The 2014 Constitution had been adopted by a Constituent Assembly elected by direct universal suffrage and was the subject of a long and inclusive deliberative debate. It was the first participatory experience with hundreds of hearings and consultation meetings, sit-ins and demonstrations. All Tunisians who wished to express themselves were able to do so, each article bears the trace of this debate and civil society can be proud of being behind several voted proposals. Two words could describe the process: participation and transparency.
Kaïs Saïed’s text, on the contrary, is the work of a man for his own use. Imposed, it in no way translates a collective will and is part of an organized process of concentration of powers. Using his legitimacy as president, Kaïs Saïed established a state of exception in July 2021, citing an acute political, social and health crisis. He then assumed all powers, placed himself above the rules by refusing any dialogue with the social, political and associative forces, even those who supported the turn of July 25, and presents himself as the only recourse bearer of real solutions for the people betrayed by the elites.
At the end of a referendum campaign without debate and in defiance of the rules elementary dictated by the decree-laws that he himself promulgated, the new Constitution was validated. The vote, shunned by 70% of Tunisians whom the president failed to convince or mobilize, is nevertheless considered by Carthage to be a success. By this disaffection, the Tunisians expressed their refusal of a choice that was imposed on them. This text is the bearer of a clear setback compared to the 2014 Constitution and a transition that was part of a process of appropriation of democracy.
Tunisia: Kaïs Saïed, or the personal practice of power
Even if I voted for the 2014 Constitution, I was quite critical of the preamble, not innovative enough. That of 2022 is very weak in its form and dangerous in its content. It is a disturbing logorrhea which seeks to sow division within a people whose will Kaïs Saïed tramples. He revisits the history of the country, makes a selective reading of it which obscures in particular the struggle for independence, and introduces a new narrative of the revolution that is divisive to say the least. The reference to universal human rights introduced in the 2014 preamble disappears, giving way to a relativist and culturalist vision of rights and freedoms which strongly limits their scope.
Rights conditional “on the aims of Islam”
The question of Islam was at the center of long debates in 2014. Article 1 of the 1959 Constitution was renewed in 2014 – “Tunisia is a free, independent and sovereign State, Islam is its religion, Arabic is its language and the Republic its regime. »
It was balanced in its interpretation by a second article affirming “the civil character of the State, of which citizenship, the will of the people and the rule of law constitute the foundation”. This addition was intended to end attempts by Islamists to reintroduce the ability to refer to Sharia as a source of legislation.
In Kaïs Saïed’s text, if the content of article 1 is deleted, any reference to the civil nature of the State is also deleted. Instead, Article 5 states that “Tunisia is part of the Islamic Umma” and that “it is up to the State, alone, to work to ensure the aims of Islam”. This article paves the way for the adoption of Sharia as a source of legislation. The details “for the preservation of life, honor, property, religion and freedom” and “in a democratic regime” are not sufficient to limit them risks.
Tunisia – New Constitution: Islam or not?
This amounts to subjecting the rights, freedoms and questions of society to their conformity with the aims of Islam. Thus contraception, abortion, divorce, sexual freedom, honor, freedom of expression and creation, etc., will be subject to this condition.
But the “purposes of Islam” largely depend on the vision of the one who governs. Some allow honor killings, prohibit contraception or work for women.
Despite a resumption for the most part of the rights and freedoms of 2014 in the new text, none of the rights deemed contrary to the “purposes of Islam” can attain the rank of right protected by the Constitution. The provision conditioning the limitations of rights and freedoms on what is necessary “to meet the requirements of a civil and democratic State” has in fact been deleted.
Concentration of powers
The distribution of powers was the most criticized part of the 2014 Constitution. It paved the way for Kaïs Saïed’s constitutional coup. As soon as he was elected, the president never stopped hammering that there was a problem with the political regime, responsible for all the ills of the country. Public opinion ended up being convinced of this because of the various blockages, while the 2014 Constitution was not applied. The Constitutional Court, the centerpiece of the architecture, never saw the light of day. Above all, the successive leaders have singularly lacked ambition for the country.
If the 2014 Constitution established a two-headed executive with, it is true, competing legitimacies difficult to reconcile, that of 2022 confirms the concentration of powers in the hands of the president. He is head of the executive, controls the legislature and the judiciary, and has the constitutional referendum power.
Tunisia: Kaïs Saïed, the discourse and the method
And he is in no way beholden, enjoys functional and criminal immunity for life. Parliament now consists of two chambers: a chamber of deputies and an assembly of regions and districts. Its possibilities of censoring the government are almost nil as the conditions are difficult to meet. A system that is more democratic than the name.
Taking the opposite view of a profound process of transformation of society and democratic aspiration, this text carried by a populist and a conservative will only be a parenthesis that will have to be closed as soon as possible. He embodies the counter-revolution and is part of a logic of placing under guardianship a people who will find in themselves the strength to pursue the revolution of the dignity.