The “Magical” Article 80: Constitutionalizing States of Exception in Tunisia


2021-10-13    |   

The “Magical” Article 80: Constitutionalizing States of Exception in Tunisia

Article 80 became the most famous article of the Tunisian Constitution after 25 July 2021, when President Kais Saied relied on it to declare a series of much-discussed decisions that cast uncertainty over the nascent democracy’s future. These measures consist primarily of suspending Parliament, uniting the executive branch, and lifting MPs’ immunity. The current political and legal debate over the interpretation of the “state of exception” article warrants an exploration of the history of its constitutionalization and the discussions it provoked among the founders, especially as the current constitution adopted it from the post-independence constitution of 1959.

 

The 1959 Constitution: Drafting the State of Exception Article, and Its Amendments

 

The 1959 Constitution provided for a state of exception or state of exceptional circumstances. The article appeared, disappeared, and was rephrased throughout the stages of the Constitution’s drafting until the final phrasing was approved. The issue occupied a significant portion of the debate during the first reading of the Constitution’s draft. On 23 October 1958, an article in the chapter on the executive authority (Article 84) was proposed with the following phrasing: “The President of the Republic declares martial law and a state of emergency in accordance with the law, provided that it is put to Parliament to decide to continue or cancel it”.[1] MP Ahmed Mestiri, then minister of justice, warned that “martial law means suspending some constitutional safeguards”, while MPs Bahi Ladgham and Rachid Driss argued that the grounds for declaring martial law should be defined.[2] The debate revolved mainly around the roles of the president and Parliament in the declaration of a state of exception: Should this state be defined by a pre-enacted law and then declared by the president and monitored by Parliament, or should the president introduce it as a bill for Parliament to approve? The debate was long. The phrasing approved by consensus stipulated that “states of emergency and martial law are regulated by law and declared by the president of the republic via a law”. This formulation renders Parliament the linchpin for activating a state of exception as this authority both regulates it in advance and puts it into effect by law while the executive branch’s role is limited to initiating the process, i.e. to assessing the need for it.

 

During the second reading of the Constitution’s draft in February 1959, Ladgham, who was then the president’s secretary, proposed deleting the article because “it is meaningless so long as the law regulates states of emergency and martial law and the declaration is itself a law”.[3] In other words, the matter pertains to a law and there is no need for the Constitution to stipulate it. The National Constituent Assembly approved the deletion by majority and without any intervention in opposition.

 

However, during the third and final reading of the Constitution’s draft on 29 May 1959, the article reemerged with new phrasing that handed the reins to the executive branch. This was the phrasing adopted in the Constitution’s final text. It stated: 

 

“If imminent danger threatens the existence of the state and security and independence of the country such that with it, the normal functioning of the levers of the state is unfeasible, the President of the Republic may take the exceptional measures necessitated by the circumstances, which shall end once the grounds for them disappear. The President of the Republic shall send a notice to this end to the Assembly of the Nation”. 

 

However, the article (Article 32) appeared in the chapter on the legislative authority rather than the executive authority. It was approved in the third reading and then the final draft without any debate as in both instances, the vote pertained to all the articles together. The deliberations of the relevant committee or the Coordination and Editing Committee were never published. However, it appears that the constitutional legislators could not envisage a presidential system wherein the president exercises broad powers without giving him a free hand to declare, define, and end exceptional measures and precluding any parliamentary oversight – a move at complete odds with the Constitution’s first draft.

 

The “exceptional measures” article received three amendments while the 1959 Constitution was in force.

 

  • The first amendment, which occurred as part of the comprehensive revision of the Constitution in 1976, was the most crucial and significant. It returned the article to the chapter on the executive authority (making it Article 46), which is its correct position as its presence in the chapter on the legislative authority made no sense. Two points were also added: the first stipulated that the prime minister and Parliament speaker must be consulted before the measures are declared, and the second prohibited the dissolution of Parliament and withdrawal of confidence from the government while the measures are in effect. This amendment aimed primarily to bolster Parliament’s role and ensure government stability and was probably inspired by Article 16 of the French Constitution.
  • The second and third amendments were superficial. The 1981 amendment replaced the term “Assembly of the Nation” with “Assembly of Representatives”,[4] and the 2002 amendment added that the speaker of the Assembly of Councilors must be consulted as a second parliamentary chamber had been established.[5]

 

Over the period during which the 1959 Constitution was in force, a state of exception was declared at least once, namely during the events of Black Thursday in 1978. Then-President Habib Bourguiba declared a “state of emergency” via a presidential order based on Article 46 of the Constitution.[6] The order was followed by another presidential order,[7] this one regulating the state of emergency, in the same issue of the Official Gazette.

