On July 25, 2021, Tunisian President Kais Saied issued an emergency declaration firing the prime minister, freezing the work of parliament for thirty days, and assuming all executive power, effectively initiating a self-coup (or autogolpe). He codified his actions in a presidential decree the following day. Saied justified his decree as preserving the identity and security of Tunisia and referred to Article 80 of the 2014 Tunisian Constitution, which states,
“In the event of imminent danger threatening the nation’s institutions or the security or independence of the country, and hampering the normal functioning of the state, the President of the Republic may take any measures necessitated by the exceptional circumstances, after consultation with the Head of Government and the Speaker of the Assembly of the Representatives of the People [Parliament] and informing the President of the Constitutional Court.”
At the time, Tunisia was facing three interrelated crises—the ongoing coronavirus pandemic, a rapidly deteriorating economic situation, and political paralysis and polarization. Saied’s actions, although clearly in violation of the Constitution (as he did not consult the head of government or speaker of the parliament in advance of his decree), received wide popular support, at least at first. The country faced the highest level of COVID-19 cases it had seen, and the parliament was incapable of legislating due to infighting that saw members of parliament resorting to fistfights. So, many Tunisians were willing to look past the antidemocratic nature of Saied’s moves and instead hoped he would quickly restore order and return the country to a path of stability and prosperity. Instead, one year later, Saied has effectively and efficiently undone a decade’s worth of democratic progress, stripping all institutions of their independence and consolidating all power into his own hands.
On July 25, 2022, Tunisians will go to the polls to vote on a referendum on a new constitution, which, if it passes, will codify Saied’s authoritarian power grab and formally deal the final blow to Tunisia’s decade-long democratic transition, solidly shifting the country to an autocracy.
Executive Power
On March 14, 2021, four months before announcing the state of emergency in Tunisia, Saied expressed his discontent with Tunisia’s postrevolution parliamentary system, which he sees as the driver of political, social, and economic crises. Instead, Saied believes that a presidential system is the solution. In retrospect, Saied’s actions since July 25 orchestrate his vision of a presidential system in Tunisia, with a decentralization of power through establishing local councils.
On July 25 of last year, Saied issued Presidential Decree 69, dismissing then prime minister Hichem Mechichi and firing the government. Among other measures, the presidential announcement stated that all executive power would be assumed by Saied, which he later permanently legitimized through the draft constitution released earlier this month. He handpicked several ministers to replace the cabinet. The government, now staffed by loyalists, is effectively subordinate to Saied, who through decree and in the new constitution stated that the “head of government and cabinet is to assist the President of the Republic in carrying out executive functions.”
Legislative Power
Democracy, founded on the separation of powers, was figuratively and literally attacked on July 25, especially the legislative branch. After decreeing the suspension of parliament and the dismissal of its speaker, Rached Ghannouchi, the military positioned tanks around the gates of parliament’s headquarters, locking the building and preventing civilians from entering.
Tunisian army barricade the parliament building in the capital Tunis on July 26, 2021, after the president dismissed the prime minister and ordered parliament closed for 30 days. (Photo by Yassine Mahjoub/AFP via Getty Images)
Parliamentary immunity was also lifted, leaving room for members to be prosecuted on politically motivated charges. Two months later, the president issued Decree 117 on September 22, announcing the continued suspension of parliament and all other measures. More importantly, it explicitly removed parliament’s legislative powers and vested them into the president, meaning that Saied rules by decree on all areas of law. In December 2021, Saied declared on television that parliament would remain suspended until after Tunisians voted on the constitutional referendum (July 25, 2022) and elected new representatives (projected for December 2022).
To declare their opposition, members of parliament held an online plenary session and voted on a bill—the exact power Saied had stripped from them. Later that day, on March 30, 2022, Saied announced in a meeting of the National Security Council that the parliament was officially dissolved under the justification of “preserv[ing] the state and its institutions.” Days later, investigations were opened into at least twenty of the 123 members who attended the session. It is estimated that police have called ten or more members into questioning.
Judicial Power
On February 6, 2022, Saied issued a decree dissolving the Supreme Judicial Council, an independent institution that was formed in 2016 to ensure judicial independence. Less than a week later, Saied issued another decree to establish a temporary Supreme Judicial Council, whose members he chose. The decree granted the council the right to appoint judges and oversee transfers, promotions, dismissals, and resignation requests. Saied granted himself the power to object to the appointment, promotion, transfer, or dismissal of any judge and to directly dismiss any judge himself.
