Morsi’s Constitutional Referendum: The State of Play

On December 1, President 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. A primer on the referendum slated for December 15.

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 30 Constitutional 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 Tinago: Vice 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 online at: