The Ghost of the Constitutional Review in Tunisia: Authoritarianism,Transition to Democracy and Rule of Law

Introduction

The problem of preserving and guarding the constitution against legislative encroachments is fundamental in any political democratic system. Constitutionalism is present in those political regimes that, through the establishment of a constitutional control exercised by an independent authority, make possible the limitation of the legislative power by ensuring the compliance of laws with the constitution and its general principles (Raynaud, 2004).

Without a constitutional justice a constitution is just a mere political programme or a collection of good advice, because the legislator and the executive power are not bound to its respect (Eisenmann, 1986: 22). Hence, constitutional justice can be considered an essential tool of protection for fundamental rights, freedom, arbitration between levels and institutions of government, and the cornerstone of a state based on the rule of law (Troper, 1994). Not to mention that constitutional courts are powerful actors in a state, having both political and judicial sway.

Basically, the way to exercise constitutionalism is based on two kinds of models. The Kelsenian model of centralized review, where only one institution can decide the constitutionality of the acts of the executive or any legislative enactment. The Kelsenian constitutional review contrasts with the “American” model (judicial review), whereby all courts have the authority to adjudicate constitutional issues while deciding legal cases and controversies, hence the judiciary is the primary institutional protector of the constitution (Chen and Maduro, 2013). Middle Eastern and North African countries decided to exercise constitutional review in these two ways: under the Kelsenian–French model embodied by constitutional councils; or the Supreme Court model of judicial review (Cappelletti, 1989). ¹ The former is typical of states where French jurisprudence remained influential, such as the Maghreb area.

All the Maghreb countries, apart from Libya, which had not a French colonial influence and never had a constitutional review, ² established institutions to guarantee the protection of their constitutions. However, although Algeria, Mauritania, Morocco and Tunisia shared a common colonial history, being colonized by France, and they all had the urgent need to set up a modern administration and juridical tools of governance (Moussa, 1998), the path to a constitutional control was extremely tortuous and ambiguous (Bendourou, 1995). After decolonization, the Maghreb states followed the constitutional example of the 1958 French Fifth Republic (Ardant, 2005), but they did not immediately create constitutional councils, or Maǧālis ad-Dustūrīa (المجالس الدستورية), pursuing the French model, based on the Kelsenian constitutional review. French law in fact prohibited judicial review of legislative and administrative acts since 1790. Courts must not participate in the law-making function and judges are just “slave of the legislation” (Sweet, 2003). The first and only constitutional council created in the Maghreb after decolonization was the Algerian one, set up by articles 63 and 64 of the constitution of 10 September 1963. Unfortunately, the Algerian Council never became operational due to the 1965 coup led by Houari Boumédiène. Afterwards, the 1975 Charte national considered the constitution a secondary source in the hierarchy of norms and finally the council disappeared in the Constitution of 1976 (Cesari, 1997). Therefore, the first years of the Algerian independence were characterized by a sort of “renounce to constitutionalism” (Le Roy, 2009).

Morocco and Mauritania, in their first constitutions, entrusted their Supreme Courts with constitutional review powers, diverting from the French model (Gallala-Arndt, 2012; Tarchouma, 2005: 241). The Moroccan constitution of 1962 dedicated a whole chapter to the Constitutional Chamber operating within the Supreme Court. The Chamber had the competence to review the constitutionality of laws before their promulgation (article 63) and could also monitor parliamentary elections and referendum procedures (article 103). This Chamber, which was maintained in the 1970 and 1972 constitutions, was part of the judiciary power and had a political character, hence it was contrary to the essence of the constitutional review (El-Mejboud, 1992). The Moroccan Chamber, although impaired by several constraints, was rather active in comparison to the Mauritanian Supreme Court, which was empowered by article 41 of the 1961 constitution to conduct constitutional controls on laws and regulations, but it was never operational and was dissolved after the military coup of 1978 (Ould Bouboutt, 1997a).

Unlike Mauritania and Morocco, Tunisia did not enshrine in its 1959 constitution any institution that could be vested with constitutional reviews of laws. The Tunisian Court of Cassation in fact was kept away from any constitutional control. This was not the last delay in adopting a real constitutional revision.

At the end of the 1980s and the early 1990s of the past century all the Maghreb countries, except for Tunisia, created within their constitution a constitutional council: Algeria in 1989; Mauritania in 1991; and Morocco in 1992. In theory there was an effort to follow the basic elements of modern constitutionalism within the framework of the hierarchy of norms, subjecting to a form of control the legislative and the executive power. Unfortunately, these councils were hampered by the concentration of powers in the head of state and the fragility of the constitutions. Furthermore, it is out of question that the role of the councils was kept deliberately modest and that these institutions embodied the so-called phenomenon of the “institutional mimicry” or “constitutional mimicry” (Conac, 1989: 7; Ould Bouboutt, 1997b: 39), because they were just mere reproductions of foreign models and simple institutional ornaments, whose effectiveness remained limited overall, even after the institutional improvements due to the so-called Arab Spring (Rouvillois, 2015). Nevertheless, the constitutional councils in these countries represented a real step towards the protection of basic rights and freedoms and constitutionalism (Gallala-Arndt, 2012: 257).

Unfortunately, Tunisia, in comparison to other countries in the region, arrived very late in constitutionalizing the council and in general in the process of the constitutional review reform, resulting in the long run in it being “institutionally handicapped” from this point of view. This article will trace the path of the Tunisian constitutional review system, trying to explain how Tunisia, one the Arab countries that more than others can be considered close to Western values and one of the best results of the 2011 Arab Spring in terms of transition to democracy, failed in building an effective constitutional court.

