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E Wilberforce Society Cambridge, UK 1 Www e Wilberforce Society www.thewilberforcesociety.co.uk 1 Cambridge, UK September 2012 Proposed Constitutional Framework for the Republic of Tunisia The Wilberforce T W S TWS Society About this report Chief Drasperson: Dr. Riddhi Dasgupta Chairman: Mr. George Bangham Senior Editors: Mr. Niolas Crawford Mr. Millad Matin Editors I Ms. Wen-Zhen Low I Mr. Samuel Goodman I Mr. Maximilian Bulinski I Ms. Eliane Bejjani I Mr. Justin Kempley I Mr. Joseph Sanderson I Mr. Pragesh Sivaguru I Ms. Anisha Polson I Mr. P.J. Welsh I Mr. Luke Woodward I Ms. M.D.C. Fernandez-Fernandez I Ms. J. Youngs I Mr. Jake Richards I Mr. Alastair Wooder I Mr. C.T. Kwan I Ms. Laura Edwards I Ms. Aya Majzoub I Mr. H.J. Dadswell I Mr. Juan Zober de Francisco Rasheed I Mr. Adam Shutie I Mr. Vincent Scully I Mr. Kwan Ping Kan I Ms. Vanessa evathasan With Special anks to: Prof. George Joffé, Prof. Laurence Tribe, Lord Wilson of Dinton GCB, Mr. Raza Habib, Prof. Kevin Bampton, Mr. Alexander McLean, Ms. Anna Triponel Mr. David Baynard. © Dr. Riddhi Dasgupta and Mr. George Bangham copyright 2012. You may re-use the text of this report free of charge in any format or medium. Any enquiries regarding this publication should be sent to us at: [email protected] and [email protected] is publication is available for download at: http://www.thewilberforcesociety.co.uk/policy_paper/proposed- constitutional-framework-for-the-republic-of-tunisia About The Wilberforce Society e Wilberforce Society was founded in 2009 by students at the University of Cambridge. It is the University’s student-run think tank, and aims to provide a forum for dialogue between students and leading policymakers. is core aim is achieved by three key functions: the promotion of public policy debate amongst the wider student body, the publishing of students’ policy research to a professional audience, and reaching out to policymakers across the UK to work with students on the formulation of new policy. For further information on the society, its events and the possibility of com- missioning policy research, please visit www.thewilberforcesociety.co.uk or email [email protected]. Follow @TWSCambridge on Twier. e Wilberforce Society www.thewilberforcesociety.co.uk 2 Cambridge, UK September 2012 Proposed Constitutional Framework for the Republic of Tunisia The Wilberforce T W S TWS Society Contents Contents 3 1 Preface 6 2 Proposed Constitutional Dra 8 I General Provisions ................................. 9 II Legislative Power .................................. 13 III e Executive .................................... 18 IV e Judiciary .................................... 23 V e High Court ................................... 24 VI e Council of State ................................ 24 VII e Economic and Social Council ......................... 25 VIII e Local Collectivities ............................... 25 IX Amendments of the Constitution ......................... 25 3 e State of Tunisian Life aer the Revolution 27 3.1 Introduction ..................................... 27 3.2 Tunisian Life since the Revolution ......................... 27 3.2.1 Internet Media .............................. 27 3.2.2 Police and Surveillance Powers ...................... 28 3.2.3 Freedom of Expression and Civic Responsibility ............. 28 3.2.4 Tunisia’s Economy ............................. 28 3.3 e Constitution-Draing Process ......................... 29 3.3.1 Timescale .................................. 29 3.3.2 Popular Interest amongst Tunisians .................... 30 3.3.3 Media Communications between the National Constituent Assembly and the Tunisian People .......................... 31 3.3.4 Role of NGOs and Researchers ...................... 31 3.3.5 Tunisia’s Constitutionalist Traditions ................... 32 3.4 e Role of Political Islam ............................. 33 3.5 Funding of Political Parties ............................. 33 3.6 Conclusion: Is Tunisia in Crisis? .......................... 34 e Wilberforce Society www.thewilberforcesociety.co.uk 3 Cambridge, UK September 2012 Proposed Constitutional Framework for the Republic of Tunisia The Wilberforce T W S TWS Society 4 Separation of Powers 35 4.1 Introduction ..................................... 35 4.2 Models of Choice .................................. 36 4.3 e Executive Branch ................................ 38 4.3.1 Unitary or Plural? ............................. 38 4.3.2 e Civil Service and Appointments ................... 39 4.3.3 alifications for Office and Electoral Integrity ............. 40 4.3.4 Legislative Relations ............................ 41 4.3.5 Emergency Powers ............................. 42 4.3.6 Military Security ............................. 42 4.3.7 Accountability ............................... 