A hyper-presidential regime and threats to the rule of law
We observe with apprehension that, despite widespread protest from the opposition and many civil society organisations, the Tunisian president is continuing to use strong-arm tactics by calling on voters to go to the polls on 25 July 2022 to vote in a referendum on the adoption of a new constitution based on his own agenda. The announced constitutional referendum risks being transformed into a new phase of legitimisation for Kais Saied, following his power grab on 25 July 2021 and the consolidation of all powers into his hands.
We bitterly recognize that this is a step backwards from everything Tunisians have achieved since they rose up in 2011 for social justice, equality, dignity, and freedoms as well as the separation of powers and against the Ben Ali regime. Indeed, the draft constitution marks a radical break with the parliamentary system and drastically weakens the judiciary. It gives the president vast powers as supreme head of the armed forces, responsible for defining the general policy of the state and with broad powers to approve laws and call constitutional and legislative referendums. The draft constitution also makes the president the supreme authority of the State, above all other powers, and able to dissolve all other structures (government, parliament, etc.) without being subject to any accountability procedure.
Noting with amazement that, in the same vein of weakening checks and balances, the draft constitution — even after the amendments made by the President of the Republic — reduces to nothing the vast majority of constitutional and independent bodies created by the 2014 Constitution, including the Audiovisual Communication Authority, the Human Rights Authority, the Authority for Sustainable Development and the Rights of Future Generations, and the Authority for Good Governance and the Fight against Corruption. It only maintained the Elections Commission after modifying its composition by decree-law in order to appoint its members, a prerogative that was part of the competences of the Parliament, which significantly affected its autonomy and impartiality.
Concerns about rights and freedoms in Tunisia
Alarmed by the undermining of the civil state protected by the 2014 constitution in its preamble and Article 2 and noting that, in the current draft, Tunisia is considered in Articles 5, 6 and 7 as an integral part of the Islamic Ummah, the Arab community and the Greater Arab Maghreb, and that the state is responsible for ensuring the consecration of the aims of Islam. This paves the way for restrictive interpretations of rights and freedoms in the name of cultural specificity, particularly in the absence of explicit recognition and consecration of human rights in their universality, indivisibility, inalienability, and interdependence, whereas such wording appeared in the constitutions of 1959 and 2014.
We warn about the limits to rights and freedoms proposed in the draft constitution with referral to legislation with regard to their exercise, such as the right to life, the right to property and the right to social security. This process defers to legislators, without safeguards; this largely characterised the 1959 constitution, resulting in restrictions to many rights including freedom of expression, freedom of association, and freedom of assembly.
We draw attention to the weak guarantees for the exercise of rights and freedoms in the draft constitution. Although the current draft has incorporated in its Article 55, the words of Article 49 of the 2014 constitution providing that "the law shall determine the modalities relating to the rights and freedoms guaranteed in this constitution and the conditions for their exercise without prejudice to their essence, these means of control shall be established only by the necessity demanded by a democratic civil state and to protect the rights of third parties or for reasons of public security, national defence, public health or public morals and with respect for the proportionality and necessity of such controls," the fact remains that this is only a partial inclusion. Indeed, this mention of civil status has completely disappeared from the current draft and its Article 55 and risks leading to the legislative limitation of rights and freedoms from the adoption of this draft constitution, without this safeguard. This may even be done according to the aims of Islam, which are clearly stated in Article 5 of the draft.
We also note with concern the threats to women’s rights posed by the draft constitution. Although Articles 21 and 46 of the 2014 constitution have been incorporated in their entirety, the lack of explicit mention of the civil nature of the state, the reference to the aims of Islam in Article 5, and the lack of reference to the civil state for the limitation of rights and freedoms in Article 55 lay the groundwork for undermining the acquired rights of Tunisian women and will pose a real obstacle to any possible development in this domain.
A referendum with no guarantee of respect for international standards
The process of adopting the constitution by referendum is marred by several breaches of international electoral standards. For example, the organisation of referendums is the responsibility of the Independent Superior Electoral Institution (ISIE), whose legal regime was modified by Decree-Law No. 2022-22 of 21 April 2022, which granted the president the power to appoint the members of the ISIE in place of the dissolved Parliament. This confirms the subordination of the ISIE to the executive branch, "jeopardising its independence and impartiality, which are the main requirements for the proper administration of the referendum," as the Venice Commission stated in its urgent opinion of 27 May 2022 on the constitutional and legislative framework for the referendum and elections announced by the president, and in particular on Decree-Law No. 22, amending and supplementing the organic law on the Higher Independent Electoral Body.
Furthermore, several lawyers and constitutional law specialists believe that the referendum process has lost all legitimacy since the Tunisian president published an amended version of the Constitution in the official gazette on 8 July. The changes made affect both the substance and the form, and the publication of this new version contradicts Decree-Law No. 32 of 25 May 2022, which stipulates that the draft constitution must be published by 30 June 2022 at the latest, and disregards ISIE Order No. 13 of 3 June 2022, which sets the timetable for the referendum.
Lastly, threshold of approval of the referendum has not been specified and the president has neglected the possibility of rejection of the new draft constitution, not mentioning at any time the consequences of non-adoption, since Article 139 of the draft constitution provides that it comes into force as soon as the results of the referendum are announced by the ISIE.
In view of these worrying developments, FIDH:
– strongly condemns the anti-democratic turn taken in Tunisia;
– calls on the president to abandon his plan for a constitutional referendum and to return to a genuinely inclusive and participatory dialogue bringing together all active forces of Tunisian society, to devise an urgent plan to restore the rule of law and democracy and to put an end to the state of emergency;
– reiterates its solidarity with and commitment to Tunisian civil society, which despite the complexity of this constitutional crisis, is mobilising to stand as a bulwark against the regression of human rights and democracy.