Tunisians rush to read constitution ahead of referendum

Parts of the final published version surprised even the people who helped draft it

Demonstrators hold flags as they gather during a protest against Tunisian President Kais Saied in Tunis, Tunisia June 19, 2022.  REUTERS / Zoubeir Souissi
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Tunisians on Friday were rushing to read and understand a proposed constitution released by President Kais Saied after weeks of anticipation and closed-door meetings before the text is put to a referendum on July 25.

Many expected the draft document, the crown jewel in Mr Saied's political vision for a “Third Republic” in Tunisia, would sweep aside much of the 2014 constitution drafted after the mass uprisings and would enshrine a stronger presidential system.

Several experts who spoke to The National — including one of the people who drafted the document — said they were puzzled by large parts of the final version, including the document's frequent but unclear references to the role of Islam in the new system, the creation of a new legislative body and the elimination of the balance of power between the legislature, executive and judiciary.

A powerful president and a new legislative chamber

The biggest change is to the structure of the government, in which the presidency would be strengthened and Parliament and the judiciary weakened.

As head of the executive, the president would propose legislation for approval by both Parliament and a new legislative body called the National Council of Regions and Districts.

The new council, a long-time political project of Mr Saied, would be drawn from members of yet-to-be-formed local councils responsible for governing on a grass roots level.

Mr Saied insists this will put power back in the hands of the people and be a course correction after the 2011 revolution.

But the language in the new constitution grants sweeping powers to the president to dissolve both the legislature and government without an approval process or oversight. However, no procedure is provided for his impeachment.

The new constitution would also reduce the power of the judiciary to a “function” of the state rather than a separate authority and forbid judges to strike.

A president would have the prerogative to appoint and dismiss justices, a move that legal scholars say will weaken judicial independence and further reduce checks on the president.

“The proposed constitution provides for an unaccountable, unchecked and unimpeachable president, even in cases of serious violations of the constitution,” said Said Benarbia, the Mena regional director of the International Commission of Jurists.

“While the president can dissolve the Parliament and dismiss the Cabinet, he cannot be held to account before the Parliament or the judiciary. The procedure of impeachment was removed, together with the role of the Parliament and the Constitutional Court in reviewing the president’s powers and actions during the state of exception.”

While the language around the president's powers is clear, the description of the new legislative body is less so.

“Provisions for the creation of a National Council of Regions and Districts were very imprecise,” said Eya Jarad, a Tunisian political scientist and researcher.

She said the document shows a “lack of competence to formulate a text that establishes an institution with a clear structure and objectives”, leaving many in the country questioning how the new body might function and how it will fit into the larger government.

'Not the constitution I saw'

For many, what is not in the constitution is as surprising as what is.

For weeks, core members of the small, specially appointed committee charged with drafting the new constitution made the rounds on local media, promoting voter registration, giving insights into their process and dropping hints about the contents of the proposed document.

There would be no reference to Islam in the constitution and there would be a focus on correcting social inequality — something that was neglected by the constituent assembly that wrote the 2014 constitution after the departure of long-time leader Zine El Abidine Ben Ali in the face of mass protests.

Hours before the new document was published in the official journal on Thursday night, Ibrahim Bouderbela, one of the legal scholars on the committee, outlined key socioeconomic pieces of the draft with The National.

One watershed article, he said, would bar the government from using foreign funding to pay state salaries, a move that could potentially upend an impending deal with the International Monetary Fund.

Yet when the final draft was released, that article — and many others described by Mr Bouderbela and his colleagues who worked on the draft — were nowhere to be found.

“This is not the constitution that I saw before it was presented to the president of the Republic,” Mr Bouderbela said in a statement on Shems FM radio early on Friday.

The committee's draft was presented to Mr Saied 10 days earlier for review. Mr Saied said some elements were in need of “revisions” but did not indicate how much he intended to rework the text.

“The section we included regarding socioeconomics is not there,” Mr Bouderbela said, though he noted that the new document “does match what we had envisioned regarding powers, the political system, etc”.

The question of Islam

One of the largest departures from what the drafting committee say they turned over to Mr Saied on June 20 is the inclusion of Islam in the document.

The first article of the 2014 constitution said that Tunisia “is a free, independent and sovereign state. Its religion is Islam, its language is Arabic and its system is republican”.

Many expected fewer references to Islam in the new document.

Instead, the faith and its legal doctrine are woven throughout, including an article that states: “Tunisia is part of the Islamic nation and the state alone must work to achieve the goals of Islam in preserving the soul, honour, money, religion and freedom.”

Many Tunisians question whether this means an end to the secular state, something many fought to preserve after the return of Islamist parties to Tunisian politics following the 2011 revolution.

The reference to the “goals of Islam”, or “maqasid”, in particular creates a legal puzzle, said Tunisian law scholar Adam Mokrani.

“The term 'maqasid' is ambivalent and poses a lot of controversy in Islamic religious doctrine,” he said.

“We don't always have a good definition of it and its reference in the constitution could be a source of legal insecurity — should a judge comply with the legal texts at his disposal or should he seek in Islamic law, not codified, applicable rules?”

Updated: July 04, 2022, 9:50 AM