President Mohamed Morsi and Egypt's top judges have been in a game of tug-of-war for almost three months. The crisis reached a climax late November, when Morsi ordered Mubarak-era prosecutor-general Abdel-Meguid Mahmoud to retire.

The fall out from that decision continue as Egypt prepares to go to the polls for the second phase of the controversial constitutional referendum on Saturday.

The fracas goes back as far as 12 October, when 25 former Mubarak-era officials were acquitted of involvement in the ‘Battle of the Camel’, one of the bloodiest attacks on protesters in Tahrir Square during last year's popular uprising.

Following public uproar and ensuing protests by thousands of Egyptians, Morsi relieved Mahmoud of his post and attempted to reassign him as ambassador to the Vatican.

A defiant Mahmoud, however, rejected Morsi's decision and claimed the move was outside of the remit of the president.

The next blow came on 22 November when Morsi issued a constitutional declaration in which one article shortened the term length of the prosecutor-general to four years, ensuring that Abdel-Meguid would no longer hold his post.

Morsi also made the Constituent Assembly and Shura Council [upper house of parliament] immune to dissolution by court order as well as immunising his own decisions – a move widely seen as reducing the power of the judiciary.

Morsi claimed the decree was crucial in order to purge the judicial system of old regime members, in a statement by the presidential office on 25 November.

Morsi then appointed Judge Talaat Ibrahim Abdullah in place of the Mubarak-appointed Mahmoud.

This sparked mass uproar as members of the judiciary claimed it was an “unprecedented attack on judicial independence."

The crisis continued as the country went to the polls on 15 December to vote on Egypt's first post-revolution draft constitution.

In opposition to the November constitutional declaration – which was revoked and replaced by another contentious decree on 8 December – a large proportion of judges decided to boycott the poll and not take part in overseeing the voting process. 

This included the General Secretariat of Egypt’s Judges Club, an unofficial body of approximately 13,000 judges, in addition to State Administrative Council judges, who on Monday announced they would not oversee the second phase of voting. 

Moreover, on Tuesday, following mounting pressure from judges and prosecutors who staged a protest against Morsi's recent decisions outside the prosecutor general’s office, the newly appointed Judge Abdullah announced his resignation after less than a month in the post.

In the midst of the current tumult, questions have arisen over the role of the judges, the increasing politicisation of the judiciary and how the current crisis will be resolved.

Politicisation of the judiciary

Former head of the State Council, Mohamed El-Gammal, told Ahram Online that he sees the current crisis as largely the result of Morsi's attempt to politicise state institutions.

El-Gammal says Islamists have been attempting to dominate the judiciary as well as a number of other government bodies such as the information and  justice ministries.

Morsi is slowly attempting to push out all those associated with the former regime, El-Gammal continues and "infiltrate all sectors of society with his allies."

El-Gammal further adds that this is evident "when we see Islamist figures like current Vice President Mahmoud Mekki, Justice Minister Ahmed Mekki and Constituent Assembly head Hossam El-Gheriany taking up senior government positions."

More importantly, El-Gammal notes, these judges who spearheaded the fight for judicial independence in 2006 – known as the "judges' intifada" – are the same figures who today support Morsi’s constitutional decree and so stand in the way of judicial independence.

While agreeing with calls for change within the judiciary, El-Gammal believes there are other ways in which it could have been carried out, rather than resorting to overstepping judicial independence with a constitutional decree.

Mahmoud Aboul-Gheit, a member of "Judges for Egypt" group – which announced its support for Morsi and refrained from boycotting the referendum – says it is incorrect to read the current crisis as a presidential attempt to politicise the judiciary by supporting regime loyalists.

Rather, he says the striking judges are responsible for politicising the judiciary.

Aboul-Gheit maintains that the current act of protest by the Judges' Club personalises the issue and is largely supported by private allegiances to Abdel-Meguid Mahmoud.

This was evident, he continues, when the Judges Club held a general assembly meeting on 24 November to denounce the constitutional decree and Mahmoud attended sitting next to the club's head Ahmed El-Zind.

“If it was a matter of standing up for the principle of independence, as the striking judges claim, then they would have returned to work and retreated from their initial decision, following the annulment of the decree on 9 December," Aboul-Gheit asserts. He further claimed that no solid reason was given for why they continue their strike.

