Egypt Independent

A referendum with judges, or no judges?

Signs of “La,” Arabic for “No,” have already swarmed Facebook profiles and Twitter avatars; a visual reminiscent of the March 2011 Constitutional Declaration thrown out by the then ruling military council, to which many revolutionaries were opposed.

This time the “No” sign has appeared in response to President Mohamed Morsy’s attempted way out from the current political stalemate by throwing out a referendum on a constitution that was quickly hashed out by a controversial assembly on Friday.

The stalemate follows Morsy’s dictatorial 22 November declaration whereby he granted his decrees as well as the Islamist-controlled Constituent Assembly immunity from judicial reversal, of fear of a potential court ruling scheduled for 2 December  and which could dissolve the latter entity. Morsy also extended the immunity to the Islamist-dominated Shura Council.

Morsy’s attempt to fend off the outcry against his declaration which brought thousands to the streets since last week, is to hold a referendum on the constitution within 15 days from the day of its submission to him. The missing detail, however, is how will the referendum be held in the midst of an antagonized judiciary, which is constitutionally bound to supervise the overall process.  

Last week, Ahmad al-Zend, head of the Judges Club, announced from an emergency meeting a general strike in all courts and prosecution houses, in objection to Morsy’s declaration.

No clear estimates are there to document the level of adherence to the strike, but media reports show that about 100 percent of general prosecution offices and primary courts have responded positively to the strike, and 75 percent of courts of appeal. 

Morsy’s move was deemed “a blow to the independence of the judiciary,” and the judicial milieus are now studying the possibility of boycotting the planned referendum. 

Ashraf Nada, a judge in the Cairo Court of Appeal, explains that the judges’ position is clear with regards to refraining from performing any judicial duties, including supervising a referendum.

“I assure you that all general assemblies of different Egyptian courts will take a decision not to participate in the supervision of the referendum. This is a strong tool to pressure the president and the Muslim Brotherhood to let go of his constitutional declaration,” he tells Egypt Independent.

For Sameh Ashour, the head of the Lawyers’ Syndicate and a staunch critic of the Brothers, says that the judicial oversight in the referendum is a political tool that judges are willing to use against the president.

Seconding him, Nada asks, ““How can the judiciary supervise a referendum over a constitution that has been subject to deep disagreement amongst political forces,” he adds.

A possible leeway for Morsy would be to contain the judges’ anger by letting go of the declaration. For one, the referendum is no longer contingent on the declaration, since the constitution is already passed by the Assembly, hence making both its immunization and dissolution irrelevant. In other words, Morsy could renounce the declaration in order to appease judges and walk them into supervising the referendum. Meanwhile, the power of legislation can be handed over from the president to the Shura Council if the constitution is passed and the council is not dissolved by court ruling.

An alternative path for Morsy would be to further alienate the judges.

In an attempt to overturn a boycott threat, some Brotherhood sources said that the president is looking into delegating university professors and other figures from the executive branch to take over the referendum’s oversight.

Critics are concerned on both the constitutionality of such act, with the March 2011 declaration clearly stipulating judicial oversight.

“This would be a clear violation of Article 29 of the 30 March 2011 Constitutional Declaration which stipulates that all popular referenda should be subject to judicial oversight,” says Ashour. 

He argues that if a referendum is conducted in violation of this stipulation, its results would be both void and unconstitutional. “This would lead the country to further legal void, and it could lead to international parties refraining from recognizing this constitution.”

The only way out for bypassing judicial oversight, Ashour explains, would be through Morsy using the current constitutional declaration he announced last week to issue a decree allowing non-judicial figures to supervise the elections. “This is what we fear the most,” he says.

And while the legal hurdle can be solved, the non-judicial oversight poses also logistical challenges.

Alaa Shawky, a judge with the Cairo court of appeal, explains that there are about 12 thousand judges in Egypt supervising about 13 thousand general polling stations that include some 54 thousand sub stations. He wonders how university professors will be able to handle all this oversight, when it would be their first time to do it.

Concerns are also cast over the fact that these executives can be affiliated to the Brotherhood, providing no safeguards on how oversight can be conducted in a fair manner. And while Brotherhood websites have been publicizing unscientific polling showing widespread acceptance of the constitution, the brewing state of street protests against the group since Mosry's declaration can unsettle Islamists' electoral hegemony since the 25 January revolution. 

Bahey El Din Hassan, head of the Cairo Institute for Human Rights Studies, says that the situation reminds him of the 2010 parliamentary elections, which witnessed a high level of fraud that was eventually conducive to the eruption of the revolution. Toppled President Hosni Mubarak had canceled judicial oversight, which translated into widespread violations documented by monitoring groups and the media alike. The Brotherhood were amongst those affected by the lack of judicial oversight with most of its members officially losing in the race. 

“The main difference between this incident and what we’re living through now is that Mubarak called for a referendum in 2007 to annual judicial oversight and could get away with it through a cover of legitimacy. Now what is Morsy’s cover?” he asks.