On June 1, 2022, Saied issued a presidential decree granting himself the power to fire judges. He then fired fifty-seven judges on charges of obstructing terrorism-related investigations, financial corruption, so-called moral corruption, adultery, and participation in so-called alcohol-fueled parties. In response, Tunisian judges carried out a four-week strike to protest Saied’s actions.
Constitutional Power
On September 22, 2021, Saied issued Presidential Decree No. 2021–117, which extended the state of emergency and partially suspended the constitution. The decree stated, “The preamble of the Constitution, its first and second chapters and all the constitutional provisions which are not contrary to the provisions of this Presidential decree, continue to be applied.” The remaining provisions of the Constitution were suspended.
The decree also abolished the Provisional Instance to Review the Constitutionality of Draft Laws. There was no constitutional court at the time, since multiple governments and parliaments had failed to agree on one, so it was impossible to legally contest Saied’s decree. The 2014 Constitution clearly delineates power between the president and the head of government. Saied’s constitutional decree endowed himself with far more powers than the 2014 Constitution did.
Local Authorities
Since his self-coup, Saied has replaced eighteen out of the country’s twenty-four governors. On November 25, 2021, Saied dissolved the Ministry of Local Affairs and shifted control over municipal councils to the Ministry of Interior—a rollback of the democratic transition’s efforts to devolve power to local actors. One of the first steps in that democratic process was shifting oversight for local affairs from the Ministry of Interior—which oversaw municipalities under former dictator Zine el-Abidine Ben Ali—to the newly created Ministry of Local Affairs.
Independent Institutions
The 2014 Constitution established five independent institutions—the Supreme Independent Elections Commission (ISIE), High Authority for Audio-Visual Communication (HAICA), Human Rights Commission, the Commission for Sustainable Development and the Rights of Future Generations, and the National Anti-Corruption Authority (INLUCC).
Saied has either manipulated or shut down all the independent institutions and has removed them (except for the ISIE) from his draft constitution. On April 23, 2022, Saied issued a presidential decree granting himself the power to appoint the members of the ISIE. Previously, the nine members of the ISIE were selected by parliament. The ISIE remains responsible for managing and organizing all elections and referenda, including counting ballots and announcing results.
Tunisian Worker’s Party spokesman Hamma Hammami (C) is among demonstrators blocked by the police as they headed toward the headquarters of the electoral authority ISIE, during a rally against their president, in the capital Tunis, on June 4, 2022. (Photo by Fethi Belaid/AFP via Getty Images)
The HAICA is responsible for guaranteeing free and pluralistic audiovisual communications. During elections, the HAICA plays an important role in monitoring media time and access for all candidates, to ensure compliance with elections law. In October 2021, HAICA shut down two television stations and one radio station that had been critical of Saied, accusing them of operating illegally without a license. On December 10, 2021, Prime Minister Najla Bouden issued Circular No. 19, which required ministers and secretaries of state to work with the Office of the Presidency of the Government on media requests and other communications. Furthermore, she banned Tunisian officials from appearing on television channels and radio stations that violate the decisions of the HAICA.
On August 21, 2021, the Tunisian police shut down the headquarters of the INLUCC and evicted its employees without giving any reason for their actions. Among other tasks, the INLUCC is responsible for proposing and monitoring anti-corruption policies, identifying sources of corruption in the public and private sectors, carrying out investigations of corruption, transmitting the findings to the courts, and collecting data about instances of corruption.
Civil Society and Media
Saied has systematically begun to try to control and silence civil society, especially actors and entities that are more critical of his actions—and there are more of those every day. Saied’s actions not only target specific actors but also the symbols that commemorate Tunisia’s fight for democracy, including the anniversary of the revolution. Saied specifically changed the official anniversary of the Tunisian revolution: It used to be marked January 14, 2011, the day when Ben Ali fled the country. But Saied moved the anniversary to mark December 17, 2010, the day Mohammed Bouazizi, a Tunisian street vendor, self-immolated in protest of worsening economic conditions and continued harassment by public officials. This change comes from Saied’s belief that the revolution has been hijacked by corrupt politicians.
