Consultation as Democratic Dressing of a Coup Against Tunisia’s Constitution
Two weeks after a test run, President Kais Saied launched the national consultation or “online referendum” – as he insists on calling it – as the first step of the roadmap he had announced on 13 December 2021. According to this plan, the consultation will close on March 20, whereupon its results will be compiled by a committee of experts. Constitutional and potentially legislative proposals will then be put to referendum on July 25. Finally, based on these proposals, legislative elections will be held on December 17.
Between the state agencies’ efforts to encourage citizens to participate and the calls by opposition parties and some civil society organizations – each for its own reasons – for a boycott, most Tunisians have ignored the process. Turnout was only in the tens of thousands. Most criticism has revolved around the methodology of the consultation, the triviality of most of its questions, the protection of personal data, and the exclusion of a significant percentage of citizens without internet access or SIM cards registered in their names. These worthy criticisms should not obscure the core issue: the primary, if not only, objective of this “online referendum” is to dress Saied’s personal project to change the political system in democratic clothing.
Your Opinion, Our Decision
Saied seemed indecisive as to whether he should call this mechanism a consultation or an online referendum. Although the label used on the official website is “national consultation”, the term “online referendum” is still cropping up in governmental communication and the president’s speeches. Saied has even attacked media that place the term between quotation marks. Perhaps this terminological indecision reflects a deeper contradiction concerning the mechanism’s consequences, i.e. whether its results are binding. While “consultation” usually means soliciting opinions that do not bind the decision-maker, the notion of a referendum implies a direct decision by the people. If a referendum lacks binding force, it essentially becomes a consultation, which is a paradigm of representative rather than popular democracy, assuming that the overall context itself is democratic.
The latter is not the case. Even the means of participation lack the minimum democratic conditions and allow the same person to participate multiple times, rendering the label “referendum” inappropriate. These facts however do not explain the inconsistent labeling. It is the [uncertain] effects of the questions that do. No text regulating the consultation or defining its effects has been issued. The only answer on offer concerns the results of the first section (politics and elections), which will be “compiled” by a committee appointed by the president. This committee is the same one stipulated in Presidential Order no. 117 of 2021, which effectively suspended the Constitution as a precursor to amending it outside of its procedures via proposals the president prepares in cooperation with the committee. In other words, the consultation is – in this area – a preliminary stage added to the approach Saied announced in the September 22 order.
The five other sections – “economics”, “sustainable development”, “education and culture”, “social affairs”, and “quality of life” – cannot produce binding effects. They are more akin to an opinion poll than a consultation. Most questions concern the problems that the respondent faces – or thinks that certain groups, such as women, children, and the unemployed, face – in these areas and their generic solutions. There is virtually no trace of the reforms that the government secretly pledged it would undertake to the IMF in the hope of reaching a financing agreement, such as lifting subsidies and privatizing certain public institutions. The questions in these sections not only have no specified effect but also cannot be translated into binding legal texts or practical public policies in the first place. These sections were included for two reasons. The first is to induce the participation of the majority, which may not see in the political or electoral system an answer to their everyday problems. The second is to conceal the consultation’s true purpose of bestowing a democratic quality onto Saied’s project of bottom-up construction [al-bina’ al-qa’idiyy].
The most honest aspect of the “consultation” may be the phrase concluding the introduction that appears on its website. It reads, “The national consultation… your opinion… our decision”, with the first-person pronoun referring to the initiative’s author, i.e. the authority. While the questions in the last five sections are not normative enough to be translated into “decisions”, the questions in the political and electoral section are. However, they are oriented toward justifying a premade decision and portraying what the head of the authority is preparing to impose as emanating from the bottom-up. Only this purpose can explain the president’s insistence on adopting the term “referendum”.
It does not take extraordinary insight to see that the questions in the political and electoral section are oriented toward one goal, namely the president’s project. Despite the deletion of the first question, which – in keeping with Saied’s position – implied a total condemnation of the entire democratic transition process, and the addition of a final question about whether “the state alone is responsible for regulating religious affairs”, most of the questions still lead the respondent toward “bottom-up construction”. This concept has three pillars – establishing a presidential system, voting for individuals in micro electorates, and the power of voters to recall MPs – that together result in a “republican monarchy” in which the president alone represents the people’s will and holds actual power. Accordingly, the consultation first asks respondents to choose between a presidential system, parliamentary system, and mixed system. It then asks them to choose between “voting for individuals” and “voting for lists” without detailing these choices, thereby implying that the current voting system can only be amended by establishing individual-based voting. Similarly, the next question addresses “recall” without detailing it and while limiting it to MPs, i.e. excluding the president. The goal is to exploit the wave of hostility towards parliamentarianism and parties in order to direct people toward choosing a presidential system, individual-based voting, and the power to recall MPs – in short, the proposed bottom-up system. Of course, Saied supporters on social media began rallying people toward the answers that serve his project. Even Ridha Chiheb Mekki, one of the project’s theorists, did not hesitate to publish his answers to these three questions, as though the goal of the consultation was not already clear enough.
