Saed’s draft constitution establishes a religious state

Law professor Slim Laghmani confirmed that Article 5 of the draft new constitution, published by the head of state, Kaïs Saïed and subject to a referendum, created a religious state. There is a huge difference between a religious state and an official religion of a state … Several democratic states have an official religion … A constitution is a text that contains a vision of the state, its identity, its strategic choices that establish a political system and guarantee rights and freedoms »he added.

On the occasion of his intervention during a study day organized by the Tunisian Association of Constitutional Law on July 4, 2022, Slim Laghmani recalled that the 2014 Constitution had evoked the civil state and the preservation of freedom of conscience. He felt that the 2014 version was clearer and more precise than the draft of the new constitution. He stressed the ambiguity of Article 28 of the draft new constitution as regards the preservation of the freedom to perform religious rituals. Kaïs Saïed’s project evokes a freedom limited by the attack on national security. He believed that the use of certain terms as “function” instead of “power” had no bearing. He explained that the function meant the exercise of power and that this change meant nothing. He called for focusing on the distribution of prerogatives and the imbalance between powers.

In response to the provisions of the draft new Constitution with regard to rights and freedoms, Slim Laghmani emphasized the removal of the principle of proportionality. The 2014 Constitution specified that any restriction and control exercised over a right must result from the necessity of a democratic civil state and to protect the rights of third parties or for reasons of public safety, national defense, public health or morality. due respect for the proportionality and necessity of these controls.

This project creates a presidential system, that is, it incorporates the elements of the presidential and parliamentary system to strengthen the authority of the President of the Republic! The head of state can not be held responsible for his actions, neither politically nor criminally … He can resort to announcing a state of emergency without delay and without control of the Constitutional Court … It acquired the right to submit a text directly to a referendum and without go through parliament … This is nowhere to be found in the world! »he added.

Slim Laghmani also clarified that the project allowed the President of the Republic to appoint and dismiss members of the government as he sees fit. This government enjoys a degree of immunity, as the withdrawal of confidence is possible only after a vote of no confidence by half of the Members of Parliament and half of the members of the National Council of Regions and Districts. The motion of censure must be voted on by two thirds of the members of these chambers to proceed with the withdrawal of the vote … Nothing can be done against the government … The Folketing and the regional county council can be dissolved in the event of a motion of censure . The resolution can also only be targeted to one of these chambers »he said.

Slim Laghmani also confirmed that the project with the new constitution puts the project of building the bases in place. The text submitted to the referendum rejected the creation of a council chamber in favor of a regional council. He indicated that the project talked about the recall of elected representatives by voters. He stressed the lack of details on the voting system for the parliamentary elections. According to him, it will be an indirect vote. He believed that the deletion of the chapter on economic issues was due to the intention of the President of the Republic to strengthen the intervention of the bases in this matter.

As for the judiciary, Slim Laghmani believed that the project with the new constitution had dissolved all the guarantees of the latter’s independence. He mentioned the president’s appointment of a judge based on a proposal from the Judiciary’s Supreme Council and not following an agreement between the two. He also mentioned the possibility of undermining the guarantees and rights given to judges by a simple law as specified in Article 121 of the draft.

As for the Constitutional Court, Slim Laghmani regretted the appointment of judges. He explained that the chosen method did not make it possible to guarantee continuity in this institution and thus become a source of case law. He also criticized the composition that the project had proposed. The latter is intended to establish a court consisting exclusively of nine judges, three of whom are judges and three who are part of the Court of Auditors and therefore without knowledge of the Constitutional Court. He also confirmed that the rulings of the Constitutional Court will have no weight or consequences, as Article 129 states that these apply to all powers. However, the draft of the new constitution speaks of functions.

Slim Laghmani concluded that the draft of the new constitution was outdated in relation to the 2014 constitution.


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