Referendum on the constitutional reform bill in Tunisia
26 May 2002

Lecture on the Proposed Constitutional Reform

 

Zouheir Mdhaffer
19 February 2002

· Reinforcing human rights, effecting their assurances,
and further entrenching loyalty to Tunisia

· Promoting government action and enhancing the relationship
between the Government and the Legislative Branch

· Developing the system of presidential elections

Your Excellency, Dr. Hamed Karoui, Vice-President of R.C.D.
Your Excellency, Mr. Mohamed Ghannouchi, President of R.C.D.
Mr. Ali Chaouch, Secretary General of R.C.D.
Honorable Members of the Political Bureau and Central Committee,
Honorable Deputies,

At the outset, I should like to say how proud I am of the great honor of being invited to give this lecture on some aspects of the proposed amendment initiated by His Excellency, President Zine El Abidine Ben Ali, to give concrete substance to the options he had announced in his programmatic speech on 7 November 2001 on the fourteenth anniversary of the Change.

The project, as underscored by the President himself, is a radical and ambitious reform, laying the foundations of tomorrow's republic and readying Tunisia to meet its future. It provides for reinforcing freedoms and the citizen's fundamental rights; setting up a second chamber; promoting government action; enhancing the relationship between Government and the Legislative Branch; developing the system of presidential elections; and expanding and reinforcing the mandate of the Constitutional Council.

A major reform project

The constitutional reform project that is submitted to you today is a radical and ambitious amendment, as evidenced in the following three aspects:

1- Form
2- subject-matter
3- Approval process

1- Form

The constitutional reform project covers 38 articles, i.e. nearly half of the 78 articles of the Tunisian Constitution. These articles pertain to the 5 following sections: Section 1, General Provisions; Section 2, The Legislative Branch; Section 3, The Executive Branch; Section 8, Local Government; and Section 9, The Constitutional Council.

This is the 11th amendment to be introduced since the Constitution was first issued on 1 June 1959. It is also the most important because previous amendments had been either partial or circumstantial. Some of these concerned one or two articles, while others only affected a single section. However important, some of the previous amendments we dictated by circumstances, such as the 8 April 1976 amendment that introduced the concept of government in the Constitution and such parliamentary techniques as the vote of no confidence and the dissolution of the Chamber of Deputies, and the 25 July 1988 amendment which reinstated the true tradition of the republican regime by abolishing life-long presidency and automatic succession.

It should be noted that the recurrence of constitutional reforms in Tunisia is similar to that of constitutional reforms in other nations. In France, for instance, the Constitution has been amended 15 times since it came into force on 4 October 1958.

It should be observed that despite the changes made in 38 articles, the total number of articles in the Constitution (78) has been preserved, to safeguard the sound ordering of constitutional provisions, as a reference for all other legislation.

2- Subject-matter

The project initiated by the Head of State is important, due to the following characteristics:

This radical project, for the first time ever, enshrines within Section 1 of the Constitution the fundamental principles underlying the societal project of the Change, thus giving the following principles a constitutional dimension:

Human rights as comprehensive and complementary values;
The rule of law and pluralism;
Solidarity, mutual assistance, and tolerance.

Stated briefly, this amendment encompasses all the keys to political discourse in the New Era and helps adapt the Tunisian Constitution to the comprehensive system of human rights.

This amendment is radical in that, while preserving the presidential nature of our political system, it has introduced mechanisms and techniques allowing for a consolidation of representation, an enhancement of the legislative function, and a revitalize of political life. This is mainly achieved by setting up of a second chamber and conferring a constitutional dimension on parliamentary dialogue.

This amendment is also radical in that the Constitutional Council is now perceived as a fundamental underpinning of the rule of law and institutions, by expanding its mandates and reinforcing the neutrality and independence of its members.

