Inside Egypt's draft constitution: Debates over military powers continue

Sherif Tarek , Thursday 12 Dec 2013

An Egyptian soldier keeps guard
An Egyptian soldier keeps guard from atop a military vehicle in front of the presidential palace in Cairo July 14, 2013 (Photo: Reuters)

The draft constitution, completed last week and due to go before a public referendum in a matter of weeks, looks set to maintain the existing status and powers of the Egyptian military.

Activists and politicians who had been lobbying for change had their hopes dashed last week when the committee tasked with amending Egypt's constitution voted to approve the contentious Article 204, which allows the military judiciary to continue trying civilians.

The article could be seen as an improvement on the equivalent articles from the 1971 and 2012 constitutions as it limits the types of cases for which a civilian could stand trial before a military court, something that previous articles failed to do.

But the article still allows for any disputes between civilians and personnel in a military zone to be referred to military trial.

Because of the military's deep entrenchment in Egyptian society, military zones can include military-owned properties such as petrol stations, wedding halls, recreational areas and even theatres.

General Medhat Radwan, head of the military judicial authority, confirmed that disputes at any of these places could be settled by martial courts. 

Radwan, along with other representatives of the security services, supports the article, as do other civilian observers.

One civilian supporter of the article is constitutional expert Shawky El-Sayed. Speaking to Ahram Online, he described the article as "acceptable and clear."

"It stipulates that a civilian would face a military trial only in cases of assaulting military individuals at a military facility, which makes sense," he said.

Many of Egypt's political parties and public figures are not satisfied, however.

Ahmed Khairy, spokesman for the liberal Free Egyptians Party, said that his party rejects military trials for civilians. He suggested the creation of a special court, affiliated with the criminal court, to deal with cases involving civilians attacking the military.

In an interview televised last week on private satellite channel ONTV, prominent political satirist Bassem Youssef attacked the article, stating that "similar cases abroad would be referred to the regular judiciary."

"You can impose harsher sentences in crimes involving the military," Youssef said. "But a regular court, not a military tribunal, should be the one returning a verdict against a civilian."

The issue of military trials for civilians has been widely debated since the 2011 uprising which ousted former president Hosni Mubarak from office and brought the Supreme Council of the Armed Forces (SCAF) to power on an interim basis.

In the resultant period of military rule, lasting until the 2012 presidential elections, thousands of civilians were tried and convicted by military courts for all kinds of charges, prompting a group of activists to launch the No to Military Trials for Civilians campaign.

The same campaign has recently voiced displeasure with Article 204.

The bulk of the criticism has argued that a military judiciary is inherently designed for handling disputes that are explicitly linked with the military, which would deny civilians normal recourse to justice.

Apart from extreme sanctions and an inability to appeal verdicts, detractors have also cited prisoners' frequent mistreatment in military detention as proof enough that civilians must not be held in such facilities.

No authority over defence minister?

Another point of contention is Transitional Article 234, which deals with the appointment of the country's defence minister over the next two presidential terms (eight years).   

Unlike 2012's constitution, which only stipulated that the candidate be fielded from the ranks of the armed forces, the article says the defence minister may only be appointed upon the approval of the Supreme Council of the Armed Forces.

Critics believe the article will strip the next president, and possibly his successor as well, of the right to have a leading role in choosing the defence minister. The president has full authority to make other cabinet changes.

Khairy, from the Free Egyptians Party, said that he felt the article was unnecessary. It is well known, he said, that the president will negotiate with army commanders regarding the appointment of a new defence minister.

"There should be a consensus between military and political leadership, so there is no need for such an article," Khairy said.

Others, meanwhile, expressed a need for the army's self-governance.

Emad Gad, a former MP from the Social Democratic Party, said that it was normal for Article Transitional Article 234 to be included in the national charter, given that Egypt has "not fully developed into a democratic state."

He said that in the case of a civilian president, the army must be responsible for appointing the defence minister, especially at the current stage of what he described as Egypt's path towards democracy.

Some countries have a civilian defence minister, he said, adding that it will take Egypt at least 20 years "to reach that degree of democracy."

"When state institutions grow stronger, the system [becomes] more transparent, and the environment more democratic," he elaborated.

Yet Gad added that it was entirely possible that Egypt would never have a civilian defence minister. Russia, he pointed out, still has a military defence minister. Either way, he insisted that the appointment of a civilian defence minister these days would be "impossible."

Article 201, in fact, stipulates that the defence minister is chosen from military officers, ruling out the possibility of appointing a civilian defence minister at any point in the future.

Military budget

The military's budget is another issue of controversy.

According to the newly amended constitution, which will be put to a national referendum in January, the military's budget will be discussed by a national defence council made up of top state officials including the president, the prime minister and the defence minister.

The constitution does not specify, however, exactly who has the power to approve the budget.

Political forces such as the National Salvation Front, the April 6 Democratic Front Movement, and the Popular Current Party have argued that the military's budget must remain secret for national security matters.

Nevertheless, the idea of creating a parliamentary authority to oversee the military's budget has been gaining popularity since the drafting of the 2012 constitution, so as to prevent military leaders from forming an unaccountable clique.

Prominent rights lawyer Gamal Eid brought up the issue in the debate over the 2012 constitution. Eid, director of the Arab Network for Human Rights Information (ANHRI), called for transparency regarding the army's expenditures.

"We don't want to know military secrets," he said. "But we pay taxes and I want to know where my [money] is going."

Like the 2012 constitution, the 2013 charter does not guarantee supervision of the military budget.

Leading member of the Egyptian Social Democratic Party (ESDP), Ahmed Fawzy, said that the articles in the new constitution which touch on the military budget have hardly changed.

He explained that the Muslim Brotherhood, whose political wing the Freedom and Justice Party formed the majority of the constituent assembly that drafted the 2012 constitution, "unjustifiably gave too many authorities to the army."

The army has grown in popularity after playing a major role in the removal of unpopular Brotherhood-affiliated president Mohamed Morsi, Fawzi argued. It has therefore become difficult for anyone "to call for the reduction of the military prerogatives."

"In general the powers of the military in the constitution are overwhelming, making it more powerful than the executive authority," Fawzi said.

"But it's fair to say that, all-in-all, the draft constitution is better than the 2012 one, and it has to pass [the upcoming referendum] as per the [post-Morsi] roadmap that we are obliged to abide by."



Article 201

The defense minister is the commander-in-chief of the Armed Forces, appointed from among its officers.


Transitional Article 234


Appointment of the defense minister should be after the approval of the Supreme Council of the Armed Forces. The provisions of this article shall apply for two terms (eight years) from the date of the adoption of this constitution.

Article 195


The defense minister is the commander-in-chief of the Armed Forces, and is appointed from among its officers.

Article 204


Civilians are not to be tried in military courts except for crimes that represent direct attacks on military installations, camps or what is in its territory, military border zones, equipment, vehicles, weapons, ammunition, documents, secrets, public funds, military factories, crimes related to conscription, and crimes that represent a direct assault on its officers or members performing their jobs.

Article 198


Civilians shall not stand trial before military courts except for crimes that harm the Armed Forces. The law shall define such crimes and determine the other competencies of the military judiciary.



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