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The Center for the Study of Islam Democracy

Report: The Constitution and the New Political Reality

Report: The Constitution and the New Political Reality

CSID HQ, Tunis
Thursday, January 15, 2014

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Tunisia has achieved a historic success first through drafting a constitution, which has been agreed upon by the different national and international political trends as a landmark document based on consensus and through holding a free, fair and transparent elections that led to elect the assembly of people’s representatives and the new Tunisian president. Therefore, Tunisia’s main challenge now is to preserve these achievements.

In this context, the Center for the Study of Islam of Democracy organized a symposium entitled ”The Constitution and the new political reality” on January 15, 2015 at CSID’s headquarters. Experts in law namely Mr. Chaker Houki, Mr. Habib Korbi, Mr. Rabeh Khrayfi and Mr. Nabil Labbessi into an open discussion.

02After welcoming the participants, Mr. Nabil Labessi, Lawyer and President of Citizen’s Observatory of Media started his intervention by stressing the significance of the issue of the constitution and volatile political situation Tunisia is witnessing. He started by identifying the constitution from a legal perspective as a contract that involves citizens and state institutions and ensures rights and freedoms clarifying that the Tunisian constitution considers that the political system in Tunisia as based on a president and a prime minister at the head of the executive power ,a legislative body with extended powers. It gives confidence to the government and control it. An independent judicial system headed by a Constitutional Court. He further pointed out that the constitution has established for a decentralized political system adopting a local independent democracy with extended powers. On the other hand, he shed light on the flaws of the constitution in relation to the transitional provisions which have been discussed in a hurry and in record time which have brought about a number of lapses in the electoral law including the electoral operation, the precedence of the legislative elections and the failure to reach an established Constitutional Court that preserve the far reached legislative achievements. He expressed also his fears of the absence of a clear vision for a practical plan that helps achieve regional and local elections.

03Dr. Habib Korbi, specialized in International law, initiated by giving a historical overview of the Tunisian experience in the drafting the constitution noting that 1959 constitution was stripped of all of its major chapters under the pressure of the government during Bourghiba’s ruling and the establishment of a constitutional monarchy was cancelled and changed by a presidential republic. In light of this, Dr. Korbi emphasized that the constitution is not only legal and a set of procedures issue rather a mere political one since the constitution plays core role in setting the fundamental principles that control the political practice within the state .

He further questioned the extent to which the Constituent Assembly was faithful to the spirit of law when making the new constitution especially in a complex political, social and economic situation marked by an opposition of opinions. This, indeed, had an impact on the legislative work of the constitution and the growing phenomenon of terrorism the Tunisian constitutional process has required the support of International NGOs together with urgent internal actions to progress with the transitional process such as the Consensus Committee which was created after the assassination of Chokri Belaid. In addition to these internal actions, he spoke about the Initiative of the National Dialogue that was held after the assassination of Mohamed Brahmi on July 25, 2013 and was launched on October 2013 and has involved 21 political parties under the supervision of the General Union of Employment, the Union of Industry and Trade, the Syndicate of Lawyers and the Tunisian League to Defend Human Rights. He concluded that all the commissions and the mechanisms launched had played a vital role in the progress of the constitution drafting although it remains a non-constitutional and non- legislative approach that has slowed down but did not hamper the transitional process.

04Mr. Chaker Houki, Professor of public Law, started his intervention by the question: is it the constitution that establishes for a political reality or vice versa? He noted that this problematic question has always drawn the attention of experts in Constitutional Laws. He mentioned that the constitutions that tried to achieve a new reality without taking into consideration objective conditions have failed. Adding to that the valuable constitutions are evaluated not only by their content including rights and freedoms and political systems but rather by its extent of applicability in reality . In this regard, the 2014 Constitution could be considered in a coma state and has started showing its flows and incompatibility with reality claiming that the constitution is not convenient comparing to the new reality that has been established after the results of 2014 elections because it was first built upon specific hypotheses. From another perspective, he criticized the process of elections pointing out that postponing the formation of the government after the presidential elections implicitly gives importance to the presidential elections than the legislative.

For him, this could be considered as one of the first indications of the violations of the constitutional terms, in fact that the formation of the government should take place independently from the results of the presidential elections and the president should be elected in light of the results of the legislative elections. Mr.Houki had also pointed at the similarity of the new constitution to that of 1959 claiming that this latter has come back to life and revitalized. He spoke also about a possible breaches of the constitution in the near future mainly with regards to the amendment of the constitution despite such a process in general, is restricted before the first five years.

Concluding his remarks, Mr. Houki, pointed at the complex situation Tunisia is living in relation to the nature of the political system highlighting that in the absence of an established Constitutional Court that protects the constitution would automatically pave the way for violations of freedoms and rights namely freedom of speech and the respect of the sanctity of human life which is clearly manifested in the recent arrest of blogger Yassine Ayari.

05Dr. Rabeh Khraifi , specialized in public law and Lawyer at the Court of Appeals, started his intervention on ”The Tunisian constitution in the new reality between implementation and violations” by speaking about the new political reality that has emerge in the aftermath of the legislative elections and presidential elections in which Nidaa Tounes party won the largest number of seats in the Assembly and have been consequently charged with forming a new government. Therefore, the question is how would the ruling parties deal with the constitution, he added, referring to the first case involving a breach of the first paragraph of Article 89 in the constitution which took place after the announcement of the final results of the presidential elections .

In fact, based on this article in a period of one week the prime minister is charged by the president of the republic with the responsibility of forming the government .In this regard, the issue was reported to the national dialogue committee which agreed that it’s the responsibility of the new elected president which according to Mr. Khraifi is considered a breach acknowledging that there is an ambiguity in the text of the constitution and interpreting the constitution is not the concern of the national dialogue committee .This latter shows that the status of constitution as the supreme law is undermined in front of these political agendas. Concerning violations, he continued pointing at another breach of Article 52 with regard the internal system within the Assembly of Representatives including sessions moderating, the responsibilities of committees and the suggestion of the president of the assembly. Concluding his intervention, he expressed his worries about further violations that may take place in the short and long term in relation to the establishment of a Supreme Court Assembly as stated in Article 146 and the organization of the municipal elections and the elections of constitutional commissions.

At the end of the symposium, the attendees and the speakers agreed on some significant points. They stressed the efforts made by CSOs and NGOs and urged them to pursue their missions to avoid the repetition of these violations in the future as well as to address any attempts to intervene with the terms of the constitution. Also, they called decisions makers, policymakers and members of People’s Representatives Assembly to assume their responsibilities in protecting and respecting the terms of the constitution.

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