3- Approval process

This amendment is also important in terms of its approval process, as this is the first time, upon an initiative by the President, that a draft constitutional legislation is submitted to a popular referendum. Thus the people recover their prerogatives as a founding power and, hence, their will is above any other will, as stated by the President in his message to the nation on 14 February 2002.

Such are, Ladies and Gentlemen, the most salient characteristics of this ambitious amendment which President Zine El Abidine Ben Ali wanted to be a new stage to reinforce the underpinnings of the republican regime and consolidate democracy, pluralism, public freedoms, and human rights. I should like, at this stage, to pass on to a review of the three topics I was requested to cover:

· Reinforcing human rights, effecting their assurances, and further entrenching loyalty to Tunisia

· Promoting government action and enhancing the relationship between Government and the Legislative Branch

· Developing the system of presidential elections

Topic 1: Reinforcing human rights, effecting their assurances, and further entrenching loyalty to Tunisia

At the outset, I should like to observe that the Tunisian Constitution, as underscored by the President in the speech he gave on the fourteenth anniversary of the Change, was one of the first to entrench human rights, considering that it was drafted in the 1950's. Indeed, it provides for the major fundamental freedoms and rights current in those days; first and second generation rights; i.e. political, civil, economic, and social rights.

However, despite the distinctive nature of the Preamble and Section 1 of the Constitution in that they provide for the most important first and second generation human rights, we should keep in mind that such provisions were drafted in the late 1950's. Since that date, human rights have undergone major changes, as the first two generations were followed by third and fourth generation rights. Such rights undergo permanent change processes, requiring the development of provisions contained in Section 1 to keep abreast of developments in the system of human rights as a whole.

Furthermore, the Preamble and Section 1 reflect the central position of human rights in the societal project of the Change. Neither do they provide for the principles of the rule of law and pluralism, also considered as major underpinnings of the societal project of the Change. The phrase "Human rights" was only used in the Preamble. It should also be noted that the Constitution does not entrench the principles underlying the philosophy of the New Era in terms of comprehensive development, i.e. the principles of solidarity, mutual-assistance, and tolerance.

It is well established that constitutions are mirrors that reflect and encompass the philosophy of their respective political systems. Hence, the projected amendment initiated by the Head of State clearly enshrines within constitutional provisions the fundamental principles underlying the societal project of the Change and representing the keys to its political discourse and the foundation of all legislation promulgated since the Change.

I wish to underscore that a review of the new provisions contained in the projected amendment places the Tunisian Constitution at the forefront of constitutions securing human rights and based on the principles of the rule of law. Without any exaggeration, the amendments to the General Provisions Section are not merely radical as they are truly revolutionary. Allow me to explore these amendments on a paragraph by paragraph basis.

I. Providing for the comprehensive, complementary, and universal nature of human rights (Article 5, Paragraph 1)

Article 5, Paragraph 1 (New) stipulates: "The Republic of Tunisia guarantees fundamental freedoms and human rights as universal, comprehensive, complementary, and inter-related concepts".

The new paragraph introduces for the first time within constitutional provisions the phrase "human rights". As such, it encompasses the deep meaning of the approach of the New Era in terms of human rights, an approach based on the comprehensive, universal, inter-related, and complementary nature of such rights, as clear-sightedly determined by President Zine El Abidine Ben Ali on more than one occasion, such as the speech he gave on 12 May 1992: "Our highest goal remains the full assurance of human rights, whether civil, political, economic, social, or cultural".

1. The comprehensive nature of human rights

Within the societal project of the Change, the comprehensive nature of human rights is based on three fundamental principles:

a. Interdependence between civil and political rights and economic, social, and cultural rights
Civil and political rights would be meaningless if the state does not protect economic and social rights. The rights of the individual to set up a household, for instance, would be meaningless if he does not have decent housing and adequate resources.

