Whenever there is a political crisis in the country, the opinion of Qais Saied, a constitutional law expert, is always in high demand. Said’s strong personality and controversial opinions about the country’s democratic transition ensure divisive varying responses.
Correspondents met with Saied to discuss his assessment of the current situation in Tunisia and the legitimacy of the recently pronounced initiatives.
Whenever there is a political crisis in the country, the opinion of Qais Saied, a constitutional law expert, is always in high demand. Said’s strong personality and controversial opinions about the country’s democratic transition ensure divisive varying responses.
Correspondents met with Saied to discuss his assessment of the current situation in Tunisia and the legitimacy of the recently pronounced initiatives.
Q. How do you perceive the confusion in the democratic transformation process of the country, especially with the new political assassinations and the targeting of a military patrol which led to the killing of its soldiers during the past days?
A. The Tunisian state was the target of the assassination of MP Mohamed Brahmi, who is a member of the Constituent Assembly. The state wal also the target when eight soldiers were killed in an ambush which led to their deaths. Those who stand behind these attacks are seeking to provoke sedition and infighting with the purpose of allowing some forces to return to power or to utilize the prevailing conditions in Tunisia to allow for their return to power.
Today there is a danger threating Tunisia and its institutions – fighting or violence erupting in the street. Thus, everyone must deal very wisely with this threat and the Constituent Assembly and the opposition must take their responsibility and admit that they have both failed.
Q. The Tunisian opposition is demanding the dissolution of the Constituent Assembly. Do you think that this is a possible solution?
Firstly, I would like to point out that the withdrawal of a number of deputies from the National Constituent Assembly will not lead to the body being annulled. Thus, the withdrawal will have an impact on the work of the assembly, but will not lead to its dissolution as some are demanding. Legally, the constituent Assembly cannot be dissolved even if the number of deputies who withdraw reaches one third of its total members. Moreover, the deputies have only announced that they have frozen their work and thus they will not be replaced because there are no vacant seats according to the law.
Q. What about the opposition‘s intensions to form a salvation front with the aim of uniting the opposition forces and reaching mature political stances?
A. Who is going to save who? Are they going to save the country or are they going to save themselves? Who will be the members of this front? What will be its powers? The formation of a salvation front is not feasible because the issue is much deeper than that.
Q. What is the solution to this crisis from your point of view?
A. The National Constituent Assembly should dissolve itself to allow for the election of local councils. These councils should form a national legislative council which represents all parties. If all parties have a sincere will and a genuine desire in the rebuilding the country, then the feasible solution lies in local democracy. This could be achieved by allowing citizens to elect new leaders within regional councils which would lead to the formation of a national legislative council to correct the path and return the initiative to the people. Without doing this, the conflict between the current political classes will intensify in the presence of internal and external parties who want to feed sedition and take advantage of the situation.
The reason behind the plight of Tunisia today is caused by those who are in power as well as by the opposition forces. The parties in power have proved that they are weak and incapable of providing solutions. The opposition has also proven that it is weak and has nothing to offer.
Q. Do you mean that the political elite, represented by the opposition as well as the government, is responsible for the crisis of Tunisia?
A. Yes, this fact has become clear for a large number of Tunisians who became tired of their political elites and lost confidence in their government, a government which is incapable of administrating the public affairs of the country and protecting it and its people. People are also tired of the opposition which is incapable of coming up with practical initiatives and realistic alternatives.
The recent tragic events, and the way in which they have been dealt with at the official and political levels, have undoubtedly revealed that the government and the opposition are not moving forward. Those who were brought to power by ballot boxes are desperately attached to power and to their legitimacy and those who are out of power are striving to reach it regardless of the cost to be paid.
Today, after nearly two years of the revolution, it has become clear that the two consecutive governments and the opposition have dramatically failed in the administration of the transitional phase. The opposition failed in providing solutions because it has dealt with the transitional phase only with the logic of opposition in order to reach power. Thus, the conflict between the government and the opposition became an existential issue between the two parties, with each party rejecting the existence of the other party. Neither the government succeeded nor the opposition was able to come up with proposals or initiatives. Under these conditions, the Tunisian people were the only party to pay the price of the conflicts between the two.
