Tunisia’s draft constitution: Ending the parliamentary regime, or undoing democracy?

Tunisian President Kais Saied delivered his draft for a new constitution to the public on Friday after months of political turmoil. A referendum is expected to be held on July 25 to decide the document’s fate, and, according to some, the fate of the only democracy to emerge from the Arab Spring uprisings. Tunisia’s 2014 constitution established a representative republic based on a parliamentary system, but Saied’s draft, if accepted by voters, would derail it.

Tunisia’s political crisis started on July 25, 2021, after rampant protests due to a poor coronavirus response, collapsing healthcare, economic decline, high unemployment and fewer state services. In response, Saied invoked emergency powers under article 80 of the constitution to remove the prime minister, and to suspend parliament for 30 days, parliamentary immunity and most of the constitution itself.

Saied has since tightened his grip on political power. He removed the minister of defence, the acting minister of justice, the CEO of Wataniya (Tunisia’s major national television channel) and members of government including former anti-corruption committee head Chawki Tabib. The president further eroded Tunisia’s political institutions by dismantling the constitutional commission, which reviews the constitutionality of laws, and suspending the constitution indefinitely in September.

Saied later announced a roadmap to guide the country out of political calamity on December 14, 2021. That map foresaw the amendment of the constitution, a referendum on the document in July 2022 and new parliamentary elections under a new electoral law that has yet to be passed. Alongside these moves, no presidential elections have been set or even hinted at by the president.

The dismantling of the country’s political institutions continued in 2022, as Saied dissolved the High Judicial Council in February and parliament, after it tried to halt the move, in March; took control of the electoral commission in April; and fired 57 judges, under suspicion of “corruption”, in June.

The drastic moves were largely seen as the dislocation of a democratically elected parliament and the equivalent of a presidential coup. Furthermore, Saied has largely been seen as the sole author of the draft of the new constitution, with most of the political opposition boycotting the process.

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The lack of participation in the drafting of the constitution, and the absence of any hint of a new presidential election as Saied has weakened every political entity in Tunisia, is seen by many as the first step towards a “president for life” situation. The country’s deepening economic problems, stemming in large part from the decline of tourism due to the Covid-19 pandemic and aggravated by the domestic political climate and the war in Ukraine, could potentially cause more unrest and lead to a protest movement akin to the one in 2011 that led to the Arab Spring.

‘A step back’

The draft constitution expands on the powers of the executive and takes away rights from the legislative and judicial branches. The text published in the official gazette late on Thursday states that Saied would continue to rule by decree until a new parliament is elected at the end of the year. It would also allow him to present draft laws and have sole responsibility for proposing treaties and drafting state budgets. It would create a new “Council of Regions” as a second chamber of parliament. In Tunisia’s 2014 constitution, parliament more directly exercises political power, taking the lead role in appointing the government and approving legislation.

“This constitution is Kais Saied’s constitution, it reflects his vision and his point of view regarding the political system, it serves to maintain his powers”, said Abd El Razek Mokhtar, a professor of public law at the University of Sousse. “This constitution will transform the country’s system from a parliamentary system to a presidentialistsystem, not a presidential one,” he added.

Under the new text, the government would answer to the president, in lieu of parliament, though the legislative chamber could withdraw confidence from the government with a two-thirds majority. The president could serve two five-year terms and would have the right to dissolve parliament. A separate electoral law laying out how voting would work would be published later, according to the draft.

“This constitution represents a step back,” said Salsabil Klib, a constitutional law professor at the University of Tunis. “It is a presidentialist constitution, in which the balance leans towards the president as he enjoys vast prerogatives.” Klib also said: “This constitution weakens the legislative branch by introducing two rooms, by not mentioning who will elect the representatives, by giving the president the capacity to dissolve the parliament and by introducing a measure in which the people can directly recall representatives.”

‘Absence of any counterweight’

Mokhtar said that the draft constitution violates principals of a democratic constitution by not separating between branches of government, protecting the judicial branch or guaranteeing its independence, and not establishing any independent legal or constitutional institutions that would provide oversight to the president’s power.

“It is a constitution that augments the president’s prerogatives and gives him not just the executive branch, but also vast legislative powers as well as a domination over the judicial branch,” Mokhtar said. “The absence of any counterweight to his authority is felt and the only constitutional entity that remains is the constitutional court, which he owns. We are at a place where the president is omnipresent.”

The draft constitution includes a potentially important shift on the place of Islam in Tunisia. The 2014 constitution’s first article states: “Tunisia is a free, independent, sovereign state; its religion is Islam…”. The new draft states that Tunisia belongs to “an Ummah” (the worldwide Muslim community) “whose religion is Islam”. Establishing an Islamic identity for the country in the new text “could be an out to Islamize the country later on”, Mokhtar said.

Saied has maintained most parts of the 2014 constitution that enumerate rights and liberties, including freedom of speech, the right to organise in unions and the right to peaceful gatherings. However, in the new text, judges, police, army members and customs officials will not have the right to strike. Tunisian judges have recently been on strike for weeks to protest against Saied's moves to curtail judicial independence.

An underwhelming response from the opposition

When asked why Tunisians allowed Saied to attain his level of power, Klib explains that the president “became so powerful because of the Islamists who ruled for the last 10 years and made the Tunisians accept any other option but the Islamic one”.

Ennahda, an Islamist political party and one of the main forces in Tunisia (and previously its parliament), has moved to form several coalitions against Saied’s recent moves. In September, it formed a group with most of Tunisia's other Islamist movements called Citizens Against the Coup, which has been responsible for several protests and later joined the National Salvation Front, a coalition of leftist and national parties, which emerged in May. This coalition, led by leftist politician Ahmed Najib Chebbi, opposes the president’s roadmap and aims to boycott the July 25 referendum.

Another five leftist and centrist parties formed a group called the Coordination of Democratic Forces, and decided to participate in the referendum and vote “no” to the draft constitution.

The Tunisian General Labour Union, the most powerful union in the country, agreed with Saied’s use of emergency powers to sack the prime minister and suspend parliament last July, but has been critical of most of the president’s decisions since then. The union's administrative body decided on Saturday to let members choose whether to vote in or abstain from the referendum.

The fragmentation in the opposition ranks, as well as their various stances on the upcoming referendum, could possibly result in a win for Saied. If it does, “giving the president vast, unchecked powers will harm the democratic system of Tunisia in the long run”, Klib said.

Artmotion S.Africa

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