The absence of economic and social rights inevitably suppresses civil and political rights, emptying them of any tangible content.

b. Excluding no section of society
The comprehensive nature of human rights means care for all sections of society. As early as 1991, the President had said in one of his speeches: "As much as we respect human rights, we are also attentive to rights that are seldom considered; such as the struggle against poverty, illiteracy, and unemployment and care for marginalized children and for the elderly and the disabled".

c. Equal treatment of all rights
As all rights are inter-connected and complementary, they should be dealt with on an equal footing. History shows, as stated in one of the President's speeches, that civil and political rights cannot be stable if, as a minimum requirement, the economic, social, and cultural needs of the citizen are not met.

However, the equal treatment of rights does not mean that certain sections of society do not deserve special treatment, such as children, women, and other sensitive categories; the so-called affirmative action. International treaties in this field encourage the promulgation of specific provisions aimed at achieving equality as quickly as possible, as entrenched by Tunisia since the Change through the promulgation of the Childhood Code, reinforcing women's rights, and caring for the weak sections of society.

2. The universal nature of human rights

President Ben Ali's vision of human rights stems from the universal nature of values and standards; therefore, no preference and no exclusion. Universality means that the human rights provided for in the United Nations Charter and entrenched in statements and agreements concern each and everyone on an equal footing, without segregation.

Universality also means that human rights are the outcome of a long process, with contributions from many diverse nations, civilizations, and cultures.

Human rights are also universal in that they are not confined to national borders and concern the international community as a whole, especially that the world is now a global village where interests are increasingly intertwined due to the communication revolution and globalization.

Such universality should not, however, eradicate specificity in terms of practical methodologies and the mechanisms and forms of protection, in accordance with the characteristics of each society and in line with its development in every field.

II. Providing for the principles of the rule of law (Article 5, Paragraph 2, new)

Article 5, Paragraph 2 (new) stipulates the following: "The Republic of Tunisia is founded on the principles of the rule of law and pluralism and strives to achieve human dignity and to develop man's personality".

The provisions of this paragraph are a considerable addition to the Constitution as, for the first time, it is clearly avowed that the Republic of Tunisia is based on the rule of law, enshrining this concept within the Constitution.

What, then, are the principles of the rule of law?

Entrenching the rule of law is one of the major options of the New Era and is related with the option for human rights, democracy, and pluralism. In many of his speeches since the early days of the Change, President Ben Ali has clarified the meaning of the rule of law: "Our intention is for the state to be governed by the rule of law and for the law to be for ever above each and everyone; our intention is also for those who run the affairs of the state to be above suspicion and to serve as leaders to the general public. No one should be above the law, whatever his position in authority".

In a speech he gave on 15 October 1996, the President stated that: "In Tunisia, the law is the arbiter between all citizens; no one should have immunity before the law, except as provided for in legislation".

Stipulating that the Republic of Tunisia is founded on the principles of the rule of law achieves two basic objectives:

First, the Constitution clearly reflects the principles underlying the societal project of the Change: the rule of law whose intellectual underpinnings are related to the principles of human rights, democracy, and pluralism.

Second, the Tunisian Constitution keeps abreast of the phenomenal development of the intellectual foundations in this field at the international level. Today, the principles of the rule of law and institutions are connected to the concepts of human rights, transparency, and good governance called for by the United Nations and other international organizations.

As a matter of fact, the rule of law as a principle (Rechsstaat, Etat de droit) is both ancient and recent. According to Barret Kriegel, it goes back to the Middle Ages, with the promulgation of the British Magna Carta in 1215, to protect individuals from absolute power. The concept of the rule of law also emerged with the American Independence in 1776 and the French Revolution which stated in 1791 that France had no authority above the law. However, the rule of law, as a concept, was only clearly defined in the course of the nineteenth century by German jurists, with the establishment of the Empire in 1871. The German phrase "Rechsstaat" means that the state's authority is defined by the law.

For a long period, however, the rule of law will be restricted to jurists and legal philosophers. In the late 1970's and during the 1980's, the concept broke into the local and international political arena, to underscore the primacy of democracy and public liberties. Such dissemination coincided with the crisis of the Soviet regime and the new status gained by human rights worldwide.