Q. This conflict, which you are talking about, has reached the street, which has today become divided. Will the popular protests impact the situation and the transitional phase in the country?
A. The impact of popular protests and demonstrations depends on the masses and the numbers of protestors. But we must be cautious not to allow these popular movements to turn into civil strife and infighting because many of the civil wars in the world were sparked by assassinations which soon turned into fighting and strife.
Q. There is a new initiative adopted by an important part of the actors in the country. How do you assess this initiative?
A. Those who are talking about the formation of a higher salvation national commission composed of political parties and civil society organizations to finalize the drafting of the constitution are only promoting a big lie because experts do not have the power to write the constitution and many of these experts are not really experts. Today the political class in Tunisia is incapable of providing solutions.
Q. Is it right to assume, according to what you have said, that this is the reason why you have refused to participate in the expert committee tasked with correcting the contents of the draft constitution?
A. I want to emphasize that I did not hesitate to respond to all the calls which I have received to attend the constituent committees’ meetings. I gave my opinion, my perceptions and my answers to all questions raised. I was invited more than one time to two constituent committees. I was not meagre at all during the preparation of the constitution phase and I gave Tunisia all it needed from me. Now with the draft Constitution finalized, and most of the choices taken, the expert has no role to play.
Q. Why?
A. Because the choices are political and those who were elected and who are supposed to reflect the public will should assume the responsibility of these choices. Here it is important to note that the Constitution is a legal text; it is the highest legal text in most of the legal systems upon which political legitimacy is built in all countries. Constitutions are drafted by politicians not by experts because the choices are political not technical or legal. This is evidenced by the fact that the Tunisia June 1959 Constitution was prepared by the National Constituent Assembly itself at that time without resorting to any expert.
Q. Does this imply that you believe that the constitution should be prepared by politicians rather than by experts?
A. Yes, but politicians can seek the opinions of experts in the preparation of the Constitution but the final decision should be taken by politicians. Their perception when seeking the opinion of the experts should be respected but the other perception should also be respected.
Q. What are the most important problems that are going to face the expert committee, if such a committee is formed to amend the draft new constitution?
A. There is no constitution which is better than the other in absolute terms with regard to the provisions that could be included in it. Because the constitution, before being a set of rules, is a spirit. Its main function is to achieve freedom. If turned into one of the rulers tools and a mean to legitimize the ruler, it will become meaningless and there is no point in having a constitution.
Constitutions in the Arab countries, regrettably, do not guarantee freedoms. They are tools in the hands of the ruling authorities to justify their existence. The real constitution is the constitution which truly reflects the prevailing values within the society and effectively ensures rights and freedoms. For example, among the problematic topics are issues and choices related to the nature of the political system. It seems that there hasn’t yet been a decisive decision in this regard.
Unfortunately, in this area, previous experiences were not taken into consideration. There was a desire to formulate texts to fit the size of those in power – as if those who are in power today will continue to be in power tomorrow. Today there are some of the Assembly’s members who are seeking to make the door of the political system fit their size in light of the current balance of power.
Q. What about the division of power and duties between president and prime-minister?
This process isn’t easy. It could lead to the disruption of the normal functioning of the institutions with deadlines for elections approaching, of course after the finalization of the constitution. If coexistence is possible at the beginning of the presidential and parliamentary terms, this could become difficult or impossible in light of the preparations for elections.
For this reason, I suggested that the president of the republic, who is elected by a direct public vote, should be responsible for the executive power assisted by a government headed by a prime minister on the condition that the government reports to him and to the legislative body. The legislative body shall have the right to withdraw confidence from the government and force it to resign. If MPs pass a vote of no confidence for any reason, the President of the Republic shall be forced to resign. The situation here is related to two institutions: the presidency and Parliament and each of them enjoy direct popular legitimacy.
Q. Can we compare the new draft constitution with the 1959 Constitution?
A. It is difficult to compare the two constitutions, especially since the new constitution is still a draft, while the 1959 constitution is a real document which contains original and amended texts. It contains many positive provisions, especially those related to rights and freedoms despite the problems which it had created. It is not important to compare between the two texts. What is really important is to see if the constitution will serve its purpose or not and if it would be an instrument leading to freedom or to its opposite.
