The project of the President’s Constitution: Is it time to close the democratic parenthesis in Tunisia?

A year to the day that President Saied suspended parliament and began a step-by-step monopolisation of state power, Tunisians face a referendum on a new constitution that further consolidates the president's executive power and impairs accountability. There are three main areas of concern with the text: the theocratic risk, the autocratic risk, and the potentially compounding impact of these concerns, the theocratic-autocratic risk, which pose grave dangers for democracy, for rights and freedoms, and for the Tunisian social model. Is it time to close the democratic parenthesis in Tunisia?- writes Nidhal Mekki

When on 25 July 2021, after a long constitutional crisis, the Tunisian president suspended the parliament and dismissed the government, opinions in Tunisia were divided: some clearly opposed the measures and others considered them necessary to resolve the political crisis, but demanded guarantees for rights, freedoms and democracy.

Regardless, President Kais Saied’s intentions were further revealed on 22 September 2021 with the promulgation of a presidential decree suspending certain chapters and articles of the Constitution and establishing a commission (solely appointed by the President) to propose political and constitutional reforms. It was at this point that opposition to the President's plan among the elites broadened, while the "general mood" among the public remained largely in favour of the President, despite occasional fluctuations. As the President implemented his plan to completely overhaul the country's political and constitutional system, fears increased, but the opposition, itself discredited, was no match for the President with the powers he already captured.

The President's step-by-step plan to monopolise state power was crowned by the publication of a new, draft Constitution during the night of 30 June 2022…

The President's step-by-step plan to monopolise state power was crowned by the publication of a new, draft Constitution during the night of 30 June 2022, which did not take into account the draft submitted by the President’s handpicked commission (which subsequently disavowed the draft). The President then published a corrected version of the draft on 8 July 2022, in the middle of the referendum campaign, which confirms the improvisation and haste that characterised the process, especially in its final stages. The version published on 30 June lays the foundations for a theocratic state and regime where the President of the Republic holds immense powers, not subject to any control or accountability.

The first thing that catches the eye in the President's project is its preamble. The emphatic style borders on the ridiculous, but most disturbing is the attempt to rewrite history by downplaying the importance of the 2014 Constitution (which is not even mentioned by name). Instead, the preamble implies that the presidential measures of 25 July 2021 were rectifying the course of history and restoring the trajectory of the revolution.

Another source of concern is the draft’s turn to insular nationalism. While the preamble of the 2014 Constitution was criticized for merely mentioning “human values and the highest universal principles of human rights” without naming international human rights conventions, the preamble of the President’s draft merely mentions “international legality” and the “human dimensions of the Muslim religion”. The regression is emphatically expressed: “We refuse interventions in our internal affairs”. But if the preamble poses problems, other provisions of the draft pose even greater dangers. I thus lay the foundation for an examination of three main areas of concern with the text: the theocratic risk, the autocratic risk, and the potentially compounding impact of these concerns, the theocratic-autocratic risk.

The theocratic risk

In the constitution-making process leading up to the 2014 Constitution, the Ennahda party wanted to introduce Sharia law as a source of law in Tunisia, which led to strong societal protest. In the end, Article 1 of the 1959 Constitution was maintained in the 2014 Constitution, stating that Islam is the religion of Tunisia, but it was mediated by a consecutive article that enshrines the civil nature of the Tunisian state. President Saied’s draft thus overturns the consensus widely shared since 1959 that Article 1 reflects a sociological fact (Islam is the religion of the vast majority of Tunisians), and not the consecration of religion as a formal source of law for the Tunisian state. Now, Article 5 of the draft states that “Tunisia is a part of the Islamic Ummah [nation]. The state alone must work to achieve, within the framework of a democratic regime the aims of the Pure Islam, which are to preserve life, honour, property, religion and freedom.” The “democratic regime” caveat was added by the “corrected” 8 July version of the draft, not in the first version.

For the first time since 1959, a constitutional text contains an entire expression taken from traditional Islamic fiqh (law).

This article constitutes a break in Tunisia's constitutional history for several reasons. For the first time, Tunisia's membership of the Muslim world is not only mentioned in the preamble but also in the operative part of the Constitution. Secondly, for the first time since 1959, a constitutional text contains an entire expression taken from traditional Islamic fiqh (law). This will place the entire Constitution in the world of religion, at best serving as a standard for the interpretation of law and at worst imposing Islamic law as the supreme or supra-constitutional standard that will govern the constitutionality of all legal rules in the State.

Saying that the State will pursue the aims of “Pure Islam” tempered by the promise to do so within a democratic regime is not a sufficient guarantee in this context. Public authorities may simply claim their actions aimed to achieve one or more of the aims of Islam, and the interpretation of democracy may be limited by an extensive interpretation of the aims of Islam, especially since it is not a legal concept with very precise contours. It is therefore possible, if certain conditions are met (discussed below) that the organs of the State, and in particular a conservative judiciary, would go so far as to recognise the primacy of Islam over fundamental tenets of democracy. This will be the basis of a theocratic state.

Several Tunisian jurists have already pointed out the serious risks posed by this article, particularly with regard to women's rights and, in general, all individual freedoms, as well as Tunisia's international human rights commitments.

