The State of Emergency and Exception in Algeria,Morocco and Tunisia: The ‘License to Kill’ the Rule of Law?

Abstract

This paper shows how the constitutional provisions related to the state of emergency and exception, although they are contained within democratic traditions, were set to operate in Algeria, Morocco and Tunisia as a mechanism of basic control and maintenance of liberal autocracies. The state of emergency model was used for the survival of regimes in times of instability and social unrest, leading in some cases to the suspension of human rights for many years. Nevertheless, these provisions were modified or lifted when the regime had to show a more convincing stake to the democratic process in 2011.

Keywords

State of emergency Maghreb transition to democracy liberal autocracies Algeria Morocco Tunisia Arab springs

Introduction

Philosophers and political scientists (Agamben, 2005; Benjamin, 1978; Schmitt, 1987) have underlined how the suspension of constitutional rights within a state of emergency or state of exception can turn into a ‘normal’ prolonged state of being, where the rule of law is obliterated in the name of the public good. Authoritarian regimes and liberal autocracies have traditionally used the state of emergency and exception to reinforce their power in times of crisis. Nevertheless, it is a concept deeply rooted in the democratic tradition of Western democracies, that, in particular situations, allows government to perform actions, or enact policies, that would not be allowed under normal circumstances, but that can provide exceptional flexibility and speed in their response to ensure the survival of the state. This is also the concept of justitium in Roman law, the equivalent of the state of emergency stemming from a state of necessity. The suspension of law in case of emergency or necessity is also present in the Islamic law with the notion of ḍarūra (ضرورة). ḍarūra express the state of necessity that permits Muslims to transgress the established legal ruling in exceptional circumstances as long as a result does not harm the fundamental tenets of the šarīʿa (Saeed, 2018). The Qur’an suggests that whom ‘is driven by necessity, neither craving nor transgressing, it is no sin for him. For Allah is forgiving, compassionate’.¹

All the Maghreb countries (Algeria, Morocco, Mauritania, and Tunisia), except Libya, which had a different colonial history, adopted the French model of governance related to the French tradition of law and the constitution of the 1958 Fifth Republic. The adoption of a Western standard of law was a decision that was aimed more to legitimize and strengthen the newborn states, allowing them to integrate themselves to the international community, than to preserve their own citizens’ rights (Le Roy, 2011: 110). In any case, every Maghreb country decided to copy the French idea of État d’urgence (State of emergency).

During the last years of the Fourth Republic and the outbreak of the Algerian War of Independence, the French legislators enacted the law 55-385 on 3 April 1955 rélative à l’état d’urgence. The law was conceived to cope with the Algerian crisis, but its range of action would be extended to all the Metropolitan territory and all the colonies in case of events of imminent danger resulting from serious breaches of public order, or in events presenting by their nature and gravity the character of public calamity. The state of emergency, which is still currently present in the French legislation, can be decreed by the President of the Republic and it gives exceptional powers to the Minister of Interior and to the Prefects, expanding the competences and the discretion of the administrative authorities to the detriment of the judicial protections of freedoms: administrative searches without judiciary oversight; and censorship on press, radio and television. The état d’urgence is declared by law and its extension beyond the deadline, set by the latter, requires the intervention of the legislator again (Basilien-Gainche, 2013; Caille, 2007; Saint-Bonnet, 2001). France used the law 55-385 on several occasions: in 1955 and 1958 during the Algerian uprising; in 1961 after the Generals’ putsch; in 1984 in New Caledonia due to the independentist riot; in 1986 in the islands of Wallis and Futuna and in 1987 in the Îles du Vent in the French Polynesia; in 2005 during the civil unrest in the banlieues; and from 2015 to 2017 following the terrorist attacks in Paris.

In the French Constitution of 1958, there was no mention of any state of emergency, therefore, it did not obliterate the law 55/385. On the other hand, the Constitution, through Article 16, authorizes the President of the Republic to summarize in himself the powers of the State if a severe institutional or international crisis threatens in a ‘serious and immediate manner’ the regular functioning of the constitutional system, the independence of the nation, the integrity of its territory or the execution of its international commitments. In order to adopt the measures required by the circumstances, the head of state is required not only to assess the existence of these conditions, but also to officially request the non-binding advice of the Prime Minister, the Presidents of the Chambers and the Constitutional Council. Furthermore, to guarantee the institutional balance, Article 16 on the one hand has the full right meeting of the chambers and on the other hand prohibits the President of the Republic from proceeding with the dissolution of the National Assembly during the exercise of exceptional powers (Casella, 2015; Frier, 1979; Saint-Bonnet, 2001: 89). The exceptional powers provided for under Article 16, which can be considered enacted in a ‘état d’exception’, are considerable and it should be pointed out that when ratifying the European Convention on Human Rights and the International Covenant on Civil and Political Rights France made a reservation to the derogation of articles contained therein (Svensson-McCarty, 1998: 44). To implement the control of the legislative branch the constitutional reform of 2008 added to Article 16 a last paragraph in which it is provided that, after thirty days from the beginning of the exercise of exceptional powers, the Presidents of the Chambers, 60 Deputies or 60 Senators can apply to the Constitutional Council to verify the existence of the conditions that determined it and the judges of this institution make ‘as soon as possible’ an official public statement. In the event of failure to appeal to the Council, it has also been provided that it will pronounce itself automatically at the end of the 60 days of exercise of the exceptional powers.

The French government used the état d’exception of Article 16 only once: from 23 to 29 September 1961, jointly with the law 55/385, during the failed coup d’état in 1961. President De Gaulle recurred to Article 16 even though the functioning of the public powers had not been interrupted, nor the independence of the French nation had been in jeopardy. Since that time, Article 16 has never again been invoked.

