The Tunisian Constituent Assembly's By-laws: A Brief Analysis

[The following report was issued by the Institute for Democracy and Electoral Assistance on 26 February 2013.]

The Tunisian Constituent Assembly`s By-laws: A Brief Analysis

Executive Summary

In response to the Jasmine Revolution, Tunisia is in the process of  developing a new constitution. The institution charged with drafting this new constitution is the National Constituent Assembly (NCA). The functioning and processes of  the NCA will directly affect the shape of  the new constitution and, as a result, its response to the revolutionary demands and the democratic functioning of  the state. This study describes and analyses the NCA’s rules of  procedure and identifies areas of concern and difficulties that arise in its application.

Most parliamentary rules anywhere in the world will reveal certain weak points. It is therefore no surprise that there are indeed a number of  potential weaknesses in the NCA’s rules of  procedure that could lead to unnecessary political conflict or impasse, as discussed below. However, perhaps the most critical weaknesses are those that relate to textual ambiguity and a lack of  implementation.

Many individual members of the NCA and outside observers have a multitude of complaints about the Assembly’s modus operandi. These criticisms are widely aired in the media, and in the electronic media in particular. There are repeated complaints about the organization’s failure to publish the agendas and minutes of Assembly proceedings, and particularly those of its committees. These are complaints about the implementation of the rules of procedure, and not about the rules themselves. Instances in which a failure in implementation results in a lack of transparency are particularly worrisome, especially when the constitutional drafting process is primarily political, as is explained below. Transparency puts political pressure on the political process to help achieve improved outcomes.

The other major broad weakness relates to ambiguity. Too much is left to chance, to unspoken rules and to informal interparty deals. What the British call the ‘usual channels’ work reasonably well most (but by no means all) of the time in institutions of great longevity in which custom carries more or less the same authority as written rules. Such informal practices are less reliable, and much more prone to abuse (or simple failure) in newly forged institutions in which there is little continuity of membership or shared experience to enforce their legitimacy. If Tunisia’s NCA fails in its principal task of creating a workable constitution, it will be a political failure rather than the result of  inadequate internal rules.

In the light of these two broad concerns, as well as criticisms that relate to the functioning of specific processes within the NCA, the authors make the following suggestions for any future revision of  the rules:

1. provide the president of the Assembly with a clearly graded series of sanctions, backed by the ability to appeal immediately to the whole Assembly for support, by a formal vote if  necessary;
2. reconsider the procedures for legislative initiative and control of the agenda in order to clarify the different procedures available to the government and members of  the Assembly, to establish a better balance between them;
3. explore the possibility of adding a time limit for the president of the Assembly to transmit draft laws to committee;
4. consider adding procedures for examining legislative proposals in committee;
5. consider adding procedures for examining legislative proposals in plenary Assembly;
6. consider introducing a rule that would allow the government to set a date by which a committee must submit its report on a proposed legislative text;
7. consider adding an automatic mechanism to ensure that proposed amendments are discussed;
8. elaborate and clarify the chair’s powers to enforce discipline and maintain order;
9. clarify the acceptable scope of points of order (and the manner in which they can be raised) and codify the nature of  procedural motions from the floor and the procedure for their consideration;
10. consider introducing a procedure for challenging a ruling from the chair on grounds of incompatibility; and
11. explore the possibility of providing opportunities for non-government parties to initiate debate, either in committee or in plenary Assembly, and have some influence over the agenda.

[Click here to download the full report.]