Fawzy Shehata, a judge at the Cairo Administrative Court, says he does not understand why the judges harbour such antagonism towards Morsi's decisions. The politicisation of the issue, he adds, led to the current crisis, "since Abdel-Meguid Mahmoud was going to be sacked in any case in a matter of months."

Following the passing of the new constitution, Shehata explains, Mahmoud would have had to be replaced.

“While Morsi may have done wrong in making a hasty decision [in the constitutional declaration] his main goal was to immunise the Shura Council and the Constituent Assembly from the threat of dissolution by the judges."

“Morsi wanted to start with a clean slate; to purge all those of the former regime," Shetata concludes.

Notably, on 2 December, a day after Morsi approved the draft constitution and on the same day that the High Constitutional Court (HCC) was set to hold a session determining the constitutionality of the constitution-drafting body, a sit-in was launched by supporters of the president.

Unable to access the court, as the pro-Morsi protesters blocked the entrance, disgruntled judges initiated an ongoing strike.

Three weeks later, on Monday, senior judges were still prevented from entering the building by protesters.

Morsi has yet to make any statement regarding the sit-in or to call for his supporters to move from the court building.

Struggle for independence of the judiciary

A young judge at the administrative council, speaking to Ahram Online on the condition of anonymity, asserted that the political tug-of-war between the president and the judiciary, regardless of the people currently in charge, is an age-old battle over independence that started decades ago.

While small strides have been made, most significantly with the 2006 judges' intifada, he says, the struggle still continues.

Egypt's reformist judges have for years complained of the direct interference by the executive authority in their judicial affairs.

A main demand has been the transfer of control over judicial affairs from the justice ministry to the Supreme Judicial Council (SJC).

The judicial source says that as an individual, he has decided not to oversee the referendum for a number of reasons.

“As an Egyptian citizen, I am in complete opposition to the draft constitution, its undemocratic drafting process, in addition to the issuance of the 22 November constitutional decree (even if it has now been revoked). Such wrongs can never be righted," he adds.

El-Gamal, for his part, agrees.

“What guarantees have been given to [the judges] that this threat against our independence does not become an issue again, whenever the president disagrees with our decisions?”

Professionalism

State Council Deputy Head Magdy El-Garhy, who boycotted the referendum, states that regardless of who is in charge, judges should carry out their job professionally and politics should not play a part.

He states that most judges today are in a difficult position as the struggle between the executive body and the judiciary has become a personalised matter of conflicting allegations. 

This schism between old regime members and the post-revolution regime is becoming more pronounced, El-Garhy explains.

While El-Garhy does not support El-Zind as an individual "due to his politics," El-Garhy says he is forced to be counted in “his camp" as he supported boycotting the referendum.

Abdel-Meguid Mahmoud, who became prosecutor-general in 2006 at the height of the judges' intifada, El-Garhy notes, stood against the reform movement and is widely regarded as an ally of the Mubarak regime.

So when Mahmoud was unilaterally removed from his post following the 22 November decree, El-Garhy continues, judges had to stand behind him on a matter of principle (not a desire to back the Mubarak-era prosecutor-general) in order to protect the judiciary from executive interference.

However, others in the top echelons of the judiciary and government decided to pull back completely and dissociate themselves from the conflict.

A judge from North Cairo Criminal Court, who manned Old Cairo's El-Hussein district polling station on Saturday and wished to remain anonymous, tells Ahram Online that he decided to supervise the contentious referendum as it was a matter of “professionalism."

“Our participation ensures the transparency of the process, how would I guarantee the substitutes the government put in our position are not going to rig it one way or another?” the judge notes.

However, he continues, he only decided to take part in the referendum when the 22 November Constitutional Declaration was revoked. Otherwise, he adds, he would have stuck to his initial decision to boycott.

In a similar vein, Aboul-Gheit asks: “Why should we go against the will of the people, if it is the will of the people to take part in the process and to vote?"

Aboul-Gheit sees the conflict between the judges and the president as symptomatic of widespread divisions within Egyptian society. 

“There is a game of ideological warfare being played, based on the political decision one makes (such as voting for or against the constitution), you become labelled straightaway.”

As Egypt goes to the polls for the second stage of the referendum on Saturday, there appears to be no resolution on the horizon.

With resignations and boycotts within the judiciary continuing and the positions of the warring factions becomes increasingly polarised, the future of Egypt's judiciary and its relationship with the president remains in the balance.