The Maghreb countries followed the footprints of the French former colonizer, using the same legal framework, but unfortunately without the check and balances that could prevent abuses from the executive branch.² Moreover, Algeria enacted a sort of hybridization of the French legislation, inscribing both the état d’exception and the état d’urgence in the constitutions,³ Morocco preferred to constitutionalize only the state of exception, while Tunisia set up a system in which the state of exception is confused with state of emergency. These countries have found emergency or exceptional powers especially useful in dealing with various threats, from civil war, or terrorism, to widespread unrest, even though their extension in time made sure that often exceptional could no longer be distinguished from emergency.

The Algerian ‘exceptional emergency’

Algeria remained under French colonization for 132 years, representing the longest direct European rule in any region of North Africa. Therefore, it was reasonable that the Algerian legislators and the military elite of the Front de Libération Nationale (FLN) decided to base its legal system mainly on the French law, although combining Islamic and socialist principles (Salacuese, 1969: 83). Immediately after independence in 1962, Algeria went through the turmoil of a civil war between the moderate Provisional Government of the Algerian Republic and the more revolutionary National Liberation Front. A conflict that is considered the ‘original sin’ of the Algerian independence because it led to the rise of the military in the political arena of the country. In any case, the first Algerian constitution of 1963 reflected the aura of uncertainty that reigned over the country. Despite being an ‘ideological constitution’ with socialist and revolutionary goals, based on the Leninist democratic centralism and the overpower of the single party⁴ (Sultany, 2019: 304), the chart had many points in common with the French 1958 constitution. Beyond any doubts, it was one example of authoritarian constitutionalism or, constitution without constitutionalism (Uyahya, 2004), where revolutionary legitimacy was opposed to constitutional legitimacy. Therefore, the dichotomy and the stern contrast between the basic tenets of the French jurisprudence and the characteristic of an authoritarian regime was very evident. The fear of losing power led the military elite, headed by the President Ahmed Ben Bella, to enshrine in the 1963 constitution part of the French Article 16 with some deep variants. Article 59 of the Algerian constitution was noticeably short and stated only that in case of an imminent danger the President of the Republic could take all exceptional measures to safeguard the independence of the nation and the institutions of the Republic. The second comma permitted the National Assembly to hold its meetings. It was a very vague Article that could be interpreted in several ways and could be used in a wide range of situations. The notion of ‘imminent danger’, or khaṭar wašīk (خطر وشيك), was very broad. Furthermore the ‘exceptional measures’, tadābīr istaṯānīa (تدابير استثانية) gave the President of the Republic any sort of possible action. The fact that the National Assembly was operational during the state of exception was not a guarantee for the rule of law. The single party ruled the Chamber because it was not elected directly by the people, but through the intermediation of the FLN. Therefore, the Parliament could neither stop nor criticize the President’s exceptional measures (Oliviero, 2004: 85). The constitution, with its Article 59, approved by referendum on 8 September 1963, was almost immediately used by Ben Bella to reinforce his power. Using the pretext of the Berber uprising in the region of Kabyle,⁵ Ben Bella requested the full powers through Article 59 on 3 October 1963, obtaining the approval of the National Assembly. In his message to the Chamber Ben Bella invoked Article 59 against the ‘criminal counter-revolutionary forces’ that were menacing the national unity with the complicity of foreign aid (Journal Officiel de la République Algérienne, 1963). Since that moment, all the institutions and the constitution were paralyzed.

Within no time, Ben Bella was President of the Republic, head of the government, secretary general of the FLN, and Minister of the Interior, Information and Finance. He was the master, together with few close personal associates, of the Algerian policy, making the 1963 constitution an empty shell. However, in the long run the vast amount of power caused harsh criticism in the inner circle of the FLN and led to the coup of June 1965 (the so-called ‘adjustment revolution’) by Houari Boumedienne (Willis, 2014: 57). The lightening-fast 1965 coup was an ‘imminent danger’ that Ben Bella could not foresee nor prevent, showing the transience of the authoritarian power led by a single man, as well as the unstable Algerian post-independence situation.

When Boumedienne took power, he tried to form a collegial form of leadership through the Council of the Revolution (composed of 26 men) and decentralize the control of the country. Nevertheless, the importance of the Council was soon reduced and Boumedienne focused all political power in his own hands. His leadership was institutionalized by the introduction of a new constitutional mechanism in 1976 (Bedjaoui, 1968). The constitution, approved by referendum on 19 November 1976, extended the powers of the President of the Republic even further, confirming that Boumedienne never had the idea of submitting the executive power to the constitutional law (Abdessemed, 2012). The broadening of the presidential powers could be found in the possibility to declare not only the state of exception, but also the state of emergency, since, unlike the French legal tradition, the Algerian legislators, that is, Boumedienne and the elite around him, decided to constitutionalize the état d’urgence. According to Article 119, in case of ‘urgent necessity’, in Arabic ḥalāt al-ḍarūra al-muliḥat (حالة الضرورة الملحة) the President of the Republic, reunited the higher ranks of the single party and the government, could decree the state of emergency, the ḥalāt al-ṭawāri (حالة الطّوارئ), or the state of siege, al-ḥaṣār (الحصار), and take all the ‘necessary actions’, al’iiǧrā’āt al-llaḏimat (الإجراءات اللازمة) to the restoration of the situation. Once again, such terms as imperative necessity and necessary actions were so broad and blurry in their interpretation that they could allow the executive to take any measures. It is also important to note that the reference to the Islamic concept of ḍarūra, as necessity, was not a coincidence. The Boumedienne regime considered Islamic tradition, together with the socialist ideology, the cornerstone of the Algerian society, which underwent a heavy Islamization.⁶ Moreover, we have to underline the merging in the same Article between the state of emergency and the state of siege, which turned away from the French tradition. The French constitution devoted a specific Article to the possibility to declare the état de siège (Article 36).

Article 120 was dedicated to the state of exception. It differed from Article 59 of the constitution of 1963, because this time it specifically quoted the état d’exception, or ḥalāt al-āstaṯnāyyat (الحالة الاستثنائيّة), which was declared by the President in case the country, its institutions, independence, and territorial integrity were in imminent danger. However, Article 120 was deficient like Article 59 in terms of clearness. The ‘exceptional measures’, tadābīr istaṯānīa (تدابير استثنائية), were still vague and hazy. Besides, Articles 119 and 120 did not contain any provisions regarding the duration of the states of exception and emergency. Consequently, they could be everlasting, because only executive power was able to assess the end of the circumstances that triggered the state of emergency.

