On the evening of July 25 – the anniversary of the First Republic – Tunisian President Kais Saied announced that under Article 80 of the Constitution, which provides for a “state of exception”, he was dissolving Hichem Mechichi’s government and taking over executive authority with the assistance of a prime minister he would choose, suspending Parliament, lifting immunity from MPs, and assuming leadership of the Public Prosecution. This occurred in a televised speech that he delivered in a meeting with military and security force leaders after a day of country-wide protests targeting, in particular, Ennahda Party premises and the Parliament building in Bardo despite attempts to tighten security and the epidemiological situation. After the speech, army forces surrounded Parliament and, in a historic sight, barred its speaker and some MPs from entry. Some considered this spectacle to be a full-fledged coup. Many applauded it despite their differing expectations (some having lost hope in democracy and yearning for the benevolent dictator, some considering it a restoration of the path of the betrayed revolution and an opportunity to construct a real democracy not eroded by corruption and impunity, and some seeing Ennahda as a “cancer” that must be uprooted before anything can be reformed). Despite many calls from within and outside the country, the president has not yet clarified his priorities or the timeline for achieving them or issued a roadmap for restoring the normal operation of the institutions. This ambiguity can only raise concerns, especially amidst the absence of the most important safeguard against perversion of the state of exception, namely the Constitutional Court, and the suspension of the other counterweight, namely Parliament, which Article 80 dictates must remain in constant session.

While a purely legal analysis of the president’s move cannot provide an ideal understanding of it, the question of constitutional legality should not be brushed aside on account of political legitimacy and the popular will that expressed itself before and after his speech, especially as he is still insisting that the move was constitutional both in his discourse and his presidential orders.

 

The Article That Puts the Rest of the Constitution Between Brackets

Article 80 of the Constitution grants the president, “in the event of imminent danger threatening the nation’s existence and the country’s security and independence and hampering the normal functioning of the state”, the power to take any measures necessitated by the exceptional situation. These measures must aim “to ensure a return to the normal functioning of the state as soon as possible”.

The same article establishes two procedural conditions for declaring a state of exception, namely consulting the prime minister and Parliament speaker (though their opinions are nonbinding) and informing the president of the Constitutional Court. While the president is free to declare a state of exception, its persistence after 30 days depends on the approval of the Constitutional Court, which examines the matter upon request by the Parliament speaker or 30 MPs. Article 80 also requires that Parliament remain in a state of constant session, prohibits its dissolution, and shields the government from any motion to censure it.

Hence, it is clear that the philosophy of Article 80 and the French original (Article 16 of the Constitution of the Fifth Republic)[1] is based on three things. The first is giving the president a free hand to declare a state of exception while establishing judicial checks on its persistence after a certain timeframe. The second is enabling the president to take measures that the state of exception requires and concentrating powers in his or her hands at the expense of the Constitution’s other articles, particularly those stipulating the separation of powers. The third is shielding the government from being toppled via Parliament and shielding Parliament from dissolution. Hence, the limits of the measures that can be taken under Article 80 are found in the article itself, not outside it. In other words, invoking Article 80 places the Constitution’s other articles between brackets.

Therefore, dismissing the government, taking over the entire executive branch, taking leadership of the Public Prosecution (although the president retreated from this measure), and even lifting parliamentary immunity and intervening in the realm of law are all permissible measures under a state of exception so long as the president deems them necessary. In contrast, the suspension of Parliament violates the text and spirit of Article 80.

 

Suspending Parliament: The Move Whereby Saied Violated Constitutional Legality

The president insists that he did not depart from constitutional legality because the country is facing imminent dangers, not least of which is “death” (a reference to the large increase in COVID-19 cases and the government’s utter failure to address it). Likewise, Saied argues that he respected the condition of consulting the prime minister and Parliament speaker even though Rached Ghannouchi, who holds the latter position, denied that he did. Informing the president of the Constitutional Court, which is impossible because of this court’s absence, is where legal opinions have differed. Some conclude that Article 80 may not be implemented, while others allow its implementation on the basis of the “impossible procedure” doctrine.

However, legal opinions virtually unanimously agree that suspending Parliament does not fall within the measures that the president may take under Article 80. The article stipulates not only that Parliament cannot be dissolved but also that it must remain in a state of constant session. Even Professor Amin Mahfouz, who supports the measures taken, has admitted that the president interpreted Article 80 “expansively” via his suspension of Parliament, explaining the move on the basis that Saied saw Parliament and Mechichi’s government as a source of the imminent danger. Saied reportedly voiced the same idea when he met with representatives of organizations.

When the president met with the national organizations on July 26, he attempted to explain his application of Article 80. However, irrespective of political and perhaps security-related considerations, his legal argument for suspending Parliament was unconvincing. He contended, firstly, that the Constitution disallows the dissolution of Parliament but “does not obstruct the freezing of all its operations”. As for the requirement that Parliament remain in a state of “constant session”, he argued that it means nothing, citing the example of the Arab League.

