Morsi’s Constitutional Referendum: The State of Play
December 10, 2012
On December 1, Egyptian President Mohamed Morsi issued executive order no. 397/2012, calling for a referendum on the new constitution’s final
draft, which had been passed by
the Constituent Assembly only the day before. The referendum—a simple “yes” or
“no” vote on all 236 articles of the final draft constitution—is to be held on
December 15, though Egyptians living abroad will be able to start voting as
early as December 12.
The independent High Election Commission (HEC), created by Article
39 of the Supreme Council of
the Armed Forces’ (SCAF’s) March
Declaration, will be responsible for
administering the referendum and declaring its results. Unlike the March 2011
referendum held by the then
ruling SCAF, no special legislation was issued in advance for the upcoming
referendum. Rather, the 1956 law Regulating the Exercise of Political Rights
and its Amendments (law no. 73/1956) and all of its addenda—including the SCAF-issued laws no.
46/2011 and no.110/2011—along with the HEC’s internal rules will govern the
December 15 referendum process.
The HEC (a standing body) held a meeting on the constitutional referendum on December 3 to discuss
possible logistical and security issues that should be addressed in the short
time before the vote. Additionally, on December 4, the president of the HEC
issued order no. 58/2012, appointing a seventeen-member general secretariat made up of
judges and representatives of the Justice, Interior, and Communications
Ministries that will assist the HEC in its work.
The current makeup of the HEC—as mandated by revised Article 3 of
the Exercise of Political Rights law and executive order no. 310/2012—includes:
§ Judge Samir Ahmad Abu
al-Muati Ibrahim: President of the Cairo Court of Appeals and president of the HEC
§ Judge Bushra is it Filisips
Sulayman Matar: President of the Alexandria Court of Appeals
§ Judge Abd al-Rahman Abd
Allah Bahlul: President of the Tanta Court of Appeals
§ Judge Ahmad Ali Abd
al-Rahman al-Sayyid: Vice President of the Court of Cassation
§ Judge Hamid Abd Allah
Muhammad Abd al-Nabi: Vice President of the Court of Cassation
§ Judge Hamdi Muhammad Amin
al-Wakil: Vice President of the State Council
§ Judge Farid Nazih Hakim
President of the State Council
Egyptians living abroad must register for
national identification numbers in order to vote in an embassy or a consulate.
The current number of eligible Egyptian voters abroad with valid national
identification numbers is 586,492.
Due to the short amount of time before voting
begins, the HEC announced that only those who were registered to vote as of the
presidential election that was held in May and June 2012 will be eligible to
vote in the upcoming referendum. Law forbids any changes to the voting database
at this stage.
The referendum taking place on the ground in
Egypt on December 15 is expected to last one day. Even so, the HEC has not
specified when the results will be officially announced.
In a televised speech on December 6, President Morsi said that, in
the event the draft constitution is rejected, a new Constituent Assembly will be
formed through either political consensus or direct elections to draft a new
constitution. Although the Constituent Assembly has been in session for nearly
six months and its mandate was extended for another two months by President
Morsi’s November 22 Constitutional Declaration, the voting process within the Constituent Assembly that approved
the document has been rushed. It was completed in an extended session that
began on November 29 and lasted into the early hours of November 30.
President Morsi’s call for a referendum has been criticized by
opposition forces as a rushed attempt to pass the newly drafted constitution
authored by an Islamist-dominated Constituent Assembly. Opposition forces have
criticized the draft as one that represents the interests of the Muslim Brotherhood—attacking the drafting process even more strongly and arguing
that fifteen days are insufficient for voters to study the new constitution and
its 236 articles. Various opposition forces are now deliberating whether to
call for a boycott or a no-vote.
Another obstacle facing the December 15 referendum is the ongoing
judges’ strike in protest of President Morsi’s November 22 Constitutional
Declaration. Although the Supreme Judicial
Council (Egypt’s top judicial
authority) has been cooperating with the HEC, a vocal group of judges remain
uncooperative across Egypt—many of whom are likely to refuse to supervise the
polls unless Morsi’s declaration is rescinded.
Currently, the Supreme Constitutional Court, the General Assembly
of the Cairo Appeals Court, and the General Assembly of Administrative
Prosecution—as well as judges from regional courts and the 9,500-member Judges
Club—have objected to supervising the December referendum. Judge Zaghloul
Mahmoud el-Belshy, the current secretary general of the HEC, said that he will not participate in supervising a referendum on a constitution for which
blood has been spilled—referring to the ongoing violent clashes across the
country between those in support of and those against the government.
Though Egyptian law requires judicial
supervision of its polling, individual judges are not legally required to
participate in the process. It remains unclear whether the ongoing judges’
strike will significantly hamper the referendum process.
This article is reprinted with permission from the
Carnegie Endowment for International Peace. It can be accessed