The provision of the military trial of civilians in accordance with the constitutional provisions Undermine the independence of the judiciary and prejudice guarantees of fair and equitable trial

Cairo on November 25, 2013

The provision of the military trial of civilians in accordance with the constitutional provisions

Undermine the independence of the judiciary and prejudice guarantees of fair and equitable trial

the Arab Center for Independence of the Judiciary and the Legal Profession (ACIJLP) expresses grave concern over the violation of guarantees of fair and equitable trial, as well as breach of the independence of the judiciary in Egypt, especially after the announcement of the existence of constitutional provisions issued by the Committee of the fifty to amend the Constitution of 2012 which provide for constitutional support for this exceptional trials, which represented in the provisions of Article "174" of the first draft of the above mentioned Committee. Therefore, the ACIJLP believes that this Article entrench the military trials through constitutionalize these trials.

The ACIJLP points out that the existence of a constitutional provision authorizing the trial of civilians before military courts represents support to the trial of civilians before military courts, which is not just limited to exceptional circumstances. This matter represents a serious breach of the guarantees of fair and equitable trial which provide for the protection of the right of a person to appear before natural judge, and the right to conduct fair and public hearing by a competent, independent and impartial tribunal established by law.

The ACIJLP points out that the gravity of including this provision in the constitutional document would also breach of the independence of the judiciary and make it done in a typical and systematic manner, according to the constitutional provisions. This would also enable the legislator to loot the terms of reference of the normal judiciary, and referral to the military judiciary.

The ACIJLP also indicates that the referral of civilians to military court in the era of Mubarak's regime was done according to the provisions of the Article 6 of the martial law No. 25 of 1966, which declared unconstitutional after the January Revolution. Moreover, the existence of this provision in the context of ordinary legislation would be lighter than its inclusion in provision in the constitutional document, where its amendment or cancellation requires complex procedures, unlike amending legislation.

The ACIJLP believes that the drafting of the constitutional article with such details, and listing the crimes which fall under the jurisdiction of the military court should not be done in the constitutional text but it is the jurisdiction of the ordinary legislation. Moreover, the drafting of the article as such, represents a grave threat to civilians, in general, in their right in litigation before their natural judge, including civilians who work in military factories and other similar establishments.

The ACIJLP believes that we should not invoke what happened to the judiciary during the events of the January revolution, as an excuse to strengthen the military court at the expense of the jurisdiction of ordinary judiciary, but in order to avoid the recurrence of the attack in the courts or prosecution, we should secure the headquarters of courts and strengthen its powers and independence.

The ACIJLP calls upon the Committee of fifty to give consideration to the guarantees of fair and equitable trial, and to ensure the independence of the judiciary in accordance with the international standards recognized in a large scale