The leading nature of the questions is also evident from the one concerning “the reforms needed to improve political life”. Participants are asked to select a maximum of three answers from among “amending the electoral law”, “amending the law on parties”, “amending the Constitution”, and “a new constitution”. Besides “no response”, the only other answer is, “I see no need for any reform”. The question thus implies that the political process can only be reformed by amending or replacing these particular texts and that the alternative is simply no reform. The phrasing of the last option makes it very difficult for anyone unsatisfied with the political process (as is the case for most Tunisians) to select it, thereby pushing them toward the other options. Likewise, the inclusion of two options concerning the Constitution obscures the fundamental question of whether the Constitution is among the reasons for the democratic transition’s shortcomings and presupposes that the solution is either to amend or replace it. Clearly, the goal is a “popular” fatwa that legitimizes altering the Constitution outside of the conditions that it sets.
Finally, there is the question concerning the judiciary. It, too, has changed since the test run. It no longer concerns the issues obstructing the judiciary’s work. Rather, it asks for a “yes” or “no” response to whether “the judiciary, under its current organization, achieves the desired justice”. The question’s phrasing, which ties any failure by the judiciary to meet expectations with its current organization, is no less leading than the phrasing of the other questions. Once again, the goal is a “fatwa”, albeit in support of the short-term battle to take control of the judiciary, which would require dissolving the Supreme Judicial Council and changing the law governing this branch.
Participation Hollowed of its Substance
Criticizing the consultation is not the same as saying that political reforms should remain the preserve of experts or that the people are not qualified to discuss such issues. However, the people should be involved through public debate and an exchange of views, not leading questions that treat them like sheep following a shepherd. The frustration over the limits of representative democracy that has appeared over the past years, especially as the ruling parties constantly renege on their promises, does not justify theatrics that claim to be participatory without meeting the most basic requirements.
Participatory democracy is based on several stages: the initiative, the formulation of the agenda and questions, the discussion, and then finally the decision. This consultation not only reduces participation to one stage, namely discussion, but also deprives that stage of its essence. Each participant responds to the questions individually via a computer or phone without any public debate or exchange of views. Hence, it is more akin to the illusory “immediate democracy” – in which there are no intermediate factors, including time, and political participation becomes mere typing on a computer – than to direct or participatory democracy.
The “national consultation” may be the best example of the importance of the initiative and question-formulation stages as it shows how someone who monopolizes them can direct the process wherever they wish. The virtue of participatory mechanisms is that they enable citizens who can reach a certain percentage to impose their priorities on their representatives and intervene directly in the legislative process. If true participation emanates from the bottom and imposes itself on the authority, then Saied’s version of participation is nothing but an attempt to dress his predefined project in popular clothing.
As for the referendum scheduled for July 25, it cannot render the process democratic because it will be the culmination of a distinctly individualistic trajectory, rendering it more a plebiscite on a person than a referendum on a project. That project will not be debated by a democratically elected constituent assembly subject to citizens’ oversight, pressure, and participation, as occurred – for those with a short memory – during the National Constituent Assembly years. Rather, it will be discussed by a committee that is appointed by the president and delivers a decision that he controls. Moreover, constitutional referendums are a preferred mechanism among populist regimes, which use them to increase the executive authority’s centralization, encroachment, and entrenchment against the other authorities.
The only similarity between the July 25 process and the experiences of Latin American countries, which Saied cited while defending the “online referendum”, is rulers’ tendency to alter the constitutional norm per their own desires. However, the processes of amending and replacing constitutions in Latin America during recent decades, despite the criticisms some provoked, usually respected – rather than manipulated – constitutional procedures or involved an elected constituent authority. Alberto Fujimori, former president of Peru, can hardly be considered a democratic model. Yet even he, after exploiting a state of exception to dissolve Parliament, subjugate the judiciary, and monopolize the authorities in a July 25-like scenario, called elections for a constituent assembly, which went in his favor and produced the 1993 Constitution.
Is It True That “The People Overturned the 2014 Constitution”?