As a principle, the rule of law became related to transparency and good governance. However, we need to know the legal contents of this phrase from a constitutional viewpoint and the principles on which it rests.

III. Pluralism as an underpinning of the Republic (Article 5, new, Paragraph 2)

There is no mention of political pluralism in the Preamble to the Constitution, in the General Provisions Section, or in the paragraph added to Section 8 of the Constitution as part of the 27 October 1997 amendment, defining the role played by political parties.

The statement made in Article 5, paragraph 2, that pluralism is an underpinning of the Republic entrenches one of the Change's major options. Indeed, the 7 November Declaration proclaims that our people deserves an enhanced and organized political life, truly relying on political pluralism and popular organizations.

Political pluralism was translated into fact in presidential elections, within the chamber of Deputies, and within municipal councils.

In this regard, I should like to make the following points:

Pluralism does not mean plural political parties alone; it also means plural popular organizations, associations, and the various components of civil society.

Pluralism is not merely organizational, as it is also intellectual. As stated in a speech by the President on 15 November 1989, it means difference of opinion and exercising personal judgment.

We believe that enshrining pluralism within the Constitution is the best way to ensure the sustainability of democracy, as pluralism is one of the conditions of democracy.

In addition to the principles of the rule of law and institutions, Article 5 (new), paragraph 2 stipulates that the Republic of Tunisia strives for the dignity of the people and for developing their personality. This is to say that its function resides in providing for the requirements of a decent life for the people. Developing the personality of the individual is achieved through education, culture, and the provision of all that is needed to develop his skills and his gifts and to refine his capabilities.

IV. The state and society strive to entrench the values of solidarity, mutual assistance, and tolerance among individuals, social categories, and generations (Article 5, Paragraph 2)

Neither the Preamble to the Constitution nor its General Provisions Section provide for these values which, since the Change of 7 November, constitute an underpinning of Tunisia's social policies and a crucial support within the intellectual structure of the Change.

Article 5, Paragraph 3 (new) of the Constitution provides for such values, thus conferring on them a constitutional dimension and making them one of the sources of legislation, in addition to the fact that they represent one of the aspects of the country's comprehensive development. The National solidarity Fund, which was set up in the early 1990's, played a major role in promoting depressed areas and in breaking their isolation. Hence it may be viewed as a shining example in this field and our country has come to be viewed as an example followed by many and, hence, the United Nations' approval of the President's call for a World Solidarity Fund.

Enshrining solidarity as a value within the Constitution is based on the fact that the New Era has founded its civilizational, political, economic, and social options on concepts that stem exclusively from tolerance. In this context, the President, in a speech before the opening session of the Mediterranean Conference on the Pedagogy of Tolerance, on 21 April 1995, stated the following: "Tolerance is at the heart of our true religion and our social traditions. It is the highest virtue and a characteristic of Tunisia's history, a model of the fusion of diversity within a single civilizational crucible".

However, we need to note that entrenching the values of solidarity, mutual assistance, and tolerance does not concern individuals alone, as it also concerns whole sections of society as well as the various generations. As such, these values are imputable to the state, that is to say to public authority, but also to the various components of society.

VI. Protecting personal data (Article 9, new)

This new article provides guarantees in terms of "the inviolability of the home, the confidentiality of mail, the protection of personal data, except as provided for by legislation, in exceptional cases".

This article broadens the scope for the protection of the individual's private life, requiring the individual to be secure with regard to authority on the one hand, and with regard to others, on the other hand, that is to say secure from society.

With a view to providing penal protection to private life, a number of legal instruments provide for penalties for those who violate such provisions.

In the Constitution, the phrase "except as provided for by legislation, in exceptional cases" should be read as an alternative to a number of other phrases not used, such as a provision for such rights to be regulated by legislation.