It is easy to note how Articles 119 and 120 created confusion between situations falling under ‘state of emergency’, or siege, and those falling under ‘state of ecception’. An ‘urgent necessity’ could be also a breach in the territorial integrity or in the independence. Therefore, Articles 119 and 120 could be interchangeable. This was the goal of the regime whose main concern was to use the constitution as a broad personal power to neutralize real or potential opponents. In these terms, the purpose was achieved. The control of the country was so strict, that Articles 119 and 120 were not employed in occasion of the failed coup by the army chief of staff, Tahar Zbiri, in December 1967.

Boumedienne died of a rare disease in 1979, leaving to his successor Chadli Benjedid a political system where all the institutions were dominated by the triad party–state–army and the main characteristic of the regime was the ‘constitutionalized personal power’ of the President of the Republic (Mameri, 1983: 112). Due to grievances related to unemployment, education and housing, the Algerian state and society were gravely shocked. These incidents led to severe social unrest, which turned into riots in October 1988, and forced the government to use Article 119, declaring the state of siege. On 6 October, all civil, administrative and security authorities were immediately placed under military command that curbed the riots using firearms and tortures on demonstrators. However, the state of siege was lifted by Benjedid on 12 October, who announced a referendum on political reforms and a new constitution that would end the ruling party’s grip on power. This move did not represent Bendjedid’s sudden conversion to the values of liberal democracy, rather it was an attempt to distract the population from the perilous state of the economy as well as his will to confuse the rival clans within the FLN. Whatever the reasons, the new constitution, unveiled in February 1989, revealed several improvements: it granted greater personal freedoms and minimized the role of the military (Cubertafond, 1990). There were also improvements in the provisions related to the state of emergency, siege and exception. In case of ‘urgent necessity’ the President of the Republic could decree the state of emergency or siege after consulting the High Security Council (HSC), the President of the People’s National Assembly (PNA) and the Prime Minister. Besides, both ḥalāt al-ṭawāri and al-ḥaṣār had a fixed term that could not be extended without the approval of the PNA (Article 86). The amendments were significant because they reduced the discretion of the President of the Republic and introduced a time limit. Moreover, they envisaged the intervention of the parliament in all the procedures, including the possible extension of the state of emergency and siege. It is imperative to underline the presence for the first time, within the principle of state of emergency, of the institution of the HSC. According to Article 162, this consultative institution, which was also present in the 1976 constitution,⁷ was ‘responsible to give to the President of the Republic opinions on all questions relating to national security’. The HSC was headed by the President of the Republic and composed of the Prime Minister, Ministers of Defense, Foreign Affairs, Interior, Justice, Economy and the chief of staff of the army. This institution will be significant in the Algerian history because it served as a Trojan Horse for the army to take control of the politics during the declaration of the state of emergency in 1992.

Article 87 contained the state of exception and, as did Article 86, introduced some changes. The ḥalāt al-āstṯnāyyat could be declared by the President only after consultation with the Constitutional Council, HSC and Council of Ministers. As in the past constitutions the People’s National Army could not be dissolved. It was not set up within a time limit, but even in this case the arbitrary powers of the President of the Republic were restricted. Unfortunately, these safeguard clauses did not prevent the Algerian regime to use Article 119 as a political tool to hold power. After the stunning victory in the administrative elections of June 1990 by the Islamic Salvation Front (ISF), Benjedid resorted to the state of siege to control the street protests by the Islamist party demanding the creation of an Islamic state. The state of siege, proclaimed on 5 June 1991 for four months, gave authority again to the military on all powers related to public security with great limitation to civil rights (Journal Officielle de la République Algérienne Démocratique et Populaire, 1991). The victory of the ISF in the first term of the political elections on 25 December 1991 led to the forced resignation of Benjedid and the seizure of power by the Algerian army on 12 January 1992. The HSC announced that it was ‘taking charge temporarily of all matters that could affect public order and state security’ and two days later announced the creation of a collective presidency, the High Council of State (HCS), which would assume presidential powers, halting Algeria’s democratization. The HCS, through the decree 92-44, declared the state of emergency on 9 February 1992 for twelve months throughout all the Algerian territory to restore public order and ensure the safety of people and properties, as well as the functioning of public services (Journal Officielle de la République Algérienne Démocratique et Populaire, 1992). The decree 92-44 was conceived to put under total control the Algerian society. Public order was entirely managed by the Minister of Interior and the single governors of the provinces (wilāyāt). They were enabled to ban demonstrations and public circulation, assign house arrests independently from judiciary, order night and day searches, and dissolve local assemblies if those hindered governmental action. Moreover, the Minister of Interior outsourced the judgment of crimes against the state to military courts.

