The issue of the constitution, as well as that of the parliament, occupies a central position of importance in the history of Tunisia's reform movement. A review of contemporary Tunisian history reveals the number of sacrifices made by the people over generations in order to have a constitution that protects their rights, with a parliament that expresses their will and relays their demands.
Instead of being a guarantor of the dreams of those generations, the post-independence constitution of 1959 turned out to have some fatal omissions. Even the gains contained within it were aborted by autocratic governance and made completely void by virtue of stating that Bourguiba would be president for life.
Then General Ben Ali jumped into power while everyone was inattentive. He strengthened autocratic rule and turned the country into a huge prison. In the process, the constitution was turned into a wretched piece of paper with no value whatsoever; the gap between the text and reality was huge.
After the revolution the ruling class moved once more and decided to draft an alternative constitution. The country lived through unprecedented times in order to build a collective constitutional frame of reference that could unite everyone. The Tunisians followed closely those noisy struggles in pursuit of a text that would protect their rights and allow for coexistence despite the sharp differences and diversification in society.
When everyone thought that the story of the constitution was complete, it has returned once more with another fight looming over yet another draft. "We respect the constitution, but amendments to its text can be introduced," said President Kais Saied recently. He stressed that such work is taking place within the framework of legitimacy and respect for the law and the constitution itself.
What compelled the president to say this? His adviser Walid Al-Hijam told Reuters that there is an inclination to amend the political system, perhaps by means of a referendum, and that the constitution will be suspended and an interim system for governance will be issued. "The political system cannot continue," he said clearly, "and changing the system means changing the constitution through a referendum."
This statement had a negative impact on most of Tunisia's ruling class, which criticised Al-Hijam's remarks and requested Saied to deny or confirm what was said. As such, the president found himself compelled to ease the shock. Yet, instead of announcing that he was intending to suspend the constitution of 2014, he spoke about introducing amendments to it.
The overwhelming majority of constitutional law professors completely disagreed with him. He was also opposed by nearly all the members of parliament and political parties.
"We reject any attempts by parties hostile to the democratic march, especially by some of those who are close to the president of the state, to push in the direction of options that undermine the constitution's foundations," said Ennahda. The movement explained that, "The constitution of 2014 represented the basis of the political and social contract, won the approval of the majority of political families, received full consent from the masses and represented a basis for election legitimacy in all executive and legislative institutions in Tunisia." Furthermore, it warned, "such treading will definitely cost the regime its legitimacy and return the country to autocratic rule and bring about a reversal of all the democratic gains and the guarantees for liberties and human rights."
Former President Moncef Al-Marzouki called on "Tunisian democrats" to put aside their disagreements and stand in the face of a return to "dictatorship" if and when the constitution is suspended.
While the positions of these parties were expected — they all considered, right from the start, the moves taken by Saied on 25 July to be a "coup" against the constitution — the other parties that welcomed his measures and considered them to be a "correction along the way" have now expressed a different view. They have warned the president about the repercussions of destroying the constitution or even revising it in the absence of participation from all parties and without support from an elected parliament. The People's Movement, for instance, supported Saied wholeheartedly, but some members, such as Khalid Al-Krishi MP, have stressed that "whoever talks about amending the constitution in the absence of parliament is deluded." The suspension of parliament in July was one of Saied's "emergency" measures.
One of the erroneous but widespread notions at the moment is the claim that the current constitution is the "Ennahda Movement" constitution. This is a fallacy that can neither be accepted nor justified. The Founding Council that was elected and mandated to draft a new constitution did, in fact, represent all parties and doctrines across the political spectrum. Everyone fought tooth and nail to arrive at an acceptable text.
Academic and feminist Raja Bin Salama has challenged this fallacy. "The 2014 constitution is not the constitution of the Brotherhood except in the eyes of those who are amnesic or void of any democratic culture," she reminded Tunisians. "It is not the constitution of the Brotherhood because the Islamists were unable to turn it into a religious state constitution. Yes, there are contradictions and areas of ambiguity in this constitution, but hitting at it, condemning it and indicating that it would be abrogated – which if done would drag the country into an unknown that is more dangerous than the unknown we happen to be in now – should be, and is, rejected."
President Saied will commit a grave mistake if he insists on going down this road to the bitter end. He will find the political elite standing against him, which will deepen the internal and external isolation which has started to threaten him seriously. If the first half of the adventure created an actual division within the ranks of the ruling class, his decision to suspend the constitution and the attempt to drag the country towards an alternative document will create a different landscape altogether. He will end up confronting all parties, organisations, intellectuals and perhaps even some of the people on the street, who are still supporting him, albeit with waning enthusiasm.
Translated from Tunigate, 14 September 2021
The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.