|President Kaïs Saïed’s draft constitution was published late on June 30, and, as expected, it would centralize power in the president’s hands and eviscerate the separation of powers. Here are a few key elements of the proposed constitution, with reaction from Tunisia's political and civil forces to follow below:
Several independent legal experts and analysts pointed to the dangers in the draft constitution.
- The document, which will be put to a referendum on July 25, would permanently enshrine many of the presidential powers that Saïed has seized in violation of the constitution over the past year while incorporating new elements of his long-standing political vision.
- Under Saïed’s constitution, the president would have almost complete control over the judiciary and military, with no parliamentary oversight over the armed forces or security forces. The cabinet would answer to the president rather than to parliament, and the president would be solely responsible for appointing and dismissing ministers.
- The president would also have the ability to dissolve parliament, which would now include a second chamber for “regions and districts”—seemingly an ode to Saïed’s eccentric plan for an “inverted pyramid” of locally driven government. Instead of passing laws itself, parliament would only suggest legislation for the president’s government to consider. Parliament would be prohibited from considering financial issues, with the president gaining sole authority over the state budget.
- The president would be allowed to serve two terms of five years each but could extend them in the case of an “imminent danger to the state,” similar to the clause that Saïed used to seize power last July 25. Instead of constraining that article, Saïed’s draft expands it: Unlike in the 2014 constitution, the president would have full power in such a state of exception, with no power of review for parliament or the constitutional court. There is no mechanism for removing the president.
- Although much of the 2014 constitution’s language about rights and liberties has remained, there are few safeguards in place—such as an independent judiciary or a separation of power—to guarantee them.
- One large change surrounds the status of Islam; it no longer appears in the first article, but Saïed’s constitution later says the state must work to “achieve the goals of pure Islam in preserving [people’s] life, honor, money, religion, and freedom.” It adds that education is based on Islamic identity and that the president must be a Muslim.
- Several crucial elements, such as how parliament will be elected or the status of Tunisia’s independent institutions, are absent from the constitution and will instead be clarified through subsequent laws. Yet the constitution says that Saïed will continue to rule by decree until the creation of a new parliament following December’s elections—and even after that, he will be able to present draft laws that take precedence over laws proposed by parliament—meaning that Saïed will have the opportunity to further shape the government in his own image in the coming months.
- Finally, the document says that the constitution “shall enter into force as of the date of the final announcement of the referendum result by the Independent High Authority for Elections,” with no mention of it needing to receive a majority of votes (or any votes at all) in the referendum.
Sadok Belaïd, who led the commission charged with creating a first draft of the constitution, said that Saïed's document is “completely different” from the one handed over by the commission and warned that it could lead to “a disgraceful dictatorial regime.”
- University of Sousse public law professor Abdelrazek Mokhtar, for instance, described it as “Kaïs Saïed’s constitution,” which “reflects his vision and his point of view regarding the political system” and “serves to maintain his powers.”
- The International Commission of Jurists’ Saïd Benarbia agreed, writing that the draft constitution “provides for an unbridled presidential system, with an omnipotent president, a powerless parliament, and a toothless judiciary.”
- Saïed published a letter on July 5 urging citizens to vote yes in the referendum “in order to avoid the disintegration of the state and to achieve the objectives of the revolution.” As usual, he accused his opponents of corruption, and he claimed that he was simply responding to the popular will. Under his constitution, “there will be no misery, terrorism, famine, injustice, or pain,” Saïed wrote.
- The commission’s drafting was already deeply flawed as an inclusive democratic process, as explained in a recent POMED Snapshot from Aymen Bessalah, but Belaïd’s comments show that the version that will go to a referendum on July 25 is Saïed’s brainchild alone. Belaïd also published the commission’s draft to highlight the differences from Saïed’s version.
- Tunisian Bar Association (ONAT) President Brahim Bouderbala, the chair of the commission’s main committee, confirmed that Saïed made significant changes, though he was more deferential to the president’s vision.
- Among other changes, Saïed’s version added the second parliamentary chamber, stripped MPs of immunity in some situations, and removed a description of how MPs would be elected, as well as eliminating the requirement that the constitution receive a majority of votes in the referendum in order to be adopted.