Exceptions in terms of the inviolability of the home are provided for under the Penal Procedures Code whose Article 94 stipulates that the inspection of premises is one of the exclusive prerogatives of the examining magistrate or any person he designates among legal officers or authorized civil servants, in accordance with specific legislation. Such exceptions carry specific constraints related to timing and conditions for carrying out the inspection.

The same applies to exceptions in terms of the confidentiality of mail, as the Penal Procedures Code stipulates that the examining magistrate and the state prosecutor are authorized to retain and inspect mail as evidence in certain criminal cases.

However, developments in modern technologies, whether in terms of communication, or the gathering and storage of information, are susceptible of affecting private life. This is the crux of the major new addition of this amendment: the protection of personal data as affected by computer networks and systems and other information management tools. Thus the Tunisian Constitution keeps abreast of developments in the protection of the individual's private life.

V. Enshrining legal guarantees related to police custody and preventive detention within the Constitution (Article 12, paragraph 1)

Article 12, paragraph 1 stipulates the following: "Custody is subjected to control by the judiciary; detention may only be ordered by a magistrate; it is forbidden to place anyone in arbitrary custody or detention ".

Before the change, there were no legal guarantees related to custody and detention. The period of detention by the primary investigating body (police, customs) was not restricted, thus leading to detainees being wronged by employees of the legal system.

The same applies to preventive detention which is ordered by examining magistrates. Hardly three weeks after the Change the first act of law was issued on 26 November 1987 defining and organizing the period of police custody and detention. Article 13 of the Penal Procedure Code limits the period of custody to four days renewable once for the same period and, in extreme cases, for another two days, no more.

Under Law No. 9-1999 of 2 August 1999, the period of police custody was reduced to 3 days renewable once for the same period. Thus the maximum period was reduced by four days.

Preventive detention, for its part, was organized for the first time in Tunisia by legislation on 26 November 1987; its maximum period for criminal offences was then restricted to six months, renewable once (a maximum period of 12 months) and twice for crimes (a maximum period of 18 months).

This period was reduced to a maximum period of 9 months for criminal offences (6 months + a 3-month extension) and to a maximum period of 14 months for crimes, in accordance with an act of law issued on 22 November 1193.

However, what a law provides for may also be abrogated by a law. Hence the amendment initiated by the President providing for judicial control over police custody and for detention to be exclusively ordered by a magistrate which constitutes an important addition reinforcing the role of the judiciary branch, as a protector of individual liberties.

It should also be noted that Article 12 (new) stipulates that it is forbidden to submit any person to arbitrary custody or detention. This entrenches the provisions of Article 9 of the Universal Declaration of Human Rights which forbids the arbitrary detention, custody, or exile of persons; it also complies with the principles set forth in 1979 by the United Nations to protect those persons who are arbitrarily remanded in custody, detained or jailed.

This ban is absolute, i.e. it has no conditions; it is not regulated by law or carried out under the law.

Thus the Tunisian Constitution complies with internationally-accepted principles in the areas of protection from arbitrary detention or custody.

VI. Enshrining the principle of enforcing the least severe legislation within the Constitution (Article 13)

Article 13 (new), paragraph 1 stipulates the following: "penalties are personal and can only be pronounced under a previously issued legal text, except for the least severe legislation".

Mention should be made at the outset of the non-retroactive nature of penal legislation which contributes to the protection of the individual; the only exception contained in the Penal Code being the enforcement of the least severe legislation issued after the facts being investigated.

VII. Persons deprived of their freedom should be treated humanely, with due consideration for their dignity, and in accordance with legal provisions (Article 13, new, paragraph 2)

The inclusion of this paragraph within the Tunisian Constitution may be considered as a major accomplishment in terms of human rights; it will confer a constitutional dimension to principles included within the Penal Code after the Change. This paragraph complies with Article 5 of the Universal Declaration on Human Rights which stipulates that "no one shall be subjected to torture or to cruel, inhuman or degrading treatment or penalties". It also complies with the United Nations Convention against Torture and other Cruel, Inhuman, and Degrading Penalties ratified by Tunisia in 1988.

