Saranya Ravindran, a law student at the National Academy of Legal Studies and Research in India, discusses Tunisia’s new draft constitution…
On December 17, 2010, a vegetable vendor in Tunisia set himself on fire in defiance of police harassment, sparking a wave of democratic revolutions that spread like wildfire across the Arab world. In the decade since revolutions swept the region, Tunisia has established itself as a success story, being the only surviving democracy. Twelve years later, the new draft constitution proposed by Kais Saied on June 1, 2022, makes it clear that Tunisia is reverting to one-man autocratic rule.
After two years of consultation and consultation between the Islamist group Ennahda and its rival secular parties, Tunisia adopted a constitution in 2014. This document was widely celebrated for protecting human rights and enshrining democratic controls. However, the celebrations were short-lived before President Kais Saied dissolve parliamentoverturned the 2014 Constitution and began to rule by decree, in what many are (correctly) calling a 2021 coup.
On June 1, rather than passively shelving the Constitution, Saied delivered a new Constitution it would give him even more power. This article will explain the shortcomings of the procedure followed and the substantive clauses of the Constitution. It also presents a comparative analysis of Turkey’s Constitution during its 1980 coup when General Kenan Evren takes power and the continuation of decades of autocratic rule. This is important in assessing the direction Tunisia is taking, given the close resemblance of its current situation to that of Turkey’s historically unstable government.
An imperfect transparent process
Tunisia experienced procedural opacity overriding a constitution its people fought long and hard to win. The main players in the country’s political process were not involved in the drafting of the Constitution. The Islamist Ennahda and Libre Constitutionnel parties, prominent university deans and powerful unions like the UGTT refused to participate in the process, decrying it as being rigged in favor of Saied. Civil rights groups like the Tunisian League for Human Rights who were prominent members of the 2014 process were also absent.
Moreover, throughout the year 2022, at the time of the drafting of the Constitution, Tunisia was under “state of exception” without other branches of government controlling presidential power, such as independent courts, electoral commissions, parliamentary oversight, etc. absent.
To show off a sheer polish, Saied called for a “national consultationthrough an online consultation in January 2022. Yet barely 7.5% registered voters participated, a number that would immediately trigger a new election in any reasonable democracy. The Constitution was made public on June 30 and there were barely 25 days of public scrutiny before it was put to a referendum. During this short period, there were no public debates or reviews by independent bodies and journalists prior to adoption.
Moreover, given Tunisia’s position in 94 in the Reporters Without Borders Press Freedom Index, the arbitrary detention of opposition party leaders, the arrest of journalists and the arbitrary dismissal of 57 judges on charges of corruption, it is not surprising that these actors also stay away from the editorial procedures. Ultimately, like the Constitution itself, the process was largely a one man show.
While the draft will be submitted to a referendum, the result of the referendum has already been decided in Article 139 of the draft, which stipulates that the Constitution will come into force after the proclamation of the result by the Electoral Commission. Even the possibility of rejection was not recognized by Parliament, despite boycott calls from opposition parties and massive protests in Tunis.
The proceedings are an uncomfortable throwback to conditions in Turkey after the 1980s coup. The National Security Council, composed of Kenan Evren’s collaborators, chose to write the Constitution itself without any inclusive democratic procedure. Moreover, just as for Tunisia, it was updated restricted referendum by multiple factors – a lack of a free press and debate on the provisions of the Constitution, and a clear indication that harsh military rule would only continue if not worsen if the Constitution was not passed. The results were evident even before the first ballot.
The draft constitution, simply put, creates a transition from a parliamentary to a presidential system but, in the process, places unchecked and expansive power in the hands of the president. Draft does not have a separate and equally powerful executive, judiciary, and legislature, but these branches perform certain “functions” under the control of the president.
Section 68 proposes that the bills introduced by the president prevail over those proposed by the other deputies. It would also have the exclusive power to propose treaties and financial proposals such as budgets. 109 goes even further by saying that the President cannot be held responsible for anything he does in the performance of his duties. In contrast, the government under 112 is responsible to the President. Section 61 mandates that deputies can be revoked under the law by the president. He can also dissolve parliament and dismiss cabinet members without scrutiny.
Section 69 also stipulates that laws submitted by Parliament can be rejected on the grounds of “disturbing the financial balances of the State”, providing no threshold for when the financial balance is “disturbed”. A new parliamentary group called “Council of Regions” has also been proposed, without any details on its power or how it will be elected.
140 allows Saied to hold power by decree until elections are held in December. Additionally, after serving two terms, the president can extend his term beyond the term limit if there is an unidentified and undefined “imminent danger to the state.”
In other words, the President can prolong his undemocratic rule longer without any accountability to the public or to Parliament, and simultaneously have the power to either dismiss democratically elected MPs under vague terms or single-handedly enact the bills it deems appropriate.
While claiming to have separate powers and balancing mechanisms, it reduces the judiciary to just another functionary, stripped of its independence and power to hold the president accountable. While the Constitution of 2014 gave the judiciary the power to guarantee the independence of the prosecutor’s office and the composition of the Supreme Judicial Council, such mechanisms are conspicuously absent from the new draft. On the other hand, it gives the president the power to appoint judges directly and prohibits opposition in the form of strikes by judges (which have recently gained popularity in Tunisia). Unlike the 2014 draftthere are no procedures to review the president’s actions or to impeach and impeach him even when he seriously violates the Constitution.
Unlike the 2014 Constitution, the President also has absolute power to lead the armed forces and internal security forces. The 2014 Constitution proposed elaborate rules governing how members of the electoral commission should be appointed. However, Article 134 of the new draft proposes an impartial commission of 9 members while being completely silent on how or who would appoint them.
Again, this not only means that the judiciary and electoral commissions are reduced to toothless bodies, it also means that they are directly controlled by the president, which makes it even more difficult in the long term to rely on them to act as a control.
Comparison with Turkey
Again, none of this is different from the Turkish Constitution. While the Turkish Constitution of 1961 attempted to have a careful balance of powerthe structure from 1980 greatly restricted the power of elected or constitutional bodies in favor of increasing the powers of the coup-based government. As in Tunisia, the The president was given power appoint judges to the Constitutional Court.
The National Security Council, made up of members of the military coup, had the power to set the agenda of government cabinets. It also controlled who could be part of politics (much like the power exercised by the Tunisian president over deputies and the government), and bodies run by the NSC could arbitrarily suspend political rights.
In the end the The Constitution granted immense powers in the hands of an irresponsible Presidency. It took more than a decade before Turkey could return to democracy and even more before democracy stabilized. If Turkey’s history says anything, it will be a long march before Tunisia can overcome the shadow of constitutional decay.
The First article of the draft Constitution promises a “free, independent and sovereign state”. It is a sad reality that the Constitution promises independence less to its people and more to its president, as well as less freedom from civil rights violations and more from checks of power.
Saranya Ravindran is a law student at the National Academy of Legal Studies and Research in India.
Suggested quote: Saranya Ravindran, Draft Tunisian Constitution: Codification of Authoritarianism, JURIST – Student Commentary, July 13, 2022, https://www.jurist.org/commentary/2022/07/Saranya-Ravindran-Tunisia-draft-constitution /.
This article was prepared for publication by Rebekah Yeager-Malkin, Associate Commentary Editor. Please direct your questions or comments to him at firstname.lastname@example.org
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