On Saturday 9 November, as the constitution writing committee continued its deliberations, 200 activists demonstrated in front of the Shura Council to demand an end to the practice of civilians appearing before military courts. The protest, organised by the “No to Military Trial for Civilians” campaign, was mostly attended by leftists and human rights activists who have sought to maintain an independent stand since the ouster of former president Hosni Mubarak. Though there was a clear undertow of anti-military sentiment — unusual since Defence Minister Abdel-Fattah Al-Sisi sided with the popular demand to remove Mohamed Morsi — the protest ended peacefully, and on time whereas nearly daily demonstrations by Brotherhood supporters over the past four months, in which they also chant against the military and describe Morsi's removal as a military coup, usually end in bloody clashes and arrests. “We say no to the military, and no the Muslim Brotherhood,” Sherif Al-Roubi, a member of 6 April-Democratic Front, told Al-Ahram Weekly. “We have been defending the goals of the 25 January Revolution — bread, freedom, social justice and human dignity — for three years. We don't believe including an article in the constitution that allows for military trials of civilians goes along with these goals, or with building a modern, democratic state that prioritises social justice.” After several closed sessions, a subcommittee examining the issue — it comprises the committee's military representative alongside senior members, including committee chair Amr Moussa and Abdel-Gelil Mustafa — failed to reach a compromise, not only on the question of civilians appearing in military courts but also on the right of the president to appoint the defence minister without first gaining the approval of the Supreme Council of the Armed Forces. Alaa Abdel-Fattah, a prominent activist who has openly criticised the role of the army establishment since Mubarak's removal, argues “former president Morsi and the Brotherhood are the ones responsible for the current crisis because, along with their Islamist allies, they drafted a constitution which for the first time mentioned the possibility of civilians being referred to military courts.” Abdel-Fattah points that under Mubarak many hundreds of civilians were referred to military trial under emergency law but there was no provision for such referrals in the constitution. Over 100 received death sentences following summary trials against which there is no appeal. “Perhaps they thought they were setting limits on military trials when in the 2012 constitution they allowed that civilians could be tried in front of military courts for crimes that harm the interests of the Armed Forces,” says Abdel-Fattah. “That's a very vague formulation. There is no exact definition of what constitute the interests of the Armed Forces which is why military courts continued under Morsi, and now under the post-30 June government.” Slightly more than 30 per cent of eligible voters took part in the referendum on the Brotherhood's constitution in late December 2012. It was approved by 63 per cent of those who turned out. Under the roadmap read out by Defence Minister Al-Sisi on 3 July, the 2012 constitution was suspended. A 50-member committee was subsequently appointed by interim President Adli Mansour to revise the constitution. Activists like Abdel-Fattah and his sister Mona Seif, who leads the No to the Military Trials for Civilians campaign, want the new constitution “to state civilians should not be tried by military courts, full stop”. “Military courts are for military personnel and military crimes only,” says Seif. General Magdeddin Barakat, the army's representative on the 50-member committee, suggested making the language less vague by restricting civilians appearing before military courts to those charged with “crimes against military personnel and installations”. Abdel-Fattah and other activists insist the formula would continue to provide for military trials for a wide range of crimes. Hoda Al-Sadda, head of the Freedom and Rights subcommittee at the 50-member committee, favours a total ban. “We have enough laws to punish all sorts of crimes, including those related to the military.” Al-Sadda points out that civilian courts “are responsible for ruling on cases involving espionage, terrorism and other serious crimes that involve state and even army secrets”. “We don't need exceptional courts.” As a compromise she suggests “we go back to the 1971 constitution model and make no reference at all to the military trial of civilians then leave it up to the next parliament to come up with new legislation that sets the conditions under which civilians might possibly stand in front of a military court”. The compromise “should satisfy the military who find it unacceptable to totally ban the possibility of trying civilians by military courts in the constitution”. Mohamed Abul-Ghar, president of the Egyptian Social Democratic Party and a committee member involved in negotiations on articles relating to the military, told reporters that any final settlement would not come before a top level meeting that includes President Mansour, Defence Minister Al-Sisi and the 50-member committee's chair Moussa. While the army is getting some support within the committee, and on the street, for its demands to provide exceptional protection for the military, liberal and leftist members of the committee are unwilling to give up longstanding demands for the role of civilians in running the state to be strengthened and, equally important, for the practice of trying civilians in military courts to be banned. They are issues unlikely to be settled before the last minute, and not necessarily in a way that will satisfy human rights activists.
