Close look at Tunisia’s draft constitution, new amendments

Only a few days remain until the Tunisian people determine the fate of their constitutional future by passing a draft constitution tailored by President Kais Saied or rejecting it, amid national and international criticism against the president over the tremendous powers he could seize if it is passed.

Tunisians will head to the polling stations on July 25 to cast their votes on the draft constitution aimed at changing the 2014 constitution in favor of the president.

The confrontation between President Saied and the opposition has escalated before the public referendum, and the Tunisian presidency announced on Tuesday evening that the election portal for voters’ registration has been hacked by 1,700 cyberattacks, saying that “the cyberattack is a failed attempt that aimed at causing chaos on the referendum day.” An investigation was launched, and seven people were questioned.

The National Salvation Front, an opposition block that formed on May 31 against Saied, has called for boycotting the referendum on the draft constitution. The head of the front, Ahmed Najib Chebbi, in a press conference, accused Saied of trying to legitimatize one-man rule by passing the new draft constitution, AFP reported on Monday.

However, pro-Saied political parties like the People's Movement have renewed their support for the new draft constitution, saying “yes” to it.

Key controversial articles

Saied’s draft constitution provoked a barrage of criticism, since he seeks to expand his powers constitutionally. Key controversial articles of the draft, which was published by the presidency in early July, are as follow:

Article 1 of the draft constitution stipulates that “Tunisia is a free, independent, sovereign country.” It omits Islam as the country’s official religion to prevent it as a legislative reference for the state, unlike the 2014 constitution, which provides that “Tunisia is a free, independent, and sovereign state, Islam is its religion, Arabic is its language, and its system is a republic.”

Article 56 of the new draft introduces a new council for the parliament called the “National Council for Regions”. It stipulates: “The people have the right to mandate the legislative function to the first House of Representatives called the Council of Representatives of the People, and to the second House of Representatives called the National Council for Regions.”

Article 68 gives the president the right to propose draft laws, not the prime minister as under the 2014 constitution. It also grants the president the right to approve treaties and financial draft laws. “The drafts submitted by the president are a priority for being considered,” it provides.

Under Article 101, the president will appoint the head of government, as well as other members of the government, based on a proposal from the prime minister.  According to Article 102, the president will also have the right to sack the government and end its duties. He also has the authority to assign people to senior civil and military posts, according to Article 106.

Article 110 provides that the president has immunity during his term of office. He also shall not be questioned about the actions he has undertaken during his tenure.

Article 120 specifies that judges shall be appointed by the president after a nomination by the relevant Supreme Judicial Council.

The president also has the right to dissolve the parliament and call for holding an early election.

As for the parliament’s powers, the draft constitution allows the dissolving of the government by voting from two-thirds of the parliament members, while the 2014 constitution stipulated that the government shall be dissolved by voting from 50 percent plus 1.

A lawmaker shall not enjoy parliamentary immunity if he is involved in crimes of slander, defamation and exchange of violence committed inside the parliament, nor does he enjoy it if he disrupts the parliament’s work.

Minor amendments

According to Sabah newspaper, former constitutional law professor Sadiq Belaid, who was appointed by Saied to draft the new constitution, said on July 3 that the draft proposed by Saied is different than the first draft Belaid was working on, noting that Saied’s published text shows an “imminent danger that allows (Saied) to extend his mandate and pave the way for a disgraceful dictatorship.”

However, one week ago, the president made slight amendments to Articles 5 and 55 to add the phrase “under a democratic system.” Article 5 stipulates: “Tunisia is part of the Islamic nation, and the state alone has to work, under a democratic system, to achieve the goals of pure Islam in preserving life, honor, money, religion and freedom.”

Meanwhile, Article 55 provides: “No restrictions shall be placed on the rights and freedoms guaranteed in this Constitution except by a law, or if necessary, in accordance with a democratic system and with the aim of protecting the rights of others or for the requirements of public security, national defense or public health.”

Saied allowed women to assume the position of the president after amending Article 89. He also made amendments to Article 90 concerning the terms of the presidency, to state: “Assuming the position of the President of the State shall not be more than two terms completely or separately.”

Despite the calls for boycotting the referendum by the opposition, Saied gave a televised speech during Eid Al-Adha in which he said that a national dialogue would be launched a few days before holding a referendum for the draft constitution due to convene on July 25. He called for voting “yes” for the draft constitution.

On July 25, 2021, Saied announced a bunch of exceptional procedures, including the suspension of the parliament as per Article 80 of the 2014 onstitution. One month later, he extended the suspension of the parliament indefinitely.

While Saied remains largely supported by Tunisians, according to a poll published on April 26 by Sigma Conseil and the independent Le Maghreb newspaper, the Tunisian General Labor Union (UGTT) stood defiant against him and staged a national strike in mid-June due to the deteriorating economic situation in the country. However, the UGTT has since changed its stance towards the referendum, allowing its members the freedom to vote after mediation by Algerian President Abdelmadjid Tebboune. The change in the UGTT situation could enhance Saied’s opportunity to get more voters for the referendum.