As expected, the draft Tunisian constitution published on 30 June in the official gazette expands the president’s powers and limits the role of parliament, sanctioning Kais Saied’s drive toward one-man rule and his plan to remake Tunisia’s political system.
The text says that Saied would continue to rule by decree until a new parliament is elected in December. It would also allow him to present draft laws, have sole responsibility for proposing treaties, drafting state budgets, appointing or sacking government ministers, and naming judges.
The president would be able to serve two terms of five years each but extend them in the event of imminent danger to the state and would have the right to dissolve parliament, while there is no mechanism for removing the president. The head of state would have ultimate authority over the judiciary and armed forces.
“This new constitution enshrines the powers that the president has given himself, and allows for a hyper-presidential system,” Aymen Bessalah, a Tunisian non-resident fellow at the Tahrir Institute for Middle East Policy (TIMEP), told The New Arab. “It’s dangerous after ten years of institutional building”.
The government would answer to the president, not to parliament, though the assembly could withdraw confidence from the government with a two-thirds majority. The president would nominate the prime minister as well as other cabinet members.
The charter refers to the legislative, judicial, and executive branches of government as "functions" rather than powers, a language which critics say indicates their diminished standing.
Judges, police, army, and customs officials would not have a right to go on strike. Magistrates have recently been on strike for weeks in protest at Saied's dismissal of 57 judges.
The document would create a new “Council of Regions” as a second parliamentary chamber for “regions and districts” to share legislative duties with the assembly of representatives, though it does not provide details on how it would be elected or what powers it would have.
Minor amendments were included in the constitutional draft on Friday, with changes to two articles, although the rest of the text remains largely authoritarian in its outlook retaining a broad range of powers for the head of state.
Article 5 of the charter takes out references to both Islam and the civilian nature of Tunisia, merely stating that the country “belongs to the Islamic Ummah” (wider Islamic nation) and that the state is required to “achieve the objectives of Islam in preserving life, honour, money, religion, and freedom”.
It was subsequently changed to add "within a democratic system”. The provision had been previously criticised in that it could allow the courts to use this mention of religious principles as a basis for undermining human rights.
The new constitution retains most of the provisions related to rights and liberties enumerated in the previous charter. An amendment was made to Article 49 now clarifying that "no restriction may be placed on the rights and freedoms guaranteed in this Constitution except by law and necessity imposed by a democratic order". Yet, the reference to a civil state present in the 2014 version of this clause does not appear.
The legal text previously specified that no restrictions would be implemented except by law and “for the necessity of national defence or public security", which could give leeway to authorities to limit rights and freedoms.
“The proposed draft dismantles many of the safeguards provided in Tunisia’s post-revolution Constitution and fails to provide institutional guarantees for human rights. Removing these safeguards sends a chilling message and sets back years of efforts to strengthen human rights protection in Tunisia,” Heba Morayef, Amnesty International’s Regional Director for the Middle East and North Africa said in a statement.
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Prior to the latest modification, Bessalah had shared the concern of legal scholars over the removal of the reference to “guarantees necessary to a civil and democratic state”, and of the principle of proportionality, as requirements for any limitations imposed on the exercise of rights and freedoms.
The TIMEP’s fellow recently explained that the commission’s drafting was already “deeply flawed” as an inclusive democratic process, and “set up” to rubber-stamp the president’s political project and the reforms he has long sought. The advocacy and policy analyst wrote how the setup was “designed to limit accountability and meaningful participation”.
The proposed constitution was drawn up in less than three weeks in closed sessions by legal experts handpicked by Saied, some of whom have distanced themselves from the document. The commission was formed as a consultative body, arguably to provide the president cover to enact his project.
Many key organisations and actors, including opposition parties and the UGTT labour union, were excluded from the commission or refused to join it.
Sadok Belaid, who headed the drafting panel, declared that the final text did not resemble the one proposed by the constitutional committee. He described it as “dangerous” and said it could pave the way for “a disgraceful dictatorial regime”.
In a letter published by Assabeh newspaper, the head of the advisory commission on the new constitution released the full text of the draft he submitted to the president on 20 June, which differs significantly from the one put forth by Saied.
Belaid said the altered document "contains considerable risks and shortcomings”, pointing to some of its most problematic aspects. The new code undermines Tunisian identity and includes a suspicious return to Article 80 of the 2014 constitution regarding the “imminent danger” through which the chief of state grants himself extended wide powers.
Amine Mahfoudh, another member of the constitutional consultative commission, disavowed the new version, qualifying it as anti-democratic. “[This text] envisions a presidency with all powers and with no chance for the opposition,” he told local radio Shems FM.
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Ibrahim Bouderbela, also a member of the constitution committee, acknowledged too that the published copy is not the same as the panel elaborated, but he said that the commission had a “consultative” role, and the president remains the “initiator” of the project.
Omar Hammady, a specialist in constitution-making, public international law, mediation, and rule of law in the MENA region, contended that the most worrisome issue is that the discrepancies between the consultative committee’s and Saied’s texts are “very conscious choices”.
Discussing problematic elements in the new draft with The New Arab, he remarked that MPs can be recalled, and their immunity is significantly constrained whilst the president has absolute unaccountability. The reference to direct election for lawmakers was lifted while the 9 members of the Constitutional Court are implicitly all nominated by the president.
Furthermore, a new chamber representing regions and provinces was introduced but it is unclear whether the law-making chamber is elected directly or not. Limitations to rights and liberties are no longer subject to criteria of necessity and proportionality, and independent constitutional bodies were also removed except for the electoral body.
While recognising that Tunisia’s political system proved dysfunctional over the past decade, Hammady argued that Kais Saied has fully engaged in the dismantling of state institutions and a purging campaign against his opponents, while assuming all powers in “blatant contradiction” with his model of bottom-up democracy.
“The system now rests on a central institution [the president] around which a multitude of bodies gravitate and are in one way or another subservient to it, with absolutely no separation of powers that ensures checks and balances,” the constitutional affairs expert observed.
Mouna Kraiem Dridi, a Tunisian constitutional law professor, noted to The New Arab the state of “imbalance” within the executive power, explaining how the new code will transform the country from a parliamentary system to a presidential system in which the head of state enjoys all prerogatives and does not have any political accountability.
“Saied is the head of the executive branch, the legislator, and the one who dominates over the judiciary,” the law professor denounced. “There is no counterweight to his authority, nor are any independent bodies established”.
To her mind, the new constitutional plan starkly breaks with the 2011 revolution and the democratic transition, besides running counter to the idea of a ‘republic’. “Eleven years ago, the Tunisian people rose up against a dictator. Today, they are back to square one,” she said.
For Bessalah, the current status quo can be seen as a transient stage because, like in any non-linear transitions, it will only last for a period. “The new constitution points to democratic backsliding, it’s clearly putting the transition on hold,” he said. “But nothing is set in stone yet”.
Hammady, who also led a team of German constitutional experts providing support to the Tunisian Constituent Assembly during the writing of the 2014 constitution, said, “this is a very regrettable setback in terms of both content of the text, with its authoritarian features, and drafting process conducted without any genuine consultation and no real public debate”.
Over a decade after its uprising that triggered the Arab Spring, Tunisia, long a beacon of democracy in the region, is today at an unprecedented impasse in its bumpy road to democracy amid fears for the gains that Tunisians won in the revolution.
Alessandra Bajec is a freelance journalist currently based in Tunis.
Follow her on Twitter: @AlessandraBajec