Tunisian President Kais Saied has decreed a national referendum for July 25, 2022, on a new draft constitution, to replace the 2014 constitution. It was published in the Official Gazette on June 30, with a set of modifications to the draft text published in the gazette on July 8. Saied suspended much of the 2014 constitution in September 2021, two months after his move on July 25, 2021, to suspend parliament and greatly increase his authority. The following Questions & Answers assess what the changes in the proposed new constitution would mean for human rights and the rule of law in Tunisia.
President Saied called on Tunisians to vote “yes” in order “to correct the course of the revolution.”
The proposed new constitution would return Tunisia from the hybrid parliamentary-presidential system under its postrevolutionary constitution to a presidential system, similar to what it had prior to the 2011 uprising.
According to Decree Law 2022-34 of June 1, the president will promulgate the constitution if voters approve it, within one week of the announcement of the official results of the referendum. Under the president’s executive authority in the proposed draft (art. 101), the president would appoint the head of government, the equivalent of a prime minister. The president would appoint the other government ministers, from candidates proposed by the head of government, and can dismiss them unilaterally. No parliamentary approval is required (art. 102). This contrasts with the 2014 constitution, which gives the parliamentary majority the main responsibility for forming the government (art. 89).
The president would be able to declare a state of exception in case of “imminent danger” (art. 96) without any oversight by other bodies or time limit, in contrast to the oversight that the Constitutional Court exercises under the 2014 constitution once the state of exception has gone on for 30 days (art. 80). The draft includes no procedure for removing the president, a measure envisaged by the 2014 constitution in case of “blatant violation of the constitution” (art. 88). The draft maintains the two-term limit on the presidency (art. 90), but removes the provision in the 2014 constitution stating that the constitution may not be amended to increase the number of terms (art. 75).
The draft creates a second chamber of parliament alongside the Assembly of Representatives of the People (Assemblée des représentants du peuple, ARP), which it calls the Council of Regions and Districts. It consists of people elected by members of the regional and district councils instead of by universal suffrage (art. 81).
The ARP’s role would be considerably weakened, though it would continue to have the authority to draft and enact laws. The ARP would still be able to pass a motion of no confidence in the government, leading to its ouster, but the procedure would be more arduous (art. 115) than under the 2014 constitution (art. 97). The immunity from prosecution of the members of the parliament is also significantly reduced (arts. 65 and 66 in the draft constitution, compared to arts. 68 and 69 in the 2014 constitution), such as by exempting from immunity “slander” and “libel” regardless of whether the offending speech is uttered inside or outside the assembly. The text states that members of the ARP are elected through free, direct, and general elections (art. 60).
- Does Human Rights Watch favor a parliamentary system over a presidential system? Is one system better than the other for human rights?
Either a presidential system or a parliamentary system, or a hybrid of the two, can be compatible with respect for international human rights and the rule of law.
The chosen system should guarantee checks and balances to prevent abuse of power by those who hold political office. Such checks are essential to ensure that the citizens have meaningful and overlapping ways to hold the people they elect to positions of authority democratically accountable.
The functioning and duties of the legislature, the executive, and the judiciary should be separate. This allows the respective branches of government to serve as checks on one another and to expose and prevent abuses of power.
International human rights standards also protect the right of people to vote for their representatives and require governments to ensure the independence of the judiciary.
The draft codifies the clear trend since President Saied unilaterally increased his own authority on July 25, 2021, of concentrating power in the presidency, at the expense of other institutions. Saied has undermined Tunisia’s democratic institutions, as provided for in the 2014 constitution, by suspending and then dissolving the ARP along with the High Judicial Council, whose function includes protecting judicial independence – the independent electoral commission, designed to ensure the fairness and integrity of Tunisia’s elections – and the national anti-corruption commission, among others.
Many Tunisians applauded President Saied’s July 2021 move to increase his own authority and directed much of their discontent at the ARP. Many people held the parliament largely responsible for governmental paralysis, including a failure to revive Tunisia’s flagging economy and manage the Covid-19 pandemic effectively.
President Saied’s draft constitution drastically scales back the power of parliament under the 2014 constitution. His draft also alters the 2014 constitution in ways that have nothing to do with curbing the powers of the much-maligned ARP, but rather with undermining the robust framework that the constitution established for protecting human rights. That framework was progressive for the Middle East and North Africa region, even if some of its elements had yet to be implemented.
- Regarding human rights and public liberties, what are the key differences between the draft constitution and the 2014 constitution?
The section of the constitution devoted to rights and freedoms contains few changes in the rights that are enumerated. In defining how rights may be restricted, the new draft maintains, in different phrasing, two balancing tests provided by the 2014 constitution for any restrictions on rights (art. 49). First, any restrictions imposed on constitutional rights must meet the test of being “what is required by a democratic regime to protect the rights of others, for the needs of public security, national defense, or public health.” Second, any “restrictions must not affect the essence of rights and liberties guaranteed by this constitution, and must be justified by their aims, and proportionate to the causes that gave rise to them” (art. 55).