 

The latter order included restrictions on several individual and collective freedoms, and it could not subsequently be presented for parliamentary approval because it was not a decree. The state of emergency should have been regulated by a law superseding the order because its articles concerned legislation, but this never occurred. Because of the continued failure to approve a new emergency law,[8] this order still regulates states of emergency to this day even though it conflicts with the 2014 Constitution.

 

What About the State of Exception in the Interim Regulation of Authorities?

 

After the 1959 Constitution was suspended in the wake of the 2010 revolution, Tunisia witnessed two interim regulations governing the authorities. The first was a decree that regulated the public authorities between the 1959 Constitution’s suspension and the creation of the National Constituent Assembly.[9] The second was a constituent law that regulated the authorities throughout the National Constituent Assembly’s operation and until the new Constitution entered into force.[10]

 

The first interim regulation did not provide for states of exception. Perhaps it did not need to as the interim president was presiding over the executive branch and exercising legislative authority via decrees, and the decree itself could be considered a measure to confront the exceptional situation following the revolution. In fact, the whereas clauses in the March 2011 decree’s preamble noted that “the state’s current situation… no longer permits the regular functioning of the public authorities”.

 

The second provisional regulation – the so-called “mini-constitution” that was in force for approximately three years – is the one that enshrined states of exceptions, albeit in a narrow manner. Article 7 of the constituent law stipulated that for an “exceptional circumstance” to be applied, the “regular functioning of the levers of public authorities” must be “prevented” and the “regular operation of the Constituent Assembly” must be “unfeasible”. The second phrase is more relevant than the first, more comprehensive one. This narrowing condition reflects the pivotal nature of the National Constituent Assembly in the minds of the founders: there can be no state of exception while the constituent authority can operate. This pivotality is reinforced by the requirement that the “exceptional circumstance” be declared via a majority of the assembly’s members. As for the effect of a state of exception, it was the delegation of legislative power – or part of it – to the heads of the assembly, the republic, and the government to be exercised via decrees issued by consensus among them and later confirmed by the assembly.[11] This state of exception truly was “exceptional” as it merely delegated the legislative function to the three heads instead of enabling the executive authority (the president of the republic and/or the prime minister) to issue special measures to address the exceptional circumstance. This choice aimed to affirm the supremacy of the National Constituent Assembly as the original authority from which the other authorities – foremost among them the interim executive authority – by nature stem. Ultimately, the article was never applied while the “mini-constitution” was in force.

 

The 2014 Constitution: Re-Enshrinement and the Application Debate

 

The National Constituent Assembly used the 1959 Constitution as a reference because of the “absence of problems with it”.[12] One of this approach’s most important ramifications is the adaption of Article 46 into Article 80 of the new constitution. Constitutionalizing states of exception was a stable choice throughout the stages of the Constitution’s drafting. It first appeared in the draft on 14 December 2012 as Article 73. That the Joint Coordination and Drafting Committee made no comment on it, unlike most of the articles referred by the specialized committee, indicates that it enjoyed a consensus.[13] The first phrasing granted the Constitutional Court an active role on two levels: firstly, it would have to be consulted about the measures, and secondly, after 60 days it would automatically examine the matter and rule whether the measures should continue. This role was subsequently abandoned by Article 78 of the 22 April 2013 draft, which restricted the court to ruling on the measures upon request by Parliament’s speaker or 30 MPs. The same approach was adopted by Article 79 of the 1 June 2013 draft, which changed the phrase “public authorities” to “levers of the state” and reorganized the paragraphs. It was this phrasing that was presented for approval in the Constitution’s final draft in January 2014.

