Why the draft constitution is a complete failure

A great disappointment was felt by several observers and analysts of Tunisian political life when they read the draft constitution published in the Official Journal of the European Union on 30 June 2022. The most optimistic among them and even certain declared supporters of Kaïs Saïed could not avoid getting bored. by seeing the quintessence of almost a year of extraordinary measures. The draft Tunisian constitution is fundamentally conservative, giving all powers to the President of the Republic and bringing us back to a disfigured version of the 1959 Constitution, which is reminiscent of 1976 developments.

The draft constitution, which will be proposed for the July 25 referendum, begins with a river preamble in which, for example, political opponents are referred to by criticizing their record. The preamble also refers to the famous national consultation, the success of which has been constitutionalized, even though it is a monumental failure. In the opinion of several experts, the preamble to the Constitution is in fact a political text without great quality, although the reference to the environment can be welcomed.

Subsequently, it was Article 5 that crystallized the criticism. It gives: ” Tunisia is part of the Islamic ummah. Only the state must guarantee the precepts of Islam with regard to respect for human life, dignity, goods, religion and freedom ”.First, the concept of Islamic umma is difficult to define and translate legally, knowing that we are talking about a constitution. Proponents of her case have been working to make the actual transcript of this statement available online. But when one sees the reference to the origin of the term, which has become a constitutional article, one may be in doubt. It is one of the theorists of jihadist Salafism, Ibn Taymia, who is the origin of this term. In terms of legal reading, this article can also make the state a torturer who will apply the precepts of Islam in accordance with his own reading and who will give himself the mission to intervene and legislate in very different areas. This article alone can pave the way for an Iranian diet. Not sure Tunisians demonstrated on July 25, 2021 to ask for legislation in their bedrooms or to make the state the great religious order.

It should also be noted that “dignity” has been removed from the slogan of the Republic of Tunisia, even though it is mentioned along with freedom, justice and order in the preamble. We thus return to the slogan of the first republic. But in the first republic, women could run freely in the presidential election. Now it is not so clear anymore.

The draft constitution refers to functions, not powers. Kaïs Saïed and his writer, Sadok Belaïd, will have ended up shining on Montesquieu’s theory of separation of powers. Under this beautiful function name, it is in fact the President of the Republic who becomes the cornerstone of the political system and far beyond. The draft constitution faithfully translates President Kaïs Saïed’s problem of justice and the association of judges. They are deprived of the right to strike under Article 41 and are placed under the same iron as the internal security forces and customs. Thereafter, in order to strengthen the power of the Head of State over this company, the appointment of judges will be made by presidential decree on the proposal of the relevant judicial council, according to the specialty of the judge (Article 120). Article 121, meanwhile, even mentions the rules for the transfer of judges. An aspect that has nothing to do with a constitution.

The “parliamentary function” does not escape the hegemonic logic of the rapporteur and his desire to inaugurate control of a single person, namely the President of the Republic. First, the draft constitution evokes two chambers for parliament: the Assembly of People’s Representatives and an obscure national regional and territorial council. Only six chapters have been devoted to the latter institution. But it is not the worst aberration, there is no mechanism in this draft constitution that allows the ouster of the President of the Republic! Neither the two chambers of the “parliamentary function” nor the Constitutional Court or apparently the government can sue the President of the Republic. On the other hand, the head of state has a wealth of scenarios that allow him to dissolve one of the two chambers or the government. The powers of the President of the Republic in this matter are downright ridiculous. The first paragraph of Article 116 provides that in the event of a second motion of censure against the Government under the same mandate, the President of the Republic may either accept the resignation of the Government or dissolve the Assembly of Representatives. the people and the National Regional and Territorial Council, or one of the two. The balance between “parliamentary function” and “executive function” is totally non-existent.

Another important aspect of this draft constitution is its extreme conservatism. First, the presidential candidate must, as usual, be of Muslim faith. He also says he is at least forty years old and a Tunisian. But not just him. So must these parents and grandparents. Furthermore, Article 44, which deals with education and training, designates as the function of the State to rooted young people in their Arab-Muslim identity It is obvious that several readings of this provision can be read.

The draft constitution also establishes the centralism of power. The local power that had been highlighted in the 2014 Constitution provides space for a single article on local and regional authorities. Even this article refers to the determination of their powers under the “law”. Furthermore, out of the abundance of constitutional bodies created by the 2014 Constitution, only the independent high authority for elections remains. The survivor will have nine members whose term of office is six years, which cannot be extended by replacing one third of the members every two years. On the other hand, no indication of the mechanisms for appointing members. Will they be elected by one or both houses of parliament? Will they be appointed directly by the President of the Republic? Mystery and gumdrop.

The draft constitution, which will be submitted to a referendum on 25 July, is bad and does not live up to its ambitions. Its only merit is in broad daylight to reveal the way its editors think. It is a hegemonic project that anchors individual power and immunizes it against any kind of responsibility or question. It is also a backward and conservative project whose sole purpose is to constitutionalize the profile of the omnipotent president under the pretext of guaranteeing some stability at the expense of an obvious imbalance between the powers. The Tunisian constitutional heritage praised in the introduction to this project is tainted and tainted by such a cheap draft constitution.

Marouen Achouri

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