulated that the defence minister must be chosen in the same way as the attorney general, for example, whereby the military council would nominate three candidates one of whom is chosen by the president; but it hasn’t. The military wants to have full control.

Mehran also pointed out that the decision to appoint a defence minister for two presidential terms grants him automatically a longer term in office than any president. It could lead, he said, to open conflict between the president and the armed forces. In the event of such a disagreement, it will have to be the elected president who steps down, not the defence minister, making the minister’s position higher than that of the supposed head of state.

The law professor noted that the “terrorism” clause is unique, being present in no other constitution in the world except that of the UN Security Council. Moreover, the Security Council itself has not settled on a definition of terrorism and when it has used it, it was applicable to the crimes committed by Israel. The UN has given each country the freedom to define the crime of terrorism; in Egypt legislators want to determine a clear concept of terrorism in Article 86 of the Penal Code.

He also said that the coup has combined constitutional and legal texts; constitutional texts usually list the general rules that determine the outline of the state, its identity, name, history and values, whereas “terrorism” is a criminal act that should be placed under the penal code. As such, the inclusion of a terrorism article in the constitution is unprecedented, even in France, whose constitutional legislator is known as the “godfather” of Egyptian law.

Impermissible exceptions

As far as military trials for civilians are concerned, Mehran insisted that it is every civilian’s constitutional right to be tried by a civilian judge and that the right is not lost if the constitution is lost nor is it suspended if the constitution is suspended. Moreover, constitutional and legal norms make up an abstract base for each rule, but while every rule has an exception or exceptions, such exceptions cannot be expanded or measured against.

He also explained that a person must be tried by their peers; the exception allowed for by law is a military trial for a person who is a member of the military. This would extend to, for example, a soldier who committed a crime while on leave; he would not be allowed to be tried by a civilian court; he would have to be referred to a military court regardless of whether the crime was committed in uniform or civilian clothes.

The professor went on to say that it is customary for a person who has committed a crime against the armed forces and was caught to be tried by a military court. The rule is that if someone is caught in the act of committing a crime they are arrested; the condition for arrest is being caught; it is the essence of the case. However, if the arrest is based on post-crime investigations then the military prosecution does not have the right to arrest an individual based on the investigations of the civilian police. If a person is found to have committed a crime by means of investigations, they are tried before a civilian court. As such, the articles in the constitution amended by the Committee of 50 regarding the military judiciary and the military trial of civilians go beyond the original rule and increase the exception cases.

He went on to say, “If a civilian is walking down the street and fights with someone else who turns out to be a member of the military, the civilian remains a civilian and the officer remains an officer; if the civilian is the offender, he will be tried by a civilian court, and if the soldier is the offender, he will be tried in a military court.” According to the new articles in the constitution, he added, the constitutional legislator wants to give a unique exception, never before given to any citizen. “In the law governing judicial authority, we find immunity for the judges, and although striking a judge is a serious offence it has been provided for in the judicial authority law and not in the constitution. The new article, though, protects the soldier constitutionally and ranks them higher than the judiciary and the state, making them a member of an institution that represents a state above the state.”

Militarisation of the constitution

The President of the Independence Party, Magdy Hussein, expressed his belief that the proposed amendments to the constitution are illegal. He described the process underway as the falsifying of the constitution that was put in place by the democratically-elected Constituent Assembly and was passed by a two-thirds vote in a public referendum. It doesn’t matter what the amendments are, or what the result of any future referendum is, because the entire process and the results are still null and void.

Hussein stressed that the whole process now taking place is an unprecedented approach, in Egypt or anywhere else. The Egyptian military is trying to implement an “Ataturk approach”, using the outdated Turkish army position as a role model, despite the fact that the Turks themselves have ditched this in favour of democratically-elected institutions. Having the army appoint the minister of defence, he insisted, is a tyrannical step which destroys democracy and is not even seen in dictatorships, where the president appoints his ministers. What the coup is proposing, he continued, is that the minister of defence is imposed on the president and the latter will be subservient to the minister.

The proposal to subject civilians to military courts is a sign that the army does not trust civilian courts, said the Independence Party leader. Ensuring that civilians are tried by civilian courts was one of the aims of the January 25 Revolution, he claimed.

He also explained that the amended article regarding terrorism is transforming the constitution into a political document, as there is no such thing as “terrorism” in the constitution; it has no clear definition and the definition of the United Nations is not necessarily approved.

As for the attempt to “dry up” the sources of “terrorism”, Hussein said that this is aimed at specifically Islamic sources, based upon the coup’s own definition of “terrorism”. He noted that the clampdown on mosques and Imams by the Ministry of Religious Endowments, which includes restrictions on the memorisation of the Qur’an, is the sort of “drying up” of resources that the coup leaders actually mean.