The Tunisian original sin

For a strange twist of fate Tunisia not only had the first written constitution of the Arab world, but also the first that had a constitutional chart envisaging a form of constitutional control of laws. The “octroyée” constitution of 26 April 1861, ³ was drawn up by Khereddin Pasha and established a hereditary monarchy led by the Bey Muhammad III as-Sadiq. The government was responsible to a Supreme Council, Maǧlis al-alʿa (المجلس الاعلى), whose members (60) were selected for one-third among the government officials and military and for two-thirds were designated among the prominent people of the country (article 44). This sort of proto parliament was a place of debate and was basically conceived to be a moderator of the executive power. However, the Supreme Council was also the “guardian” of the constitution and the laws, and the “defender” of the rights of the citizens. Moreover, it had the possibility to prevent the promulgation of laws that could be contrary to the “principles of the law” (i.e., the constitution) (article 60). The Supreme Council was a political and oligarchic institution that was inspired by the French constitutions of 1799 and 1852 (Chekir, 2006). In any case, this cutting-edge institution in the Arab world never worked, being supported only by a limited urban elite and it was dissolved during the so-called “Mejba Revolt” in 1864, which also caused the suspension of the constitution (Amor, 1974; Khadhar, 1989).

Even though the 1861 constitution became a source of inspiration for generations of Tunisian independentists, the first Tunisian constitution, which was issued on 1 June 1959, three years after the independence, did not envisage a system of constitutional control. There was not even a mention in the National Constitutional Assembly during its preliminary works. It was simply decided to postpone the question to a later stage, when the Tunisian state would have been stronger and more stable (Ben Achour, 1990). Nevertheless, it is not difficult to argue that it was an alibi. When the National Constitutional Assembly was working for the drafting of the constitution, Habib Bourguiba had both legitimized and legally sustained a great concentration of personal power through his own considerable charisma. In 1957 he used the National Constitutional Assembly to depose the Bey, abolish the monarchy, and to be elected as the first president of the new republic. Bourguiba worked to impose his own image and personality upon the Tunisian state, making the identity of Tunisia closely linked and indistinguishable from his own. Tunisia soon became the “Bourguiba-system” (Bessis and Belhassen, 1989: 17). The 1959 constitution conferred huge power to the president of the republic, establishing a sort of hyper-presidential republic, while other bodies, such as the Tunisian parliament, were confined to a mere secondary role and obedient instrument of the president, since the most important laws were enacted simply by presidential decrees (Silvera, 1960). The president of the republic appointed the members of his cabinet, who were responsible only to him, and, according to article 38, ensured respect of the constitution (“Il veille au respect de la constitution”). Unfortunately, the original Arabic version of article 38 was even less accurate stating that the president is the al-sāharʿalī (السّاهرعليه) of the constitution, that is, literally the observer, the one who watches (Journal Officiel de la République Tunisienne, 1959). In any case, article 38 is important because it was conceived to turn the president in to the only guarantor of the constitution and the only person able to perform an unlikely “constitutional review”.

The creation of the Court of State Security (Law 68-17 on 2 July 1968), charged with investigating crimes and offences against the internal and external security of the state, revealed how serious was the absence of a real constitutional court, above all as far as the protection of human rights was concerned. Its activity corresponded to a period of crisis marked by the failure of the socialist experiment, the advent of political opposition, the attempted military coup against the Bourguiba regime in 1962 and, since 1963, the monopolization of political life by a single party, the al-Ḥizb al-Ištirākī ad-Dustūrī or Parti Socialiste Destourien (PSD) (Chekir, 2007). The Court of State Security charged opposition members based on laws regarding the exercise of basic freedoms and rights, in particular the law on associations (Law 59-154 of 1 November 1959), which required a visa from the Ministry of Interior to form an association. ⁴ Defendants raised the exception of constitutionality of these laws since they contradicted rights that were guaranteed by the constitution, such as articles 7 and 8. Obviously, the president did not intervene in the question, moreover the Court refused to examine the constitutional validity of these laws, considering itself not competent to do so (Amor, 1982; Ben Achour, 1989a). The refusal of the judges, who opposed the principle of separation of powers and a possible interference with the legislative powers, was just a fictio juris and a shield used to juridically hide the “Bourguiba’s system”. However, it was inevitable that a broad discussion arose. In February 1971, the Parliament discussed reform of the constitution, trying to introduce a constitutional council that could verify the compliance of laws with the supreme law. Nevertheless, this project was soon abandoned and the last chance of performing a real constitutional control faded away as it was smothered by the authoritarian regime. A constitutional council was deemed unnecessary and clashed with the quasi-monarchical and burgeoning personality built around Bourguiba. The al-Muǧāhîd al-Akbār, the “Supreme Fighter”, as he was nicknamed, truly believed that only himself could fully understand Tunisians and Tunisia’s need. The absence of a constitutional body completed Bourguiba’s centralized rule, even though in the long run it became idiosyncratic and erratic.