The proclamation of the state of emergency caused a huge derogation from human rights, fundamental freedom and the ongoing process of democracy, besides it violated the 1989 constitution and several Algerian laws: Article 129 of the constitution stated that the judiciary was independent, while decree 92-44 placed justice in the hands of the Minister of the Interior and the military. Furthermore, the state of emergency was a step backward, because somehow it brought back to life the State Security Court, established in 1976 and competent to try political opponents, but abolished in April 1989. There was no real ‘urgent necessity’ to enact Article 119, apart from the danger coming from the result of the ballot boxes that could have entrusted the country to the Islamist forces of the ISF, formally banned in March 1992. The decree of January 1992 increased the government’s margin of discretion in the exercise of power and covered the systematic violation of basic human rights by the army and police forces. Nevertheless, the state of emergency did not prevent the rise of armed resistance to the regime from the Islamist terrorism, supported, in the beginning, by large sectors of the Algerian society that had voted for the ISF. Terrorism grew more violent and complex, due to the opaque role played by the army and secret services, turning into a real civil war. The state of emergency was unilaterally extended in February 1993 by the HSC (Journal Officielle de la République Algérienne Démocratique et Populaire, 1993), without limits nor the approval of the PNA that was dissolved. Article 86 had been unconstitutionally bypassed, leaving Algeria in a perennial state of emergency. The Algerian regime responded to violence with a range of repressive and violent practices, such as mass arbitrary detention without charges, tortures of detainees under interrogation, and disappearances as an official strategy. All under the shadow of the state of emergency. The bloody internal conflict tore Algeria apart even though the new candidate for the presidency of the republic selected by the army in 1994, Lamine Zeroual, started a détente and normalization process reforming the constitution in 1996, which was improved in many democratic aspects. However, it was a paradox that the state of emergency was not lifted, even though the Article relating to the état d’urgence, or ḥalāt al-ṭawāri, underwent some amendments: Article 91 reaffirmed that the state of emergency could be proclaimed only after consultation with the major institutions of the country, including the two Chambers of the Parliament (the 1996 constitution introduced bicameralism), which had to approve its prolongation. The process of democratization was frozen and the presidencies of Bouteflika from 1999 to 2019 did not change the situation. Only the general popular unrest stemming from the ‘Arab spring’, pushed the Algerian establishment to put an end to the application of the 19 years-old state of emergency in February 2011 (Journal Officielle de la République Algérienne Démocratique et Populaire, 2011). The lifting had few practical implications, because other legislative forms of control and repression were still in force (see for example the law 92-03 ‘against subversion and terrorism’) (Tamburini, 2018), which allowed the elite and the military to continue involving themselves in domestic security, as they did under emergency powers.

The Moroccan way to the state of exception

The first constitution of the kingdom of Morocco of 1962 gave to king Hassan II almost absolute powers, creating a presidential regime with a hereditary monarch, more than a real constitutional monarchy (Lazaro, 1963). The constitution was drafted with the help of one of the essential French constitutionalists: George Vedel. It could have been Vedel’s influence that pushed the Moroccan jurists to introduce in the constitution the state of exception (Article 35), but not the state emergency, which was not provided. Nevertheless, the Moroccan Article 35 was very different from the French Article 16, lacking several democratic guarantees as in the Algerian system.

When the integrity of the national territory was threatened or when events were likely to jeopardize the normal functioning of the constitutional institutions (there was no reference to a serious and immediate threat), the king could, after consulting the Presidents of the two Chambers and sending a message to the nation, proclaim, by royal decree, the state of emergency, ḥalāt al-āstaṯniā^ʼ (الحالة الأستثناء).⁸ Therefore, it was empowered, ‘notwithstanding any contrary provisions’, to take the measures imposed by the defense of territorial integrity and the return to normal functioning of constitutional institutions (Bullettin Officiel du Royaume du Maroc, 1962). The consulting with the two Chambers was just a formality because their composition was controlled by the monarchy and the opposition had little influence. The state of exception had no time limit,⁹ furthermore it was formally issued by a royal decree, or ẓahīr (ظهير), which was (is) a king’s discretionary act that cannot be called into question and has no place in the Moroccan hierarchy of law sources. When Article 35 stated that measures taken were valid ‘notwithstanding any contrary provisions’, it meant that the ẓahīr of the state of exception could in theory overcome constitutional norms or human rights principles. Finally, there was no guarantee that the Parliament could not be dissolved during the ḥalāt al-āstaṯniā^ʼ.

Another important difference with the French Article 16 was the definition of the exceptional circumstances that gave place to the ḥalāt al-āstaṯniā, which was very broad and imprecise (the threat of national integrity ‘or’ events that could obstruct the functioning of constitutional institution). Article 16 requires the existence of both conditions, on the other hand Article 35 posed an alternative. In addition, the possible threat was not described as either imminent or immediate, the king remained the sole judge of the vagueness of the existence of the exceptional circumstances.

In the early 1960s, demographic growth, poverty in urban peripheries, general unemployment and housing shortage showed how a strong government, even if held together by a king who was a self-proclaiming descendant of the Prophet, was not enough to stabilize the country. A ministerial circular issued by the Ministry of Education that prohibited students older than 17 from attending the second cycle of lycée ignited in March 1965 demonstrations in the streets of Casablanca by thousands of young people. They soon were joined by inhabitants of the bidonvilles, who began an urban guerrilla insurgency that was brutally repressed by the army and security forces (Miller, 2013: 162–168). After the failed attempt to find an agreement with the opposition to form a government of national unity, Hassan II declared the state of exception on 7 June 1965. The king accused political parties of hindering the smooth functioning of the constitutional institutions, and being unable to form a majority because of their political divisions. The reality was that the opposition did not want to form a ‘royal government’, and this was perceived by Hassan II as a danger for the institutions (Robert, 1993: 244). The state of exception was issued with the ẓahīr 136/65. It was composed of only two short Articles, but they were enough for Hassan II to suspend the constitution, dissolve the parliament, and concentrate the executive and legislative power in his own hands, heading a government without a Prime Minister (Berrahou, 2002; Vermeren, 2010). The application of Article 35 represented the definitive turning away from the fictious democracy set up with the 1962 constitution and the rupture with the left parties of the opposition (Monjib, 1992). The state of exception eased the growth of Hassan II’s powers as well as the role of the army and secret services, paving the way for the so-called Sanawāt ar-Ruṣāṣ (years of lead), marked by state violence and repression against political dissidents and democracy activists. However, Hassan II was very different from the Algerian political–military elite. The king after five years put an end to the state of exception because it was unpopular in the international community and it damaged his prestige. Moreover, eventually, it proved to be useless to solve the problems of the Moroccan domestic policy. In particular, the economic crisis was not solved at all between 1965 and 1970 and many Moroccans sill lived in poor conditions, fueling the discontent among the population. Therefore, the king was eager to re-establish a political and constitutional system, sharing the blame for the economic situation (Storm, 2007: 27–29). Hassan II skillfully used the lift of the state of exception as an exit strategy to enhance even more his powers. In a speech to the nation on 8 July 1970, the king announced the end of the ḥalāt al-āstaṯniāʼ and a new constitution that would be submitted to referendum (Palazzoli, 1970). In any case, the return to normality and the approval of the referendum were two related issues, because he had no qualms in stating that in case of rejection the state of rejection would have been still in force. In this sort of political blackmail, the referendum took place on 24 July, when the state of exception was still present, and the constitution was approved with 98.7% of the votes, although all trade unions and most political parties had invited the population to vote ‘no’. The new constitution was promulgated on 31 July, and the same day the state of exception was lifted. The result was not due to the free expression of the people, but to the pressure of the authorities and to the general illegal circumstances. In many ways, the whole procedure not only was the institutionalization of the royal absolutism (Camau, 1972: 489), but also implied the extension of the ḥalāt al-āstaṯniā under other more subtle terms. As a matter of fact, the whole 1970 constitutional revision took place in violation of the Article 98 of the 1962 constitution that prescribed the approval of the Chambers before the referendum. Nevertheless, Article 35 provided the dissolution of the Parliament. Therefore, the state of exception was conceived not to face an event which menaced institutions but to give rise to a new constitutional system even closer to Hassan II’s need for power. The 1970 constitution introduced unicameralism, restricted the Parliament’s prerogatives, increasing its subordination to the executive power, and simultaneously increasing the rule of the king over the government. Article 35 went through a little, but important change, because it was specified that the measures taken by the king could concern not only the defense of the national integrity or the return to the functioning of the institutions, but also the ‘conduct of state affairs’, mumārasat šuūwn al-dawla (ممارسة شؤون الدولة). The concept of ‘state affairs’ was very comprehensive and was introduced as a result of the years 1965–1970, when the king alone practically ran the state and was conceived to have a constitutional norm that could support the monarch’s action in the event of a new state of exception. However, Hassan II never again used Article 35, not even after the 1971 Skhirat military failed coup d’état, nor the unsuccessful attempt to murder him in a plot orchestrated by the Minister of Defense Mohammad Oufkir the following year.