While the president has repeatedly attacked the 2014 Constitution and argues that “whenever constitutions are absent, freedoms increase”, he still insists that he is acting in accordance with it. After using Article 80 to monopolize all power indefinitely and without any oversight, he issued Order no. 117 of 2021, which effectively suspended the Constitution by invoking the people’s sovereignty principle found in Article 3. According to Saied, the principle allows him to ignore the codified procedures for amending the Constitution if they no longer satisfy it. The argument that the “will of the people” that manifested itself on July 25 trumps the Constitution and allows its replacement is based on a major fallacy.
People can overturn and replace their constitutions. This occurred in Tunisia 11 years ago, when a popular revolution and continuous protest movement in Kasbah Square and other streets and squares led, two months after President Zine El Abidine Ben Ali’s departure, to the suspension of the 1959 Constitution. It also occurred two years ago in Chile. However, there is an essential difference between a popular revolution that overturns a constitution and after-the-fact popular engagement in presidential measures, however large that engagement may be. The daytime protests on July 25, which involved thousands of citizens and targeted Ennahda offices in particular, might have turned into a popular revolution had the president not declared a state of exception. However, as is, they cannot be considered a revolution that overturned the Constitution. As for the popular engagement that occurred during that night and the president’s popularity, they cannot – irrespective of the heights they reached and the extent of the opinion poll’s credibility – be considered a “popular will” or legitimize illegitimate top-down decisions. Likewise, the lack of popular resistance to the coup against the Constitution does not mean that the Constitution has become invalid or that replacing it is a popular demand. The people’s demands are socioeconomic, whereas the Constitution was and remains the focus of certain political elites, either because they cannot address the socioeconomic challenges or because they dismiss the past period and all its results as “tailored to Ennahda”.
Similarly, the failure by the elites ruling during the past period to apply the Constitution and establish its institutions, as well as its repeated breach either by them or by Saied himself, does not mean that it has lapsed. Violation of the legal norm, however extensive, does not invalidate that norm. Likewise, the 2019 presidential elections do not legitimize overturning the Constitution. People voted for Saied in the second round because he symbolized clean hands in contrast to his opponent. While Saied’s project of bottom-up democratic construction was known, the mere act of running for the presidency and taking the oath obligated him to subject it to constitutional controls and mechanisms.
A Trial of Some Features of “Bottom-Up Construction”?
There is no doubt, then, that the consultation’s primary goal is to bestow democratic legitimacy onto Saied’s coup against the cConstitution so that he can impose his bottom-up construction. However, the consultation is also a trial of some of his project’s features.
The gravest part of bottom-up construction may be its reduction of politics to local affairs. Instead of competition at the ballot box between national socioeconomic projects that express social groups’ interests, the socioeconomic solutions emanate from the grassroots level to be debated in local councils and “compiled” regionally and nationally. In other words, economic problems are local, their solutions are local, and national strategies are unnecessary because sovereignty has been returned to the people at the “bottom” and the solutions will therefore arise spontaneously.
The consultation reflects this idea, too. The economic section begins with a leading question about whether “socioeconomic problems can be solved at the local level”. Most of the other questions in the various sections also have this local theme. The solutions to unemployment, obstacles to establishing businesses, and problems faced by children, teenagers, women, and the elderly are all linked to their locales. Even the problems of energy, water, the environment, health, transport, education, and culture are portrayed as regional and local. It is no surprise, then, that the president’s first use of the term “bottom-up construction” since his election comes during his advocacy of the “online referendum” and with a description of the concept as synonymous with “development in all regions”. The objective, means, and ruse are all clear to anyone without their head in the sand.
The issue goes beyond the questions. The approach based on a committee that “compiles” proposals emanating from the grassroots level via an online consultation, too, is reminiscent of the philosophy of bottom-up construction. Yet it also exposes the concept’s limitations and dangers. The national consultation, like bottom-up construction, claims to achieve real democracy when it actually deprives democracy of its political depth. It claims to return sovereignty to the people while actually concentrating it more than ever before in the hands of one person.
 Carlo Invernizzi Accetti and Giulia Oskian, “What Is a Consultative Referendum? The Democratic Legitimacy of Popular Consultations”, Perspectives on Politics, vol. 20, no. 1, 2022.
 Pierre Rosanvallon, Le siècle du populisme: Histoire, théorie, critique, Editions du Seuil, 2020, p. 54.
 Monica Barczak, “Representation by Consultation? The Rise of Direct Democracy in Latin America”, Latin American Politics and Society, vol. 43, no. 3, 2001, p. 45.