Furthermore, said Hussein, the military is trying to give itself retrospective protection for its illegal acts committed before and after the revolution. By adding such an article, the army seeks to legitimise its violations against Muslim Brotherhood property, schools or companies in an attempt to dry up intellectual and financial sources; this is the expected application of the article. He pointed out that unacceptable violence is defined in criminal law and is accountable for, but the concept of terrorism is not completely understood. In fact, whereas it means the use of violence to influence political decisions, criminals may kill and then claim to be “Muslim Brotherhood terrorists”. Companies and media outlets will be closed in the name of “drying up sources” of the Islamic movement.

Hussein suggested that the military leadership wants to turn the constitution into a blueprint for criminal law, an approach used by totalitarian regimes which give “legitimacy” to repression through tailor-made constitutional clauses. He pointed out that the genuinely legitimate 2012 Constitution did not prohibit secularism nor did it infringe on civil freedoms or intellectual and political pluralism.

He described the amendments as the worst constitutional amendments that Egypt has ever witnessed; even if they are issued they will have no value and there is no possibility of them surviving or being approved because they are linked to a coup that has no future. He also noted that in light of these articles, the minister of defence will be untouchable will be the de facto ruler of the country, as happened in Turkey in the past. As such, Hussein said that he expects elections and votes on this issue to be rigged so that the army gets its way. It has to convince itself that it has the law on its side before it goes ahead and suppresses popular and just dissent.

Institutionalising influence

Ahmad Khalaf, a researcher at the Civilisation Centre for Political Studies, said that there is no doubt that the military has primacy in the current political set-up, allowing its leaders to exercise considerable influence outside the framework of monitoring and accountability, in a manner that protects them from being held responsible for their actions. It is well-known, said Khalaf, that this situation was not provided for sufficiently by the constitution before the outbreak of the January 25 Revolution because the president and supreme commander of the Armed Forces were members of the military institution and they allowed such influence in any case, so there was no pressing need for the “constitutionalisation” of this unique situation.

“However, after the revolution and the promotion of the ideas of democracy, freedom, monitoring, transparency, punishment, accountability, prosecution and combating corruption,” argued Khalaf, “those committing illegal acts realised that the military was in trouble and that the promotion of democratic concepts would affect its situation and influence.” As such, he continued, they tried to make a deal with some secular political forces with limited popularity but financial and media influence for their support in exchange for keeping these forces and figures in the political scene, especially after the Islamists opposed the military’s proposals.

He explained that despite the intense pressure from the military council, the elected Constituent Assembly stuck to the 2012 Constitution in order to preserve the rights of civilians not be tried before military courts. The assembly stressed that this is the original law, and anything other than this is an exception and that exceptions are not absolute but are determined by law, as the authority of the military court over civilians can be reduced if seen fit by the elected parliament.

The political researcher went on to say that it could be argued that the army tried to get concessions and tried to impose its vision on the Constituent Assembly, the Islamist members of which engaged in difficult disputes and negotiations with the army leadership until agreement was reached and the minimum acceptable formulations could be passed. There was even an attempt to postpone the conflict by adding some articles and referring them to the parliament to be approved, but they did not approve the wrong over the right.

Although the Committee of 50 appointed by the coup government violated the original rights by adding on to the instances whereby civilians may be tried in military courts, the actions of the parliament showed that these rights are not easily surrendered by any elected parliament. Such violations were requested by the military council officials from the Constituent Assembly in 2012 but its members rejected this request, according to the testimony of Engineer Hatem Azzam, the Vice President of the Wasat Party and member of the Constituent Assembly for the 2012 Constitution.

Moreover, Khalaf warned that the main problem in the conflict between the civilians and military officials is the realisation by the Islamists that it will take years until Egypt has a professional army ready to follow a civilian commander in chief, fights corruption within its ranks, and does not seek dominance over society, state institutions, the economy and politics. A similar conflict took 13 years to resolve in post-Franco Spain and about ten years after the Justice and Development Party were elected. However, we should not forget that Egyptians generally have a naive perception and trust of the army, which allowed it to stage a coup against democratic legitimacy.

He also pointed out that the army is demonising all Islamists and accusing them of “terrorism”, and that the proposed constitutional changes are meant to provide a legal fig-leaf for such oppression. The new definition of terrorism fits in with America’s which itself was intended to restrict opposition to Israel’s military occupation of Palestine; hence the crackdown by Egypt on the people of the besieged Gaza Strip.

The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.