The fourth anniversary of the Tunisian Constitution: The unfinished transformation

As the Tunisian Constitution turns four, it is slowly becoming the country’s legal and political frame of reference. Nevertheless, the delays in the establishment of the Constitutional Court, independent bodies and the organization of local elections, all attributable to political considerations, necessitate a shift in the mindset and modus operandi of the political class to advance the project of constitutional transformation – writes Nidhal Mekki.

On 27 January 2018, Tunisia celebrated the 4th anniversary of the promulgation of its post-revolution Constitution. This Constitution was adopted by an overwhelming majority of the National Constituent Assembly (NCA) with a total of 200 votes in favor among the 216 members of the NCA, which avoided the need for referendum. The constitution was also very well received among the international community, which welcomed the success of the Tunisian constitution making process. Indeed, this reform process, which lasted for two years, provided an opportunity for an unprecedented democratic and public debate in the country and the region. It allowed the citizens to have a little sense of ownership over their constitution and ended the era when the supreme legal and political text of the state was imposed by state authorities on citizens who had no right to speak and who were, often, completely uninterested.

The Tunisian revolution and the choice of a democratic constituent process (through a freely elected NCA responsible for drawing up the new Constitution) generated a public forum for free debate among citizens and had placed democracy, the constitution and fundamental liberties at the core of this debate. The inclusive and participatory approach enabled various components of civil society (associations, unions, national experts ...) to submit a large number of proposals concerning the constitutional text and, above all, to make their voice heard and to assert their presence in the public arena.

In addition to the commendable constitution making process, the content of the constitution also laid the foundations for a successful democratic transition.

The positive responses at the national, regional and international levels are all the more understandable given that Tunisia is the only Arab country that ‘survived’ the blast wave that swept the region starting from 2011. While other countries in the region are still in a zone of great turbulence (Libya, Egypt) or have collapsed into total chaos and civil war (Syria, Yemen), Tunisia has avoided the pitfalls, despite a few moments of doubt (the assassinations of Chokri Belaid and Mohammed Brahmi, two opposition leaders), while completing its constituent process and organizing free, democratic and fair elections twice, in 2011 and 2014.

In addition to the commendable constitution making process, the content of the constitution also laid the foundations for a successful democratic transition. Nevertheless, the delay in implementing the transformational aspects of the constitution has undermined the transition, and has exposed a sense of continuity among the political class that largely considers the constitutional innovations as an impediment at worst and a distraction at best.

The key features of the 2014 Constitution

The 2014 Constitution marks, in its preamble, the clear will of the founding fathers of the Second Republic to establish a democratic and participatory regime where sovereignty belongs to the people. The constitution underscores the peaceful turnover of power, free elections and the principles of the rule of law, breaking radically with the history dictatorship. The fundamental rights and freedoms exceed both in quantity and in quality the rights recognized in the 1959 Constitution. Particularly notable is the integration of the principle of equality between women and men in rights and before the law, which closes the door to any discrimination on the ground of gender, responding to the main driver of the legal and cultural revolution that Tunisia has known since 1956, the year of independence.

Despite the impressive constitutional restructuring, an assessment of the effective implementation of the constitution falls short of its potential.

Another key characteristic of the new constitution is the consecration of the civil character of the state. In an Arabic-Muslim region, where the place of religion in the legal system varies from strong impregnation to complete takeover, the proclamation of the civilian character of the Tunisian state gives real meaning to the Tunisian exception and allows the measurement of the progress made towards a definitive transition.

Moreover, the Constitution constrains the powers of the President of the Republic compared with those he enjoyed under the 1959 Constitution. The Tunisian government is no longer headed by a weak ‘Prime Minister’ but by a true leader of government who sets the general state policy. The Constitution also provides for the establishment of a Constitutional Court that will ensure the constitutionality of laws, particularly to guarantee respect for constitutional rights. It further establishes five independent ‘constitutional’ bodies to support democracy, including the Elections Commission and the Human Rights Commission. Finally, the constitution provides the basis for a decentralized state organization and local democracy.

Four years after the entry into force of the Constitution, the Constitutional Court is still not in place.

