On July 25, 2022, the Tunisian people voted in a referendum to approve a new constitution proposed by the country’s president, Kais Saied, which alters the country’s political structure and changes the governmental balance of powers that were enshrined in the 2014 constitution. Voter turnout was 30.5%, with 94.6% voting yes and 5.40% voting no. The referendum came after years of political instability and worsening economic conditions.
Background to the Drafting of the New Constitution
On July 25, 2021, President Saied declared a state of emergency under article 80 of the 2014 constitution, which grants the president the power to take any measures necessary to lead the country in the event of imminent danger presented against the country’s institutions. Saied suspended the Tunisian parliament after protests over how the government was handling the COVID-19 pandemic and poor economic conditions. On September 22, 2021, Saied announced that he would rule by decree and passed several laws that bypassed the country’s constitution and political structure.
In a decree issued on June 1, 2022, Saied gave himself the power to suspend judges. Previously, on April 21, 2022, Saied had given himself the ability to appoint the members of the Independent High Authority for Elections, a power that previously only belonged to the government. Plans for the new constitution were declared on December 10, 2021, and the draft was made public on June 30, 2022.
Content of the New Constitution
Powers of the President
Under article 100 of the 2022 constitution, the president has the ability to set the general policy of the country, define the necessary choices of the country, and inform the cabinet of those choices. Additionally, the president is authorized to appoint the prime minister and the other members of the cabinet on the basis of the prime minister’s recommendations. (2022 Constitution art. 101.)
Article 102 grants the president the ability to dissolve the cabinet and terminate any of its members directly or through a recommendation from the prime minister. The new constitution also grants the president immunity and states that presidents must not be questioned about the measures they adopt during the term of their presidency. (Art. 110.)
Article 97 grants the president the power to put to referendum any law concerning the functioning and organization of public powers or treaties impacting the function of public institutions, as long as the result of the referendum would not be contrary to the constitution.
Under article 55 of the 2022 constitution, the president has the ability to impose restrictions on the rights and freedoms of Tunisian citizens under exceptional circumstances. Those circumstances include matters related to national defense, public security, public health, protection of the rights of others, or protection of public morals.
Under the previous constitution, the Constitutional Court had the power to adjudicate any legal disputes concerning the powers of the president. However, the new constitution has removed such legal authority from the Constitutional Court.
Powers of the President over the Judiciary
The president now has more control over how judges are appointed. Previously, article 106 of the repealed 2014 constitution required that senior judges be appointed on the basis of a binding recommendation from the Supreme Judicial Council after consultation with the prime minister. In contrast, article 120 of the new constitution limits this power, allowing the president to interpret the Supreme Judicial Council’s recommendation as a suggestion, with the ultimate decision belonging to the president.
Parliamentary Powers to Remove the President
The 2014 constitution allowed a no-confidence vote to remove the president under article 88, requiring a two-thirds vote in the parliament. However, the new constitution removes this power and has no similar provisions that would allow the removal of the president.
Article 90 of the new constitution keeps the same presidential term of five years cited under the repealed 2014 constitution, with the possibility of reelection for one more term. However, in the event of a war or imminent danger that would prevent an election from taking place, the presidency extends until the cause of its postponement ends.
Reactions to the New Constitution
The new constitution has been the object of criticism in Tunisia and abroad. Sadok Belaid, who was assigned by Saied to lead the committee drafting the new constitution in May 2022, has stated that Saied’s constitution is different from the draft originally proposed by the committee and that it could lead to a dictatorship.
Furthermore, a number of Tunisian institutions have expressed their distrust of the new constitution. For instance, the Ennahda Islamic political party, which was the majority party in the last parliament, has described Saied’s actions as a coup and a setback to the revolution and democracy.
The opposition to the new constitution also includes a number of domestic political organizations, such as Citizens Against the Coup, which includes prominent scholars and politicians; the Parti destourien libre led by Abir Moussi, a prominent politician in Tunisia; the National Salvation Front; and Afek Tounes.
On the international level, international human rights organizations have voiced their opposition to the new constitution. For example, Amnesty International has stated that the constitution undermines the government’s balance of powers and threatens human rights protections. Additionally, American think tanks have expressed their objection to the new constitution. For instance, the United States Institute for Peace has described it as a system “built on shaky ground,” while the Carnegie Endowment for International Peace has called it a reversal of the last decade’s democratic gains.Prepared with the assistance of Ali Ebshara, Law Library intern