As long as the National Consultative Authority for a New Republic was working on the future constitutional text, doubt was allowed: the fundamental law that Tunisians will choose or not to validate by referendum on July 25 would be the fruit of a collective work of experts. . The President of the Republic Kaïs Saïed has obviously decided otherwise by offering his fellow citizens a text that seems straight out of his pen.
“It is our duty to announce with force and sincerity that the text which has been published and submitted to a referendum is not linked to the one which we have prepared and submitted to the President. The commission is totally different from the project proposed by the president”, fulminates the president of the Authority, Sadok Belaïd.
“The text issued by the Presidency of the Republic undermines the identity of Tunisia and opens the way to a dictatorship by attributing all power to the President of the Republic,” he added.
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Even before its adoption, the fundamental law divides and arouses controversy as the institutional upheaval that it provides is important. For the support of the president, it restores equalities and expresses the popular will, even if the national consultation which presided over its drafting collected only 530,000 participations out of an electorate of more than 9 million citizens.
Political regime, place of Islam, nature of the State, women’s rights… JA takes stock of the main novelties of the loi fundamental proposed by the president.
The images of fistfights at the Assembly of People’s Representatives (ARP) have largely contributed to discrediting in the eyes of Tunisians the parliamentary system established by the 2014 Constitution. Faced with the paralysis of the country by the interplay of political nomadism and alliances of circumstances, many were once again tempted by a presidential regime, yet assimilated in collective memory to dictatorship.
It is now done. The articles specifying the prerogatives of the president reveal a complete stranglehold on the state apparatus. Article 87 in particular – “The President of the Republic exercises the executive function with the assistance of a government headed by a Prime Minister” – reduces the role of the government to that of assistant.
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The “head of government” again becomes the prime minister. Article 100 also leaves it to the tenant of Carthage alone to determine the general policy of the State.
The president appoints and dismisses ministers without consulting anyone. He alone is the executive. With the absence of supervision from the Assembly, the Head of State conducts the policy he wants as he sees fit and is not accountable to any authority.
For more than sixty years, the religious question was contained in article 1 of the 1959 Constitution which was renewed in that of 2014: “Tunisia is a free, independent and sovereign State, Islam is its religion, the Arabic its language and the Republic its regime”. An ambiguous formulation, Islam can refer to Tunisia as well as to the State, but which had the advantage of satisfying conservatives and secular alike.
Some believed for a moment that the new Constitution would enshrine the principle of state secularism – Sadok Belaïd having explained that Islam would no longer be the state religion and the new article 1 making no reference to religion. Even. Evacuated in article 1, religion reappears in article 5 which has already caused much ink to flow.
In addition to belonging to an “Islamic Ummah” of which no one knows what it would imply, the text specifies that it “is up to the State alone to work to ensure the aims of Islam in terms of respect for life human rights, dignity, money, religion and freedom”.
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Some see it as a way to neutralize Islamist parties and deprive them of the moral and religious rent that has long made them successful, while others fear that the article will open the door to the adoption of sharia – which however, is never mentioned – as the source of the legislation.
Historians of ideas will notice that Kaïs Saïed here reinvests a debate that dates back to the first centuries of Islam: is it the political power that has the prerogative to define religious orthodoxy, or should the latter emanate from the ulama, responsibility for the public authorities to enforce it?
Far from these theoretical questions, them Tunisians are wondering above all whether this article will not put an end to the civil character of the State, consecrated both by the national struggle and by the 2011 revolution. Because nowhere in the fundamental law proposed by Kaïs Saïed, nor in the preamble nor in the articles, there is no mention of the civil character of the State.
Separation of powers
The proposed Constitution, as we have seen, largely enshrines the powers of the President. Several constitutional bodies have simply been eliminated, such as the body against corruption. The Constitutional Court will be led by senior magistrates… appointed by the president. The Superior Council of the Judiciary is replaced by three specific councils. The “judicial power” is no longer one, since it is reduced to a “function”.
As for the Parliament, it is now divided into two chambers: the traditional Assembly of People’s Representatives (ARP) and the National Council of Regions and Localities, an institution modeled in the eyes of many Tunisians on the Gaddafi model which has long prevailed in the neighbor Libyan. Article 66 considerably reduces the immunity of parliamentarians, who can be prosecuted for offenses ranging from “insult” to “violent exchanges”.
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As for the possibility of censorship of the government by Parliament, it is subject to such complex conditions to meet under Article 115 that it becomes de facto impossible. Finally, the bills presented by the Head of State will have to be examined “as a priority”. Nothing seems to have been forgotten to closely submit Parliament to the President. On the other hand, the voting method which will prevail for the election of the members of each Chamber is not specified.
To the credit of the proposal for a new Constitution, it is appropriate to include the resumption of the elements of the 2014 Constitution in terms of rights and additions with regard to the rights of abandoned children (article 52) and the rights of seniors (article 53).
But what Tunisians considered inalienable achievements, such as the Personal Status Code (CSP), which enshrines women’s civil rights and gender equality, could be threatened by a restrictive interpretation of Article 5 on ” aims of Islam”. Another disturbing element, the project makes no mention of female citizens, while the fight for women’s rights has been central to the emergence of modern Tunisia.
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Another source of concern: freedoms are also conditioned on a code of morality which is not clearly defined, but which may refer to what the legislator of the 1960s understood by good morals.
Moreover, the text makes no mention of residents abroad, who nevertheless represent 12% of Tunisians. Binationals even see their rights curtailed since they can no longer run for the presidency of the Republic.