Ahead of the constitutional referendum in late July 2022, ARTICLE 19 expresses deep concern about the failure of the new draft Constitution to protect fundamental human rights and freedoms and guarantee the balance of powers. Although the draft formally preserves the rights and freedoms of the 2014 Constitution, it significantly weakens the basic safeguards to guarantee these rights. As such, ARTICLE 19 rejects the proposed draft Constitution, which does not meet the Tunisian people’s aspirations for democracy.
Background
On 30 June, the President of the Republic, Kais Saied, published a new draft Constitution, which will be voted on in a referendum scheduled for 25 July 2022. The draft has sparked widespread criticism among vast political, judicial, academic and media spheres in Tunisia, as well as among trade union and civil society groups. The draft Constitution enshrines the unilateral measures decided by the President since he announced the state of exception on 25 July 2021 and significantly reverses the guarantees of the 2014 Constitution.
The process of drafting of the new Constitution was extremely problematic, as large segments of Tunisian society were excluded from the process. Deans of law universities refused to engage in the process because they considered it to be a threat to the neutrality of academic institutions. Several political parties, associations and national organisations also boycotted the process because of its imposing character and the absence of meaningful consultation between the President and society at large.
The Head of the Commission that oversaw the drafting of the Constitution also stated that the draft Constitution submitted to the referendum was radically and dangerously different from the one drafted by the Commission. He warned of the serious consequences of progressing with the draft specifically in terms of the lack of democratic check and balances that could result if implemented.
ARTICLE 19’s key concerns
ARTICLE 19 is concerned that the draft Constitution fails to meet the standards for the protection of human rights, as enshrined in international human rights treaties. In particular:
- Restrictions on freedom of expression do not comply with the permissible scope of restrictions under the International Covenant on Civil and Political Rights (ICCPR). Namely, the draft Constitution does not require that the restrictions are necessary in a democratic society and proportionate to the aims sought (as currently enshrined in Article 49 of the 2014 Constitution). We fear that these provisions will enable public authorities to arbitrarily restrict freedom of expression in the country.
- Guarantees for independence and impartiality of the Audiovisual Communication Authority are eliminated. Importantly, the draft Constitution removes guarantees for the independence and impartiality of the members of the Authority (guaranteed by Article 127 of the 2014 Constitution) and its role in ensuring the democratic process. This is extremely problematic as the Authority has been an important body to ensure diverse and pluralistic media landscape in the country. The new Constitution allows it to become an instrument of domination for the executive power to hold over the media sector, which threatens the democratic process.
- The draft Constitution gives authoritarian powers to the President and executive branch of the Government. In particular, the draft Constitution stipulates that the President controls the public policies of the State (Article 100) and appoints the Government (Article 101) that implements the policies of the President and is accountable to him (Articles 111 and 112). The President can also dissolve the Assembly of People’s representatives in cases where there is conflict between the Government and the People’s Assembly. However, the President bears no responsibility throughout the presidential term, which is contrary to the principle of balance between powers.
ARTICLE 19 is extremely concerned that these provisions will further increase human rights violations that we have witnessed since the declaration of the State of exception, as we’ll as the increase of opinion trials before the civil and military courts.
We warn that the new Constitution will be a tool for dismantling the democratic system in Tunisia.