The ḥalāt al-āstaṯniā remained unchanged in the 1972 constitution. Article 35 had not been able to cope with the complexity of the Moroccan situation, and Hassan II was aware about it, even if he underestimated the fact that during the state of exception he governed through personal power linked to a system of patronage that did not include high ranks of the royal armed forces, whose disappointment was manifested in the 1971 and 1972 coups.

The 1990s witnessed some political overtures to the parties of opposition by the monarchy. Hassan II successfully experimented with ‘guided democracy’, where opposition parties came into government without controlling key ministries such as Justice, Foreign Affairs, and Interior.¹⁰ This overture was also reflected in the framework of the two constitutional revisions of 1992 and 1996 that strengthened the role of the Parliament, which returned to the principle of bicameralism, and a slight weakening of the king’s power. The aim was broadening the internal consensus in the view of the succession to the throne of his son Mohammed VI. In the light of these amendments the old conception of Article 35 looked obsolete. In the 1992 and 1996 constitutions Article 35 was reformed: state of exception could be proclaimed only after the consulting with the Presidents of the two Chambers and the President of the Constitutional Council. Above all, it was stated that the state of exception did not lead to the dissolution of the Parliament, thus the Moroccan constitution aligned itself with the 1989 Algerian constitution (Article 87) and the 1991 Mauritanian constitution (Article 39).¹¹ Nevertheless, this clause was unclear because the Arabic verb employed, lā yatartib ela (لايترتب على),¹² literally ‘it does not follow’, was not an absolute prohibition as in the French Article 16 and it just wanted to stress that the state of exception does not automatically imply the dissolution of the Parliament. Furthermore, it could be circumvented by Article 27, which gave the possibility to the king to dissolve the Parliament by royal decree.

When Mohammed VI succeeded to his father, he started liberalizing and upholding reformist projects in the field of recognition of former human rights abuses and women’s rights, but the main king’s powers and influence on Moroccan political life remained untouched.

In the context of the popular uprisings during the ‘Arab springs’, Mohammed VI quickly responded adopting a new constitution in July 2001 (Bullettin Officiel du Royaume du Maroc, 2011). It is not the topic of this paper to comment on the general novelties of the 2011 Charter. It is enough to recall here that it introduced unprecedented checks and balances in the political system, and the legislative branch has been given stronger powers to oversee government policy. Nevertheless, once again the king’s centrality has not been affected by amendments as well as his major executive powers and legislative prerogatives. Having said that, the state of exception legislation, ruled by the new Article 59, underwent some critical changes.

Under the 2011 constitution, state of exception can be proclaimed after the consultation with the Prime Minister, the Presidents of the Chambers and the President of the Constitutional Court. Besides, not only Parliament cannot be dissolved during the exercise of exceptional powers, but the fundamental rights and freedoms proclaimed in the constitution remain guaranteed. The revision corrected some congenital flaws of the previous Article 35. The fact that this time the head of the government is involved in the process is the clue about the will to reduce the king’s discretion; moreover, there is the guarantee of the respect of fundamental rights and freedom enshrined in the constitution (Chapter II, from Articles 19 to 40) even in the event of the state of exception. It is also important to underline the fact that the sentence ‘notwithstanding any contrary provisions’, linked to the measures that the king could take, has been deleted as to point out the impossibility for the state of exception to be against constitutional norms or ordinary laws. On the contrary, the king is empowered to take measures ‘within the possible short time’, fī ’aqrab alajāl (في أقرب الآجال), to return to the normal functioning of the constitutional institutions, besides the reference to the ‘conduct of the state affairs’ has disappeared. Article 59, as did Article 35, does not provide a time limit for the state of exception, but the Moroccan legislators tried to stress the fact that the ḥalāt al-āstaṯniā was an exceptional event that required the return to a normal situation as soon as possible. On the other hand, the 2011 constitution reiterates the 30 days limit for the state of siege present in the other Moroccan Charts, but Article 74 states that the royal decree is countersigned by the head of the government and deliberated in the Council of Ministers. The Parliament will only intervene to extend the period of 30 days. Finally, the doubts surrounding the fate of the Parliament during the state of exception faded away, since Article 59 clearly stated that ‘it is not dissolved’, lā īḥal (لا يحل) during the exercise of the exceptional powers. Nevertheless, Article 59 did not amend the most of the shadows hanging on Article 35 and it still presents some juridical ‘black holes’; first, the monarch has emergency powers (siege and exception) without legislative approval, establishing one more time the concentration of powers in his own hands. Furthermore, there are no clear rules about how the consultation with the Prime Minister takes place and it can lead to a lack of constitutional guarantees in that the king consults only the President of the Constitutional Court and not the whole institution. There are no clues either about the value of this consultation. Is it legally binding or not? Finally, the amendments of the state of exception missed the chance to clarify the role of the Parliament, in other words if it has the power to legislate and if it can issue a vote of no confidence against the government.

