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What's in Tunisia's proposed constitution?

July 25, 2022 at 2:32 pm

People stage a protest against the referendum in Tunis, Tunisia on 22 July 2022 [Yassine Gaidi/Anadolu Agency]

Tunisians will vote on a proposed new constitution significantly enhancing President Kais Saied’s powers, hardening critics’ fears he will entrench one-man rule and undo democratic gains from the 2011 revolution.

The proposed charter weakens the parliament empowered by the 2014 constitution, remaking a system that critics say led to years of political paralysis, squabbling and ineffective government.

Details of the main features of the proposed constitution are listed below:

President shapes the government

– Article 101 says the president appoints the prime minister, as well as other cabinet members, based on a proposal from the prime minister – a big departure from the current system that gives parliament precedence in picking governments.

– Article 112 says the government is responsible to the president, while Article 87 says the president exercises the executive function with the assistance of the government.

READ: Opposition in Tunisia calls for protests against president

– Article 102 says the president can terminate either the government or any of its members.

– For parliament to make the government resign, Article 115 says two-thirds of lawmakers must back a no-confidence vote. Article 116 says that if a second no-confidence vote is brought in the same parliamentary term, the president can either accept the government’s resignation or dissolve parliament, prompting a new election.

Weaker parliament

– Article 68 gives the president the right to present draft laws to parliament, and says these take priority over other legislative proposals.

– Article 61 states that the mandate of a lawmaker is subject to withdrawal according to conditions defined by the electoral law. These are not spelt out.

– Article 69 says draft laws and proposals for amendments to existing laws submitted by lawmakers are not acceptable if they would “upset the financial balances of the state”, without defining what this means.

READ: Ghannouchi: I was imprisoned during Bourguiba and Ben Ali reigns; I am not intimidated by Saied

– The new constitution would create a new “Council of Regions” as a second chamber of parliament, but it gives few details on how it would be elected or what powers it would have.

Right to take exceptional measures

– The new constitution refers to legislative, judicial and executive “functions” rather than powers, language which critics say points to the diminished standing of these branches of government.

– Article 90 says a president can serve two five-year terms. It says the term can be extended by law if a presidential election cannot be held on time due to “war or imminent danger”.

– Article 109 states the president enjoys immunity throughout his tenure, and that he shall not be questioned about actions undertaken while performing his duties.

– Article 96 lets the president take “exceptional measures” if “there is an imminent danger threatening the republic, the security of the country and its independence”, after consulting the prime minister and parliament.

– Article 106 grants the president the power to make senior appointments in the military and civil services, based on a proposal from the prime minister.

READ: HRW: Tunisia new draft constitution lacks mechanisms to protect rights

– As in the current constitution, the president is chief of the armed forces. But where internal security forces report to the government in the existing constitution, they will now be responsible to the president.

– Article 136 says the president, or at least one-third of the members of parliament, has the right to demand the revision of the constitution, but amendments cannot include changes to the number of presidential terms, which is set at two.

– Article 140 extends the validity of a presidential decree issued by Saied in September 2021 that allowed him to rule by decree, until an elected new parliament assumes its functions.

Judicial powers

– As with the legislature and executive, the judiciary is described as “a function” rather than a “power”, which critics say points to its diminished standing.

Is Tunisia's state of emergency being used to restrict freedoms? - Cartoon [Sabaaneh/MiddleEastMonitor]

Is Tunisia’s state of emergency being used to restrict freedoms? – Cartoon [Sabaaneh/Middle East Monitor]

– Article 120 says judges are appointed by order from the president, pursuant to a nomination by the relevant Supreme Judicial Council. They are barred from going on strike.

Role of Islam

– Article 5 states that Tunisia is part of the Islamic nation, and the state alone must work to achieve “the goals of pure Islam in preserving life, honour, money, religion and freedom”. A phrase in the existing constitution, which Islamists have long argued defined Tunisia as an Islamic state, has been removed.

– Article 88 says the president must be a Muslim.

Freedoms and rights

– Similar to the existing constitution, the new one pledges to protect rights and freedoms including the right to form political parties and to protest. It says freedom of opinion and publication is guaranteed, as is freedom of belief.

– It says the state guarantees equality for men and women, that the state will work to guarantee women’s representation in elected bodies, and that it will take measures to combat violence against women.

– Article 55 says no restrictions will be put on rights and freedoms “except by virtue of a law and for the necessity of national defence or public security” – also similar to the existing constitution.