The autocratic risk

The problems posed by the draft Constitution proposed also extend to the architecture of the political system, which would enshrine hyperpresidentialism. At this level, ten years after the revolution, we see a return to the 1959 Constitution, which, it should be remembered, set the previous foundation for autocracy in Tunisia.

• Concentrating executive powers in the hands of the president

Thus, from the first article of the chapter devoted to executive functions (the draft uses the terminology of "functions" rather than “powers”, as for the President only the people hold the power), it is clear that the President of the Republic exercises executive power alone and the role of the government is limited to assisting him. This is in clear contrast to the 2014 Constitution where executive power was exercised by the President and the government (Article 71). If, in the 2014 Constitution, the government is responsible only to the legislature, in the draft submitted to referendum it is doubly responsible: to the legislative power and to the President of the Republic. The latter can dismiss it at will (Article 102 of the draft). It goes without saying that this accentuates the government’s status of total submission to the President and leaves it no latitude for action of its own.

Furthermore, the draft, in Article 100, stipulates that the President determines the general policy of the state, which is a reiteration of the 1959 Constitution and also contrasts with the 2014 Constitution, which entrusted this prerogative to the Head of Government (Article 91). In the draft, the government plays no role at this level and the legislature is simply informed of the policy as determined by the President.

• Creating a weak and dependent legislature

The role of the legislature is also strongly circumscribed. Firstly, the President freely appoints the head of government and the members of the government on the latter’s proposal (Article 101). Secondly, the legislature, which would become bicameral, can only present a no confidence motion against the government if it is signed by half the members of each chamber of the legislature. It can be passed by a two-thirds majority of the members of both chambers combined. Given political fragmentation in Tunisia, such a reinforced majority will be almost impossible to achieve. The President's government will therefore be de facto immune to parliamentary scrutiny.

Article 116 of the draft allows the President, in the event of a second no-confidence motion against the government during the same legislative term, to choose between accepting the government's resignation or dissolving one or both houses of the legislature. This second alternative, left to the President's discretion, is a sword of Damocles hanging over the heads of parliamentarians and is intended to dissuade them from exercising effective control over the government.

Observers have noted that the earlier draft, which did not specify that members of parliament would be directly elected, could have been an opportunity for the President of the Republic to implement his radical political project to institute an indirect legislative system composed of directly elected local councils, indirectly elected regional councils, and an indirectly elected national assembly. This project, if implemented, would only increase the fragmentation and dismantling of political society, weaken the national dimension of representation within parliament and accentuate the scourge of political clientelism at the regional level. Does the errata of 8 July mean that the President has abandoned his highly controversial project?

This is not at all sure! The President’s "scheme" of ground-up democracy is concretised through the second chamber of the legislature, i.e., the National Council of Regions and Districts. Indeed, according to Article 81 of the draft, this Council is composed of representatives elected at the level of the regions and districts. Each regional council will elect from among its members three representatives to represent the regions and one member to represent the districts in the National Council of Regions and Districts.

This National Council of Regions and Districts appears to exercise legislative power in the same way as the first chamber, the Assembly of the Representatives of the People (Article 56 of the draft). Draft finance laws and regional, district and national development plans must be submitted to it. These projects must be adopted by an absolute majority of both chambers of the legislature, which means that the National Council of Regions and Districts can easily block the adoption of these projects in case of disagreement with the first chamber. This will lead to the weakening of the Assembly of the Representatives of the People and will rekindle, through the excesses of populism, tensions between the regions. President Saied, who often affirms his attachment to the unity of the State, does not seem to foresee the risks of disintegration and dislocation posed by this second chamber of the legislature.

• Removing safeguards and accountability for presidential (mis)use of emergency powers

Another indication of the President’s desire to free himself from any real control is the fact that Article 96 of the draft (which corresponds to the (in)famous Article 80 of the 2014 Constitution) and which gives the President of the Republic exceptional powers in the event of a serious crisis or “imminent danger”, removes the oversight role of the Constitutional Court. Thus, the latter is no longer informed of the President's recourse to Article 96 nor can it be seized by the President of the Assembly of the Representatives of the People, or 30 of its members, to verify that the exceptional circumstances persist. This allows the President of the Republic to be the sole judge of whether the exceptional circumstances persist or not, which leaves the door open to an enormous margin of subjective discretion on his part.

Another case where the subjective interpretation of “imminent danger” could be problematic is the presidential term of office (Article 90 of the draft). While the draft limits the number of presidential terms to two, it is provided that in the event of war or imminent danger preventing the holding of presidential elections, the term is extended by law until the causes that necessitated the postponement cease. Here too, the Constitutional Court has no role and only the President will determine whether the causes for postponing the presidential elections have ceased to exist or not.

It should be noted here that the language of Article 90 is reproduced from Article 75 of the 2014 Constitution (including the absence of a role for the Constitutional Court). However, in the 2014 Constitution, two-thirds of the members of the legislature could refer the matter to the Constitutional Court alleging a grave violation of the Constitution (Article 88). It is clear that the President's Draft is identical to the 2014 Constitution only on those points that give him broad discretionary power and to the extent that it allows him to escape effective accountability.