The constitutional Law 76-37 (8 April 1976), instituted a life presidency for Bourguiba, ⁵ also reforming article 38, which no longer mentioned the president as al-sāharʿalī. Article 38 was replaced by article 41, according to which the president of the republic was the only “guarantor”, al-ḍāmun (الضامن), of the national independence, of territorial integrity, of the respect of the constitution and the laws, as well as of the execution of treaties. Moreover, he ensured the proper functioning of the constitutional public powers and assured the continuity of the state (Journal Officiel de la République Tunisienne, 1976). The provisions of the article 41 were extremely vague about how the al-ḍāmun would have fulfilled these tasks, above all, the respect of the constitution. The Law 76-37 also provided that the head of the state was designated a prime minister (article 37). It was the newly appointed Prime Minister Hedi Noura who supported the idea of dropping the creation of a constitutional council because it was in contradiction to the constitution itself, which stated that the only guarantor of the supreme law was the president (Ben Achour, 1990). It was the victory of the status quo and the president’s monopoly of the “protection” of the constitution. This victory proved to be fundamental when the trade union of Union Générale Tunisienne du Travail called Tunisia’s first general strike on 26 January 1978 that escalated into a general uprising that lasted several days with clashes between security forces and demonstrators. The regime responded to the so-called “Black Thursday” with three different decrees on the very same day the riots broke out: the Decree 78-49, which proclaimed the state of emergency in all the territory of the republic to “restore public order and to counter acts of anarchy, rebellion and terrorism” (Mullin and Rouabah, 2016); the Decree 78-50 regulating the state of emergency; and the Decree 78-51 declaring the prohibition of demonstrations and imposing the curfew in Tunis. 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 thought-provoking detail is that the Law 78-49 made specific reference to article 46 of the constitution, which regulated the “state of exception” and stated that in the event of an imminent danger threatening the institutions of the republic, the security or the independence of the country, the President of the Republic could take the exceptional measures required by the circumstances. These details suggest how there was a voluntary confusion between the state of emergency and the state of exception. ⁶ This confusion would have never been tolerated by a constitutional court, which would have pointed out the serious dangers posed by the three laws to the basic freedoms of the Tunisian citizens and the use of the state of emergency and state of exception as a legal cudgel that could justify the heavy- handed behaviour of police and the Ministry of Interior. The lack of super partes control of the constitutional dictation was a decisive element for the perpetuation of authoritarianism control of the opposition. In January 1984, there were widespread riots, caused by the increase in the price of bread and the government’s cut of subsidies on basic goods. The manifestation of dissent against the regime was crushed by the police and the army. The Tunisian government responded again with a state of emergency (Decree 84-1, 3 January 1984) and a curfew on all the Tunisian territory (Decree 84-2, 5 January 1984). It is undisputable that a constitutional control would not have allowed such harsh measures.

During the Bourguiba regime even a semblance of constitutional justice would have mitigated the damages of unconstitutional laws and the sentences of a political justice at the service of the rulers. The “Supreme fighter” never allowed this “clone” to come true.

The remote-controlled constitutional review

On 7 November 1987, the Minister of Interior Zine al-Ibidine Ben Ali ousted Bourguiba in a bloodless coup. International public opinion had many expectations about the new leadership that, after 30 years of single party rule, would initiate a democratization process, correcting the most blatant deficit of the Bourguiba system. Initially, there were some hints of transition to democracy, since Ben Ali enacted some reforms, such as the expansion of public liberties and the legalization of some opposition parties, but excluding the Islamic ones (Erdle, 2010; Zisenwine, 2016). In 1988 he also established a presidential term limit of three terms of five years (something that had no similarity in any other Arab country). Part of this process also concerned the question of the constitutional control.

On 16 December 1987, the Decree 87-1414 envisaged the creation of a consultative institution named Maǧlis ad-Dustūrīa, “Constitutional Council”, which had the task to examine the projects of law that were submitted by the president of the republic, as the “guarantor of the respect of the constitution, and to give its opinion on their compliance with the supreme law (article 2)” (Journal Officiel de la République Tunisienne, 1987). The president also could apply to the Council to examine any problems relating to the functioning of the institutions. The Maǧlis ad-Dustūrīa was composed of eleven members selected by the president among competent personalities in the juridical and political (al-qānūnīa wa al-sīyāsīa) field (article 4). The Council’s opinions were secret and communicated exclusively to the president (article 6).

Even though the establishment of the Council was welcomed by the press as a great step forward to democracy for Tunisia, the importance of the Maǧlis al-Dustūrīa was extremely limited. First of all, it only had an advisory function. This was clearly pointed out in the first article that stated that the Council was an aīyat aištārīa (هيىة استشارية), an advisory body, whose intervention was not legally binding. The approach used by the Tunisian legislator confirmed the prominence given to the role of president of the republic as ḍāmun of the constitution. In fact, not coincidentally the Law 87-1414 quoted not only article 41 but also article 42 (the president takes office after having sworn to safeguard the national independence and national integrity, and to respect the constitution). In other words, the law justifies Prime Minister Hedi Noura’s interpretation of 1976. The Constitutional Council was just a president’s tool, helping him in his role of ḍāmun. Nevertheless, this role was not compulsory, since the president, according to article 2, had an absolute discretion in applying to the Council and he submitted only the projects of law he wanted to submit. This was a severe flaw that highly affected democracy under Ben Ali. It is sufficient to think about the lack of a real constitutional control on the electoral laws that allowed the continuity of Ben Ali’s regime.

Moreover, the president had too much discretion in the election of the members of the Council (the first appointed chairman was Abdel Aziz Ben Dhia, who was former minister in the Bourguiba regime and special adviser to Ben Ali), ⁷ whose professional profile was very vague. The decree did not even mention their term of office.

