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Ed Webb

Constitutional or Unconstitutional: Is That the Question? - Arab Reform Initiative - 0 views

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Tunisia authoritarianism politics analysis constitution emergencylaw exception

shared by Ed Webb on 04 Aug 21 - Cached
  • This piece aims to contribute to the ongoing debate on the constitutionality of the measures taken by the President of the Republic Kais Saied, by examining both the text of the Constitution and the context. This piece argues for a contextual interpretation approach in order to adjust to the dynamic nature of societies.
  • Article 80 is conditioned on the existence of an “imminent danger threatening the nation’s institutions or the security or independence of the country and hampering the normal functioning of the state.” It is worth noting that, during the Constitutive Assembly’s (NCA) voting on the above-mentioned article, concerns over the broad wording of the article were voiced, due to the absence of definition of what constitutes an ‘imminent danger’ and ‘exceptional circumstances’, those concerns were dismissed by the Rapporteur-General to the NCA, who maintained that the formulation of the article was “clear”.
  • the intent and real desire did not seem to be there from the beginning to endow the country with a constitutional court formed of competences and working to guarantee the supremacy of the Constitution. Its formation was hindered by the failure of the Assembly to elect its 4 appointees,11The President of the Republic, the Assembly of the Representatives of the People, and the Supreme Judicial Council shall each appoint four members. motivated by disagreements between parliamentary blocs. In April 2021, to unblock the situation, an amendment was proposed to the Article 10 of the Constitutional Court’s Law to cancel the order of the parties that have the authority to appoint members of the Court12The Article lists “successively the Assembly of the Representatives of the People, the Supreme Council of the Judiciary, and the President of the Republic.” . The bill was rejected by the President Kais Saed and sent back to the parliament for a second reading.13Parliament has preserved the same amendments that were proposed, allowing the Supreme Judicial Council and the Presidency of the Republic to choose 8 members of the Constitutional Court without waiting for Parliament to complete the election of 3 out of 4 members of its appointees.  His decision was motivated by the fact that the passing of the law exceeded the constitutional deadlines provided for in Paragraph 05 of Article 148 of the 2014 constitution
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  • In the midst of the current crisis, the long-delayed Constitutional Court is the missing key that could have averted the political crisis culminating in the turmoil Tunisia is currently going through.
  • Paragraph 2 of the Article 80 of the Constitution provides that “The Assembly of the Representatives of the People shall be deemed to be in a state of continuous session throughout such a period. In this situation, the President of the Republic cannot dissolve the Assembly of the Representatives of the People.” Legal experts, notably the Tunisian Association of Constitutional Law,[17] disagreed with this decision to freeze the Assembly of the Representatives of the People, explaining that the article meant that the Assembly takes part of the actual management of the state of exceptionality, and is not excluded from it.
  • other legal experts and jurists17Including Pr. Amine Mahfoudh, Me. Hedi Kerrou. have agreed with Saied’s interpretation, considering that he acted within his prerogatives under a state of exception since he simply “froze” the Parliament’s activity, rather than dissolving it
  • a study has shown that only 19% of respondents19On methodology: “these findings are based on nationally representative public opinion surveys that included approximately 1,800 respondents. Respondents were chosen randomly, meaning the results can be generalized to the broader population. The surveys were weighted to account for any random variations that may exist by gender, age, level of education, or geographic area. The margin of error for each country is less than ±3 percent.” have confidence in the legislature.  Popular demands for its dissolution have been mounting over the last few months as  violence broke out more regularly in the parliament, “despite the fact that the country’s parliament was freely elected, the institution inspires very little trust among the public. The failure of parliament to address the country’s economic challenges, combined with relatively weak attachment to political parties are major factors driving this low level of confidence.”
  • In this context, Saied and his supporters argue that the Assembly has become part of the problem.
  • Article 80 Paragraph 2 only addresses the case of removal of the Head of Government by the Assembly: “A motion of censure against the government cannot be presented”. There are no similar prerogatives granted to the President of the Republic during this state nor during normal times. Hence, to justify such a dismissal, it would have to be considered “measures necessitated by the exceptional circumstances.”
  • What happened would better fit what doctrine has termed to be a ‘constitutional dictatorship,’ legitimized by exceptional circumstances and limited in time. A ‘Constitutional Dictatorship’ is when “individuals or institutions have the right to make binding rules, directives, and decisions and apply them to concrete circumstances, unhindered by timely legal checks to their authority. Clothed with all of the authority of the state […] subject to various procedural and substantive limitations.”
  • Some of those who defend Saied’s actions have cited De Gaulle’s famous citation that " there is first France, then the State, and finally, as far as the major interests of both are safeguarded, the Law,"27Cited in Mohamed Kerrou. « Kais Saied ou la revanche légitime de l’État et de la société ». Leaders. 28/07/2021. to argue that in terms of its importance, the Constitution is superceded by national interests.
  • Tunisia has entered a period with almost no checks and balances, under ‘a constitutional dictatorship.’ In this context, a lot will depend on the person of Kais Saed and his commitment to “ethical standards or principles that are part of a political credo,” that are considered supra-constitutional principles
  • Close oversight of the situation by free media and strong watchdog organisations are the only guarantees against potential abuses
  • referrals of civilians (MPs) before the Military Court of First Instance in Tunis are causing great concern, especially with the dismissal of State Attorney General, Director of Military Justice and the Minister of National Defense without appointing replacements. These decisions are inconsistent with constitutional principles and international conventions
  • the presidential order ‘suspending the work of the Assembly and lifting of parliamentary immunity for deputies for the duration of the suspension’ was issued on the night of 30 July 2021, in the Official Gazette, stipulated for “the possibility of extending the mentioned period (ie the month) by virtue of a presidential decree,” without specifying the number of extensions, opening the door to unlimited extensions. National Organisations30The National Syndicate of Tunisian Journalists, Tunisian League for the Defense of Human Rights, The Tunisian General Labor Union, The National Bar Association of Tunisia, Tunisian Association of Democratic Women, Tunisian Judges Association, Tunisian Forum for Economic and Social Rights. have warned against “any illegal and unjustified extension of the disruption of state institutions, stressing the need to adhere to the declared month period stipulated in the constitution.”
  • A real impasse is looming on the horizon, however, if, thirty days after the entry into force of these measures, the “Speaker of the Assembly of the Representatives of the People or thirty of the members thereof (want) to apply to the Constitutional Court with a view to verifying whether or not the circumstances remain exceptional.”  Presidential Decree N°80 has stipulated that the extension is made possible by virtue of a presidential order, in clear contradiction of Article 80 of the Constitution, conferring the right to decide on the extension to the Constitutional Court.
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