However, the improvements in the whole issue are indisputable and the Moroccan king showed to consider the state of exception as an unlikely event. The evidence has been given during the current outbreak of the coronavirus (COVID-19) which began to engulf the world from March 2020. The Moroccan government decided to use simple decrees to face the COVID-19 pandemic, without resorting to the state of exception. The decrees 2-20-292 and 2-20-293 of March 2020 set up the state of health emergency, ḥalāt al-ṭawāri al-ṣaḥīat (حالة الطوارئ الصحية) on all national territory (Bullettin Officiel du Royaume du Maroc, 2020). The procedure used Article 81 of the constitution that enables government to issue decrees, which must be approved by the Parliament. This has been the evidence that marks the break (temporary?) in the decisive evolution and consolidation of democracy transition in the kingdom and this is very meaningful, since the March decrees provide restrictions of rights, such as the freedom of movement and of assembly, even if to save lives.

The Tunisian exception

The constitution adopted in Tunisia in 1959 conferred immense powers on Habib Bourguiba, who worked to ensure the highest importance and centrality to his personality as President of the Republic. In the quasi-monarchical and burgeoning personality cult, built around his image, it was natural that the Tunisian political system leaned toward a strong executive in the framework of a presidential republic even if the backbone of the constitution remained hinged on the structure of the French semi-presidential system of 1958 (Camau, 1971; Silvela, 1960). The closeness with the French legal structure was testified by the adoption of the concept of state of exception, although, as in other Maghreb constitutions, the French Article 16 was reinterpreted and deprived of many democratic guarantees. The possibility to declare a state of exception was enshrined in Article 32, which stated that in the event of an imminent danger threatening the institutions of the Republic, the security or the independence of the country and impeding the normal functioning of the public powers, the President of the Republic could take the exceptional measures required by the circumstances. The only obligation imposed on the President was to send to the National Assembly a message concerning these measures. It can be immediately noted that Article 32 had a very minimalist approach: above all there were no time limits and the tadābīr istaṯānīa, the exceptional measures, offered unlimited powers to the President, who had full powers and was not subject to the control of the Parliament.

In the constitution there was no clue about the state of emergency, which was not even provided by the ordinary legislation.¹³ It can be argued that Article 32, that is, the state of exception, was deemed sufficient to face every sort of danger for the Republic, although the two concepts had been set up in Western democracies for different situations, giving rise to different measures. On the other hand, it must be also underlined that Article 32 never clearly stated it was an Article regulating the state of exception, but the similitudes with Article 16 and the reference to the ‘exceptional measures’ could lead to the belief that it was a constitutional norm for the état d’exception. This sort of juridical confusion between emergency and exceptionality will have remarkable consequences in the crisis which occurred in the Tunisian history.

Bourguiba never used Article 39, not even when the security or the independence of the country was threatened, for example during the military clash with France for the possession of the Bizerte base in the summer of 1961, nor in January 1980 when a group of Tunisian insurgents, who were alleged to have been trained and financed by Libya’s Gaddafi, crossed the border of Algeria and attacked the town of Gafsa hoping to provoke a general uprising. However, the legislation on the issue changed when the constitution was reformed with the constitutional law 76-37 on 8 April 1976. Bourguiba, nominated President for life in 1975, introduced major constitutional modifications that mixed elements of presidentialism with mechanisms of parliamentarism in a system dominated by the single-party (Parti Socialiste Destourienne), enhancing the overpower of the President of the Republic, while the government and the legislative branch had no real autonomy (Chaabane, 1978). As a matter of fact, the new constitution provided the institution of a Prime Minister, but the executive remained monocephalic.

Article 39, which became Article 46, underwent some esthetical amendments that increased its ambiguity. In this new version the President could declare the state of exception after consultation with the Prime Minister and the President of the National Assembly. Besides, during this period, the President of the Republic could not dissolve the Parliament, which, on the other hand, could not present a motion of no confidence against the government. The revisions did not change the fact that the President could use the state of exception at his own will, without external interferences. The consultation with the head of government and the President of the National Assembly did not generate binding advices; furthermore, in a one-party regime, little objections were expected by these two political institutions.

It is essential to underline that when the Bourguiba system of power showed some signs of wear and started to creak under the first severe widespread unrest, the regime did not recur to Article 46, but thought to insert in the Tunisian legislation the concept of state of emergency, imitating what France had done with the law 55-385.