Saied translated the July 25 declaration into Presidential Order no. 80 of 2021, which suspended all functions of Parliament for one month renewable by presidential order. In other words, this measure will last for whatever period the president deems necessary, during which all MPs’ immunity is lifted.

Nobody denies the enormous popular delight with the decision to suspend Parliament and lift MPs’ immunity, which was evident not only in the street but also in opinion polls[2] and is the fault of the political elite, especially the speaker’s office and certain parliamentary blocs. The president and his supporters used the dialectic between legitimacy and legality to refute the argument that suspending Parliament was unconstitutional, with anyone expressing a legal position being accused of “formalism”. However, the issue goes beyond the formal text of Article 80. Parliament’s constant session is, along with intervention by the Constitutional Court (which is impossible given its absence), the sole institutional safeguard against misuse of a state of exception, whether in relation to its period or in relation to the measures taken in its name. In the absence of these two institutions, everything depends on the will of one person, their goodwill notwithstanding. It is for this reason that most constitutions prohibit dissolution of Parliament amidst a state of exception, even if they render it a discretionary power of the executive branch in ordinary times.

 

The Constitutional Court: The Greatest Safeguard Against Misuse is Missing

The question of the permissibility of declaring a state of exception in the absence of the Constitutional Court does not only concern the fulfillment of a formal condition. This court guarantees that the state of exception is not misused as a month after its declaration the court decides whether it can continue. Moreover, only the Constitutional Court can rule to dismiss the president should he or she be found to have committed a “grave breach” of the Constitution. This it may do based on an impeachment issued by Parliament via a two-thirds majority. Michel Troper considers this power the only real safeguard against the danger of concentrating all authority in the hands of one person.[3] In its absence, the state of exception becomes indefinite and free of any legal or institutional oversight.

However, repeated invocations of Article 80 in the past without any mentionable opposition or debate from the political elite or legal experts has deprived this argument of much of its potency. Besides repeated references to Article 80 in some of the orders concerning the state of emergency, which reflect a conflation between this concept and a state of exception, Saied himself used a state of exception to establish a curfew and lockdown during the first wave of COVID-19. At the time, we warned of the dangers of normalizing states of exception and their use by the president to expand his powers.

It is true that during the past months, the president helped block the establishment of the Constitutional Court because he deemed it a weapon directed at him. However, much of the responsibility for the failure to establish this pivotal institution in the Tunisian political system lies with the political elite that has governed over the past years, particularly the Nidaa Tounes Party, its offshoots, and Ennahda. They have subjected all constitutional dues to immediate gain-loss calculations and a constant quest for positions.

 

Was the Issue the Absence of a Constitutional Way Out of the Crisis?

Analyzing the president’s move also requires reviewing its political context. Since at least summer 2020, Tunisia has been experiencing a severe constitutional crisis of which the dispute between the two heads of the executive branch is only the face. The autumn 2019 elections produced a fragmented parliament that reflected voters’ lack of confidence in the parties. Ennahda and Heart of Tunisia, which came in first and second, together only amassed a third of the votes cast – i.e. less than an eighth of the electorate – which is very abnormal in a parliamentary democracy. On the other hand, for many Tunisians, the second round of the presidential elections was a referendum on morals as it pitted Saied, whom they saw as an example of uprightness and integrity, against Nabil Karoui, who was surrounded by suspicions of money laundering and tax evasion. Consequently, Saied obtained an unprecedented majority of the votes that vastly exceeded the total obtained by all the parties represented in Parliament.

This contradiction between presidential and parliamentary legitimacy was pushed to the extreme. Saied’s decision not to engage in the parliamentary elections with his own lists allowed Ennahda and the Dignity Coalition to exploit his image in their electoral campaigns only to turn against him immediately after the elections and ally themselves with Heart of Tunisia. This alliance allowed Ghannouchi, Ennahda’s leader, to assume the position of speaker – a development that largely contributed to the tension inside Parliament, not only because of the weight of his political symbolism but also because of his poor performance and his exploitation of the position to serve his party agendas. Ghannouchi, who had been unable to run for presidency because he lacked popularity, did not hesitate to use the office of speaker as a gateway for debating the president on his functions, thereby expediting the break between Bardo Palace and Carthage Palace. This break was consolidated via the issue of the government. Ennahda lost the opportunity to form a government by choosing Habib Jemli for the prime minister’s office and then reluctantly joined the government of Elyes Fakhfakh, who was chosen by the president, without abandoning its parliamentary alliance with the opposition blocs Heart of Tunisia and the Dignitary Coalition. They then together toppled Fakhfakh’s government in the name of combating a conflict of interests. Fakhfakh resigned after Ennahda and its two parliamentary allies filed a motion of no confidence, returning the ball to the president’s court. Saied then chose Mechichi in the hope of governing through him, but Mechichi reneged on his pledges to Saied and allied himself with the Parliamentary majority.