Finally, the Council was not a constitutional body (the Decree 87-1414 was a simple decree and not a constitutional law), its opinions were not legally binding and, furthermore, they remained secret and were not published, preventing any external pressure or moral suasion on the president.

However, the implementation of Prime Minister Hedi Noura’s interpretation and the creation of the empty shell of the Council fuelled the discussion on the constitutional check by the ordinary judges. The Kairouan first instance tribunal stated on 24 December 1987 that judges were competent to examine the constitutionality of laws in individual cases (Ben Achour, 1988). According to the Kairouan decision the constitutional review by exception was founded, without quoting it, on article 65 of the constitution, which stated that the judicial authority was independent, and the magistrates are subject in the exercise of their function only to the authority of the law. They interpreted the term “law”, al-qānūn, broadly, including the entire legal rules in force, including the constitution. In case of contrast between the supreme law and the legislation, judges must enforce the former, according to the hierarchy of norms. This interpretation was confirmed by the Court of Appeal of Sousse on 11 April 1988, which confirmed the competence of the ordinary judge to bring about the constitutional review if the issue of constitutionality was raised in a judiciary case. The Sousse court stressed the fact that there was no constitutional impediment that could prevent a constitutional control by the judiciary authority (Ben Achour, 1989b: 11). What was called the “revolt of the trial judges” (Ben Achour, 1990: 543) was immediately quelled by the Court of Cassation on 1 June 1988, which voided the decision stating the incompetence of the judge to examine the constitutionality of laws. The orthodoxy was restored. The issue was not just an academic problem, but it was perceived at the top of the governmental and judicial establishment as something that could jeopardize the whole Tunisian system. This can be argued by the ground of the Court’s judgment, which stressed that judges were not elected, and the risk was to create a government of the judiciary that could clash with nation’s will. Therefore, the control of judges could provoke anarchy and disorder, with the loss of credibility of the law. Ben Ali had just started the construction of ‘his own system’. The goal was to set up a constitutional review that could be controlled without any interference and the attempts made by the trial judges were not going in this direction. It was unthinkable to have independent judges who were able to challenge the monopoly of the head of the executive.

Between the Sousse judgment and the decision of the Court of Appeal, Ben Ali amended the constitution on 25 July 1988 (constitutional Law 88-88), removing the life-presidency and introducing the limit of two terms for the president of the republic. The issue of the constitutional control passed unnoticed in comparison to the constitutional reforms and other signs of democratization that marked the first years of the Ben Ali regime. The democratic openings, also known as “Zinestroika”, heralding a new era of pluralism, were just cosmetic changes that concealed the strategy for the birth of a new regime guided by the presidential party, the Rassemblement Constitutionnel Démocratique (RCD; the former PSD). During the presidential elections on 2 April 1989, Ben Ali was the only candidate to obtain endorsements from 30 political figures, as required by the new electoral law. ⁸ As a result, he won unopposed. Ben Ali’s domination of the Tunisian political life had begun.

All reforms, which took place between 1987 and 1990, were presented by the public authorities as legal and political adjustments aimed at deepening the presence of pluralism within the national representation and to enhance democracy. They have contributed to establish an entirely controlled pluralism. They were designed in such a way as to make impossible an alternation at the top of the state. The law governing Tunisian political life did not set up an effective system of controls for the political and governmental action. Therefore, political deadlines, linked to the perpetuation of the authoritarian regime, dictated the pace and nature of institutional reforms, which aimed at limiting authoritarian practices, while at the same time authorizing them if necessary (Gobe, 2012). The 1990 reform on the Constitutional Council operated in this conceptual framework.

On 18 April 1990, the Law 90-39, modified the Decree 87-1414. This law did not change its advisory nature but introduced some new features. The composition of the Council was reduced to nine members, once again appointed by the president, but this time he had to choose personalities “with an outstanding legal experience” (ذوي الخبرة القانونية المتميزة) (article 3) (Journal Officiel de la République Tunisienne, 1990). The Arabic version was slightly different from the French one, which stated that the members must have a “competence confirmé dans le domaine juridique” (recognized expertise in the legal field), without clarifying who should have confirmed or verified the expertise. In any case, from the expertise was excluded the political (al-sīyāsīa) field, perhaps attempting to emphasize the juridical role of the Council in comparison to the political one. Article 6 specified that the Council examined the constitutionality of the projects of law that the president of the republic submitted to it before their transmission to the parliament, while article 7 detailed that the head of the state had the obligation to submit to the Council both al-qūānīn al-asāsīa (القوانين الاساسية), in French lois organiques ⁹ and projects of laws relating to application of the constitution, nationality, status of persons, obligations, amnesty, property laws, definitions of crimes and misdemeanours, the basic principles of the system of ownership and real rights, education, public health, labour law and social security. In other terms, article 7 reduced the discretionary power of the head of the state. In any case the Council performed exclusively a constitutional control of laws “a priori”.

The Council had one month to give “exclusively to the president” its opinions (articles 9–10), which had to be motivated but also to remain confidential – in fact, the Council’s members were obliged to keep their decisions secret during their career and even after they ceased to hold their office (article 14). The secrecy of the Council’s opinions to the president of the republic are the evidence of the opacity of the system, which was still in the hands of the head of the state, even though the Law 90-39 did not recall the articles 41 and 42 of the constitution. The Council still had a weak position in comparison to other institutions that found a constitutional shelter, such as the State Council, the High Court and the Economic and Social Council.