By the end of the 1970s Tunisia encountered economic difficulties as well as disparities, and unequal distribution of wealth within Tunisian society began to grow. On 26 January 1978, the trade union of Union Générale Tunisienne du Travail called Tunisia’s first general strike that escalated into a general uprising that lasted several days with clashes between security forces and demonstrators (Kraiem, 1996; Stora and Ellyas, 1999: 78-89). The regime responded to the so-called ‘Black Thursday’ with three different decrees on the very same day the riots broke out: the 78-49 that proclaimed the state of emergency in all the territory of the Republic and according to the government responded to the necessity to ‘restore public order and to counter acts of anarchy, rebellion and terrorism’ (Mullin and Rouabah, 2016); the 78-50 regulating the state of emergency; and the 78-51 declaring the prohibition of demonstrations and imposing the curfew in Tunis. The thought-provoking detail is that 78-49 made specific reference to Article 46 and it stated that it was issued after consultation with the President. The duration could not exceed 30 days and could be extended to the Republic with the Prime Minister and the President of the National Assembly (Journal Officiel de la République Tunisienne, 1978). These details suggest that according to the Tunisian jurisprudence the state of emergency and the state of exception were the same thing, confirming the confusion on the issue. The same reference to Article 46 was made by 78-50. This decree is significant not only because it details the state of emergency in the Tunisian legislation, but also because it survived the Bourguiba and Ben Ali’s regimes and it is still in force today. The 78-50 mostly filled the gap in the Tunisian law, indicating and specifying the nature of the state of emergency and the relating measures. It was a sort of 55-385, but with a bizarre reference to the state of exception. Article 1 stated that the state of emergency could be declared on all, or part, of the territory of the Republic, either in the event of an imminent danger resulting from serious attacks to public order, or in case of events presenting for their gravity the character of public calamity. The duration could not exceed 30 days and could not be extended only by decree (of course by the President of the Republic). The state of emergency enabled to governors of the provinces to forbid the movement of people or vehicles, any strike or lockout even decided before the declaration of the state of emergency, regulate the residence of citizens, and the seizure of goods or services deemed essential for the proper functioning of public services or fundamental for the interest of the nation. The Minister of Interior had the power to: issue restricted residence for citizens whose activity was dangerous to public safety and order; order the temporary closure of theaters and meeting places of all kinds; and order night and day searches and take all measures to ensure the control of the press and publications of all kinds, as well as of radio broadcasts, film screenings and theatrical performances.

The immediate application of the 78-50 was one of the first real shows of force by Bourguiba, who curbed public protests at the cost of dozens of casualties. The decree, which was lifted only on 15 March 1978, also saved the regime and gave Bourguiba a new legal framework for the crackdown on the dissidence and the control of society. The 1978 ‘Black Thursday’ was the result of a conflict between the regime and the Tunisian General Labour Union, which had managed to channel burgeoning discontent with the government’s economic orientation. However, the prevalent upheaval occurred in January 1984, caused by the rise of the price of bread and the government’s cut of subsidies of basic goods, was the manifestation of an immense dissent against the regime running through the country (Rollinde, 1988: 112-126). Several days of popular revolts in major cities and rural areas threatened the stability of the regime that responded again with the state of emergency (Decree 84-1, 3 January 1984) and the curfew on all the Tunisian territory (Decree 84-2, 5 January 1984).

The state of emergency turned out to be a useful political instrument more than a juridical tool to solve institutional or national crisis. A sort of legal cudgel against popular revolts that could justify the heavy-handed behavior of police and the Ministry of Interior. Obviously, the state of emergency could not cure the serious mental illness manifested by Bourguiba, nor prevent his ousting by Zine al-Abidine Ben Ali with the famous ‘medical coup’ in November 1987. Even though Ben Ali gave the impression that he was going to give a radical break with the past and a political liberalization was in his agenda, hopes were soon obliterated by the new regime that sought to reassert its control over the political system. Article 46¹⁴ and the law 78-50 remained untouched during Ben Ali’s era, whose autocratic rule mainly relied on the aggressive security apparatus and arbitrariness as a mode of governance characterized by the infamous taʿhlīmāt (التعليمات), a non-written instruction that had the force of law, which made superfluous issuing the state of emergency (Hibou, 2011: 285). The demonstrations that broke out in the rural town of Sidi Bouzid, after the self-immolation of the street vendor Mohammed Bouazizi on 17 December 2010, ignited the ‘Jazmine revolution’ and inspired other revolutions in the region. Although a brutal security crackdown followed, with the use of live rounds and arrests of demonstrators, Ben Ali did not recur to Article 46 and law 78-50. He was forced to flee to Saudi Arabia along with his family on 14 January 2011. He was replaced by the Prime Minister Mohammed Ghannouchi, serving as acting President of Tunisia under Article 56 of the constitution. It was this man, paradoxically representing the first step of the transition from dictatorship to democracy, who issued through the decree 2011-184 the state of emergency on all the Tunisian territory on 15 January (Journal Officiel de la République Tunisienne, 2011). This decree, which made specific reference to the law 78-50, was the first of a long series of similar legislative acts that prolonged or proclaimed the state of emergency almost continuously till the present day. in fact, the state of emergency was lifted on national level on 4 March 2104, but was introduced on three regions on 8 May. In 2015 the state of emergency was proclaimed again throughout the national territory. Even if Tunisia is by far the best example of transition to democracy after the Arab spring in all the Middle East and North Africa region, it looks like it cannot get rid of this sort of legal curse that is haunting its political and civil life. As a matter of fact, for a series of complex events, such as the social unrest due to the difficult transition, political assassinations, terrorist attacks of Sousse and Bardo in 2015¹⁵ and the general instability of the region, all the Tunisian governments (from those led by the Islamist Ḥarakat al-Nahḍa to the laic Ḥaraka Nidāʾ Tūnus) decided to extend indefinitely the ḥalāt al-ṭawāri. The long-running state of emergency became the normality even if it assumed a different legal shape. The 27 decrees that have been proclaiming the ḥalāt al-ṭawāri since 2011, made always reference to the law 78-50 and, from 2014 to the state of exception, continuing the juridical overlap between état d’urgence and état d’exception. The only difference is that the reference is made to Article 80 of the 2014 constitution and to Article 77, which empowers the President of the Republic to take measures imposing the state of exception. Article 80 replaced and reshaped Article 46 on state of exception and, in the light of the democratic spirit of the Chart (Achour, 2014), tries to fill the many gaps in terms of guarantees. The new procedure requires that in the event of an imminent danger threatening the institutions of the nation, the security and independence of the country or hindering the regular functioning of the public powers, the President of the Republic can take the measures necessary by this exceptional situation, after consulting the head of government and the President of the Assembly of People’s Representatives (APR), and informing the President of the Constitutional Court. The aim of these measures is to guarantee the return to the regular functioning of the public authorities as soon as possible. Throughout this period, the APR is in a permanent meeting and it cannot be dissolved. On the other hand, it cannot present a motion of no confidence against the government. At any time, 30 days after the entry into force of these measures, and at the request of the President of the APR or of 30 members of the said assembly, the Constitutional Court is seized to verify whether the exceptional situation persists. The decision of the Court is pronounced publicly within a period not exceeding 15 days.

