They said the new constitution “prohibits civilian trials before military courts”
An official press release issued yesterday by Office of the Assistant to the President on Foreign Relations & International Cooperation writes that the new constitution “enriches human rights and protects fundamental freedoms”, claiming that Article 198 of the new constitution prohibits civilian trials before military courts.
This is a lie.
Article 198 of the draft constitution put to referendum states that:
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.
Not only does the article clearly leave broad discretion for military courts to try civilians but it is purposely vague, leaving all options open for legislation, without in any way limiting the military justice system’s overly broad jurisdiction as set out in the existing law, the Code of Military Justice. The Code of Military Justice allows for civilians to be tried if one of the parties involved is a military officer or if the crime takes place in an area where the military is deployed. This has allowed for unfair trials of civilians for acts as inconsequential “insulting” a military officer. A more recent and striking example is that of the trial of twenty five residents of Qurasaya island on charges that included encroaching on army-owned property and being present in a military zone. Charges that directly contradict a civilian court ruling from the Court of Administrative Justice in 2008 (case no. 782/62), affirming the island residents' legal right to live on the island and farm it [read more].
The draft constitution is worse than the 1971 constitution with regard to the military trials of civilians since the previous constitution did not engage with the matter, and far worse than the 1954 constitution – in which article No. 20 absolutely prohibited the trial of civilians before military courts or exceptional courts. Article 198 of the newly proposed constitution effectively embeds the military justice system’s right to continue to try civilians, making any further legislative reform unlikely.
And just in case the legislative body actually decides to protect civilians from the injustice of military tribunals, article 197 ensures that the armed forces will continue to retain influence over any legislation related to the military via the National Defense Council which includes the Minister of Defense, the Chief of Staff of the Armed Forces, the Commander of the Navy, the Air Forces and Air Defense, the Chief of Operations for the Armed Forces and the Head of Military Intelligence, among others. Article 197 states:
The Council is responsible for matters pertaining to the methods of ensuring the safety and security of the country and to the budget of the Armed Forces. It shall be consulted about draft laws related to the Armed Forces. Other competencies are to be defined by law.
What presidency representatives also fail to explain in their press release is that an earlier draft of the constitution had an article (similar to that of the 1954 constitution) that clearly prohibited any military trials for civilians without any exceptions:
No person shall be tried except before their natural judge; exceptional courts are prohibited. No civilian may face military trial.
Excerpt of article 63 –Nov 11thdraft
The phrase “No civilian may face military trial” was removed from later drafts, to be replaced by article 198 in its present form.
It should also be noted that this is not an isolated lie. The presidency tries to sell the new constitution as being a ‘progressive’ one when it is anything but. For a primer at how this constitution endangers human rights please refer to HRW report on the matter.
This comes after a revolution that called for bread, freedom and social justice and after a year in which 12,000 civilians were unjustly put through military trials.
Though they are striving for the appearance of legitimacy through this constitution our struggle against the military trial of civilians will continue. As will our revolution.