VIII. Further entrenching loyalty to Tunisia (Article 15)

Article 15 (new) of the Constitution stipulates the following: "It is every citizen's duty to protect the nation and to safeguard its independence, sovereignty, and territorial integrity".

Reinforcing human rights and expanding their scope; putting the Constitution in line with developments in human rights; entrusting the state and society with the duties of solidarity, mutual assistance, and tolerance require, as a counterpart, that the individual discharge specific duties with regard to the nation. On more than one occasion, the President has affirmed that independence was an ever renewed challenge and that protecting the nation's sovereignty and enhancing its independence was the duty of all Tunisians. The projected amendment gives concrete substance to this orientation, as it stipulates the citizen's duty to protect the nation and preserve its independence, its sovereignty, and territorial integrity. This amendment is part of the drive to further entrench loyalty to Tunisia, for every citizen to feel that he is concerned by the country's independence, sovereignty, and territorial integrity. Paragraph 2 of this article stipulates that defending the national territory is the sacred duty of each and every citizen. This article serves as a reference to all legislation on military service and civil defense, described in the national constitutive assembly as the blood tax for the nation.

Thus, Ladies and Gentlemen, you can see the importance of amendments to Section 1 of the Constitution. We now turn to the second part related to promoting Government action and enhancing the relationship between the Government and the Legislative Branch.


Topic 2: Promoting government action and enhancing the relationship between the Government and the Legislative Branch

The proposed amendment initiated by President Zine El Abidine Ben Ali, translates into tangible fact the drive to promote Government action and to enhance the relationship between the Government and the Legislative Branch, without foregoing the presidential nature of our political system.

First, to understand this development, I should like to briefly review the underlying concept of the presidential system:

The presidential system rests on the following characteristics:

The President of the Republic is elected by the people; this is a fundamental characteristic of presidential regimes. The President of the Republic derives his authority directly from the people.

A single Executive Branch. One of the characteristics of the presidential system is that the President of the Republic is both Head of State and Head of Government. Even in those countries where the Government is provided for in the Constitution, the President of the Republic is at the heart of the Executive Branch and of the political system.

A stringent segregation of powers

The presidential system is based on a stringent segregation of powers, both in terms of substance and functions. The President of the Republic is elected by the people, just like parliament, and he appoints and dismisses ministers whenever he deems fit.

The President's role consists in exercising the executive authority, while parliament exercises the legislative authority.

The negative balance of powers

The presidential system of government is based on the negative balance of powers; i.e. the President of the Republic cannot dissolve the parliament, while the parliament cannot censure the Government through a vote of no confidence as is the case in the parliamentary systems.

These are the most salient characteristics of the standard presidential system. It will however be observed that even in the United States of America the system has undergone major developments, to the extent that the stringent segregation of powers is no more than a constitutional principle.

However, in all cases, the major feature of the presidential system is the preservation of governmental stability. Therefore, it is not a mere chance that a number of nations with deeply-rooted parliamentary traditions have adopted some of the features of the presidential system, such as the Fifth French Republic which entrenched the election of the President by the people. A number of parliamentary constitutions have striven to rationalize the facilities of the parliamentary system to ensure governmental stability, after the example of the Weimar Republic in Germany.

The President's initiative to promote Government action and enhance the relationship between the Government and the Chamber of Deputies and to effect the latter's control over the Government is part of the general trend to develop the political system during the coming stage, without foregoing the presidential nature of the régime. This will be our next object of analysis.

1. Promoting Government action

Article 55 of the Constitution stipulates that the President of the Republic, based on proposals by the Government, appoints high civil as well as military officials. This is due to the fact that, as head of the Executive Branch, the President of the Republic appoints the state's high officials. It should however be observed that the Constitution does not provide for a delegation of this authority to the Prime Minister, which deprives the latter of any legal foundation for exercising such prerogatives. Indeed, in the past, the administrative court invalidated a number of decisions by the Prime Minister because they lacked such legal foundation.

