Controversy over granting defense minister immunity

Controversy continues to loom over the status of the military in the constitution. As the committee of 50 tasked with amending the constitution holds closed-door sessions, leaked news suggests that the defense minister will be granted immunity in the draft.

A red headline on Sunday’s front page of privately-owned daily Al-Shorouk read “Final decision: The defense minister position is immune.” Journalist Emad Eddin Hussein alluded in the report to an agreement within the committee about making the position immune, whereby the defense minister is appointed by the president and the prime minister “after consultation and approval from the Supreme Council of the Armed Forces.” Neither the president nor prime minister would be able to remove the minister from his post.

The only disagreement lies with whether the immunity should last for one or two terms (presidential or parliamentary, depending on what political framework is established in the constitution).

Meanwhile, Al-Shorouk quoted sources saying that the discussion revolves around making the position immune, rather than a specific figure.

In the 2012 Constitution, drafted during Mohamed Morsi’s rule by a mostly Islamist constituent assembly, Article 195 stipulated that “the defense minister is the leader of the Armed Forces, and is appointed from among its officers.”

Article 147 also granted the president the authority to appoint and sack military personnel, including the defense minister. None of the articles stipulated an approval by SCAF.

Controversy has shrouded the article pertaining to the immunity of the defense minister. Renowned heart surgeon Magdi Yaacoub, who is a member of the committee, is quoted in privately-owned Al-Watan newspaper saying that he supports including an article that allows the Supreme Council of the Armed Forces to choose a defense minister, “since this protects the military institution, and during these times the people must protect the army as the army has protected the people over the last period.”

For his part, Raafat Fouda, constitutional law professor at Cairo University, told Mada Masr that such an article is “a disaster.”

“We have suffered for decades because the president had immunity, how do we want to make a minister immune from an elected president?” he asks.

Fouda says that a constitution with this article “is not a constitution and will not represent a democratic system.”

Hassan Nafea, political science professor at Cairo University, says the main reason behind the military’s pursuit of such an article can be traced back to “the Muslim Brotherhood rule when Morsi attempted to gain control over the army.”

Nafea told Mada Masr that “the army wants to make sure it doesn’t enter into arguments with the next president, whatever his political and ideological inclinations are.”

The military has other concerns, according to Mohamed Naeem, researcher at the Egyptian Initiative for Personal Rights. The 2012 constitution dictated that the defense minister should be from the institution, he says, opening the door for the president to appoint a retired officer or any retired member of the Armed Forces. Naeem cites the sacking of Field Marshal Mohamed Abdel Halim Abu Ghazala by Mubarak and replacing him with Sabry Abu Taleb who was retired at the time.

“SCAF will stand against appointing a defense minister that is not from among them,” he says.

Nafea suggests that it is a dangerous article because it gives the military the final word. “It is not in Egypt’s interest for its institutions to be out of the control of the president.”

A compromise should be reached, Nafea says, guaranteeing the independence of the military, protecting it from the influence of the next president’s ideology while guaranteeing the state’s security requirements, without affecting the democratic system. 

Nafea suggests amending the article to grant the military the right to nominate three candidates for the job, from which the president would choose.

The controversy around articles pertaining to the military has revived arguments about the status of the military and its relationship with the state, as well as fears of it becoming a state within a state.

It has also revived concerns about institutional struggle for independence on the part of the military and the judiciary and breaking free of the president’s control instead of uniting under a national project.

Naeem believes that the state’s institutions, whether the military or the judiciary, in addition to a significant section of the population, operate under the notion that “politicians are not mature enough.”

This was not the case two years ago, Naeem says, when the people took to the polls and elected their political representatives.

“Neither the military, nor politicians, are going to come to an agreement over restructuring the Egyptian state on a real democratic basis,” Naeem says. “So each institution will just float in its own space.”

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