constitutional reform of Kais Said, under fire from critics

Illegal, illegitimate and lacking in transparency. This is the verdict of the International Commission of Jurists, ICJ, an international organization that fights for the rule of law and is made up of dozens of judges and lawyers, on the constitutional reform process initiated by the Tunisian authorities. In a document published on Wednesday, June 29, the Geneva-based NGO calls on the Tunisian government to withdraw this draft Constitution, which would anchor the country in a presidential regime.

“This constitutional reform aims to codify the authoritarianism that has already existed for a year,” he said. Said Benerbiadirector of the North Africa and Middle East program of the ICJ, referring to the suspension of the constitutional order by Kaïs Saïed since July 25, 2021. “The Executive, Legislative and Judicial powers are not recognized as separate powers , but as mere functions,” he continued.

Presidentialization of the regime

The separation of these three powers, theorized in the eighteenth century to counter royal absolutism, is a cardinal principle of modern democracies. Kais Said suspended legislative power by sending the military to blockade Parliament on July 25. The post of prime minister was then terminated, concentrating executive power in the hands of the president. As for the Judiciary, it has suffered several blows since the dissolution of the Superior Council of the Magistracy until the recent dismissal of 57 judges by a simple presidential decree.

The Tunisian president has justified each of his decisions by the desire to return power to the people, to fight corruption and political incompetence. The holding of a constitutional referendum on July 25, 2022, followed by elections at the end of the year, is proof, according to Kais Said supporters, that Tunisia remains a democracy.

safeguards in jeopardy

Kais Said, a former professor of constitutional law, has repeatedly expressed his ideal vision of a democracy “from Carthage to the peoples”, based on a direct link between local assemblies and a strong presidential power. According to his reform project, the intermediate bodies and the Parliament would be reduced to a minimum, the experts denounce. The safeguards established by the 2014 Constitution to prevent any dictatorial drift – independent authorities over the organization of elections, the media or the judiciary – would risk becoming empty shells without any real power.

“The safeguards have already been emptied of their substance by Kais Said’s practice of power. He has completely revised the methods of appointment to submit them totally to the will of the president (…) He will do everything possible so that the president predominates in the election of the people who will form part of these so-called independent bodies,” says Vincent Geisser, a researcher at the Institute for Research and Studies on the Arab and Muslim World (Iremam).

President Said’s conservative values ​​on the moral order and social issues, such as inequality between men and women in terms of inheritance or homosexuality, must be reflected through ambivalent formulations, such as the one regarding the role of Islam. The Tunisian president declared on June 21 that Islam would not be mentioned as a state religion in the next Magna Carta, but that there would be a text that would confirm Tunisia’s membership “in an Ummah, a nation, whose religion is Islam.”

It is a way of “taking Islam out the door and reintroducing it through the window,” says Vincent Geisser, who hopes that the president’s conservative vision and religious references will be present in several articles of the future fundamental law.

“Illegitimate”

Beyond the content of this reform project, the ICJ deplores a process carried out in a hurry. The absence of real consultations before, during and after the drafting of the new Constitution calls into question the democratic legitimacy of the entire process.

The presidential initiative has especially come up against the refusal to participate by many deans of law schools, as well as the opposition of the powerful UGTT trade union. The latter described the process in early June as “window displaying and lacking any notion of participation.” “We were not consulted directly or indirectly during the preparation and elaboration of this program,” added Slaheddine Selmi, deputy general secretary of the powerful union, while the UGTT recalled its principled rejection of the monopolization of power by a single person.

The low participation of Tunisians in the electronic consultation launched in spring, with the expression of only 5.9% of registered voters, was not compensated by transparent debates with representatives of civil society or political forces.

The ICJ denounces a process that is purely and simply illegal, since it does not comply with the reform standards established by the 2014 Constitution. The latter, marking the break with the Ben Ali era, had established a parliamentary system with many guarantees, precisely to prevent the return of a strong man at the head of the country.

“A piece of paper”

The presentation of the final draft of the Constitution is followed by a campaign between July 3 and July 25, the day of the referendum. Various political parties and civil society organizations have expressed their opposition calling for a boycott of the vote. The disenchantment of a large part of Tunisians after a year of political turmoil and economic deterioration could also encourage abstention.

“There is no quorum, participation threshold, to approve this Constitution, which could be approved even if only 2,000 people participate in the vote (…) If the government leaves by force, the institutional crisis in Tunisia will be perpetuated,” Said said. Benerbia, of the ICJ.

“This Constitution will be a piece of paper compared to the practice of power, increasingly authoritarian, personalized and presidential”, adds researcher Vincent Geisser. “It is not on the approval of this Constitution that the survival capacity of this regime will depend: this text will be a symptom of the regime, but not its foundation.

*Adapted from its original French version