Ghazi Meziou, Associate Lawyer, Meziou Knani & Khlif, on Tunisia’s new constitution: Viewpoint

The Constituent National Assembly overwhelmingly adopted a new constitution on January 26, 2014, after debating for months in collaboration with several international organisations and guarantors of human rights, such as Amnesty International and Human Rights Watch. The adoption of a new constitution often denotes a desire to break with the past and to overhaul the legal system and political life.  With the exception of some provisions of the old constitution, the new Tunisian constitution fundamentally changes the political organisation of the country, greatly expands the scope of rights and freedoms, and upholds the principle of decentralisation. It has also set up various independent bodies to monitor compliance with the constitutional rules.

The new constitution fundamentally changes the political system, passing from a regime built around the president in a democratic façade, to a parliamentary regime. Executive power now emanates from the parliamentary majority, and from organising a separation of powers guaranteeing the independence of justice. The presidency retains an important influence but does not have executive authority.  However, it retains a central role in the areas of defence, foreign relations and security. It also has the right to dissolve the Assembly of People’s Representatives, which in turn has the right to impeach the president in the case of serious violation of the constitution.

In a post-revolutionary context, Tunisians, long deprived of rights and basic freedoms, have exerted multiple pressures on the assembly, which had the effect of a considerable expansion of these rights and freedoms. The writers of the constitution were careful to put in place mechanisms to prevent non-compliance of these principles by authorities. Thus, the new Tunisian constitution contains the right to vote, to elect, to stand for election, to strike, to demonstrate, to own property and to have privacy. Additionally, freedom of association, inviolability of the home, the privacy of correspondence and personal data, the right to asylum, the presumption of innocence, freedom of opinion, expression and information, and freedom of belief and worship are also included.

However, one may question the usefulness and the practical implications of certain rights consecrated in the new constitution that seem more the result of the post-revolutionary euphoria than a true reflection of the country’s capacity to ensure compliance.

Finally, and above all, loyal to a Tunisian traditional men-women equality, unique in the Arab and Muslim world, the new constitution – in a national and international context of Islamism rising – has strengthened the position of women in Tunisian society and introduced rules of positive discrimination.

Responding to a strong popular expectation, the new constitution consecrated the principle of decentralisation and provides a significant transfer of powers from the state to local governments. This principle is reinforced by the adoption of the subsidiarity principle, which ensures that the responsibility for political action must be borne by the smallest entity capable to conduct it. However, one may question the usefulness to provide three levels of local government (municipalities, regions and districts) in a country the size of Tunisia. One may also question the country’s ability to finance and equip the operating budgets of the three levels of local government.

Beyond the new rules laid down by the constitution, the Constituent National Assembly, drawing lessons from the recent past and aware of the fragility of the nascent democracy, provided the establishment of various independent bodies. These bodies have legal, administrative and financial autonomy and are elected via indirect votes. These bodies are responsible, at various levels, to ensure the respect of various constitutional rules, and include the independent Constitutional Court, the Human Rights Commission and the Independent High Authority for Elections.