Tunisia's final draft constitution, submitted June 1, 2013 by the National Constituent Assembly (ANC), establishes the main points of the country's future political system. Following 16 months of work, the draft also sets the headlines of a new social contract.
This is not a re-hashing of the ANC's adventures or its inability to carry out its historic responsibilities. This is an attempt to provide a critical analysis of the draft constitution: Is it revolutionary? What are the powers of institutions and authorities? Which discourse has been invoked? The constitution clearly reflects the balance of powers at the moment of its drafting; it is not just a text that perfectly organizes the joints of the authorities.
Yet we notice that the draft constitution draws its references from Tunisia’s past, and establishes in a completely modern way a rational and sovereign legislation in the service of a civil and welfare state.
A new system: rationalized parliamentarism
The draft constitution proposes a parliamentary political system par excellence, which is a break from the previous constitution. The parliamentary thrust can be seen in Article 94, which states, “The government is responsible before the chamber of deputies.” Despite the fact that the preamble of the draft constitution incidentally mentions a “participatory democratic republican system,” the political system is clearly a representative democracy.
Three additional innovations introduce a revolution to the balance of powers within the new text. On the one hand, we notice the disappearance of the Supreme Legislative Council, or the Council of Elders, taking us back to a pre-2002 period. This measure aims to strengthen the authority of the Assembly of Representatives of the People, which is not alleviated by another legislative council.
On the other hand, the Council of Elders disappears in favor of elected local groups based on the decentralization process spelled out in Article 13, which is supposed to maintain “the unity of the state.” Its limits and powers, however, are still cloudy.
The latest innovation lies in the emergence of “independent constitutional bodies” that will reduce the influence of the legislative, executive and judicial powers. These five bodies are in charge of elections, media, human rights, sustainable development, rights of future generations and, finally, good governance and anti-corruption efforts.
Despite the fact that the addition of these bodies — which are supposed to be independent — leads to a reduction in the prerogatives of the legislative and executive powers, they remain insufficiently specific.
The separation of powers is officially stated in the draft constitution's preamble. As for the “independent” judiciary, as per Article 100, the legislator allocated a special section for it, which was not the case in the old constitution. In addition to the judicial, administrative and financial courts, a constitutional court has been introduced in Article 115, whose role is to control the constitutionality of draft laws and proposals.
For its part, the executive branch has two heads. The first is the president of the republic, who is elected by direct universal suffrage for a term of five years and a maximum of two consecutive terms. The constituent legislator wanted to grant this president a legitimacy that is equivalent to that of the representatives and that goes beyond the prime minister's legitimacy. At the same time, this "competitor" of an unquestionable legitimacy is subdued given his narrow powers. With the exception of foreign policy, national defense and security, the president of the republic is not the architect of the state’s public policy.
He is entitled to dissolve the ANC and he does not get involved in political maneuvers. Thus, his standing supersedes that of political parties, yet at the same time the ANC may dismiss him from his office if it deems that he has breached the constitution.
Furthermore, the draft constitution specifies that the president of the republic shall appoint the prime minister, who shall be liable toward him and the chamber of deputies. This clearly means that the prime minister is subject to these two institutions, but at the same time represents the real head of the executive power. The prime minister, chosen by the president of the republic from the party or majority electoral coalition within the National Assembly, is not entitled, like other MPs, to concurrently be a deputy. Moreover, the government and its prime minister may be subject to a vote of confidence under conditions difficult to apply.
Eventually, it seems that the political regime drawn by these constituent legislators is a "rationalized parliamentary regime," different from both an overrated parliamentary regime and a presidential regime. Indeed, the legislative branch enjoys superiority, yet is limited by the respective roles of the president and the prime minister, as well as by the powers conferred to the local elected authorities.
On the other hand, this rationalization collides with a fundamental matter, which will pose a real challenge for the future political regime: How will this regime be able to function in the event of a parliamentary majority with a political opinion different from that of the president?
It seems that those drafting the constitution believe that the co-existence between a president of the republic and a prime minister having opposing political affiliations is not a big issue, since the powers given to each of them are clearly separate and complementary.
