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The draft constitution that Egyptians will vote on Dec. 15 is supposed to usher in the kind democratic reform that protesters demanded nearly two years ago in protests that led to the fall of then President Hosni Mubarak. Yet the rushed document is peppered with caveats and does little to clarify what role government should have in a democratically ruled Egypt.
On Saturday, Egyptian President Mohammed Morsi gave his stamp of approval to the document and urged its passage. The Muslim Brotherhood, the organization through which Morsi gained prominence, made clear it would bring its vast organizational abilities to ensure passage, turning out millions at rallies on Saturday in a show of support. Many of those participating in the rallies wore headbands urging approval for the document.
In setting the date for the referendum, Morsi, who is locked in a battle with the country’s judiciary that will reach a climax Sunday with a ruling on the legitimacy of the assembly that wrote the constitution, pointedly noted it would reduce the authority of the president, removing the executive’s right to dissolve the Parliament without a referendum. Morsi also has vowed to hand back a number of powers he has given himself during the writing process.
But even approval of the document promises possibly years of debate over just what a government will be able to do in this country that never before has had truly elected leaders.
Of the document’s 234 articles, 33 include caveats on certain freedoms and powers usually phrased as “regulated by law.” For example, Article 39 protects citizens from government searches of their homes, except where the law says otherwise. But in what cases can there be such exemptions? The constitution does not say.
“Private homes are inviolable. With the exception of cases of immediate danger and distress, they may not be entered, searched or monitored, except in cases defined by law, and by a causal judicial warrant which specifies place, timing and purpose. Those in a home shall be alerted before the home is entered or searched,” the article says, according to an English translation published by the Egypt Independent newspaper.
Article 43 protects the freedom to practice religion “as regulated by law.” News organizations cannot be shut down except by “court order,” without spelling out under what circumstances a court could issue such an order. The establishment of new organizations is “regulated by law,” without explaining what those laws would regulate.
The proposed constitution also doesn’t make clear what exactly is expected of each branch of government or the repercussions if the legislature, president or judiciary fail to carry out their duties. It spells out how one qualifies to run for the People’s Assembly, the lower house of the bicameral Parliament. It also says where the assembly can meet, how one can resign and how to fill vacancies. But it does not say precisely how the legislative body goes about passing laws.
If a budget is not passed before the start of the fiscal year then last year’s budget continues, the constitution reads. But how exactly will a budget pass? How many votes are needed to override a veto of a bill? The proposed constitution does not say.
Article 101 states that “The President of the Republic, the Cabinet, and every member of the People’s Assembly shall have the right to propose laws. Every draft law shall be referred to a specialist committee of the Assembly, which shall study it and submit a report.” But it’s not clear if a majority of the committee must approve before the Assembly votes. The constitution does say that the same legislation cannot be presented twice during a legislative session.
Article 140 describes the role of the president but offers no specifics on how he should go about carrying out those duties. “The President of the Republic, in conjunction with the Cabinet, shall lay out the public policy of the State and oversee its implementation, in the manner prescribed in the Constitution,” Article 140 reads.
The most specific direction in the constitution is reserved for the cabinet in Article 159, which spells out eight duties.
And while constitutions are supposed to be longstanding documents, the proposed Egyptian constitution refers frequently to the 2011 uprising. Article 64, for example, calls for the state to “honor [those killed during the uprising] and support their families, as well as war veterans and the injured, the families of those missing at war, and similar cases.”