Judges, legal experts weigh up scenarios ahead of constitutional referendum

Ahram Online, Monday 3 Dec 2012

As political divisions ensue and a crisis between the judiciary and President Mohamed Morsi mounts, judges and legal experts debate how Egypt's national charter will make it to the polls

File photo: An Egyptian man fills in his ballot indicating "Yes" at a polling station during voting for a referendum on constitutional amendments at a polling station in Cairo March 19, 2011 (Photo: Reuters)

The national referendum on Egypt's draft constitution is set to take place in less than two weeks, despite opposition forces continuing to condemn President Mohamed Morsi's move to push through the national charter and to issue the contentious Constitutional Declaration immunising the body which authored the constitution.

The Judges Club announced it would boycott the referendum and not supervise the polling stations as is usual practice in Egypt, in protest of what they called Morsi's "power grab" decree which they said impinged on their independence.

This prompted Egypt's Supreme Judicial Council to announce Monday that it will allocate judges and members of the prosecution to supervise the constitution referendum despite the strike action.

Nevertheless, this may not be binding as the striking judges responded by saying that the SJC decision is not final and they can always individually refuse to participate.

So what is the constitutionality and legality of the referendum if there is an absence of judicial supervision and what other possible alternatives can be presented?

Head of South Cairo Criminal Court Ahmed Yehia Ismail explained to Al-Ahram Arabic language news website that the majority of Egypt's judges are expected to take part in the referendum process, since they are bound by their ethical and professional responsibilities to do so.

"No one can state otherwise," he asserted.

Meanwhile, Judge Zakaria Shalash, Head of the Cairo Appeal Court expressed his dissatisfaction with the situation, adding that the situation is unprecedented and that Egypt's judiciary has never experienced this level of disrespect, not even under the regimes of Gamal Abdel-Nasser and Hosni Mubarak.

Shalash expects that the majority of judges will ultimately boycott the elections, if lawyers or law professors are called on to oversee the process, the referendum will be deemed invalid.

This conclusion, he explained, is based on the current Constitutional Declaration in which it stipulates that only judges are allowed to oversee the voting process.

He added that if the referendum is rejected following the vote on 15 December, a new Constituent Assembly will be formed to draft a new constitution.   

Meanwhile, Judge Zakareya Abdel-Aziz former head of the Judges club argued that it was unlikely that judges would refuse to supervise the referendum.

Abdel-Aziz however added that if a number of judges did protest then it is their colleagues from the administrative prosecution and the Egyptian State Lawsuit Authority who will ultimately supervise the voting sub-committees.

"However if the number of supervisors are not enough, I suggest that we merge committees together," added Abdel-Aziz, saying that it would also be advisable to hold the referendum across several days to ensure the availability of supervisors.

Judge Abdel-Aziz Abou-Ayana, head of the Alexandria Appeal Court and a leading member of the Judges Club – which is currently boycotting the referendum – asked how the judges are expected to oversee the voting process when they have "clearly rejected the Constitutional Declaration?"

He further rejected suggestions that the state will substitute the judges with other members of the legal profession such as lawyers or law professors, as this is invalid since it is against the law on political rights, which dictates the process of a referendum.

Head of leftist Tagammu party Refaat El-Said agrees, asserting that according to the law the referendum cannot take place if the judges refuse to supervise it.

"We need around 8,000 judges and if they are not available then the vote should not take place," El-Said said, adding that Egypt is now facing the challenge of the Muslim Brotherhood's control of power.

Political Science Professor Hassan Nafaa said he advised the president not to put the constitution to referendum. He instead recommended that Morsi form a committee of informed people to review the national charter and suggest amendments to the most controversial articles.

Despite the controversy surrounding the details of the voting process, the Supreme Judicial Council announced Monday afternoon that a committee has been formed to supervise the polls, headed by Judge Sameer Abou El-Ma'aty.

For the time being, however, it remains unclear exactly how the referendum, set to take place between 8-10 December for Egyptians living abroad and on 15 December in Egypt, will be run as so many judges are boycotting.

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