After 1990 Ben Ali’s regime began a repressive phase, above all aiming at crushing the Islamist movement, which proved to be a strong potential challenge. Nevertheless, this phase of authoritarian turnaround did not change the regime’s attitude towards the reforms and the pluralization without competition of the political arena (Sadiki, 2002). In 1995 the Constitutional Council received a constitutional status. Through the constitutional Law 95-90 of 6 November 1995 the Constitution was amended adding a new chapter: the IX on the Constitutional Council (articles 72–75) (JORT, 1995). The most important innovation was that, according to article 72, the submission to the Council by the president of the republic was this time specifically qualified as mandatory, waǧūbīā (وجوبيا), for the projects of law regarding the al-qūānīn al-asāsīa (lois organiques) and the projects of law quoted by article 6 of the Law 90-39. Moreover, it was added to the list of drafts that needed a constitutionality review by the Council of the treaties stated in article 2 of the constitution, that is, treaties related to the integration of the Great Arab Maghreb and whose execution could have required an amendment to the constitution.

Article 73 stated that the projects of the president were submitted to the Council before their transmission to the parliament or their submission to a referendum. Nevertheless, this time the adjective waǧūbīā was omitted. The functioning modalities of the Council were enshrined in the loi organique Law 96-26 of the 1 April 1996, which basically maintained unchanged the Law 90-39. The constitutional judges’ mandate remained undetermined and above all there was no constitutional guarantee that the president of the republic could not dismiss them at his own will (Mudhaffar, 1997: 51). They still had not any immunity, hence they could be arrested or prosecuted for acts accomplished during their mandate.

Much more meaningful were the constitutional Law 97-65 of 27 October 1997 and Law 98-76 of 2 November 1998. The Law 97-65 amended article 35 of the constitution and allowed the Council to decide if the president of the republic could oppose the inadmissibility of any bill or amendment intervening in the field of general regulatory power. Therefore, the Council was entrusted with the role of arbitrator between the legislative and executive power in instances of conflict (Ben Achour, 2003: 170). The Council’s intervention in the political life was broadened. However, the real turning point was triggered the following year by the Law 98-76, which stated that the Council’s opinions were wahūmām aǧmīʿa al-sāṭāt (وهوملزم اجميع الساطات) “binding for all the authorities” (Journal Officiel de la République Tunisienne, 1998). For the first time the Council ceased to be only a consultative body and its opinions had juridical value.

It is important to highlight the slow but constant progression of the Tunisian jurisprudence towards a real constitutional review. Nevertheless, it is also necessary to stress that this progression was only on a theoretical level, and it was striking within the context of the general political and social Tunisian situation. By the end of the 1990s Ben Ali had ensured the dominion of the RCD, weakening or marginalizing all forms of political and social opposition through a patronage network system based on housing and educational benefits or business permits. Tunisia was a police state with the resemblance of a democratic government. The “improvements” relating to the Constitutional Council were part of the so-called “de-democratization through the rule of law” (Rand, 2013). The regime acted to “open the system” on the one hand, while on the other hand it neutralized liberal institutions by boosting autocratic management policies through ad hoc legislation. It is significant to underline that the Law 97-65 also allowed the president to have the initiative to revise the constitution and submit the draft revision to a referendum (article 75). Such provision constituted a manifestation of the strengthening of the constitutional powers of the president of the republic. Above all, this amendment paved the way to the climax of de-democratization, which took place with the constitutional referendum of 26 May 2002, which was a legalistic coup d’état. The changes, reportedly approved by 99.52% of voters, allowed Ben Ali to run for a fourth term by abolishing the previous limit of three terms ¹⁰ and raised the upper age limit of presidential candidates to 75 (he was at that time 65) ¹¹ (Gobe, 2004). Moreover, it introduced bicameralism through the creation of the Senate, the Chamber of Councillors, which broadened the presidential patronage.

The reform took away any hope of real democracy in Tunisia and the Constitutional Council had nothing to object about it. The Council itself was part of the revision because it received several modifications, which seemed to strengthen its independence: it was entrusted with the ruling on appeals concerning the election of members of the Chamber of Deputies and of the Chamber of Councillors, and the control of the validity of referendum operations and the proclamations of their results (article 72, paragraph 4); it decided on the approval of the internal rules of the Chamber and the Senate (article 74); its decisions on electoral issues were not subject to appeal; the appointment of the judges changed because four of them were chosen by the president of the republic, two by the president of the chamber (all of them for three years renewable twice) – moreover, the presidents of the Court of Cassation, of the Administrative Court and Court of Accounts were members ex officio; and members of the courts could not be part of the government nor members of the parliament and could not carry out political or trade union activities (Journal Officiel de la République Tunisienne, 2002).

The expansion of powers and the new method of appointing members of the Council left open the main question relating to the meaning of the constitutional reform: what can be the role of a constitutional council in an authoritarian political regime where the head of state alone was competent to seize this jurisdiction? One thing is for sure. The authoritarian environment in which the Tunisian Council was going to operate deliberately attenuated the scope of provisions that brought this institution closer to other constitutional courts and Western democratic regimes.

