A report on the legitimacy of the Law on the Military Judiciary: An evaluation of military courts in Egypt: 1993-1995 - CHRLA's recommendations.
Published in Cairo by CHRLA, the Center for Human Rights Legal Aid, 1995
Section I: On the legitimacy of the law on the military judiciary no. 25/1966: First: International charters and declarations
Section II: An evaluation of civilian trials before military courts during the period from December 1992 until May 1995
Section III: Recommendations by the Center for Human Rights Legal Aid
The Center For Human Rights Legal Aid has taken a keen interest in Presidential Decree No. 297/1995, which referred the cases of 49 members of the Muslim Brotherhood to the military judiciary in Lawsuit 8 Military No. 136/1995 Higher State Security. The charges were as follows:
In violation of the provisions of the law, the defendants ran the Muslim Brotherhood Group with the aim of inciting people to render the Constitution and the laws of Egypt inoperable ... and they formed pockets of said Group in various governorates, and held secret meetings and seminars at which they set out the principles of resistance to the Constitution and laws of Egypt and brought together a new cadre of leadership. They also formed a so-called Shura [consultative] Council for the organization. The above are deemed criminal acts stipulated in Articles 30, 86 bis and 88 bis of the Penal Code, which prescribe hard labor, either for life or for a defined period, for the above mentioned crimes.
In issuing the Decree referring those charged with being members of the Muslim Brotherhood to a military court, the President based his decision on Article 6.2 of the Law on the Military Judiciary No. 25/1966, which rules that, 'During a state of emergency, the President of the Republic has the right to refer to the military judiciary any crime which is punishable under the Penal Code or under any other law.'
Since December 1992, the President has exercised the right given in Article 6.2 to refer to the military judiciary hundreds of civilians charged with acts of violence or terrorism. His actions have aroused much wide-ranging legal and judicial debate. The attention and concern of international and domestic human rights groups has also been attracted, as the military system of justice is a form of emergency judiciary outlawed internationally, which deprives a defendant of all the legal standards and guarantees necessary for a just and equitable hearing as provided for in the Egyptian Constitution and the International Covenant on Civil and Political Rights, which was ratified by Egypt on 15 April, 1982. The rights in question include the right of a defendant to appear before his/her natural judge, and his right to appeal before an independent and impartial court against the judgment pronounced on him/her. However, the judges in a military court are serving army officers appointed by the Minister of Defense for two years, with this term being renewable. These judges may be dismissed or promoted on the basis of their actions, and therefore there can be no guarantee of their independence or impartiality. Nor do they have sufficient experience in legal affairs to apply the penal laws to civilians.
In December 1992, the President of the Republic issued Decree No. 375/1992 referring two lawsuits to a military court. These were i) the 'Afghanistan Returnees' case, involving 26 defendants, and ii) 'The Party of God (Hizbollah)' case, involving 22 defendants. All 48 defendants were civilians. Immediately, the defendants' defense team appealed to the Administrative Judiciary against the Presidential Decree to refer the two cases to a military court. The Court of the Administrative Judiciary under Justice Tarek el-Bishri issued a ruling staying the execution of the President's Decree. However, the government hastily presented an objection to the Higher Administrative Court, and requested a fatwa (legal opinion) from the Constitutional Court on the matter. In early 1993, the Higher Administrative Court issued a judgment upholding the President's right to refer certain cases to the military courts, after this decision had been affirmed by the Constitutional Court in its interpretation.
In the period from 2 December, 1992, until April 1995, the Egyptian authorities have pursued the policy of referring civilians charged with committing acts of violence or terrorism to the military courts. The President has referred 19 such cases, involving 483 civilians, to the military courts. Sixty-four of the civilians have been sentenced to death by the military courts, and 46 of these executions have been carried out. Fifteen of the defendants are fugitives, and two civilians on whom a death sentence was pronounced on 31 May, 1995 in the case of 'Reorganizing the Jihad' have not yet been executed.
CHRLA has noticed that the military judiciary has a tendency to intensify the punishments and exceed its powers in issuing death sentences. This tendency is complemented by the speed with which the executions are carried out, very shortly after the pronouncement of the judgment. Moreover, the military courts flatly refuse to release defendants who have been judged innocent of the crimes they were charged with. Their continued detention by virtue of repeated decisions to detain them is a crime punishable by law.
The most worrying factor, in CHRLA's view, regarding the President's decision to refer those charged with being members of the Muslim Brotherhood to the military judiciary, is that it shows that the government is taking a new tack. The authorities are now referring civilians to the military courts, not only civilians charged with committing acts of violence and terrorism, but also civilians who politically oppose the government and whose views differ from those of the government. The authorities are also referring to the military courts cases involving civilians who are carrying out their political, syndicate or professional activities within the law, are respectful of the Constitution and refuse to have anything to do with violence or terrorism.
CHRLA condemns all acts of violence and terrorism. Although it realizes the high level of tension the country is experiencing due to the use of violence and terrorism, and the duty of the state to combat these acts and deter the perpetrators, CHRLA believes that there is no contradiction between on the one hand counteracting these acts and deterring their perpetrators and on the other hand respecting the constitutional and legal principles of the process of justice. CHRLA confirms that respect for these principles (the most important of which is the right of any defendant to appear before his natural judge) is the fundamental guarantee of both justice and deterrence, and also ensures that the perpetrator of a crime receives his just punishment.
In spite of the fact that the President's right to refer certain crimes committed by civilians to the military courts was upheld by both the Higher Administrative Court and the Constitutional Court, CHRLA is of the opinion that the Law on the Military Judiciary No. 25/1966 represents a blatant violation of the principle of equality before the law and allows for no guarantees of the rights of the defendant. It is an unacceptable perversion of judicial authority, and nullifies the principles of the rights of a defendant and the right to a fair trial.
Therefore, this report by CHRLA, entitled The Military Judiciary in Egypt: Courts Without Safeguards, Judges Without Immunity and Defendants Without Rights, is a critical study of the Law on the Military Judiciary. The report aims to judge how much the Law conforms with the constitutional and legal principles of incrimination, punishment and trials. It also evaluates the military trials of hundreds of civilians carried out in Egypt since the latter part of 1992, to show how much respect has been shown by the military judiciary for the constitutional and international guarantees and standards for a just and equitable trial.
This report is divided into three sections:
Section I: On the legality of the Law on the Military Judiciary.
Section II: An evaluation of military trials.
Section III: CHRLA's recommendations.
Introduction | Section I | Section II | Recommendations
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