The amendment to this article of the Constitution is likely to give a constitutional foundation to appointments to certain positions that could be decided by the Prime Minister by a presidential delegation pronounced by decree.

It should be noted that, in accordance with the delegation theory in law, the President may not delegate all his prerogatives. That is why Article 53 (new) of the proposed amendment stipulates that the President of the Republic delegates part of his procedural powers and no longer speaks of "all his powers". Thus Article 53 now reads as follows: "The President of the Republic ensures that laws are enforced and exercises his public procedural authority; he may delegate part of such authority to the Prime Minister".

2. Enhancing the Government's relationship with Parliament (Article 61, new)

In terms of enhancing the relationship of the Government with the Chamber of Deputies, the philosophy of the proposed constitutional amendment rests on promoting parliamentary dialogue, as a continuation of reforms already carried out in this field, to achieve a quantum leap for our political system and lay the foundations of tomorrow's republic. within the Chamber of Deputies, the ideas of the majority and the opposition are clarified, as an underpinning of democracy. That is why the proposed amendment provides for specific periodic sessions for oral questions; for current affairs questions; and for a dialogue between Government and the Chamber of Deputies on sector policies.

Periodic sessions for oral questions (Article 61, new, paragraph 2)

First, it should be noted that Article 61 (new) singles out the Chamber of Deputies for dialogue with Government, through oral questions. The members of the Council of Advisors are not entitled to this facility. This is because the Government is accountable to the President of the Republic and to the Chamber of Deputies alone.

Oral questions have a specific value in terms of parliamentary dialogue as they enable deputies, in addition to examining draft legislation and budget proposals, to convey to the Government the concerns of their electors. Experts in constitutional law today view oral questions as one of the major facilities to control the Government, as the vote of no confidence has lost its effect, especially in parliaments where the Government has a comfortable majority.

Questions on current affairs (Article 61, new)

Questions on current affairs may be considered as one of the major additions included in the proposed amendment because they enable deputies to ask the Government questions on current affairs both on the national and international arena. This amendment highlights the President's political determination to promote the debate between the Government and parliament on major issues. Questions on current affairs are important because they take place during the plenary sessions, i.e. outside those sessions devoted to oral questions. This is due to the fact that questions on current affairs should be asked within plenary sessions as they are urgent. That is why Article 61 (new) of the Constitution stipulates that one portion of the plenary session is devoted to answering oral questions on current affairs. This facility is derived from the British parliamentary tradition of question time, a tradition now considered as one of the most salient traditions of parliamentary debate in Britain. The same applies to questions on current affairs in France.

We believe that this amendment will breathe new life into parliamentary debate.


Parliamentary debate sessions on sector policies (Article 61, new, paragraph 3)

Enshrining sessions for debating sector policies within the Constitution is another aspect of the drive to reinforce dialogue between the Government and the Chamber of Deputies. Such sessions examine a given sector with a member of Government, allowing deputies to clearly express their concerns and the Government, in turn, to clarify its sector policies.

Topic 3: Developing the system of presidential elections

One of the features of the presidential system is the direct election of the President of the Republic by the people. Indeed, Article 39 of the Constitution stipulates: " The President of the Republic is elected for a period of five years, through a universal, direct, and secret ballot during the last thirty days of the presidential mandate, in accordance with conditions set forth in electoral legislation".

Article 70 of the Electoral Code provides that the winner is the candidate who obtains the highest number of votes. The current ballot method is the one-round ballot method. Regardless of the number of votes obtained by the candidate, the winner is the candidate who obtains the highest number of votes; i.e. the topmost candidate, regardless of the majority, whether absolute or relative.