The Constitutional Council was the image of the idiosyncrasy of Ben Ali’s hybrid regime that placed the Tunisian “democracy” in a grim foggy or twilight zone. The erratic behaviour was confirmed by the loi organique 2004-52 that required that the opinions of the Council be published in the Journal Officiel de la République Tunisienne (article 28), while its works and debates remained strictly confidential (article 4). The judges’ incompatibility was modified allowing public officials to continue to exercise their functions if they had a bitarẖīṣ ẖāṣ (بترخيص خاص), a “special permission” (an unclear specification) and their work did not affect their impartiality or independence (article 10). The loi organique 2004-52 granted to judges an inviolability (they could not be arrested, prosecuted or detained for acts performed during their duties); however, in the event of an offence, the members of the Council could be prosecuted on demand of the Advocate General (Journal Officiel de la République Tunisienne, 2004). Therefore, in the end, the scope of the immunity was somehow limited and rather unclear.

Seventeen years after its creation the Constitutional Council had evolved significantly, moving away from the stereotype of the “King’s Council”. Nevertheless, the Council was still highly in collusion with the authoritarian leadership.

Ben Ali’s regime did not survive to the “Jasmine Revolution”. On 14 January 2011, after a month of popular protests, he fled to Saudi Arabia. Ironically, it was the Constitutional Council that enacted one of Ben Ali’s last important legislative acts after 27 years of his “kingdom”, by formally bringing about his presidency. The Council contested the Prime Minister Mohammed Ghannouchi’s decision to be ad interim president of the republic according to article 56 of the constitution, which stated that in the event of a temporary incapacity the president of the republic could delegate his powers to the head of the government with a decree. The Council denounced the use of this procedure that was vitiated by an essential procedure defect, since Ben Ali had not issued a decree. On the other hand, the Council pointed out that it was a matter of absolute impediment that prevented him to exercise his duties under article 57, which required the Council to meet to establish the definitive vacancy by an absolute majority and appoint the president of the chamber as ad interim president (Ben Achour and Ben Achour, 2012). The following appointment of Fuad al-Mebazaa as interim president, thanks to the intervention of the Council, solved a difficult situation created by the application of article 56, which could have allowed the possibility of a return of the former president. The interpretation of articles 56 and 57 was the “swan song” of the Constitutional Council that was officially dissolved by article 2 of the Decree Law 2011-14 of 23 March 2011. ¹²

The “constitutional spring” does not arrive in Tunisia

The Decree Law 2011-14 was devoted to the provisional organization of the public powers and provided the creation of a Constituent National Assembly (CNA) charged with drawing up a new constitution. The constituent process was long and difficult due to the strong bipolarization and ideological differences within the CNA between the Islamic block and the secular group. The constitution, issued on 27 January 2014 was the fruit of a compromise between these two forces (Ben Achour, 2018; Dubout, 2016; Sayah, 2015). The 2014 constitution enshrined, through the articles from 118 to 124, a completely new model of constitutional control, which tried to solve all the past flaws and drawbacks but this time in the framework of a real democratic state. The result was the creation of the al-Maḥkamat ad-Dustūrīa (المحكمة الدستورية), the new Constitutional Court, an ambitious project that intended to represent the cornerstone of the new-born Tunisian democracy (Vizioli, 2015). ¹³ Lamentably, this project contained several congenital malformations that, so far, prevented its concretization. The Court could not immediately start its work since the constitution itself was not the only legal basis. Article 124 stated that the law regulated the organization and the procedures of the Constitutional Court, as well as the guarantees enjoyed by its members. In summary, before appointing the new judges it was necessary to issue a specific law. Moreover, pending the election of the judges, which had to be done within a maximum of one year from the legislative elections (Constitution de la République Tunisienne, 2014: article 148, paragraph 5), the CNA created the “Provisional authority on the constitutionality of projects of law” (article 148, paragraph 7). Nevertheless, while the provisional authority was enacted through the Law 2014-14 on 18 April 2014 and the constitutional Law 2015-50 of 3 December 2015 accomplished the task assigned by article 124, one year passed without that the judges’ court could be appointed. Therefore, the “Provisional authority”, or Bāhīat al-waqtīa (بالهيئة الوقتية), composed of six members (Journal Officiel de la République Tunisienne, 2014: article 1), ¹⁴ remained the sole arbiter of the constitutionality revision and the Court fell in to a sort of limbo. Although, the Law 2014-14 specifies that the Provisional authority is a jurisdictional body (article 1), which means that it is endowed with the power to judge, settle a dispute or, in this case, officially declare that one or more provisions of a project of law submitted for its examination are in conformity (or not) with the constitution (Chikhaoui-Mahdaoui, 2019), it is far from being a real constitutional court. Above all it lacks all the powers that the constitution and the Law 2015-50 granted to the court. The Provisional authority in fact performs only a control a priori, checking constitutionality, with an absolute majority, of any legislative text adopted by parliament and not yet promulgated (Journal Officiel de la République Tunisienne, 2014: article 3). Nevertheless, it cannot control: constitutional laws revising the constitution; the constitutionality of international conventions and the rules of procedure of the Assembly of the Representatives of the People (ARP); conflicts of jurisdiction between the head of state and the head of government; the dismissal of the head of state; the extension of the state of emergency (article 80); or even the declaration of the vacancy of the presidency of the republic. All these controls, remain, as will be pointed out, under the jurisdiction of the future Constitutional Court.

The inadequacy of the Provisional authority was proved in the days following the death of the President of the Republic Béji Caied Essebsi (25 July 2019). The Provisional authority was unable to ascertain the definitive vacancy of the office of president of the republic, a task that was expressly entrusted to the Constitutional Court by article 84, paragraph 2 of the constitution. Furthermore, the Provisional authority suffers from several congenital flaws that block its operativity: the exigence of the absolute majority for its decisions; the composition of six members leads to draws in the votes; and the lack of preponderance of the president in the event of the votes being tied.

