Tunisia -

The new draft constitution that President Kais Saied presented to the Tunisian people before the referendum on it on July 25 is fundamentally different from the 2014 constitution, which the current president suspended after announcing his exceptional measures about a year ago.

The president published the draft constitution in the Official Gazette yesterday evening, June 30, hours before the deadlines he had set himself expired, and 10 days after receiving the draft constitution from the head of the Consultative Body for the Drafting of the Constitution, Sadiq Belaid.

In terms of form, the new draft constitution was divided into a preamble and 142 chapters divided into 10 chapters.

As for the 2014 constitution, it included a preamble and 149 chapters distributed over 10 chapters.

It is noteworthy that the new draft constitution stipulates that there are no longer executive, legislative and judicial powers, and instead considered them mere functions.

A broad rejection of the new constitution submitted by the Tunisian president to the referendum (Reuters)

chatter in preamble

Law experts criticized what they considered to be a redundant talk about what the president described as a correction of the political track.

Professor of constitutional law Al-Saghir Al-Zakraoui said that there is legal chatter about the introduction of the new draft constitution, and "as if the history of Tunisia begins with Kais Saied."

The preamble stated that “it was necessary to set a deep sense of historical responsibility in correcting the course of the revolution and even correcting the course of history, which happened on July 25,” 2021, the date of President Qais Saeed’s announcement of the exceptional measures by which he froze the actions of the government. Parliament and dismissed the previous government, which the opposition considered a coup.

Text on Islam

The most important changes were represented in the first chapter of the new draft constitution, which stipulated that “Tunisia is a free and sovereign state,” while the first clause of the 2014 constitution included that “Tunisia is a free, independent and sovereign state, with Islam as its religion, Arabic as its language, and republic as its system.”

On the other hand, it was stipulated in Chapter 5 of the general provisions of the new draft constitution that “Tunisia is part of the Islamic nation, and the state alone must work to achieve the objectives of pure Islam in preserving life, honor, money, religion and freedom.”

Observers criticized the new draft constitution, claiming that it perpetuates discrimination on the basis of religion, as Article 88 stipulates that "the President of the Republic is the head of the state and his religion is Islam."

But this condition was also stipulated in the 2014 constitution in Article 74.


civil state

The new draft constitution did not provide for the civil state.

Contrary to the second chapter of the 2014 constitution, which affirmed that “Tunisia is a civil state based on citizenship, the will of the people and the supremacy of law,” the second chapter of the new draft constitution only stipulates that “the Tunisian state system is the republican system.”

Observers considered that the failure to provide for the civil state poses a threat to the civil order.

Decentralization and free management

Chapter 4 of the new draft constitution does not stipulate the principle of decentralization, and all that it says is that “Tunisia is a unitary state and no legislation may be enacted that would prejudice its unity.”

On the other hand, Chapter 14 of the 2014 constitution stipulates that “the state is committed to supporting decentralization.”

While the 2014 constitution stipulates that the local authority is based on decentralization and financial and administrative independence in Chapter 132, the new draft constitution does not refer to that at all.

Qais Said's new constitution marginalizes parallel authorities, particularly the judiciary (Reuters)

Public liberties and strikes

The new draft constitution, like the 2014 constitution, included provisions that protect individual and public rights and freedoms, such as freedom of opinion, thought, expression, media, freedom to form parties, unions, and organizations, and freedom of belief and conscience.

However, the new draft constitution did not provide guarantees to neutralize mosques and places of worship from partisan employment or ban calls for blasphemy and incitement to hatred and violence, as contained in the 2014 constitution in its sixth chapter.

The new draft constitution included the right to strike with the exception of the army, internal security forces, customs and judges, while this exception did not include judges in the 2014 constitution.

Note that Tunisian judges have been on strike for a month to protest against what they see as President Kais Saied's interference in the judiciary after his dismissal of 57 judges.

Ban party tourism

The new draft constitution, in its 61st and 62nd chapters, prevents parliamentarians from performing other functions for a fee during their term of office.

It also allowed the withdrawal of the power of attorney from the representative if he breached his commitments, according to conditions set by law later.

The new draft constitution prevented MPs from joining other blocs if they submitted their resignations from their original blocs in order to prevent partisan tourism.

The 2014 constitution did not include this chapter, which allowed the movement of deputies in the previous parliament from one bloc to another, and this was known as partisan tourism.

In its 66th chapter, the new draft constitution made it possible to lift the immunity of parliamentarians in everything related to slander and exchanging violence committed within Parliament or in the form of disrupting the work of Parliament.

This provision was not stipulated in the 2014 constitution.

Note that the Assembly of the Representatives of the People (the former parliament) witnessed a state of tension, violence, and disruption of the conduct of sessions by some deputies, which affected its image.


Presidential or "presidential" system?

The new draft constitution approved transforming the political system into a presidential system with greater powers for the president.

This came in the section of the executive function, where Article 87 stipulates that the President of the Republic exercises executive authority with the assistance of a head of government, while Chapter 100 stipulates that the President of the Republic controls the state’s general policy and determines its basic choices.

This completely contradicts what was stated in the 2014 Constitution, which established an amended parliamentary system, where the President of the Republic was only competent to control public policies in the areas of defense, foreign relations and national security after consulting the Prime Minister, while the Prime Minister was the only authorized to control the state’s public policies and implement them in accordance with Chapters 77 and 91.

Constitutional law professor Jawhar bin Mubarak, an opposition political activist, said that the political system in the new draft constitution "is a literal copy of the constitution of the previous regime of Zine El Abidine Ben Ali, where it strikes in the killing of the principle of balance between powers and establishes the regime of the sultans."

Chapter 101 of the new draft constitution allowed the president to appoint the prime minister and the rest of the ministers.

While the 2014 constitution stipulates the assignment of a prime minister from the party with the majority in Parliament, as stated in Chapter 89.

The new draft constitution authorizes the supervision of the implementation of general arrangements, while this authority was included in the Prime Minister’s mandate in the 2014 constitution in accordance with Article 94.

In the new draft constitution, the government ensures the implementation of the state's general policies in accordance with the directions of the president, who has the executive body in his hand.


Legislative and judicial function

In the third chapter related to the legislative function, the two-chamber system was adopted, as the chapter was divided into two parts, a section for the Assembly of the People's Representatives (Parliament), and a section for the National Council of Regions and Regions (which was created in the project).

The President of the Republic has the priority to consider bills submitted to Parliament.

Professor of constitutional law, Salwa Hamrouni, said that there is a complete absence of balance between powers, considering that the draft constitution enshrines the hegemony of the President of the Republic in a presidential system, not a presidential one.

On the other hand, the new draft constitution did not provide for the composition of the Supreme Judicial Council or the method for its election, nor did it provide for its independence, as the 2014 constitution stated in its chapters 112, 113 and 114.

While judges were named by presidential order in consultation with the prime minister, and based on the corresponding opinion of the Supreme Judicial Council, their nominations were made only by the president.

Constitutional Bodies

The new draft constitution abolished 4 constitutional bodies, leaving only the ISIE without any significant change in its composition or powers.

The constitution of the Audiovisual Communication Commission (HAICA), the Human Rights Commission, the Commission for Sustainable Development and the Rights of Future Generations, and the Good Governance and Anti-Corruption Commission have been abandoned.