Will this be enough to secure the unity of the state, ensure the efficiency of public activity and to overcome the ideological and political divisions that threaten to freeze parliamentary action? It is legitimate to have doubts in this respect, especially since the text of the draft constitution does not propose any mechanism to regulate such disputes.
Silent revolution: a civil-welfare state?
The general spirit of the draft constitution, based on several varied references, may seem confusing. The preamble and the first chapter refer to both universal rights and Tunisia’s affiliation to the Arab-Islamic world, without emphasizing one over the other. Yet, one may notice the absence of any reference to the concept of revolution. Moreover, this term is only mentioned within the scope of “revolution of dignity, freedom and justice” in the preamble.
From this angle, it is unfortunate that those drafting the constitution did not retain the most prominent slogan of the revolution — “work, freedom and national dignity” — since it is more symbolic than the superficial slogan of “freedom, dignity, justice and order” contained in Article 4. This latter phrasing is a combination of late President Habib Bourguiba’s slogans; Nov. slogans attributed to the political rhetoric of former President Zine El Abidine Ben Ali’s regime, known as the Nov. 7 regime; and revolutionary slogans.
The first article, which is subject to a consensus, shows that those drafting the constitution were clearly influenced by the 1959 Constitution. Contrary to public perceptions, this illustrates that constitutions — including those called "revolutionary" — are always drafted based on those of the past. This explains why Islam remained the official state religion in the new draft constitution, even if the state is described in the preamble and Article 2 as a civilian state.
Some believe that this is a contradiction paving the way for the possibility of establishing an Islamic theocracy and attests to the “dual-nature” of speech by the Islamists and their allies, the tripartite coalition known as the troika.
However, the existence of a religious dictatorship is not constitutionally possible just because of the contradiction between Articles 1 and 14, since this would disrespect all of the rights safeguarded by the constitution, which guarantees freedom of belief, opinion and expression, and the media.
In any case, harming the consistency and essence of these rights, as well as the civil character of the state, is expressly forbidden by the draft constitution. Yet, the persistent Islamic nature of the state does not prevent the inclusion of “two silent revolutions” in the new draft constitution.
To begin with, civil rights that were missing until now, even in supposedly "developed" democracies, have been added to the amended constitution. It is no surprise that the indicated rights — including the freedoms of expression, speech, thought, belief, press, creativity and publishing — are praised. The prohibition of torture, be it moral or physical, has been officially ratified in Article 22. Moreover, Ennahda’s draft constitution failed to integrate the "complementary nature" (instead of equality) between both sexes into the text of the constitution and the referral to Sharia as the main source of legislation.
Article 20 sets forth equality between both sexes in duties and rights, while Article 45 states, "The state guarantees the protection of women’s rights and supports their gains. The state guarantees equal opportunity between men and women to assume responsibilities. The state guarantees the elimination of all forms of violence against women." Moreover, we can be proud of the fact that in Article 32, academic freedoms and the freedom of scientific research have been also introduced — something that hasn’t happened in "developed" democratic countries. Article 21 of the draft constitution stipulated the "right to life" and considered it "sacred," thus prompting a dispute that it could trigger opposition for the right to abortion. However, this article could also be seen as the legal basis for a possible prohibition of the death penalty.
The second silent revolution is related to economic and social rights, which are no less important than other freedoms and rights and that constitute an essential change compared to the 1959 constitution. It is not an exaggeration to say that this draft constitution includes elements foreshadowing the birth of a "social" state. Article 20 even binds the country to providing “good living conditions” for its citizens.
In the same framework, certain clauses in the draft constitution must be dedicated to the rights of health, education, culture, water and a sane and balanced environment, and must not be undermined. In fact, including a certain right in the constitution leads to the recognition of it being a part of the state’s exclusive duties. This means that it cannot be practically privatized because it was promoted to the level of public service.
Without portraying the new draft constitution as perfect or sacred, and without treating it as if it foreshadows the establishment of an Islamic state (Tunistan), it is still possible to find elements therein that effectively represent a rupture with the former regime. Yet, it should be noted that without institutions and relevant bodies, and without strong and guaranteed opposing authorities and stable measures that allow the institutionalization and organization of the political conflict, there is a danger that this constitutional text — no matter how sublime — might stay mere ink on paper or might be unable to ensure the political and social democracy toward which Tunisians aspire.
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