in the Constitution itself and that "the entry into force of a new Constitution
drawn up by a process external to the Constitution in force is decided in the
new text itself".16
72. The Court notes that Article 147 of the 27 January 2014 Constitution reads
as follows:
“After the adoption of the Constitution in its entirety, in accordance with
the provisions of Article 3 of Constituent Law No. 2011-6 of 16
December 2011 on the provisional organisation of public powers, the
Constituent National Assembly shall hold an extraordinary plenary
session within a maximum period of one week. During this session, the
Constitution shall be promulgated by the President of the Republic, the
President of the Constituent National Assembly and the Head of
Government. The President of the Constituent National Assembly shall
order the Constitution to be published in a special issue of the Official
Gazette of the Republic of Tunisia. It shall come into force immediately
after its publication. The President of the Constituent National
Assembly shall announce the publication date in advance”.
73. The Court notes that, although the above provision appears in the “Final
Provisions” of the new Constitution, it is an integral part of all the provisions
of that Constitution, which was drafted by representatives of the people
elected on 23 October 2011 by universal suffrage. This delegation of power
empowered members of the Constituent National Assembly to validly
decide on the procedures for adopting and promulgating the Constitution.
Having already established that the people participated indirectly in the
drafting of the new Constitution as a whole, the Court considers that the
failure to submit this Constitution to a referendum does not violate the right
of the people to participate in the government of their country, protected by
Article 13 of the Charter.
16
Michele Brandt, Jill Cottrell, Yash Ghai, Anthony Regan, in Le processus constitutionnel : élaboration
et réforme - Quelles options ? op. cit. page 246 who stated that “the submission of a draft Constitution
to referendum, while highly desirable, is not compulsory and is not imposed as a constitutional principle”.
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