43 4.4 e Legislative Branch ............................... 44 4.4.1 Unicameral or Bicameral? ......................... 44 4.4.2 Electoral System and Political Tenures .................. 45 4.4.3 Budgetary Powers ............................. 46 4.4.4 Delegated and Pre-Empted Legislation .................. 46 4.4.5 Immunity .................................. 47 4.4.6 Amendment ................................. 47 4.5 Conclusion ...................................... 48 4.6 Appendix A: Dra Constitutional Provision ................... 48 4.6.1 Amendments ................................ 48 4.7 Appendix B: Dra Legislative Provisions for the Legislature to Enact under its Article 33 Powers .................................. 49 4.7.1 e Executive Agencies .......................... 49 4.7.2 e Civil Service .............................. 49 4.7.3 Elections ................................... 50 5 Judicial Independence Judicial Review 51 5.1 Judicial Independence ................................ 51 5.1.1 e Concept ................................. 51 5.1.2 Constitutional Council ........................... 52 5.1.3 Higher Judicial Council .......................... 52 5.1.4 Recommendations ............................. 53 5.1.5 e Judicial Council ............................ 56 5.2 Selection of Superior Council of the Magistrature judges: Special Rules Con- cerning the Appointment of Superior Council of the Magistrature Judges ... 60 5.3 Judicial Review ................................... 61 5.3.1 Challenges to Constitutionalism in the New Tunisia .......... 61 5.3.2 Maers of Constitutional Draing and Interpretation .......... 62 5.3.3 Ordinary Judicial Review .......................... 63 5.4 Conclusion ...................................... 64 6 Individual Rights, Democracy and Fair Elections 65 6.1 Individual Rights in Tunisia ............................ 65 6.2 Overview of Human Rights in Tunisia ....................... 66 6.3 A Comparative Approach .............................. 67 e Wilberforce Society www.thewilberforcesociety.co.uk 4 Cambridge, UK September 2012 Proposed Constitutional Framework for the Republic of Tunisia The Wilberforce T W S TWS Society 6.4 Engaging with Individual Rights in Tunisia’s 1959 Constitution (as amended) . 67 6.4.1 Freedom of Religion and Rights of Minorities .............. 68 6.4.2 Freedom of Expression ........................... 68 6.4.3 Right to Privacy ............................... 69 6.4.4 Operation of Criminal Law ........................ 69 6.4.5 Duties .................................... 69 6.4.6 Rights Not Specifically Enshrined Constitutionally or in Treaties ... 70 6.4.7 Social and Economic Rights ........................ 70 6.4.8 Rights of Women .............................. 71 6.4.9 Amendment and the Protection of Rights ................ 71 6.5 Democracy and Fair Elections ........................... 72 6.5.1 In Tunisia .................................. 72 6.5.2 e Scope of Democracy .......................... 74 6.5.3 Religion and Secularism .......................... 75 6.5.4 Formal Structure of Government ..................... 78 6.6 Implementation ................................... 83 6.6.1 Experiences Within and Beyond Tunisia ................. 83 6.6.2 Freedom of Expression ........................... 85 6.6.3 Freedom from Intimidation ........................ 87 6.6.4 Procedures and Arbitration ........................ 89 6.7 Appendix: Dra Constitutional Provision ..................... 91 6.7.1 Article 39: Presidential elections ..................... 91 6.7.2 Article concerning the Prime Minister .................. 91 7 Anti-Corruption 92 7.1 Corruption in Tunisia ................................ 92 7.1.1 Developmental Effects ........................... 94 7.1.2 Fiscal Stability and the Economy ..................... 94 7.1.3 Corruption, Politics and Elections ..................... 96 7.1.4 Transparency International’s Corruption Perception Index ....... 97 7.1.5 Examples of Corruption .......................... 99 7.2 A Comparative Approach .............................. 102 7.2.1 Types of Corruption in MENA ....................... 102 7.2.2 Drivers of MENA Corruption ....................... 103 7.2.3 Rentier Economy Case Studies ...................... 104 7.2.4 Learning from Other Constitutions .................... 108 7.3 Private Sector Corruption in Tunisia ........................ 112 7.3.1 First Family Corruption .......................... 112 7.3.2 Combating Public Sector Corruption Depends on the Private Sector .. 113 7.3.3 Economic Impact of Corruption on Private Enterprises ......... 114 7.3.4 Is ‘Good Corruption’ an Oxymoron?: A Critical Commentary ..... 114 7.3.5 Current Reform Measures ......................... 115 Bibliography
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