Targeting civil society, Saied’s orders encroached on essential rights, such as the right to organize, the right of civil society organizations and media outlets to operate, and the right of civil society to be included in dialogues concerning the future of their country. Protesters and organizers were repeatedly shut down and attacked, and multiple reports include incidents where Tunisian police beat protestors, attacked them with water cannons, blocked their paths, and used physical force. This included a protest on January 14, 2022, in central Tunis’s Habib Bourguiba Avenue. The protest included over 1,000 people, and in addition to attacking protesters, police physically attacked a French newspaper correspondent who had captured a video of police violence on a protester.
Civil society organizations have been targeted in their daily operations, including the Citizens Against the Coup coalition, which was prohibited from holding a public meeting in a private space in Ben Arous Governorate by the National Guard. Saied continuously demonizes nongovernmental organizations and parties that receive foreign funding, calling them “traitors and those who pay money to offend their country.”
Media outlets were targeted, including Al Jazeera in Tunis, where on July 26, 2021, police stormed the outlet’s offices, removed workers, confiscated personal items and electronics, and prevented journalists from accessing the building again. Tunisa’s rank in the Press Freedoms Index by Reporters Without Borders dropped 21 places in 2022, due to reversals in freedoms brought about by the July 25 power grab and consequent measures. Furthermore, a leaked draft law aimed at restricting and increasing oversight on civil society organizations, includes requirements that they register and await approval from the government before being legally allowed to operate. The draft law also provides authorities with wide discretion to prohibit organizations from operating without valid reason.
Travel Bans
Numerous arbitrary travel bans were reported by politicians, businesspeople, and civilians, who were not informed beforehand and did not receive official documentation and paperwork regarding the reasoning. This included a ban on Imen Labidi, a judge at the First Instance Tribunal in the city of Grombalia, and Skander Rekik, a businessperson and political activist. Reports show that one month after July 25, at least fifty individuals of all different professions were subject to travel bans. This included thirty-four members of the Association of Control, Inspection, and Audit of Tunisian Public Entities.
Political Arrests
Investigations, charges, and even arrests are all tools Saied has used to advance his vision for Tunisia. These moves targeted political opposition, members of parliament, journalists, and civil society. In the month following Saied’s power grab, Amnesty International documented at least fifty cases of arbitrary travel bans, with no judicial authorization, written orders, timeframe, or legal procedure, including bans against judges, senior state officials, civil servants, businessmen, and a parliamentarian.
Saied’s politically motivated investigations and arrests have targeted several of his political opponents, including former Tunisian president Moncef Marzouki, who was sentenced to four years in prison in absentia; former prime minister Hamadi Jebali; Ghannouchi; and almost all of the candidates who ran against Saied in the 2019 presidential election. The charges against the candidates included illegal advertising on social media and not complying with electoral silence during the 2019 national elections.
Civilians have also been tried in military courts, a blatant violation of the 2014 Constitution’s Article 110. A report released in November of last year found that at least ten civilians, including six members of parliament, have been prosecuted in military courts. In comparison, between 2011 and 2018, six civilians were prosecuted via military trial.
Revised Constitution
On July 25, 2022, Tunisians will vote in a referendum on a new draft constitution to replace the 2014 Constitution. Following an online consultation between January and March that was designed to gather public feedback, Saied appointed a commission to draft the new constitution. Less than 7 percent of eligible voters participated in the online process with repeated reports of technical difficulties and security concerns throughout the process.
Constitutional Dialogue
The Consultative Commission, formed by Saied in May to create a first draft of the new constitution essentially drafted the constitution within two weeks. In contrast, the process to draft the 2014 Constitution took approximately three years. Many civil society actors and groups who were publicly opposed to Saied’s July 25 actions were not invited to participate in the commission. Tunisia’s General Labor Union, and largest civil society organization in Tunisia, refused Saied’s invitation to participate in the process, calling it both “rushed, with roles decided unilaterally and imposed from above” and exclusionary of civil society. The commission itself was chaired by Sadok Belaid, a legal scholar Saied has talked with repeatedly since July 25. The members of the commission were not made public, and the initiative functions as a consultative committee, lacking any source of real power to influence the outcome. The legal committee, tasked with writing the draft, was made up of legal scholars, such as deans of law faculties in Tunis, and no political actors, civil society organizations, or members of the general public.