 

During the general session for final approval, the general rapporteur for the Constitution proposed an amendment to the article. The amendment, which had already passed through the Consensuses Committee, included two key points: firstly, it would replace “and” with “or” in the description of the imminent danger (“threatening the existence of the nation or security or independence of the country”), thereby expanding the scope for applying a state of exception. Secondly, it would add the obligation to inform the Constitutional Court’s president of the measures. The amendment passed via a 155-member majority, with four MPs abstaining and none opposed.[14] A second amendment presented proposed that because the Constitutional Court had been empowered to decide on the “continuity of the measures”, the text should explicitly stipulate that the court may end the measures via a decision it issues, the goal being to ensure that actual practice conforms to the text.[15] This proposal was rejected on the basis that a state of exception is “a sovereign decision not within the powers of the courts”,[16] with 129 MPs voting against it, 25 voting for it, and 11 abstaining before the article’s final phrasing was approved.

 

The general deliberations over the state of emergency witnessed two interventions outside the scope of amendments. The first asked that the concept and types of imminent danger be clarified.[17] The rapporteur responded that “the text is clear”. The second criticized the expansion of the scope for states of exception via the adoption of “or” instead of “and” and the deletion of “such that” [bi-haythu] from the phrase “imminent danger… such that with it, the regular functioning of the levers of the state is unfeasible”. It argued that the new phrasing suggests that the infeasibility is not a matter of fact but an assessment by the president and that the original phrasing directly linked the “danger” and “infeasibility” to the regular functioning of the “levers of the state”.[18]

 

The evolution of Article 80’s text shows that from the time of its drafting by the specialized constituent committee, it had a steady backbone based on the same philosophy found in the previous constitution whereby the president plays a pivotal role in states of exception by declaring, defining, and ending the measures (albeit with Constitutional Court oversight in the new text). In fact, there was a progressive trend toward expanding the president’s role, beginning with the abandonment of both the obligation to consult the Constitutional Court before declaring the measures and the court’s automatic examination of them and ending with the expansion of the scope for states of exception.

 

The legitimate question now raised is the extent to which the choice of political system can affect the regulation of states of exception. The constitutions of 1959 and 2014 adopted two different political systems, the first being presidential and the second being mixed or semi-parliamentary. Yet they share the same approach to regulating states of exception, an approach based on giving the president a free hand. In this regard, note for example that the Portuguese Constitution, which adopts a mixed or semi-presidential system, grants the president the right to declare a “state of siege or emergency” in Article 138 but requires “permission” from Parliament.

 

From another angle, there has always been a question about the relationship between a state of emergency and exceptional measures: Are they analogous or distinct? At first glance, the answer may seem simple: they are distinct in terms of legal basis and nature. Supporting this answer is the fact that the grounds of the numerous presidential orders declaring and extending a state of emergency in recent years cite not Article 80 of the Constitution but Article 77, which pertains to presidential powers. The distinction is also corroborated by the draft state of emergency law presented by the Prime Minister’s Office in 2018, which defined a special system for emergencies governing their declaration, scope, period, and measures that differs entirely from a state of exception.[19] However, President Saied has a different view. In May 2021, he publicly declared that, “We are under Article 80 because we are in a state of emergency”,[20] implying that a state of emergency means that a state of exception is also in effect. His position may stem from the fact that in the era of the 1959 Constitution, the two states were conflated in practice. Yet his conclusion remains puzzling, not because it contradicts the clear consensus that the two states are distinct but because of its implications if it is correct. For example, would the motion to censure Elyes Fakhfakh’s government presented in July 2020 not then be invalid because it occurred while an emergency – and therefore Article 80, which prohibits withdrawing confidence from the government – was in effect? And were the wheels of the state not functioning normally throughout the years of the state of emergency, which was periodically renewed?

 

Moreover, the July 25 decisions were not Saied’s first application of Article 80. He also applied it when he declared the comprehensive lockdown in March 2020, directing a “Statement to the Tunisian People on the Exceptional Measures to Prevent the Spread of COVID-19”[21] and mentioning that he had conducted “consultations with officials”. Although he did not explicitly mention that these measures were based on Article 80 either in the video or the presidential communique, the article appeared in the preambles of presidential orders no. 24 and 28 of 2020, which imposed the curfew and regulated movement and gatherings outside curfew hours. The state of exception lasted 82 days from March 18 to June 8, and we do not know whether Parliament was aware at the time that it was in a state of constant session and no motion to censure the government could be presented.