The CNA created a new constitutional control starting from the denomination – Court (al-Maḥkamat) instead of Council (Maǧlis) – and the position within the constitution: the Court was enshrined in the Part II, Title V, “The Judicial authority”, underlying the attempt at a definitive distancing from a political conception of the constitutional review. The Court was not only an independent judicial body (article 118 of the constitution), but also the “guarantor of the supremacy of the constitution and protector of the democratic republican regime and the rights of freedom” (Journal Officiel de la République Tunisienne, 2015: article 1). Hence, the president, who ensures the respect of the constitution (article 72 of the constitution), is not alone in protecting the supreme law in the past.

The Court for the first time has “a posteriori” control on laws, because it is competent to oversee the constitutionality of laws referred to it by courts in the case of the invocation of a claim of unconstitutionality by one of the parties in litigation (Constitution de la République Tunisienne, 2014: articles 120 and 144; Journal Officiel de la République Tunisienne, 2015: articles 54–61). This control, which is rather widespread in constitutional courts today, constitutes a major innovation of the 2014 Constitution. However, the Court, once it will be established, could probably receive a significant number of appeals from ordinary courts with the risk of being quickly blocked.

The Court also has “a priori” control on laws (i.e., before their entry into force), being the sole body competent to oversee the constitutionality of constitutional revisions. The Constitutional Court must verify that the constitutional revision does not affect provisions that were considered by the Constituent to be non-revisable; besides, it controls that the modalities and revision procedures are respected. This competence is upon the request of the president of the republic, the prime minister or 30 members of the unicameral parliament (the ARP). The Court also has other controls that cover a wide range of issues: constitutionality of treaties, carried out at the initiative of the President of the Republic (article 43 constitution); internal rule of procedures of the parliament (Constitution de la République Tunisienne, 2014: article 120; Journal Officiel de la République Tunisienne, 2015); to verify upon request of the president of the parliament or 30 of its members if the proclamation of the state of emergency is justified; to solve conflicts of jurisdictions between the head of the state and the government; to declare the temporary or the provisional absence of the president of the republic; and the dismissal of the president of the republic. The ARP, through the initiative of a majority of its members, can present a motion to bring to an end the president of the republic’s term of office in the event of a “serious breach”, ẖaraq al-ǧasīm (خرق الجسيم) of the constitution. The motion must be approved by two-thirds of the members and the issue is referred to the Constitutional Court that takes a decision by a majority of two-thirds of its members. In the event of conviction, the Constitutional Court orders the removal of the president of the republic from office, with an eventual criminal prosecution. If the president is removed from office under these circumstances, he is not entitled to run in any subsequent elections (Constitution de la République Tunisienne, 2014: article 88; Journal Officiel de la République Tunisienne, 2015: articles 65–68). The term “serious breach” is rather vague, and it can be used in political terms rather than in a juridical context; hence, there is the risk that the Court can be used to “blackmail” the head of the state. In any case, there is no doubt that this such unprecedented power has been justified by recollecting the violations committed under the former regimes.

The transparency of the Court has been implemented, in fact, all its decisions, which are binding upon all authorities, are published in the Journal Officiel de la République Tunisienne and on its website. Moreover, its hearings are public (Journal Officiel de la République Tunisienne, 2015: articles 5 and 36).

The 2015 loi organique deeply modified the composition of the Court, the members’ immunity, nationality, experience, terms of office (a nine-years term), incompatibility and independence, reaching the international standards of the status of other foreign courts. ¹⁵ The Court is composed of twelve members, of which three-quarters must be legal specialists, al-muẖtaṣ fī al-qānūn (افي المختص فالقانون For the first time the al-Maḥkamat judges could be unskilled in law. These figures must hold a PhD, not necessarily in law (Journal Officiel de la République Tunisienne, 2015: articl 9), and therefore it is disputable that they could perform a real professional exercise of their duties, even though they lacked the necessary juridical culture and background (Jenayah, 2020).

According to article 10, all members are appointed “sequentially” by three different institutions: four by the Assembly of the Representatives of the People, four by the Supreme Judicial Council and four by the president of the republic. ¹⁷ The CNA decided to adopt this tripartite and hybrid system of appointment inspired by the Italian juridical system that involves the executive, the legislative and the judicial power. Unfortunately, this decision has created several drawbacks, above all as far as concerning the four judges elected by the parliament. According to the loi organique each parliamentary block, or group, has the right to present four names (three of which must be non-jurists) that will be elected in a secret ballot with a two-thirds majority (145 votes out of 217) for each proposed name. The introduction of the parliament as an “elector” is probably the fruit of the desire to strengthen the democratic character of the institution, but it also can lead to a political control of the Court, in the case of a selection of candidates chosen for their allegiance to the party more than for their impartiality or expertise. In any case, this tricky election system, due to the ideological differences and fragmentations within the parliament, delayed the appointment of the four judges. During the first legislation (2014–2019), the 217 members of the ARP were only able to appoint one judge of the Court: Mohamed Bougzghiba, belonging to the Islamic party Ḥarakat al-Nahḍa (Dahmani, 2021). The strife between the Islamic party and the “secular” block led to a further fragmentation of the ballots, which prevented any agreement.