The draft constitution undermines the independence of courts, which is critical to safeguarding the rights of individuals. Courts also play a role in reviewing and striking down laws that violate rights and holding institutions accountable when they abuse rights. The draft refers to a “judicial function” (art. 117) rather than the “judicial authority” mentioned in the 2014 constitution (section five).
The draft alters the High Judicial Council (HJC), which the 2014 constitution tasked with “ensur[ing] the sound functioning of the justice system and respect for its independence” (art. 114). The constitution envisioned an independent body of judges and legal, financial, tax, and accounting experts elected mostly by their peers (art. 112). The HJC began functioning after the election of its members in 2016.
The draft constitution mentions the HJC (arts. 119 and 120) but does not specify how its members are chosen or that its responsibilities include preserving judicial independence.
In the draft, the president appoints judges, upon nomination by the HJC (art. 120). This gives the president greater power in naming judges than under the 2014 constitution (art. 106).
President Saied has already undercut judicial independence. On February 12, 2022, he issued decree 2022-11, dissolving the HJC and replacing it with a temporary body, some of whose members were appointed by the president. On June 1, Saied issued decree law 2022-35 giving himself the authority to summarily fire judges, and on the same day dismissed 57 of them.
Tunisian judges went on strike for three weeks to oppose this decree. The proposed constitution deprives them of the right to strike (art. 41).
The draft constitution preserves the powerful Constitutional Court, which can review and nullify existing and draft laws that the court deems to be in violation of the constitution, including its human rights provisions (arts. 121-123 in the 2014 constitution, and 129-131 in the draft). The 2014 constitution provides that the court’s members were to be appointed in equal shares by the president, the assembly, and the HJC.
The court never came into existence because parliament never reached agreement on its share of appointments (art. 118). The draft constitution retains the court but reduces to nine the number of members and changes how they are chosen. The court will be composed of senior judges serving in other high courts (art. 125) – judges who are appointed by the president (art.120).
The draft constitution does not mention state institutions that the 2014 constitution established and granted an independent status, including the Independent High Authority for Audiovisual Communication, the Good Governance and Anti-Corruption Commission (INLUCC), the Human Rights Commission, and the Commission for Sustainable Development and the Rights of Future Generations (arts. 125-130).
Although Islam is no longer mentioned as the “state religion,” as it was in art. 1 of the 2014 constitution, art. 5 of the draft constitution states, “Tunisia is part of the Islamic Umma, and it is incumbent on the state alone to work to achieve the purposes of Islam in preserving the soul, honor, property, religion, and freedom.”
This mention of Islam is one that invites state action (“it is incumbent on…”) towards the realization of Islamic values, in contrast to the mention of Islam as the state religion in the 2014 constitution. The amendments to the draft announced on July 8 include a requirement that the process of “work[ing] to achieve the purposes of Islam” be carried out “within the framework of a democratic system.” Despite this qualification, this provision could be used to justify curbs on rights, such as gender discrimination, based on religious precepts.
On May 20, President Saied announced that Sadok Belaïd, a former constitutional law professor, would head a committee to draft a “new constitution for a new republic.” The committee submitted its proposed draft on June 20 to the presidency. On June 30, the Official Gazette published a draft constitution, saying it would be put to a referendum on July 25.
On July 3, Belaïd publicly repudiated the draft as published, saying it was not the one his committee had prepared. In an interview in Le Monde, Belaid said that the president should withdraw the draft, describing it as “dangerous,” “regressive,” and marked by a “tendency to tyrannize power.”
Several Tunisian nongovernmental organizations, such as the Tunisian Association of Democratic Women (Association tunisienne des femmes democrats, AFTD), the Tunisian Forum for Economic and Social Rights (Forum Tunisien pour les Droits Economiques et Sociaux, FTDES), and the National Syndicate of Tunisian Journalists (Syndicat National des Journalistes Tunisiens, SNJT) expressed in a joint statement their deep concerns regarding the backsliding on democratic and human rights in the draft.
The draft also removes the provision in the 2014 constitution that the jurisdiction of military courts is limited to military offenses. This provision had brought Tunisia’s constitution closer to the norm of international law that military courts should not have jurisdiction over civilians, even if, in practice, Tunisia’s military courts have continued to try civilians because legislators had failed to enact a law implementing the constitutional provision.
The 2014 constitution was the result of a two-year transparent drafting process, involving jurists, political parties, and civil society, before the National Constituent Assembly approved it in 2014.
Saied’s proposed constitution was drafted by a panel whose members he named himself and who worked for four weeks behind closed doors, soliciting little if any input from others. The release of the draft only three weeks before the national referendum leaves little time for public debate.
On May 27, The Venice Commission, the Council of Europe’s advisory body on constitutional law, stated in an opinion on the constitutional and legislative framework on the referendum and elections in Tunisia that it “is not realistic to plan to hold a constitutional referendum on July 25, 2022, in a credible and legitimate way.”