EGYPT: ANALYSIS

Egypt's draft constitution vague on specifics

The draft constitution approved by President Mohammed Mursi but still awaiting voters' consent later this month is full of loopholes

PUBLISHED : Monday, 03 December, 2012, 12:00am
UPDATED : Monday, 03 December, 2012, 4:24am
 

The draft constitution on which Egyptians will vote on December 15 is supposed to usher in the kind of democratic reform that demonstrators 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 Egypt's president, Mohamed Mursi, gave his stamp of approval to the document and urged its passage. The Muslim Brotherhood, the organisation through which Mursi gained prominence, made clear it would bring its vast organisational abilities to ensure passage, turning out millions at rallies in a show of support.

Protests yesterday forced the country's highest court to adjourn its work indefinitely, intensifying a conflict between some of the country's top judges and the head of state.

The Supreme Constitutional Court said it would not convene until its judges could operate without "psychological and material pressure", saying protesters had stopped the judges from reaching the building.

A court session had been expected to examine the legality of parliament's upper house and the assembly that drafted a new constitution, both of them Islamist-controlled.

In setting the date for the referendum, Mursi pointedly noted it would reduce the authority of the president, removing the executive's right to dissolve the parliament without a referendum. Mursi also has promised 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 has never before had truly elected leaders.

Of the document's 234 articles, 33 include caveats on certain freedoms and powers. For example, Article 39 protects citizens from 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 practise religion "as regulated by law." News organisations cannot be shut down except by "court order", without spelling out under what circumstances a court could issue such an order. The proposed constitution also does not 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. But it does not say precisely how the legislative body goes about passing laws. Article 140 describes the role of the president but offers no specifics on how he should carry 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 "honour [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."

Additional reporting by Reuters

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