This is a piece of good news that got lost amid the cascade of bad news throughout the past two weeks. It came out on the same day the aggression on Gaza started, which is why no one noticed it. The news says that the Supreme Administrative Court, headed by the State Council Vice-President Ismail Seddik, on Saturday, December 27 ruled to refer Article VI of the martial law to the Supreme Constitutional Court for suspicion that it is unconstitutional.
That article authorizes the President to refer any case to the military courts, even if the accused were all civilians, and even if the case had nothing to do with the armed forces. The martial law is the Code of Criminal Procedure for the military. It regulates the trial procedures of the military that commit criminal offenses during their service, whether by themselves or with civilians. They are quick and decisive procedures due to the nature of the armed forces being a firm institution that can defend the country.
The sentences issued by military courts are usually severe and stipulate the maximum penalty once it is settled in the conscience of the judges that the accused is guilty. This is what made Abdel Fattah el-Tawil Pasha, the Minister of Justice in the Wafd Party Cabinet before the Revolution, reject a proposal to refer the accused in the case of the fraudulent arms to a military court, although the case had to do with supplying these weapons to the armed forces during the war in Palestine, and although the defendants were from the military as well as civilian. Tawil told the person who suggested this: “Have mercy! These courts give the death penalty if someone lost a button of his uniform.” The government has several times used the emergency law that allows referring civilians to military courts. It happened with the communists in 1959 and 1961. Also, there were courts with civilian and military judges. But the martial law was amended in 1966 when there was no state of emergency. This made the legislators add Article VI so as to allow the executive power to refer civilians to military courts, even in the absence a state of emergency. Based on that suspected article, many military trials of civilians took place. Field Marshal Mohamed Fouad el-Degwi was the most famous judge to preside over these courts, while Mustafa Amin, Sayed Qutb and Shoukri Mustafa were the most famous defendants. When President Mubarak came to office, his government froze that article for years, but then decided to use it again in the face of the frightening escalation of terrorism in the mid-nineties. And the military courts since then issued many death sentences for the terrorists.
The abolition of Article VI has been a top priority for the opposition parties that have been calling for democracy. They also demanded the independence of prosecutors and the abolition of the social prosecutor, the Moral Court, the State Security Court as well as all other forms of special courts. Independence of the judiciary can be achieved only away from any political and religious biases. And defendants have the right to appear before their normal competent judge. Each time civilians were referred to military courts, their defense appealed to the State Council Administrative Court based on the same argument. Yet the Court used to reject such appeals.
It was a surprise that the Court for the first time accepted the appeal regarding Mohamed Khairat el-Shater», the Muslim Brotherhood Deputy Guide, and 40 others, who were referred to a military court on charges of belonging to an illegal organization and of money laundry. The court ruled in favor of the appeal. And when the government challenged the ruling, the Court decided on December 27 to refer the matter to the Supreme Constitutional Court for suspicion of Article VI. If the Supreme Constitutional Court says the article in unconstitutional, the defendants will be retried before a normal court. This will deter the government, unless it comes up with the Counter-Terrorism Act that allows referring defendants in cases of terrorism to any type of court. This is a piece of good news in these bad times. It tells the depressed like me that there is still hope.
