Tuesday,21 August, 2018
Current issue | Issue 1125, 6 - 12 December 2012
Tuesday,21 August, 2018
Issue 1125, 6 - 12 December 2012

Ahram Weekly

To judge or not to judge

Judges are divided over supervising the 15 December referendum on Egypt’s controversial constitution, reports
Reem Leila

Al-Ahram Weekly

Will judges supervise the upcoming referendum over the constitution? What would happen if judges boycott the supervision? And if some do not take part, will their numbers be sufficient for the monitoring? These were some of the questions raised during the past few days as the country geared up for yet another vote.
Judicial supervision over polls and referendums is a must, as stipulated by the March 2011 constitutional declaration. Some judicial bodies announced their willingness to participate in monitoring the referendum on the draft constitution that is scheduled to be held on 15 December. On the same day, the Supreme Judiciary Council (SJC) approved the delegation of judges and members of the general and administrative prosecution to supervise the referendum. The approval of the SJC was criticised by the Cairo Judges Club which announced on 2 December the judges’ boycott of the supervision.
During an emergency meeting held at the headquarters of the Cairo Judges Club, chairman Ahmed Al-Zend said, “we are protesting against what is called the draft constitution, and we will boycott supervising its referendum until President Mohamed Morsi rescinds it.”
At the end of the meeting, Al-Zend announced that judges will boycott the referendum and will not supervise it. “It has been agreed by judges clubs outside Cairo not to supervise the referendum on the draft constitution and to boycott it,” said Al-Zend,
The stance adopted by Al-Zend comes following the constitutional declaration announced by President Morsi on 22 November, which was considered by many judges as constituting severe interference in their judicial authority as well as bypassing them.
The constitutional declaration banned any judicial entity, or any other body from annulling any of Morsi’s decisions, thus putting himself above the legislative, judicial and executive authorities. The decree also protects the Shura Council and the Islamist-led Constituent Assembly — commissioned with drafting the country’s new constitution — from being dismantled by a court order. The declaration also dismissed the Mubarak-era prosecutor-general Abdel-Meguid Mahmoud.
At the end of the Judges Club meeting, Al-Zend warned that if Morsi did not scrap both the draft constitution and the recent constitutional declaration, judges will escalate their stance, possibly filing a lawsuit in international courts. “We intend to pressure Morsi in the international arena. When an international court rules in our favour, Morsi will be obliged to abide by their ruling,” said Al-Zend.
But it seems that not all judges will boycott monitoring the referendum. The Judges for Egypt movement held an emergency meeting during which it announced its approval to monitor the referendum. At the end of the meeting, a statement claimed that the majority of Egypt’s judges will monitor the referendum. Judge Mohamed Awad, a member of Judges for Egypt and head of the Alexandria Appeals Court pointed out, “the decisions made by the club are not binding on any of its members. They are just recommendations.”
Awad said he believed that Al-Zend’s call to boycott the referendum is unacceptable. “He does not have any authority to force judges to do something which they do not want to do. Al-Zend is asking for something that is beyond his powers. He must be aware that by doing this he is interfering in executive matters,” said Awad, who called for withdrawing confidence from Al-Zend.  
The Supreme Electoral Commission (SEC) announced on 2 December that it was ready to supervise the upcoming referendum. Judge Abdel-Rahman Bahloul, a member of the SJC and SEC, pointed out that the commission began preparing referendum papers which will be used in the voting process. “The SEC has nothing to do with the suspension of courts. We are an independent entity. Judges who want to boycott monitoring the referendum are free to do so. Those who will supervise it are also free. No one can impose his opinion on judges,” said Bahloul.
Judge Abdallah Fathi, deputy chairman of the Judges Club, condemned the decision of the SJC to delegate judges to supervise the referendum. “They should have abided by the club’s recommendations. Declaring such a decision means that they are indirectly supporting the recent constitutional declaration which they previously condemned,” said Fathi.
Although judges of the State Council (Administrative Judiciary) and Administrative Prosecution have announced their participation in monitoring the referendum, those of the Litigation Authority have postponed announcing their decision. Reports stated that their stance will be postponed until they hold their own meeting in order to reach a unified decision.
Ahmed Abu Baraka, a lawyer for the Brotherhood’s Freedom and Justice Party (FJP) stated to the media that President Morsi can issue a new constitutional declaration that would task professors, lawyers or other trusted groups with monitoring the referendum. “It is not in the authority of the Judges Club to prohibit judges from participating in the monitoring process. The president could resort to such an option if judges refrain from supervising the referendum or if their numbers are insufficient,” said Abu Baraka.
But legal experts argued that in the absence of judicial supervision, the referendum on the draft constitution could be deemed invalid. At the least, it could be expected to raise questions about the legitimacy of the vote. Fawzia Abdel-Sattar, professor of law at Cairo University, believes that judges have been insulted by the recent presidential constitutional declaration. “Judges won’t accept to be insulted. Those who accept to be offended by any authority are not just and fair judges. How come a judge would rule for other people but is unable to rule for himself?” Abdel-Sattar asked.
According to Abdel-Sattar, the judicial supervision of the referendum can guarantee that results won’t be forged. “The presence of judges is more useful than their absence,” added Abdel-Sattar.
Judge Mahmoud Al-Khodeiri denied the claims by Abu Baraka, saying it would be unconstitutional if people other than judges supervised the referendum. “The number of judges in Judges for Egypt is almost 200, and those of the State Council and Litigation Authority are 6,000 collectively. This is in addition to members of the administrative prosecution and other judges. Accordingly, the overall number of judges will exceed 9,000, more than enough to monitor the upcoming referendum,” said Al-Khodeiri.
Al-Khodeiri pointed out that the referendum accordingly will be constitutional as it will be in accordance with Article 39 of the constitutional declaration issued in March 2011. The article stipulates that elections and referendums are to be conducted under the supervision of judicial authorities. “Not all judges will be able to participate in supervising elections or referendums, as they have dozens of cases awaiting them,” Al-Khodeiri added.

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