A new constitution in Tunisia?

Amira Howeidy , Tuesday 14 Sep 2021

President Kaies Saied proclaimed that the 2014 constitution “is not eternal”, indicating plans to amend it

A new constitution  in Tunisia?

On Saturday evening, Tunisian President Kaies Said walked into Habib Bourguiba Avenue amid cheers and ululations with his entourage, chatting with people for photo ops before telling news channels broadcasting his appearance that he plans to amend the constitution.

The announcement is the first clear indicator of a roadmap outlining how Saied plans to steer Tunisia ahead after he suspended parliament and dismissed both the prime minister and government on 25 July at the height of the Covid-19 national health crisis. Having assumed executive authority since then, Saied has not appointed a new prime minister, and the government has been run by acting ministers for over seven weeks now.

In his Saturday statements the president said he fully respected the constitution but thought it was necessary to bring amendments to the text. “Constitutions are not eternal,” he declared.

The former law professor, political outsider and independent with no party affiliations won the 2019 elections in a landslide. But legislative elections in the same year produced a fragmented parliament, reflecting Tunisia’s deep political polarisation even as it is still hailed as the only success story among the Arab Spring revolutions.

During his electoral campaign Saied was vocal about his reservations against the foundations of the political system and the democratic model applied in Tunisia, which he argued was unrepresentative.

In the months leading up to Saied’s intervention, a power struggle between parliament and the presidency led to a political stalemate whereby the three executive heads – the president, the parliament speaker and the prime minister –were no longer on talking terms.

Hailed as one of the Arab region’s most progressive constitutions, Tunisia’s 2014 document established a semi-presidential system of government, which in the presence of weak political parties in a budding democracy exacerbated frictions between the president and prime minister since it went into force seven years ago.

An aide to Saied told Reuters last week the president was planning to suspend the constitution and offer an amended version via a referendum.

Saied’s statements Saturday were the first demonstration of his earlier affirmations that there was “no going back” to the situation in Tunisia before his 25 July decisions.  On 24 August, he extended the emergency measures for another 30 days, saying in statements that the dissolved parliament constituted a “danger” to the Tunisian state.

Speaking to the Dubai-based Sky News TV station in his classical Arabic, Saied denounced accusations by critics describing his intervention as “a coup” and “a violation of legitimacy.”

“This is false,” he said. “Look at how the people [here] are interacting [with me]… those who talk about legitimacy do not understand the law… They are sick in the heart… They talk about legitimacy but do not respect it.”

In his televised speech the president referred to unnamed critics: “I can spend hours telling you about their schemes and lies over the past months, which have all been refuted… We respect the constitution and constitutional legitimacy, but they must respect morals and values before respecting the constitution.”

Responding to a question on the new cabinet, Saied said he would seek “impeccable figures” in the new government which he said would be formed as soon as possible, without providing dates.

Saied did not respond to a question about early elections but said there was room “for introducing changes to the constitution.”

Without naming the biggest parliamentary bloc, Ennahda Party, which had been part of the collective effort that produced the 2014 Constitution, Saied said, “they should see how Tunisians are fed up with the constitution and the legal rules tailored to their size.”

In response, over 90 political and civil society activists issued a statement the following day published by the Tunisian radio station Mosaique FM affirming their commitment to the 2014 Constitution “which crowned the revolutionary process.”

The signatories, who include figures from both Ennahda and the Heart of Tunis Party, the second largest parliamentary bloc, called on Tunisians to “pool all efforts against the coup d’état, promptly return to the democratic process” and put an end to the exceptional measures, including the freezing of parliaments activities.

Saied’s 25 July intervention was met with public support and soaring approval ratings, but invited concern from Western governments as well as domestic players.

Ambassadors from the Group of Seven’s advanced economies this week urged Saied to appoint a government soon and return to “a constitutional order, in which an elected parliament plays a significant role.”

The 2014 Constitution established “a convoluted” semi-presidential system of government that combines elements of parliamentary and presidential systems, principally in terms of relations between the premier and the president, said Nidhal Mekki, a legal adviser at the Tunisian National Constituent Assembly.

The current political crisis stems from irreconcilable interpretations of the constitution by the president, the prime minister and parliament of their respective prerogatives. Tunisia’s 2014 Constitution lays down an executive power-sharing system of governance between the president and prime minister. The president is the commander of the armed forces, while the internal security apparatus and Interior Ministry are under the premier’s control.

In Saied’s interpretation of the constitution, his powers also cover the internal security forces. The 2014 Constitution, drafted and approved following a series of compromises among the country’s deeply polarised political elite, stipulated the formation of a Constitutional Court within a year to adjudicate constitutional disputes such as the current crisis.

Even under the previous administration, Tunisia’s politicians failed to agree on the names of the 12 judges that would sit on the court. Earlier efforts by Ennahda leader and dismissed Parliamentary Speaker Rachid Ghannouchi to launch the court were shot down by Saied earlier this month, who said the deadline had expired and described the step as “politically motivated”.

The general philosophy of the 2014 Constitution, Mekki explained, is not to make the president the linchpin of the political regime even if he is elected through direct universal suffrage, in view of the “hyper presidentialism” that characterised past Tunisian regimes. “It is rather the head of government who plays this role.”

Accordingly, the prerogatives of the president are aimed at checking and balancing the broad powers of the prime minister and not to retain the executive presidency.

Despite this constitutional logic, the semi presidential system has contributed to the political stalemate that affected former president Beji Caid Essebsi and his premier Youssef Chahed, just as it continued to do so with Saied and dismissed prime minister Hichem Mechichi.

In the absence of any measures addressing corruption or announcing a broad economic policy, popular support for Saied might not last for too long. It is unclear how he will proceed with constitutional amendments without the support of domestic players. 

The powerful UGTT Labour Union, which maintained neutrality and a cautious posture following the 25 July intervention, made its priorities clear early this week. Following Saied’s statements, the Union called for elections to create a new parliament that would debate changing the constitution and political system.

The UGTT issued a second statement on Wednesday –after four political parties denounced Saied’s announcement- calling for the formation of a small government to “ensure the continuity of the state” and for a swift end to the emergency measures.

Tunisia “needs to depart from the general state of paralysis that has affected the state’s institutions” within a “consultative and participatory vision,” the union body said.

*A version of this article appears in print in the 16 September, 2021 edition of Al-Ahram Weekly

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