Despite the impressive constitutional restructuring, an assessment of the effective implementation of the constitution falls short of its potential, with delays and uncertainties. A discussion on ‘incomplete projects’ of the Tunisian Constitution illustrates this yawning gap between promise and delivery. The main hindrance to these unfinished projects is political, which tarnishes the image of a democratic transition that would have been otherwise exemplary.

The Constitutional Court: ‘Waiting for Godot’

Four years after the entry into force of the Constitution, the Constitutional Court is still not in place. Even though the constitution requires the establishment of the Court within not more than one year after the first legislative elections (thus, towards the end of 2015), and despite the adoption of the organic law organizing the Court in November 2015, its 12 members have not yet been appointed.

Initially, the adoption of the organic law was seen as the cause of the delay. Once this legislation was passed, the path to the formation of the Court was wide open. Nevertheless, the establishment of the Supreme Judicial Council, which must designate four members of the Court, took long due to conflicts within the judiciary itself and especially because of the attempts by the executive to influence the judges. The final establishment of the Council was seen as clearing all hurdles to the operationalization of the Court. However, this never materialized, which has exposed the mainly political considerations that explain all the delays.

While a Transitional Authority exists, which partly fills in for the Constitutional Court and avoids a potential gap, its jurisdiction is limited to reviewing draft laws.

While very little is known about the members of the Court who will be appointed by the Supreme Judicial Council and the President of the Republic, the process of designating the four members by the Assembly of the Representatives of the People (ARP) is more transparent, and, above all, it allows the measurement of the impact of political tensions on the delay in the establishment of the Court. The various parliamentary groups in the ARP have submitted their list of candidates. Some candidates are more or less ‘consensual’ while others are not, and their candidacy risks a veto from one political party or another.

But things might go far beyond a simple dispute about a candidate for the Constitutional Court. The outcome may become only a part of big ‘deals’ ranging from compromises regarding the renewal of one-third of the total membership of the Elections Commission to reaching an agreement concerning the local elections, which is set to take place on 6 May 2018. There is a high risk that the outcome of the negotiations on the Constitutional Court will depend on other political compromises. This will not only further delay the establishment of the Court, it also leads to excessive politicization and a potential sense among constitutional judges that instead of being loyal to the Constitution, they are loyal to the political parties of which they have the favor!

While a Transitional Authority exists, which partly fills in for the Constitutional Court and avoids a potential gap, its jurisdiction is limited to reviewing draft laws. It does not have the authority to review existing laws, including those adopted during the authoritarian regime, that are contrary to the constitution. Moreover, the Authority may only be seized by political authorities, in contrast to the Court which will be accessible to individuals in connection with cases pending before courts. Furthermore, as a provisional institution, the Transitional Authority cannot enjoy the same level of political authority and legitimacy as an independent Constitutional Court. Crucially, while useful as a provisional mechanism, the existence of the Authority may have eased the political pressure and urgency to establish the Constitutional Court.   

The Independent Constitutional Bodies: The temptation of misappropriation of the Constitution

The debates that the Independent Constitutional Bodies had been subjected to during the constituent process as well as their high number (five in total) contrasts with their fate since the constitution came into being. Although the constitutional provisions relating to these bodies entered into force after the first legislative elections, only the Higher Independent Elections Commission and the Independent Authority for Audio-Visual Communications are now operating. And even these two bodies continue to operate under legal texts predating the adoption of the Constitution.

Most of the required independent constitutional bodies have not been established.

Prominent experts attribute the delay in setting up the constitutional bodies to the lack of political will, in particular from the executive, to cede key domains regarding the autonomy of constitutional bodies. The draft organic law, which introduces common provisions to independent constitutional bodies, currently being debated before the ARP is all too typical of the desire of the current government (resulting from a coalition of the two parties who won the parliamentary elections: Nidaa and Nahdha) to control these bodies and restrict their powers and actions.

Provisions of the first version of this organic law were ruled unconstitutional precisely because they could violate the principle of independence of these bodies. Recently, members representing the government have resorted to a dilatory maneuver (through their massive absence from Assembly work) to postpone the review of the amendments, proposed by the opposition, that seek to preserve the independence of the bodies.