• Leave it to legislation: enabling capture of independent institutions   

Another regression compared to the 2014 Constitution is the fact that the draft leaves it to the law to regulate such important issues as the mode of election and competences of municipal councils, regional councils and district councils. The same applies to the appointment and powers of independent institutions, like the Independent High Authority for Elections (ISIE). The draft does not stipulate that it will be elected by the legislature, meaning that the President will appoint its members by decree. A sign of the intention to keep the future ISIE in the bosom of the executive is the fact that the draft does not mention the financial and administrative autonomy that the ISIE enjoyed under the 2014 Constitution.

• Shrinking space for opposition  

Last but not least, the draft removes the recognition and constitutional guarantees that the political opposition enjoyed in the 2014 Constitution (Article 60). This is an echo of some regimes in the Arab region where opposition to the leader not only had no constitutional rights, but was not even supposed to exist!

The theocratic-autocratic combination

This overall system, without effective legislative oversight, may lead to a theocratic-autocratic combination that would disrupt not only the democratic political institutions and the exercise of power but also the Tunisian social model, risking the achievements of modernity and the Tunisian revolution. Given the textual tendency toward autocracy in the draft, we must look to the judiciary to see whether it will be able to protect the rights of citizens and the rule of law and counter excessive executive power. However, an examination of the provisions on the judicial “functions” and the Constitutional Court can only heighten fears.

The composition of the Constitutional Court poses a double problem: First, its members will be appointed by the President alone (unlike the 2014 Constitution where the parliament and the Supreme Council of the Judiciary each appoint four members) and only from among career judges. It goes without saying that the President will choose members who share his legal and political views, which will prevent any diversity of opinion within the future Court.

Secondly, the President will choose the members of the Court from among the judges based on seniority in the three judicial orders, rather than competence. Apart from the fact that experience is not necessarily a guarantee of competence and that the judges of the Court of Audit are not known to be experts in constitutional law, civil liberties, or international law, academics have been excluded from the composition of this Court. However, it is often they who bring an enriching expertise to the Constitutional Court with a different (and often progressive) view of both the legal texts and major societal issues. An academic contingent would be most likely to view the constitutional text as a living document that adapts to modern life. The exclusion of academics and the composition of the Court only by career judges will have particular consequences in Tunisia, for current judges are known for their conservative and strictly legalistic leanings.

Added to this, the Supreme Council of the Judiciary provided for in the 2014 Constitution (Article 112) disappears in the draft, which instead provides for three Councils for the three orders (judicial, administrative, and financial). This point is not simply anodyne: the new structure aims to divide and fragment the judiciary in order to weaken it and reduce its ability to resist the executive exerting pressure or even influence on the course of justice.

The path is wide open for judicial interpretations that not only restrict rights and freedoms but that are also impregnated with religiosity . . .

With Article 5 of the draft constitutionalising the “purposes” of Islam, and with the disappearance of the civil character of the state, the path is wide open for judicial interpretations that not only restrict rights and freedoms but that are also impregnated with religiosity. Thus, to the autocratic risk caused by constitutional engineering will be added the theocratic risk of the reign of conservatism and religious morality. This text will unleash the conservative, even retrograde, forces in the country, signaling for them to speak out loudly and demand the establishment of a societal model in line with Islamic morality. The liquidation of all the gains made by Tunisians since 1956 (when the Personal Status Code, Tunisia's true social constitution, was adopted), or at least a large part of them, will be on the agenda!

And now what should we do?

From the above, it can be concluded that the draft of the new Constitution proposed by President Kais Saied, despite the errata of 8 July, is dangerous for democracy, for rights and freedoms, and for the Tunisian social model. Tunisians who still have faith in democracy have the opportunity to express themselves and vote against this project on 25 July. But given certain opposition calls to boycott the referendum and the mobilisation of the President's supporters, it is very likely that this project will obtain a majority of positive votes.

Moreover, it is necessary to point out a great aberration in the text: namely that according to Article 142, the Constitution comes into force “from the date of final declaration of the results of the referendum…” with no requirement that the project be approved by a majority of voters for it to be adopted. This means that the result of the referendum will have no impact on its entry into force, which is already decided by this article! In addition, there is no minimum turnout requirement. This is of course to avoid the possibility of a low turnout due to the boycott by a large part of the opposition.

Will this be the end of the democratic dream in Tunisia? Not necessarily! The experience in Tunisia has shown that the values of constitutionalism, democracy, and respect for human rights are strengthened and internalized by new segments of society when they are threatened by power. Rather than closing a parenthesis, the new Constitution will be an opportunity for the Tunisian elites to complete a job that they have done badly, or not at all.

Nidhal Mekki is a researcher at the Faculty of Legal, Political and Social Sciences of Tunis.

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Suggested citation: Nidhal Mekki, ‘The project of the President’s Constitution: Is it time to close the democratic parenthesis in Tunisia?’, ConstitutionNet, International IDEA, 25 July 2022, https://constitutionnet.org/news/project-presidents-constitution-it-time-close-democratic-parenthesis-tunisia

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