As increasing numbers of Islamists are being arrested and facing military trials, there is a certain irony that it was the Constitution, essentially authored by the Muslim Brotherhood, that was the first in the country’s history to allow such trials for civilians, in specific circumstances.
Setting a constitutional precedent that still remains in place in the aftermath of President Mohamed Morsi’s ouster, the relevant article reads: “Civilians shall not stand trial before military courts except for crimes that harm the Armed Forces.”
Previously the 1971 Constitution only stipulated: The law shall regulate the military judiciary, and define their competences in the framework of the principles in the Constitution. And while military courts were used to prosecute civilians, it was by special order from the presidency, not codified in the country’s charter.
Since June 30, there have been almost 100 detainees referred to military trial, many on charges of harming the Armed Forces. The cases are broad, from fishermen accused of fishing in military waters and those caught breaking the curfew, to those accused of chanting slogans that are damaging to national security and spreading false information about the military.
Ahmed Abu Deraa, a journalist in northern Sinai, was reporting on the military’s Sinai campaign and its impact on civilians. He was arrested and accused of reporting false news. He faced a military trial and has since been released with a six-month suspended sentence.
Mahmoud Salamani of the No to Military Trials campaign says that while journalists have faced military summons in the past two and a half years, Deraa is the first to be sentenced in a military trial. “It’s a worrying sign,” he says.
In Suez, seven people faced military trial in September for employing slogans allegedly damaging to national security.
“What is national security, anyway?” Salamani asks rhetorically. “No one can answer that question.”
Three were sentenced to three years in prison, two to two years in prison, and two were released. One of the defendants facing a three-year prison sentence owns a car with speakers mounted to its roof that he hired out to the others, who then used it to broadcast political slogans. They are among 73 reported cases of military trials in Suez alone since Morsi’s July removal, according to the Egyptian Initiative for Personal Rights.
The charges mostly include assaulting public employees and members of the Armed Forces. Salamani says that it is new to see a case that invokes national security so directly.
“That might seem more narrow than national security, but it’s not. Harming the Armed Forces is a very easy accusation to make.”
Even being rude or talking back to a military officer can, if you’re unlucky, Salamani says, land you before a military tribunal. That some people face trial in civilian court for breaking curfew and some in military court is a testament to the arbitrary nature of these proceedings.
“If you don’t talk back, you might end up in civilian court or nothing will happen. If you talk back, maybe nothing will happen, but it happens a lot that it ends up as a military trial,” Salamani says.
Osama Mahdy, also a lawyer with No to Military Trials, says there are several cases like this.
In some cases, breaking curfew can lead to a sentence of six months, sometimes a year, and sometimes it is a suspended sentence.
“It’s not even a real sentence,” Mahdy says. “It is random.”
On a constitutional level, and despite the No to Military Trials campaign’s attempt to pressure the committee drafting a new state charter, the state-run Al-Ahram news portal reported recently that the military is apprehensive of removing the provision that allows civilians to be tried in military courts, mainly because the generals consider the country to be under threat in the aftermath of Morsi’s ouster.
Medhat Radwan, the head of the military judiciary, said in a hearing on the issue of military trials of civilians in September, that the military judiciary is not altogether different from the civilian one and hence there is no need to abrogate the trials of civilians in these courts.
Following that hearing, Mohamed Salmawy, the spokesperson of the constitution-drafting committee of 50 said during a September press conference that committee members are divided on the issue.
Difficult conditions post-Morsi’s ouster have also translated into a relatively quieter No to Military Trials campaign compared to 2011. Back then, it grew quickly, attracting attention both nationally and internationally.
Some of the reasons are obvious; the political moment is different. There is a lot less activism about anything these days. As Salamani says, “some people have fallen by the wayside — whether because they have left the country, sold out the cause, or got tired and depressed — and there are other people who want to do something but don’t know what to do. Especially those used to working on the street. There is a lot less room for politics these days.”
There are also fewer media outlets wiling to air the campaign’s videos or to host its members. While after the fall of former President Hosni Mubarak, some media outlets were receptive to the campaign, since Morsi’s removal the media has largely fallen into line with the ruling authorities, namely the military.
But also, Salamani has noticed that a lot more families are scared. There have always been relatives of detainees or prisoners who were hesitant to take part in the campaign, but this fear, he says, seems to have increased.
“For some of them, there is this sense that everyone is against them — the army, the police, security, and the people applauding. So there is more mistrust and fear, and this is not surprising, because in a way they are right.”
Meanwhile, Mahdy says that while there has been an increase in military trials recently, they have not returned to the levels they were at during the Supreme Council of the Armed Forces’ previous transitional rule.
He maintains the campaign has “no idea how many military trials there are. Often we come across a case by chance.”
Mahdy says the movement considers any defendant in a military trial to be a victim, regardless of what they have done or who they are. After all, human rights defenders faithful to their field have a track record of defending Islamists despite their ideological differences. This idea, however, is not overtly popular in an atmosphere in which the mistakes and crimes of the Brotherhood, real, exaggerated or imagined, are seen to justify any wrong done to them.
“A military trial is unjust by nature. So you are a victim regardless of what crime you have committed,” Mahdy says.
There is no way, he says, that military court judges can be independent. They are accountable to the Ministry of Defense, and moreover, like any military personnel, are obliged to follow orders that come from higher ranks, he explains.
“It is not just that they cannot be objective, they don’t even make the decision. When they issue a sentence it has to be approved by higher up. And often when it’s not approved, it’s changed.”
There is also little space for defense attorneys in military court.
The lawyer may not get to meet the defendant or see relevant paperwork, and if they do, will not be allowed to make copies, and may not even attend the hearing. Mahdy says that sometimes the hearings take place on military property, which is off limits to civilians.
If the attorney does get to attend the hearing, Mahdy says, there is no guarantee that he will be allowed to argue the case. The judge is not obligated to allow the defendant’s lawyer to speak nor hear them through to the end.
“In a civilian court, that would be grounds to immediately invalidate the sentencing. In a military court, it doesn’t matter,” Mahdy says.
When there is media pressure or a concerted campaign, or the person is well-known, the lawyer may be allowed more room, he says.
“That’s why so many of the victims are ordinary, poor people. There is no one to make any noise and many of them would not know who to go to.”
And this has always been the case, from SCAF’s rule after Mubarak, to the Brotherhood rule, to the return of military stewardship over the past three months; the defendants are often activists around certain causes or ordinary citizens.
It is less of a break with the immediately preceding period, than a different gear of the same phenomenon. Indeed it was under Morsi’s presidency that the residents of Qursaya Island, which the military claims it owns, faced military trials in a case that went viral and was often cited as a face of military control of civilian life and resources.
In this same year, the more banal case of a minor — Mahdy’s client — took place. The minor was arrested at a demonstration outside the Saudi Arabian Embassy in Cairo and was sentenced to six months in prison following a hearing that lasted just a few minutes and in which Mahdy was not allowed to speak. His client was being tried because he had answered an officer who had criticized his unconventional hairstyle with, “It’s better than being bald like you.”