The risks of politicization of the Constitutional Court also threaten, and possibly even more, the independent constitutional bodies. The serious internal crisis experienced by the Elections Commission, and which led to the resignation of its president, is another potential indicator of the turbulence that is mainly due to the desire of certain political parties to constrain these bodies. The Tunisian political class must not forget the reason for the existence of these bodies: to be a body of experts that is independent of the executive branch whose aim is to support democracy and oversee government action while ensuring that the fundamental rights of citizens are protected.

Local power: The delay in organizing local elections

Chapter VII of the 2014 Constitution was, like other chapters, revolutionary. This appears firstly at the very level of the name, ‘local power’, and not merely ‘local authorities’, as is clear in the Arabic version of the constitution. Secondly, the 2014 Constitution breaks with the very timid vision of decentralization in the 1959 Constitution and clearly affirms that local authorities ‘manage local matters in accordance with the principle of administrative autonomy’. The establishment of local authority councils requires the organization of local elections. These novelties are fundamental and will become agents of transformation not only at the level of the territorial organization of the state, but also at the level of the political awareness of the citizens who will be at the heart of local participatory democracy and open governance.

Local elections are yet to be held, despite the adoption of the relevant law.

However, local elections are yet to be held, despite the adoption of the law that organizes local elections, amending and completing the organic law with respect to elections and referendum. In the absence of a law organizing local authorities, the Elections Law in itself may be insufficient to hold local elections. This view, even if there is an element of truth in it, must not blind us to the fact that political parties (especially those represented in the government) have made no serious effort to speed up the process. The Elections Law was adopted following several months of debate and the draft code for local authorities was submitted to the ARP only in 2017, three years after the entry into force of the constitution.

The reasons for delays in implementing the constitutional provisions on local governance are various, but they are all swayed by political considerations.  First there is the general political climate characterized by political infighting within the government. Second, the fact that the political parties were not prepared (notably Nidaa and many opposition parties) for the local elections explains the two postponements of the date of these elections, first scheduled for December 2016, postponed to March 2017, and then to 6 May 2018.

Finally, it seems that the two major parties were in dispute over the strategy to adopt for local elections. The idea of common lists between Nidaa and Ennadha was first suggested before being, apparently, disregarded for independent lists for each of those two political parties. In the meantime, several months passed and the economic situation has worsened to an extent that the country has experienced its most serious social crisis since 2015. While the crisis may attract government priority and further delay the establishment of the Constitutional Court and the independent bodies, municipal elections are unlikely to be further delayed as the political costs will be high.

Conclusion

Four years after the promulgation of the Tunisian Constitution, a provisional and partial assessment is possible and even necessary. Beyond the current political debates in the country, the constitution has had two major impacts: The first is at the level of political awareness of Tunisians. The constitution is no longer an unidentified legal object. Unlike the era of dictatorship, the constitution is very present in citizens’ imaginations and public debate. The political elite, the civil society and the citizens invoke and refer to it constantly, thereby making it the country’s legal and political frame of reference. Slowly but surely, the constitution is changing Tunisian society, first, in terms of the way citizens conceive of authority (the government), and second in terms of their conception of relationships with other people, Tunisians but different. By doing so, it provides a framework, particularly with a view of living together. This is essential for the consolidation of a constitutional culture and for building a modern civil state based on the rule of law.

The constitution is no longer an unidentified legal object.

The second impact of the Constitution is that more and more legal texts inherited from the old regime and which are not in accordance with the new Constitution are now being reviewed. The law on the prohibition of violence against women is a prime example of this, and other revisions are visible on the horizon.

If criticisms concerning certain ambiguities or loopholes in the constitution are well-founded, the call for change in the political regime are politically and personally calculated, and in some cases reflect a thinly veiled desire to return to a state regime that concentrated most formal powers in the hands of the President of the Republic. It seems that some people cannot manage to distinguish between the way in which power is arranged, which is destined to last, and the people who exercise it, who are called, sooner or later, to leave. There are still ‘unfinished projects’ of the Tunisian Constitution, but to the three projects that we have seen above, it may be necessary to add a fourth one: that of convincing our politicians that the Constitution is made by the people and for the people, and not for their own ambitions and caprices.

Nidhal Mekki is a researcher in law at the Faculty of Juridical, Political and Social Sciences of Tunis (FSJPST).  He was legal advisor at the Tunisian National Constituent Assembly.