The tensions over Egypt's referendum on the new constitution show no signs of going away as more judges say they'll boycott monitoring the second round of voting.
Egypt's President Mohammed Morsi could be rather happy with the first round of voting in the referendum on the country's future constitution. The draft seems on track to winning a majority. But the opposition made of a colorful mix of liberal and leftist groups has announced further protests and took to Tahrir Square on Tuesday (18.12.2012) night to demonstrate against the draft constitution. Also, the judges of the Supreme Judicial Council have said they will not oversee the second round of voting, which is likely to raise doubts about the entire referendum's legitimacy.
The judges stated that not enough had been done to ensure a secure and orderly poll during the referendum's first stage of voting on Saturday. The judges also complained that a protest by Islamists in front of the Constitutional Court is still being held.
The judges' decision will make it difficult for Morsi to find enough justices to monitor the vote. Many judges had already boycotted the first stage of the referendum.
Judges fear for their independence
The judges are deeply entwined in Egypt's power struggle. In November, the president tried to put himself beyond the reach of the courts, upsetting the separation of powers and having many worried he'd be taking the country once again down the road to dictatorship. Some observers said his intention may have been to prevent the judges from stopping the work of the committee writing the draft constitution.
Despite their boycott, experts said they do believe the judges are all supporters of the opposition or of the past regime. While many of them had been appointed by former dictator Hosni Mubarak, the driving force behind their boycott is the fear for their independence.
"I believe that the judges are very much concerned about their own interests and can't really be seen as belonging to either one or the other political side," said Stephan Roll, Egypt expert with the German Institute for International and Security Affairs, adding that if instead of the governing Muslim Brotherhood, the opposition would be in power and would pursue a similar path, the judges most likely would have reacted in a similar way.
The judges' concern over their future status is partly justified, Roll told DW. On the other hand though, their protest is also problematic, "In such a transitional process it is, of course, important that eventually politics are above the judiciary, because the latter is still part of the old system."
Many judges appointed by Mubarak
North Africa expert of the London Think Tank Chatham House, David Butter agreed. He told DW that many of the older judges have been appointed by the previous regime but that that didn't mean that they saw it as their job to restore the old order. Butter pointed out that there are in fact also judges that close to the Muslim Brotherhood.
In the first stage of the referendum, some 57 percent of voters in Cairo and nine additional provinces had voted "yes" to the draft constitution. The opposition has campaigned for weeks against the draft constitution. They see it as an Islamist basic law which would limit fundamental freedoms and turn society towards a religious path. In the second stage of voting on the referendum, Egyptians in 17 mostly rural provinces will go to the polls. It's expected that in the second vote there will be even more support for the constitution draft, which was written by a committee dominated by Islamists.
Overall, the rift between the political camps is growing. According to Roll, society is getting ever more divided. But it's notable, he added, that both sides actually don't really manage to reach large part of society. "If we see that in the first round there was only a turnout of 33 percent - and that with such an important referendum - then this really is a disaster," the Egypt expert said.
Behind the scenes, the Muslim Brotherhood is likely to already be working hard on a way to ensure the success of the referendum. Butter doesn't rule out that maybe the military could end up monitoring polling stations if there not enough judges willing to participate. This though, the opposition would certainly reject.
The rules of democracy
Despite the criticism, the Muslim Brotherhood insist they are not doing anything wrong. In fact, they refer critics to the democratic rules.
"As far as the government is concerned they'll lay 'Look we've won the first round, this is an election, we believe in democracy, the rules say that if we get 51 percent then the constitution stands,'" Butter said.
It is difficult to predict how the situation will develop in the coming days.
"It could be that with the end of the referendum there will be an even further escalation, especially if the opposition will refuse to accept the result," Roll said, adding that the opposition could also choose to accept the outcome then prepare for the next parliamentary election and try to influence the future constitution through action in parliament.
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