No, this constitutional revision process violates the constitution currently in force. The power to revise the constitution lies with the National People’s Assembly, in accordance with the terms and procedures laid down by the constitution. An unelected National Transitional Council cannot supplant parliament in the exercise of this power. The process is therefore fundamentally flawed in terms of its constitutional basis and legitimacy, and a referendum does not remedy these flaws. 

There’s also a significant legal contradiction. The new text has already been approved by the National Transitional Council, ratified by the transitional president and promulgated in the Official Gazette. This raises the question of the legal effect of a referendum held after the text has already been approved, ratified and promulgated.

The new constitution promotes an excessive concentration of powers in the president. One of the most worrying aspects is the power granted to the president to appoint and dismiss the prime minister. This appointment should depend on election results and whether there’s a majority political force capable of ensuring governmental stability, after consultation with the parties represented in parliament. 

If the phrase ‘taking into account the election results and the existence, or otherwise, of a majority political force’ is not binding, the president may appoint a figure of their political choosing, even if there’s a parliamentary majority capable of sustaining a government. This would undermine the sovereign will expressed by citizens at the ballot box and create conflicts between the president, the government and the parliamentary majority. 

This could increase governmental and institutional instability. Combined with the head of state’s other powers, it significantly strengthens the presidency and undermines the mutual checks and balances between the organs of sovereignty.

No. But there’s also a prior issue: the legality of the referendum itself. The Law on Popular Referendums stipulates that ‘it is prohibited to call and hold a referendum between the date of the announcement and the date of elections for the organs of sovereignty or local government’. Presidential and legislative elections are scheduled for 6 December, meaning the referendum on 30 August falls in the period covered by the legal prohibition. In a state governed by the rule of law, the law is binding on citizens, government officials and institutions. Political expediency cannot take precedence over an express legal prohibition. 

A free and informed vote also requires diverse and accessible information, the publication of the text, public debate, freedom of expression and campaigning, and an understanding of the consequences of the proposed amendments. These conditions are particularly important when profound changes to the balance of powers are at stake.

Civil society advocates respect for the constitution, democratic legality, the rule of law and an inclusive, participatory and transparent constitutional revision process. 

For civil society, the constitution does not belong to any government, parliament, president, or transitional authority. The constitution belongs to the people, because sovereignty resides with them. Citizens have the right to know the text, understand the proposed amendments and assess their consequences for their rights, institutions and the balance of powers. 

It’s not enough to ask people to answer yes or no. Clear and accessible information, civic education and a pluralistic public debate must be guaranteed to enable a truly free and informed decision. 

Civil society is also concerned about the legality of the referendum and advocates, as a priority, free, fair, transparent and credible elections capable of restoring constitutional normality. A revision of this importance must be conducted by democratically legitimate institutions, through dialogue, participation and national consensus.

The referendum could have far-reaching consequences. At stake is not only the content of the new text, but also the precedent of a constitutional amendment carried out by transitional bodies outside the powers and procedures set out in the current constitution. 

This precedent could undermine the supremacy of the constitution, exacerbate governmental and political instability, and deepen conflicts between the sovereign bodies. 

There’s also the particularly serious fact that the new text completely abolishes constitutional review, the mechanism that verifies whether laws and acts of public authorities comply with the constitution. This is a serious affront to the rule of law, as it reduces the protection afforded to citizens against laws or acts that contravene the constitution. This situation is even more worrying when combined with the excessive concentration of powers in the president. 

The constitution should be an instrument of stability, trust and democratic limitation of power, not a source of legal uncertainty.