While the advantage of this method is its simplicity, as it leads to a President being elected whatever the number of votes obtained, the one-round method poses the question of the legitimacy of the President's election, notably in the light of plural candidacies for the presidency of the republic and in cases when no candidate obtains the absolute majority of cast ballots.

Based on the President's determination to ensure the electoral legitimacy of the winner in presidential elections, and considering that pluralism will be entrenched in candidacies to presidential elections, Article 39 (new) of the proposed amendment stipulates that in the case when no candidate obtains the absolute majority of cast ballots in the first round, a second round is organized on the second Sunday following the elections.

To ensure that the President of the Republic is elected with a majority of votes during the second round, Article 39 (new) provides that the candidates to the second round will be the two candidates with the highest number of votes during the first round, taking account of any withdrawals, in accordance with conditions set forth in electoral legislation. This is to say that, in the second round, electors will vote for two candidates only.

The provision for a second round in the presidential elections confirms, once again, the President's keenness to further entrench the sovereignty of the people. The President elect should have a majority of votes to best ensure the country's political stability.

It should be noted in this regard that a number of constitutions provide for a second round, such as the French constitution, Article 7.

Renewing the President's candidacy to presidential elections

As affirmed by the President in his speech on 27 July 1988, the presidential system of government rests mainly on consultation of, and inspiration from, the people in all matters related to its major concerns and in defining all crucial options in its life and for its destiny. The fact that the President is elected by the people may be considered as the most salient of such underpinnings of the presidential system of government. The Change of 7 November has reinstated the presidential system in its true tradition by abolishing life-long presidency and automatic succession and referring to the people whenever the President's office is vacant.

In his speech on the fortieth anniversary of the proclamation of the Republic, the President said: "The Republic is a sacred responsibility and it is the duty of every Tunisian man and woman to preserve and reinforce it, as the Republic complements the meanings of independence and gives a concrete substance to the people's willfulness and sovereignty."

Article 39 (new) of the proposed constitutional amendment provides for the possibility of renewing the President's candidacy while retaining, in Article 40, the maximum age of presidential candidates at seventy.

It should be emphasized in this context that renewing the President's candidacy does not affect the people's sovereignty and the nature of the presidential system, as evidenced by a comparison between constitutions that pertain to the presidential system. The French Constitution of 4 October 1958, initiating the Fifth Republic, provides in its Articles 6 for the possibility of renewing the president's candidacy without restriction.

Renewing the president's candidacy doest not affect the nature of the republican system, as the people retains its sovereignty in electing the President of the Republic, which was not the case with life-long presidency, as the latter suppressed the role played by the people in electing the President.

Furthermore, given the importance of the presidency as an institution, the current version of the Constitution stipulates that candidacy to presidential elections is presented by a number of elected officials, within conditions and according to procedures defined by electoral legislation. The proposed amendment clarifies this provision, stating that such officials are members of the Chamber of Deputies and the heads of Municipal Councils, as officials directly elected by the people. Thus, it appears that the members of the council of Advisors are not permitted by the constitution to present candidates to presidential elections. Article 66 of the Electoral Code provides that "no candidacy shall accepted unless it is presented individually or collectively by at least 30 citizens among the members of the Chamber of Deputies or the heads of Municipal Councils."

One of the major additions of the proposed constitutional amendment, likely to reinforce the rule of law and institutions, is transferring to the Constitutional Council mandates that are currently entrusted under Article 40 to the Constitutional Committee. Thus, the Constitutional Council receives and examines candidacies to presidential elections; investigates challenges; and proclaims the results of elections. This provision is similar to practices current in countries with constitutional councils.

Ladies and Gentlemen,

This presentation is too brief to analyze all aspects of the three topics under the proposed amendment, but I should like to conclude by saying that this ambitious project initiated by the President provides for confidence in the future, the future of the presidential system, democracy, pluralism, public liberties, and human rights, within the framework of the rule of law.

Thank you for your attention.