Amendment of June 1st, 2002 : a fundamental constitutional reform laying the foundations for the Republic of Tomorrow

It is the most important amendment introduced into the constitution since its promulgation on June 1st, 1959. Intended to lay the foundations for the Republic of Tomorrow, this amendment was approved by the people in a referendum organized for the first time in Tunisia’s history on May 26, 2002. Not only does it materialize the people’s aspirations for a modern political system, but also reflects a prospective vision that takes into consideration the evolution of Tunisian society. It thus adapts the provisions of the constitution to this evolution and ensures the correlation between socio-economic promotion and political development.

The amendment covers 39 out of the 78 articles of the constitution. It materializes the fundamental principles underlying the societal project of the Change. It also reinforces human rights in the Constitution, consolidates representation through creating the Chamber of Advisors, increases the Chamber of Deputies’ control over the Government, and makes the Constitutional council a fundamental pillar of the rule of law.

The system of government in Tunisia rests, in particular, upon the following principles:

• Promoting human rights
• Consecrating the principles of rule of law
• Anchoring democracy and pluralism
• Anchoring, by the state and society, the values of solidarity, mutual assistance and tolerance among individuals, social categories and generations
• Establishing a renewed presidential system
• Developing the system of representation.

Promoting human rights

In terms of human rights protection, the Tunisian constitution, adopted in the 1950s, can be considered as an avant-garde legal instrument, providing for fundamental rights and liberties recognized in that period, namely, first and second generation rights; i.e. political, civil, economic and social rights.

Still, though the provisions of Chapter 1 of the Constitution are characterized by their precision and cover the principal rights belonging to the first and second generation of human rights, one should not lose sight of the fact that these provisions were established in the late 1950s. Since then, the human rights system has known a significant evolution. The first and second generations of rights were followed by the third and fourth generations. These rights are constantly being promoted, which requires promoting the provisions of Chapter 1 of the Constitution in order to adapt them to the evolution of the human rights system.

In addition, the preamble and the provisions of Chapter 1 did not reflect the central position of human rights in the societal project brought about by the Change. Nor did they include the principles of rule of law and pluralism, two fundamental pillar of this project. The expression “human rights” was mentioned only in the Preamble. On the other hand, prior to the amendment of June 1st, 2002, the Constitution did not provide for the values underlying the New Era’s philosophy concerning the achievement of comprehensive development, namely the values of solidarity, mutual assistance and tolerance.

A constitution is a mirror reflecting the philosophy of the political system. That is why the amendment initiated by President Ben Ali came to clearly materialize, within the text of the Constitution, the fundamental principles underlying the societal project of the Change. These principles constitute the main political choices of this project, and underlie all the legislations issued since the Change.

The new provisions introduced into certain articles of chapter 1 make the Tunisian Constitution in the forefront of the constitutions guaranteeing human rights.

The preservation of human rights is particularly provided for in paragraph 1 of article 5 of the constitution: “The Republic of Tunisia shall guarantee fundamental freedoms and human rights in their universality, comprehensiveness, complementarity and interdependence.” This paragraph eloquently summarizes the New Era’s approach in the field of human rights. As clearly defined by President Ben Ali on several occasions, this approach rests upon the comprehensive complementarity of human rights.

The preservation of human rights in the Constitution also finds its illustration in the consecration, by the State and society, of the values of solidarity, mutual assistance and tolerance among individuals, social categories and generations, in the protection of personal data, in the constitutionalization of judicial guarantees related to custody and preventive detention, and in the establishment of the principle of applying the most lenient text and ensuring humane treatment of any individual deprived of his freedom.

Consecrating the principles of rule of law

Paragraph 2 of article 5 (new) of the constitution reads as follows: “The Republic of Tunisia shall be founded upon the principles of the rule of law and pluralism and shall strive to promote human dignity and to develop the human personality.”

The provisions of this paragraph are of particular importance, in that they explicitly provide, for the first time, that the Republic of Tunisia is founded upon the principle of rule of law.

As provided for in article 5 (new) of the Constitution, the principle of rule of law implies that:

• The State, through its institutions, is subject, in its relation with individuals, to the law. This constitutes a guarantee for their fundamental freedoms.
• The State is committed, when amending existing laws or enacting new ones, to pre-established procedural rules, in order to avoid arbitrary legislative action.
• A progressive legal system is in force, ensuring the respect of decisions, decrees and laws which must be in conformity with the Constitution. This requires the existence of an institution that sees to the respect of the Constitution. Hence the decision taken by President Ben Ali, since the first weeks of the Change, to establish a constitutional council in charge of checking the constitutionality of laws.

Anchoring democracy and pluralism

Prior to the amendment of June 1, 2002, the Constitution made no mention of pluralism, neither in the Preamble, nor in the General Provisions chapter. Even the paragraph added to article 8 (Amendment of October 27, 1997) referred only to the role of political parties.

The fact that paragraph 2 of article 5 (new) of the Constitution affirms that the Republic is based on the principle of pluralism materializes one of the fundamental choices of the Change. In fact, the November 7, 1987 Declaration proclaims that : “Our people deserves an advanced and institutionalized political life, truly based on the plurality of parties and mass organizations”.