After the ARP, it is the Superior Judicial Council that must appoint four members to the Constitutional Court. Nevertheless, since it intervenes only after the parliament’s appointment, the Council has not yet started the selection of the members of the Court, also blocking the president’s choice.

In May 2018, the project of Law 2018-39 was presented in the ARP. It amended the Law 2015-50 and provided, in the case of failure of the first vote, two other ballots with lower thresholds, basically reducing the necessary number of votes from 145 to 131. ¹⁸ Moreover, the project deleted the term “sequentially” from article 10 to allow the Superior Judicial Council and the president to appoint their members independently. Most sections of the deputies were hostile to this project, above all the opposition, which saw it as an attempt by the majority to seize the constitutional body and control it. The project could be approved only on 25 March 2021 during the second legislature. Nevertheless, on 3 April 2021, President Kais Saied refused to sign the bill referring the text back to the parliament. Saied stated that it was unconstitutional, contradicting article 148, according to which the Constitutional Court had to be created within a maximum of one year from the elections. Saied’s refusal, based on foggy and controversial constitutional reasons, was just the beginning of a political clash between the head of the state and the Prime Minister Hichem Mechichi and his ally Rachid Ghannouchi, parliamentary speaker and Ḥarakat al-Nahḍa’s leader, who were accused by the president of tailoring a law to oust him from power. Whatever the reasons, the parliament approved for the second time the project after one month, but this time a group of deputies recurred to the Provisional authority arguing that the second approval violated parliamentary procedural rules. Like in a never-ending saga, the Provisional authority decided to refer the bill to the president of the republic for not reaching the required absolute majority in the vote. ¹⁹

The real controversial point is that the president believes that his signature on the laws is not just a simple formality, but in his vision, he has discretionary power over the fate of any text emanating from the Assembly. He therefore grants himself a right of veto which is not provided for in the constitution. The constitution offers the president several possibilities after a law is issued by the parliament: to promulgate the law through publication via the Journal Officiel de la République Tunisienne; to ask for a second approval by the parliament; to ask for a constitutional review by the Constitutional Court (the Provisional authority); and to submit the law to a referendum. If these remedies are exhausted, he has no choice but to sign the law. If he does not, he is violating the constitution. In other words, there is the ẖaraq al-ǧasīm, the “serious breach”, envisaged by the constitution and the Law 2015-50, but, unfortunately, there is not a Constitutional Court which could complete the procedure of the president’s removal from his office.

Perhaps in the future the Tunisian politic will get over this stalemate, but the constitutional vacuum has been a “juridical havoc” in Tunisia that led to a very serious institutional and political crisis.

The absence of a Constitutional Court prevented any kind of revision of the constitution and allowed new norms to penetrate the legal order with the risks that they jeopardize the supreme law. Only the existence of an “a priori” constitutional check made the control of international treaties highly unlikely and in general this a priori control of projects, entrusted to the Provisional authority, was weakened by its transitory and fragile nature.

As part of the fight against the spread of the ongoing COVID-19 epidemic, the president of the republic adopted the presidential Decree 2020-24 (18 March 2020). This decree quotes article 80 of the constitution relating to the “state of exception”, which requires that the President of the Constitutional Court must be informed of the measures imposed by the state, which can suspend or restrict political and civil rights in order to cope with this situation. This formality could not be respected because of the non-existence of the Court. The same problem arises from the “state of emergency” that is continuously in force in Tunisia since 24 November 2015 because of the extremely difficult transition to democracy, political assassinations, terrorist attacks of Sousse and Bardo and the general instability of the region. The “state of emergency” gives to public authorities almost unconditional and limitless powers, and, as has been pointed out, there is a confusion with the “state of exception”, making the juridical situation even more dangerous in terms of the basic rights of the Tunisian citizens.

Conclusion

This article has highlighted how there are a multitude of problems caused by the absence of an active Constitutional Court in Tunisia. The appointment of the Court’s members turned into an internecine war within the Tunisian parliament, while the start of a real constitutional revision is suspiciously seen by the president of the republic as a juridical weapon pointed at him (the chance to decide the dismission of the president by the Court). Today this weapon symbolizes the clash between the head of the state and the head of the government, who are divided by different political orientations that cause conflicts of jurisdiction. Paradoxically, the settlement of conflicts of competence between the two heads of the executive power falls within the tasks of the Court, which still does not exist.

Ḥarakat al-Nahḍa and its allies need the Constitutional Court to get rid of Kais Saied through the impeachment procedure. On the other hand, the head of the state desires to prolong the stalemate, increasing his prerogatives, above all the discretionary power on the promulgation of law, which jeopardizes the Tunisian democracy. In the end, the old Tunisian interpretation of the constitutional review embodied by article 72 of the constitution: raīs īashar ahtirām ad-dustūr (رئيسيسهر احترام الدستور), “The president ensures compliance with the constitution”, seems to prevail.

The arrival of the “procedural democracy” in Tunisia, after the “Jasmine Revolution” in 2011 meant the sudden appearance of free political dialectic and debate, which are completely in consolidated democratic regimes. Unfortunately, Tunisia arrived unprepared to rendezvous with the creation of the basic institutions of the democratic system and, above all, had very little previous experience concerning the rules of constitutional justice. The institutional cacophony, political fragmentation and chronic weak coalitions, combined with a dire socio-economic situation, enhanced anomic procedures that privileged political interests rather than the objectivity of the law. The birth of the Tunisian Constitutional Court was the expendable victim of these interests, which also endangered the most advanced constitution in the Arab world.