Interview with Dr Kais Saied about the constitutional guarantees

Interview with Dr Kais Saied in preparation for the international conference on the constitutional guarantees against the return of the dictatorship

Q: How do you evaluate the newly issued 4th constitution draft?

I am not a fun of granting marks, so I cannot say this draft is good or bad; and there is not a single constitutional text in the world that can’t be submitted to or scrutiny or cannot be amended in its lifetime. Any constitution can be criticized. And each paragraph or article in the constitution can incur lengthy specialist debates on how they can be understood or how they may be applied.

With regards to the text, there are certainly some imperfections which should definitely be rectified. But before talking about the text, we should more importantly know about the meaning of the constitution is in the Tunisian mind, and in the mind of the founding fathers.

Regardless of the additions and the imperfections that came inside this constitution, it appears that constitution in the mind of the founders is always a tool for governing, and this is the issue, and not in chapters or in the provisions, which can be amended, but what is really the definition of the constitution? In the early twenties of the twentieth there was an obsession about the idea of the constitution which led people to believe that the constitution is the way to achieve freedom, but unfortunately our experience with the constitution here in Tunisia and in the Arab states in general proved that our constitution is made to legitimize the ruling regimes, even though it contains all sort of guarantees and institutions that are supposed to facilitate its implementation. The constitution was used by the previous rulers in the past as a tool to justify repression and their holding on to power; and this is what we should concentrate on. Constitutions despite their importance in organizing the public life, they have to hold a new style of thinking and this is what counts. Most of the debates in the National Constituent Assembly today are about executive branch and on the distribution of powers between the president and the prime minister, but no one talks about the legislative branch or the local authority; where the real democracy lies. How can we build a democracy based on local authority, from the local to the central, this is more important, how can the constitution be a real guarantee, not just in theory as a mere text. There were good provisions in the past but ironically the liberties in Tunisia today while we don’t have a constitution are much better than before when we had a constitution. We lived this contradiction before, when the first constitution was promulgated on 1861 there was a huge official celebration; but a small demonstration from the Zeitouna to the Bardo palace ended honeymoon and many of the demonstrators were arrested and punished severely. Moreover, the 1959 constitution was also described in the Al-Amal (The work) newspaper as “the great day in which national aspirations were accomplished”, what was the real added value of this constitution? It was used to legitimize the dictatorship rather than a mean to promote liberties. Therefore the guarantees should come from outside the constitutional institutions (such as the independence of the judiciary, the rights and liberties, monitoring the constitutionality of laws… etc.); the real guarantees will be met when we move from the rule of law or the state of the constitutional order, to the society of law, that is when all the society participates in the building the legal framework and when the society believes in the necessity of the rule of law and be part of the political debates and activities.

Only when all of that happens the constitutional guarantees become sufficient. As we learned from history, the constitution alone is not a guarantee; we need to start thinking in a completely different way of the past centuries.

Q2: What do you think of the so-called “the chapter inclusive of all controls on public freedoms”, did it affect liberties in your opinion?

There should always be a reference to the law; the law should detail the way we enjoy our liberties that the constitution has guaranteed. However the law should not affect the spirit of these liberties. I believe that the members if the NCA are going to amend this law to ensure this principle. All upcoming laws should not affect these rights and freedoms, and not matter how carefully they were crafted, they always need to be reviewed by independent judges from the constitutional court. The legislative branch should also respect the guidelines defined by the constitution. Even all of this is not yet enough; we must look for new mechanisms that allow us to effectively enforce these rights and freedoms and protect them from getting emptied of their original meanings that came in the constitution or in the legal text.  And the most important guarantee is the existence of a strong civil society that actively monitors the constitutionality of the laws and oppose to any attempts of deviation or distortion. The enforcement of these rights and freedoms and defending them from any violation attempts, is the main role of the civil society and not only the role of the official institutions. I recall here the example from Africa, in Gabon they established a constitutional court but it remained almost unused because there was no pressure from outside the official institutions, in addition, of course to the constitutional and legal framework.

Q3: It is well-known that the conditions that the constitution provides by to regulate the different branches of power to prevent injustice or tyranny and realize the principle of the balance of powers, do you think that the draft constitution has established this balance?

The balance would not be established only by mentioning it inside the constitution, the balance can only be achieved by a real political pluralism. The 1959 constitution did mention in the preamble to the Constitution states in the preamble that the separation of powers should be respected, and it specified that the legislative and the executive branches must be separated, so why did it fail to establish the balance? Not because the constitution failed to establish mechanisms, it was because a single political party has dominated all the institutions of the state. And if the Tunisian constitution of 1959 was applied in a democratic country it wouldn’t have led to the same dictatorship that was ruling in Tunisia; this was not the fault of the text of the constitution, despite the known issues such as the wide authorities given to the president, which led to the failure of the institutions since the president was the chairman of the party that dominates the legislative power, therefore all the powers were in the hand of the president. So if we applied the French or the Belgian or the Swedish constitution on the Tunisian context we would have obtained the same results.

The issue therefore is not only related to the separation of powers or to the mechanisms of balance, it is rather related to the strength of these institutions, because if one day a single party dominates these institutions again then the separation of powers will become blurred and the balance will vanish. The real guarantee of the balance is the real political pluralism and not only in the constitution.