Mechichi and his belt of parliamentary support sought to remove the ministers associated with Saied. Relying on an arbitrary and unjustified interpretation of the Constitution, the president responded by blocking the cabinet reshuffle, once again citing suspicions of corruption. The president continued to deliver arbitrary interpretations of constitutional articles in order to expand his powers, and neither he nor Ennahda strived to find a way out of the crisis.

This constitutional crisis was added to the socioeconomic and epidemiological crises, and the government’s disastrous handling of the latter, as well as to a democratic crisis that had not provided answers to the people’s problems and had become, in their view, synonymous with privileges, immunity, impunity, the fight for positions, and false electoral promises. Parliament embodied all these deviations, and scenes of violence inside it deepened the disconnect between it and the people.

Some analyses contend that invoking Article 80 was the only way out of this crisis, especially because Parliament cannot be dissolved as long as it contains a majority capable of granting confidence to the government and limiting the chances of a referendum. Undoubtedly, the 2014 Constitution constricted the means of resorting to the people, but the popular claim that the crisis stems from choices concerning the political system requires some qualification. For the legal or constitutional text is often blamed for the flaws of a political elite that may have produced the same breaches irrespective of the political system. Had the Constitution allowed the dissolution of Parliament, would the contradiction be resolved if the president insists on not nominating his own lists or supporting parties allied with him? Is the underlying problem not the presence of a president who wants to rule without a base of parliamentary support and a party leader who chose to rule via the office of Parliament speaker because he could not head the government or be elected president? Does the fragility of the democratic structure not stem from a political elite that has undermined its institutional supports (particularly the judiciary) in search of impunity and that has made positioning in government a goal in and of itself and hence substituted democratic struggle for the art of blackmailing opponents with threats of legal cases?

 

Legal Experts Face Popular Accusations

 

Reviewing the constitutional and political context does not equate to bestowing legality upon the president’s application of Article 80. Likewise, voicing a legal stance on the recent events does not equate to aligning with the political parties harmed by them or exonerating them of responsibility for the current situation.

 

However, since the July 25 declaration, public debate has witnessed a fierce campaign against legal experts, particularly those whose opinions conflicted with the popular mood. This campaign was fueled by an impression that Free Destourian Party leader Abir Moussi has helped propagate over the past months, namely that anyone who contributed to the democratic transition – particularly Professor Yadh Ben Achour – is a traitor and responsible for Ennahda’s arrival to and continued presence in power. This discourse is part of a political strategy of converting the enormous popular discontent with Ennahda into a stance on the revolution and the democratic transition process that followed it, and monopolizing opposition to the party.

 

From another angle, it must be acknowledged that legal discourse’s prevalence over public debate during the past decade has helped to deprive the latter of its depth. However, the irony is that the domination of a legal perspective of affairs is certainly not unique to legal experts; rather, most political elites and even people following public affairs frequently fall into the same trap, reducing the problems to the text and imagining that the solution is to amend it. Saied himself is the most profound illustration of the predicament of a political class that conceals its inability to address socioeconomic challenges by focusing on constitutional issues, as his political vision reduces Tunisia’s crisis to its political system and deems a “reconstruction” to be the only solution.

 

Certainly, the president’s application of Article 80 will once again open a debate about the political system. While Saied has not yet clarified his intentions, it is not inconceivable that his goal is to amend the Constitution to implement his vision. However, despite his monopolization of all authority, suspension of Parliament, and unprecedented popularity, the first obstacle facing this goal is his own attachment to legal formality as any constitutional amendment must be passed by Parliament via a two-thirds majority. This problem may be one of the reasons that he has kept silent about his plans. Perhaps the current events are a watershed to get democracy back on track by lifting restrictions on accountability and goading the judiciary into performing its role, as many hope. Or perhaps they mark the end of the democratic transition, as others fear. But pending developments in the coming days, they are most likely neither one nor the other.

 

This article is an edited translation from Arabic.

 

[1] This is especially true after the 2008 amendment, which gave the Constitutional Council the role of reviewing whether a state of exception may continue a month after its declaration.

[2] In addition to the approval evident in the streets and on social media, an opinion poll conducted by Emhrod Consulting showed that 87% support or strongly support the president’s decisions. Notably, the decisions that attracted the most enthusiasm were the decision to lift MP’s immunity (83% strongly supported it) and the decision to suspend Parliament (81% strongly supported it).

[3] Michel Troper, “L’état d’exception n’a rien d’exceptionnel” in Droit et culture: Mélanges offers au Doyen Yadh Ben Achour, CPU, 2008, p. 1150.