L’État C’est Qaïs

One year after Tunisia’s president, Qaïs Saied, destroyed the country’s constitution in order to save it, he has a new document to present to voters for their approval on July 25. If it passes, the new constitution will serve the short-term goal of ensuring that the authority he seized a year ago is concentrated in his hands. Its adoption will also give a formal legal form to the presidential dictatorship.

The first-person singular is appropriate: This is one man’s document. There was a process of sorts in which a group of experts was supposed to draft a new constitution after listening to various opinions. This involved widely criticized steps that sparked opposition and boycotts, since the process seemed rigged and was a far cry from the protracted democratic process that produced the 2014 constitution. But even this truncated group found its work shunted aside. The proposal it formulated was quietly discarded in favor of a very different document. Nobody knows who wrote the final draft, but it appears to be a hasty attempt to serve the will of Saied, who happens to be a constitutional law professor. If the president did not take pen to paper himself, a small group close to him likely did so. And this anonymous product is now before Tunisians for an up-or-down vote.

Comparative constitutional specialists increasingly stress process (and not just legal content) in their analysis, and few would expect much from having an unknown individual write up the president’s will and then rushing the result to a referendum. Or rather they would expect a sloppy document and a presidential dictatorship. And that is precisely what is being offered to Tunisian voters.

The sloppiness is displayed throughout the text—so much so that a revised draft had to be issued on July 9 that cleared up some ambiguities and corrected some linguistic errors. But even after the revision, evidence of hasty drafting remains. Article 89 allows any Tunisian citizen born of two Tunisian parents to run for president; this follows article 88, which states that the president must be a Muslim. Article 62 provides that, “If a deputy withdraws from the parliamentary bloc to which he belonged at the beginning of the parliamentary term, he may not join another bloc.” This implies some kind of legal status for “blocs” and some system in which deputies are elected by party list. However, nowhere else is there any provision for how this will operate. Such gaps leave ambiguities, but there is no ambiguity on how the gaps will be filled: The constitution will effectively allow the president to decree any law he wishes to have a new parliament elected.

There appears to have been a process of cutting-and-pasting, with emphasis on the cutting: A host of provisions for various state bodies (and one for removal of the president) have simply been plucked out. But there is some odd pasting as well. The 2014 constitution’s painstaking compromise language on Islam—which reproduced the vague formula of the country’s 1959 constitution that made Islam the state religion, while adding other provisions on the “civil” nature of the state—gave bitterly divided political actors the minimum each felt it needed at that time. 

The careful ambiguity of that document has given way to a mysteriously inserted clause that reads, “Tunisia is part of the Islamic ummah, and the state alone must work (under a democratic system) to achieve the maqasid of pure Islam in preserving souls, honor, wealth, religion, and freedom” (Article 5, with the parenthetical phrase added on July 9).

Some have criticized this clause for making Tunisia a religious state, but the effect may be nearly the opposite. The maqasid are general goals or purposes that Sunni jurists have used to guide their interpretations of Islamic law. When facing a difficult question, legal scholars might recall these goals to select the most appropriate answer. So, far from subordinating the state to religion, the draft constitution uses unusual phraseology to make the state (operating under the guidance of an elected president) the sole arbiter of what God wants.

And that state is to be governed in an extremely presidential fashion. There are scores of articles on parliamentary procedures and prerogatives, a new second chamber of parliament, presidential responsibilities, and legislative processes. Most do little on paper to limit the president. Some of these might operate in a recognizably democratic fashion in other contexts, but not in Tunisia where the president has managed to purge some state bodies (such as the judiciary) and unilaterally issue laws for others to bring them to heel.

Operating in the institutional context that has arisen in the country, the constitution might be summed up as follows: The president may do what he wants and the various parts of the state, including the cabinet and the judiciary, are under his oversight and follow his directions and policies. 

If a determined and cohesive opposition ever received a parliamentary majority (an unlikelihood given that the president has tools to control the electoral process) it could exercise vetoes in some areas. In such cases, the president would be able to call for new elections or simply submit his ideas (including those for constitutional amendment) to a referendum.

It is true that the president, who serves a five-year term, may only be reelected once. But the pre-2011 regime left the incumbent with a precedent to eviscerate this limit by insisting that the passage of a new constitution starts the clock over again. It is not certain that Saied will follow the autocratic former president Zine al-Abedin bin Ali and make such a claim, but the path is potentially open for him to assert a right to serve until 2034 (two terms after his current one, which began under the constitution he trashed).

The result is certainly authoritarian. But even by the standards of authoritarian constitutions, the new constitution is an odd document. Authoritarian political systems in the modern world rarely dispense with laws, rules, and procedures. Officials need guidance on who is responsible for doing what. Authoritarian constitutions may not provide for meaningful contestation of senior offices, but they often spell out the role of a ruling party, the jurisdiction of various state bodies, and official ideology. The new Tunisian constitution does none of those things.

Tunisians are not the first people to feel that party politics and parliamentarism produce factionalism, corruption, instability, and feckless governance. A century ago, criticisms of liberal democracy were based precisely on such a critique. Today, demands for strong and effective leadership outside of normal democratic channels regularly recur, producing populist leaders, demagogues, and dictators. 

Qaïs Saied is unmistakably pushing Tunisia in that direction. But he is doing so not anchored in any program, ideology, party, or even policy agenda. His is a highly personalized quest whose key to success rests on demoralization rather than enthusiasm.

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