 

Finally, the July 25 decisions reorganized the relationships between the institutions, unifying the executive branch under the president’s leadership with the assistance of a government headed by his choice of prime minister and suspending the legislature. Consequently, the application of Article 80 raises questions whose answers remain in dispute: Can the sovereign intuitions (the government and Parliament) be considered a source of imminent danger impeding the levers of the state? Does interpretation allow us to ignore the letter of the law with regard to Parliament remaining in constant session? Even most supporters of the July 25 decisions agree that what occurred was a “broad interpretation” of the article. Meanwhile, opponents and constitutional law experts have not hesitated to brand the decisions a “grave breach” and “coup against the Constitution” executed via an article that the president adopted as means of redrawing the country’s political and institutional landscape and perhaps – most importantly – rewriting or at least revising the Constitution.

 

Ultimately, the president appears to be treating Article 80 as a magic portal to escape from the confines of constitutional legality into the welcoming expanse of his popular legitimacy. He has thereby turned it into a bridge to a new transitional period that ends with a “Third Republic” – a phrase that has circulated widely in politics and media over the past weeks. The core question is, are the July 25 decisions a coup or a course correction? Perhaps the law has no answer and must leave it for history to judge.

 

This article is an edited translation from Arabic.

 

Keywords: Tunisia, Constitution, Article 80, State of exception

 

[1] The second paragraph stated, “If the declaration occurs while the Assembly of the Nation is not in session, it must be called to convene immediately”. Official Gazette, is. 7, 8 November 1958, National Constituent Assembly debates, 22 October 1958 session, p. 169.

[2] Ibid.

[3] Official Gazette, is. 13, 25 April 1959, National Constituent Assembly debates, 9 February 1959 session, p. 313.

[4] Law no. 47 of 1981 (9 June 1981) Amending the Constitution.

[5] Law no. 51 of 2002 (1 June 2002) Amending the Constitution.

[6] Presidential Order no. 49 of 1978 (26 January 1978) on Declaring a State of Emergency.

[7] Presidential Order no. 50 of 1978 (26 January 1978) on Regulating the State of Emergency.

[8] The government submitted a bill on emergencies (Bill no. 91 of 2018), but the previous parliament did not finish debating it. Recently, the government submitted a bill on health emergencies to address the COVID-19 crisis (Bill no. 45 of 2021), but the competent committee’s examination of it was interrupted by Parliament’s suspension under the 25 July 2021 decisions.

[9] Decree no. 14 of 2011 (23 March 2011) on the Interim Regulation of the Public Authorities.

[10] Constituent Law no. 6 of 2011 (16 December 2011) on the Interim Regulation of the Public Authorities.

[11] In its final paragraph, Article 7 continues, “The Assembly shall convene upon invitation by its speaker or a third of its members, once convention becomes possible, to announce the termination of the delegation via a majority of its members. It shall then examine the decrees issued to confirm, amend, or cancel them”.

[12] General Report on the Constitution Draft, 14 June 2013, p. 12.

[13] The Joint Coordination and Drafting Committee adopted the same phrasing as the Committee on the Legislative Authority, Executive Authority, and Relationship Between Them.

[14] Mudawalat al-Majlis al-Wataniyy al-Ta’sisiyy al-Muttasila bi-l-Dustur, Parliament, vol. 3, p. 1595.

[15] This proposal was submitted and argued by Rim Mahjoub.

[16] Intervention by Sahbi Atigue opposing the proposal, Mudawalat al-Majlis al-Wataniyy al-Ta’sisiyy al-Muttasila bi-l-Dustur, Parliament, vol. 3, p. 1595.

[17] Intervention by Chokri Kastalli, Mudawalat al-Majlis al-Wataniyy al-Ta’sisiyy al-Muttasila bi-l-Dustur, Parliament, vol. 3, p. 1594.

[18] Intervention by Azed Badi, Mudawalat al-Majlis al-Wataniyy al-Ta’sisiyy al-Muttasila bi-l-Dustur, Parliament, Parliament, vol. 3, p. 1596.

[19] The draft emergency law defined the scope of a state of emergency to include “events bearing the gravity of a disaster or… an imminent danger threatening security, public order, the safety of individuals, institutions, and property, and the state’s vital interests”. The state of emergency could be declared for a maximum period of six months, renewable for three months.

[20] “Sa’ayyid: ‘Nahnu fi Zill al-Fasl 80’”, Mosaïque FM.

[21] “Bayan Ra’is al-Jumhuriyya Qays Sa’ayyid ila al-Sha’b al-Tunisiyy Hawla al-Tadabir al-Isthithna’iyya li-Man’ Tafashshi Coronavirus”, website of the Tunisian President’s Office.

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