Proposed Constitutional Amendments
Saied published the draft constitution in the Official Gazette on June 30, publishing additional modifications to the draft on July 8. Belaid, the head of the constitution drafting commission, publicly criticized the proposed draft, arguing that it did not resemble the version submitted to Saied by the commission. He argued that the draft, as published, could lead Tunisia towards a “disgraceful dictatorial regime.”
The draft constitution proposes many changes to the Tunisian political system. Most importantly, it consolidates power into the hands of the presidency, allowing the president to appoint the head of government. The president is also given the power to appoint and dismiss government ministers (a power that the 2014 constitution gave to parliament). The draft does not include any provisions for removing the president and allows the president to extend his term indefinitely in the case of national emergency, similar to Saied’s July 25, 2021, decree. And the draft allows Saied to continue to rule by decree until the next legislative elections (currently slated for December).
In one of the most troubling signs for Tunisian democracy, draft article 142 states that the constitution goes into effect as soon as the ISIE announces the results of the referendum and the president signs and publishes the constitution in the Official Gazette. There is no reference to either a required turnout or even the threshold that determines if the referendum passes, which effectively means that the constitution can be changed with or without a simple majority voting yes.
In response to the recent judges’ strike, the draft constitution bans judges from striking. The president also chooses the members of the constitutional court, whereas in the 2014 constitution, the president, parliament, and the Supreme Judicial Court would each appoint four members of the court. The draft also removes two important provisions of the 2014 constitution related to the military: first, that the military is obligated to maintain neutrality and second, that the jurisdiction of military courts is limited to military crimes.
The draft also removes the reference to Tunisia as a civil state, instead stating in Article 5 Tunisia is part of the Islamic umma (or nation), and the state alone, within a democratic system, must work to achieve “the goals of pure Islam in preserving life, honor, money, religion, and freedom.”
Draft Constitutional Amendments
Article 5 of the July 8 Constitution
Tunisia is part of the Islamic Umma (or nation), and the state alone, within a democratic system, must work to achieve “the goals of pure Islam in preserving life, honor, money, religion, and freedom.”
Article 18 of the 2014 Constitution
Removes clause to oblige neutrality of the military. Article 18 of the 2014 Constitution stated that: the national army is “required to remain completely impartial.”
Executive
Article 87 of July 8 Constitution
“President of the Republic exercises executive authority with the assistance of a government presided over by the head of the government.” 2014 Constitution stated: “Executive authority is exercised by the President of the Republic and by a government which is presided over by the head of the government.” This makes the government subordinate to the president.
Article 90
President can serve for two terms, five years each, but can rule for longer if there was a threat to the state, providing the right to dissolve parliament. This effectively makes the actions of the president since July 25 constitutional.
Article 88 of the 2014 Constitution
No clause allows for the removal of the president. In the 2014 constitution, Article 88 stated that “through the initiative of a majority of [parliament], present a motion to bring to an end the President of the Republic’s term for a grave violation of the Constitution.”
Judiciary
Article 125
The constitutional court is an independent judicial body made up of nine members (previously twelve members) who are nominated by decree. Previously, the president, parliament, and the Supreme Judicial Court would each appoint four members. Now, the constitutional court’s judges will all be appointed by the president.
Legislative
President can draft laws and present budgets and treaties.
Article 56 of the July 8 Constitution
Legislative power is vested in a primary parliamentary assembly, the People’s Representative Assembly, and in a secondary assembly, the National Assembly of Regions.
Article 81
Members of the National Assembly of Regions are not directly elected but nominated by local assemblies, where three members of each regional assembly are nominated to represent their region at the national level.
Looking Ahead
No matter the outcome of next week’s referendum, Tunisians have a long road ahead to return their country to a democratic path. With or without constitutional backing, Saied has succeeded in undermining nearly all of the democratic progress that Tunisians fought hard for since the 2010-2011 revolution. Despite regular domestic and international pushback against his actions (albeit often tepid and without consequences), Saied has shown no desire to modify his plan to shift Tunisia to a highly centralized political system where the president reigns supreme.
Source link : https://carnegieendowment.org/2022/07/22/one-year-later-tunisia-s-president-has-reversed-nearly-decade-of-democratic-gains-pub-87555
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Publish date : 2022-07-22 07:00:00
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