The revision shows how the Tunisian legislator wanted to place several checks and balances to the state of exception/emergency (the Parliament in permanent meeting and the role of the Constitutional Court). Notwithstanding, the continuous prolongation of the state of emergency raised perplexities on the circumstances that such important and serious provision keeps founding its roots in a law that belongs to the times of Bourguiba. The Tunisian Parliament drafted a project of law (n. 2018-91) in 2018 aimed to reorganize the state of emergency in accordance with the requirements on the issue of the maintenance of security and public order enshrined in the 2014 constitution. However, the 24 Articles long project, was not a step forward to the law 78-50 and received much criticism because it did not properly defend human rights. In addition, it was basically contrary to Article 49 of the constitution, which states that the law can set restrictions on rights and freedoms guaranteed by the constitution, but these restrictions must be established only to meet the requirements of a civil and democratic state, and to safeguard the rights or the imperatives of public safety, national defense, public health or morality. Furthermore, Article 49 affirms that there must be a proportionality between these restrictions and their justifications. Therefore, the project was not approved by the Parliament (with reasons that they could have been used to amend or abolish the 78/50).

It is undeniable that the Tunisian approach to the state of emergency/exception is more transparent than the Algerian one. There are many voices of dissent within the Parliament and the public opinion on how a temporary state of emergency turned out to be a constant in the political life of the country, especially if it is considered that Article 80 urges the President of the Republic to end the state of exception as soon as possible. Regarding Article 80, it must be underlined that the government used this Article as a master key to cope with other problems, such as COVID-19. In order to contain the spread of the COVID-19 virus, the decree 2020-24 extended the curfew on all national territory on 18 March 2020 and four days later the decree 2020-28 restricted the free movement of people and vehicles, forbidding gatherings of more than three people in streets and squares. It can be said that this was a state of exception in the state of emergency, since the ḥalāt al-ṭawāri had been extended again for three months on 30 January 2020.

The striking paradox of Tunisia is that from one side, apart from all its problems of stability, it can be considered the best result of the ‘Arab spring’ revolutions, with an advanced stage of transition to democracy; on the other hand, Tunisia seems trapped in past, relying on a pre-revolution freedom-destroying law to survive.

Conclusion

The strategic role of the state of exception and emergency for authoritarian regimes is indisputable. Algeria, Morocco, and Tunisia have been using the strategic role of the state of exception and emergency to reach different aims and goals after the independence: to stabilize political leaderships that had no real popular legitimacy; to discourage in advance manifestations of dissent; to repress opposition; to survive popular uprising; and circumvent obstacles related to the respect of human rights. Another point in common is the state of exception enshrined in the constitutions. This circumstance led to consider the special legislation as an untouchable ‘Moloch’, which could be always fair to use. The ḥalāt al-ṭawāri and the ḥalāt al-āstaṯniā were a sort of symbol transformed into an instrument of power interfering with the normal exercise of the rule of law. Therefore, the head of state could legitimately take exceptional measures derogating from constitutional legality, because it was difficult to separate emergency rule from the normal constitutional order. The spiral of unconstitutionality was increased by the provisions regulating exceptional situations, which were always formulated in an imprecise and vague manner. They gave full latitude to the executive power to qualify discretional situations, justifying the use of exceptional powers, their scope and duration. The constitutional provisions set no time limit on the exercise of exceptional powers. Therefore, Presidents of the Republic, and the king in Morocco, were the absolute masters of deciding the end of the circumstances which triggered the state of emergency and therefore its lifting.

All the three states had similar behavior during the pre-Arab spring period. Nevertheless, after the 2011 wave of protests Algeria, Morocco, and Tunisia took different approaches to the issue: Algeria lifted the over 20 years state of exception, but left untouched the faulty constitutional norms that govern it; and Morocco and Tunisia made serious attempts to reform the conception of the state of exception, providing limits and barriers to its possible improper use by the king or by the head of state. However, Mohammed VI did not use state of exception, while Tunisia kept it into force after the revolution that ousted Ben Ali. These different approaches showed the deep diversity of the three countries.

It has been noticed that, as far as Morocco and Tunisia is concerned, the improvements were not enough, since the constitutional provisions related to the state of exception were below the Western standards of democracy. To explain this, it must be considered that, even if Morocco and Tunisia are a step forward in the transition to democracy and transparency, the state of exception and emergency are always a useful ‘safety valve’ in case of danger. Both the king of Morocco and the Tunisian post-revolutionary politicians know well how relevant the ‘special legislation’ is and they cannot afford to restrict the range of its effectiveness. In Tunisia, threats coming from terrorism, but also fears of a possible virulent outbreak of popular rage due to low wages, inflation, and endemic joblessness, press the government to make this ‘safety valve’ almost perpetual. On the other hand, the so long sought stability by Mohammed VI has allowed the king to soften the control on certain aspects of political and social life, even though he still represents the center of gravity of the political life in the country. Mohammed VI has been reigning and ruling Morocco since 1999 avoiding any recurse to the state of emergency. Only the future will tell for how long he will be able to do this.

Footnotes

Funding

The author received no financial support for the research, authorship, and/or publication of this article.

ORCID iD

Francesco Tamburini

Notes

Author biography

Francesco Tamburini, PhD, is assistant professor in the Department of Political Sciences at the University of Pisa. He teaches History and Institutions of Afro-Asiatic countries, History and Religion in Islam. His main field of research are history and institutions of the Maghreb countries as well as African colonial history.

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