Plurality of political parties has been effectively materialized within the Chamber of Deputies and Municipal Councils.

Pluralism does not mean only the plurality of political parties; it also means the plurality of mass organizations, associations and the various components of civil society.

Pluralism does not manifest itself at the organizational level only. It also has an intellectual aspect, and means, as asserted by President Ben Ali in his speech of November 15, 1989, the difference in terms of opinion and reflection.

Proceeding from this concept, incorporating the principle of pluralism in the Constitution represents the best guarantee for anchoring democracy; pluralism being one of the conditions of democracy.

In addition to the principles of rule of law, paragraph 2 of article 5 (new) stipulates that «The Republic of Tunisia shall strive to promote human dignity and to develop the human personality». This means that its role consists in providing the necessary attributes of decent life for all people, and in promoting the personality of the individual through providing education, culture and all that can help develop capacities and skills.

Political pluralism in Tunisia finds its illustration in the presence of 9 recognized opposition parties, and over 8,500 associations. Opposition parties have won seats in elected bodies such as the Chamber of Deputies, Municipal Councils, and Regional Councils. Pluralism has also been manifested in the presidential elections of 1999 and 2004, where more than one candidate ran for the highest executive office.

Opposition parties are offered public financing that helps them manage their activities and publish their newspapers on a regular basis.

Anchoring, by the state and society, the values of solidarity, mutual assistance and tolerance among individuals, social categories and generations.

These values, which, since the Change of November 7, 1987, have constituted a basic pillar of the social policy in Tunisia, as well as a fundamental element in the system of thought of the Change, were not provided for in the Constitution, neither in its preamble nor in its General Provisions. Paragraph 3 (new) of article 5 of the Constitution came to fill this gap : by providing for these values, it elevated them to a constitutional status, and made of them serve as a source of reference in terms of legislation. The constitutionalization of these values reflects one of the aspects of comprehensive development in Tunisia. The establishment, in the early 1990s, of the National Solidarity Fund, and the role this Fund has assumed in promoting “shadow areas” and in breaking their isolation, constitute one the shining landmarks in this regard. This successful experience has made of Tunisia a model to follow in this field, and the call launched by President Ben Ali for the establishment of a World Solidarity Fund has won the unanimous support of the United Nations.

On the other hand, mentioning the value of tolerance in the Constitution illustrates the fact that the New Era has grounded its civilizational, political, economic and social choices upon concepts that are all premised upon the value of tolerance. In his speech at the opening of the Mediterranean Symposium on the Pedagogy of Tolerance (April 21, 1995), President Ben Ali stated that “Tolerance is one of the fundamental values of our sublime Islamic religion and our social traditions. It constitutes a supreme virtue, and one of the fundamental traits of Tunisia’s history which offers an example of the fusion of differences within the same civilizational system”.

It is worth noting that the consolidation of the values of solidarity, mutual assistance and tolerance involves not only individuals but also all social categories and generations. Promoting these values is the responsibility of the State; i.e. public authorities; it is also the responsibility of all components of society.

Establishing a renewable presidential system

A renewable presidential system rests essentially upon establishing a dynamic relationship between the Government and the Chamber of Deputies, and upon promoting the system of presidential elections.

As regards the establishment of a dynamic relationship between the Government and the Chamber of Deputies, the philosophy underlying the constitutional amendment of June 1, 2002 aims at enhancing parliamentary dialogue and reinforcing the Chamber of Deputies’ control over the Government.

The amended constitution provides for devoting periodic parliamentary sessions for oral questions addressed to the Government, for questions related to topical issues, and for the dialogue between the Chamber of Deputies and the Government on sector-based policies. It also provides for the simplification of the procedure related to the motion of censure.

As for the development of the presidential election system, it consists in establishing the principle of two-round election of the President of the Republic.

Developing the system of representation through the creation of the Chamber of Advisors

The establishment of the Chamber of Advisors is one of the most important new provisions brought about by the constitutional amendment of June 1, 2002 which lays the foundations for the Republic of Tomorrow. As clarified by President Ben Ali in his speech on the 14th anniversary of the Change, the establishment of this second legislative chamber reflects the evolution of the vision toward the forms of people’s representation in the legislative branch.

In addition to consecrating and reinforcing general representation through the direct election of people’s representatives, the establishment of the Chamber of Advisors aims at ensuring a wider representation of the regions and of the various components of society, including, in particular, professional organizations, local elites and national prominent figures; the aim being to enrich the legislative function and political life in general.

Article 18 (new) of the Constitution reads as follows : « The people shall exercise the legislative power through the Chamber of Deputies, the Chamber of Advisors, or by means of a referendum ». Thus, the Tunisian Constitution establishes, for the first time, the principle of bicameralism, much like many countries which have deep-rooted democratic traditions. Today, 70 countries have a second legislative chamber, against 45 in the early 1970s. Besides, 12 countries are now in the process of establishing a second legislative chamber.

It is, therefore, clear that the political system in Tunisia rests upon modern constitutional grounds that guarantee the fundamental rights and liberties of citizens, establish political life upon the principles of pluralism, and enlarge the scope of participation for all components of society.