Tunisian President Kais Saied published June 30 the text of a draft constitution that will be put to a referendum vote July 25. The head of Saied’s handpicked drafting committee, a respected constitutional law professor, has since denounced the draft. He claims that the president introduced major changes before it was published and that the president’s version creates a risk that a new autocracy will be established.
What’s behind these concerns? The draft 2022 constitution creates a personalistic system without meaningful checks and balances. And it would allow the president to exercise exceptional powers at his own discretion. If adopted in this form, Tunisia’s new constitution could lay the foundation for an extended period of autocratic rule.
Back to the future
The draft constitution would replace Tunisia’s celebrated 2014 constitution, which was crafted in the aftermath of the Arab Spring. But many observers, not just Saied, think the 2014 constitution gave the parliament too much authority, in light of the country’s weak political party culture. That system led to weak governance, with the parties that controlled parliament divvying up government institutions between them.
The draft constitution prioritizes clarity and coherence in policymaking and implementation. It seeks to achieve this by re-concentrating powers in the hands of the presidency.
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Many observers immediately remarked that the draft reestablishes Tunisia as a dictatorship. In fact, by itself, the draft does not do this. It calls for presidential, parliamentary and local elections, and it reconfirms the existence of traditional institutions, including judicial independence.
But there’s a catch. The draft does not create a meaningful system of checks and balances, which makes it easier to twist and bend democracy to suit the desires of a single individual. The president of the republic would have so much authority that he could easily remain in power unchallenged long into the future, without having to violate the constitution.
In fact, the draft looks very much like the 1959 constitution, which laid the framework for Tunisia to be governed as an autocracy for half a century, until the breakdown that led to the 2011 uprisings. There are differences between the two texts, but both are designed to achieve the same general objective: one-man rule.
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Tunisia’s 2022 constitutional draft is notable for what it does not address. It purports to establish a bicameral system but says almost nothing about the institutional relationship between the two legislative chambers. The draft notes the existence of a judicial council but is virtually silent about its composition or powers.
The provision on local government is just two lines long. And there’s no detail on what local governments actually will be doing and how independent they will be, if at all, from central government. The only independent institution that’s mentioned is the electoral commission, although there’s no detail on how the commissioners should be appointed.
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All of these crucial rules are left to legislation. This is not in keeping with modern practice, which broadly considers that the constitution itself should lay out crucial rules governing the functioning and independence of government institutions. South Africa’s well-constructed constitution, for instance, played a major role in preventing disgraced President Jacob Zuma from permanently seizing control of government institutions.
Under the proposed draft, the Tunisian president has very significant lawmaking powers, while parliament’s lawmaking powers are greatly reduced. The president has sole responsibility for determining policy and would form the government entirely on his own, without the need for parliamentary approval. Parliament can suggest legislation to be submitted to the government, which has no obligation to draw up a bill. And parliament cannot pass any legislation that touches upon the president’s administrative powers or on financial issues.
The president, in fact, can adopt laws on his own, including during parliament’s recess period or when the parliament is dissolved. The president would continue to exercise his current legislative power until the next parliamentary election — whose date he will solely be responsible for choosing. In the meantime, the president alone will be able to determine how all these institutions will function.
In practice, this means there’s no way to hold Tunisia’s president accountable, or for another branch of government to counterbalance his powers. There are no meaningful corrective mechanisms — and no opportunity to recall the president. Quite the opposite: In case parliament puts up too much opposition to his performance, the president can simply dissolve it, which is a power he can exercise with complete discretion. And this power may be difficult to challenge, as the constitutional court’s composition has been determined in a way that favors a traditional (and therefore pro-executive) approach to constitutional interpretation.
Tunisia’s democracy is at risk
The draft also creates a number of exceptional mechanisms that represent direct risks for Tunisia’s democratic system. The 2014 constitution allowed the president to declare a state of emergency interpreted by the president as allowing him to suspend the constitution and dissolve parliament unilaterally because of an internal political crisis.
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That particular provision is repeated almost word for word in the new draft, except that there is now no mention of any judicial oversight — which suggests that Tunisians will have even less opportunity to curb the president’s powers. In addition, the president’s electoral term can be extended in case of “imminent danger,” again a scenario that he will interpret on his own.
The 2014 constitution provided that rights and freedoms could be limited only “for reasons necessary to a civil and democratic state.” That wording, which was celebrated in Tunisia and led to real changes in how rights and freedoms are protected in practice, has been deleted in the draft.
The draft has not yet entered into force, and the outcome of the July 25 referendum is still unclear. A wide range of political figures in Tunisia have objected to the draft. If the document is adopted in its current form, Tunisia’s current system of one-man rule seems likely to continue far into the future.
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Zaid Al-Ali is an adviser on constitutional issues in the Arab region and the author of “Arab Constitutionalism: The Coming Revolution” (Cambridge University Press, 2021).