Abstract
The president of Tunisia, Kais Saied, recurred to Article 80 of the constitution on 25 July 2021 to proclaim the “state of exception,” freezing parliamentary activities, removing the representatives’ immunity, and dissolving the government headed by Prime Minister Hichem Mechichi. The following presidential decree 2021-117 on 22 September granted him legislative powers by decree, dismantling the constitution of 2014, which was the cornerstone of the result of the “Jasmine Revolution” of 2011. This article will analyze the constitutionality of the presidential decrees and shed light on the juridical, socioeconomical, and political circumstances that allowed Saied to perform what can be described as a constitutional coup or a self-coup, which reshaped the future of Tunisia.
Keywords
Introduction
The 25 of July is an important date in Tunisian contemporary history: On 25 July 1957, the monarchy was abolished by the Constituent Assembly, Bey Muhammad VIII al Amin was forced to resign, and Habib Bourguiba proclaimed the republic; On 25 July 2019, Beji Caid Essebsi, the country’s first freely and democratically elected president of the republic died after being admitted into intensive care with a severe illness. Essebsi’s death caused the early election for a new president, won with an overwhelming majority by Kais Saied, the same president who, on 25 July 2021, dismissed the government and froze the Parliament in an escalation of political and economic crisis. This event shocked and worried most of the Western observers who had always thought that Tunisia was following a transitional phase toward democracy, even though characterized by a high socio-economic and political instability. What happened on 25 July 2021 swept away many of the hopes that were placed on the Tunisian democracy.
“A ghost is haunting the Western world: Tunisia”: this is how we could describe the image of Tunisia nowadays, paraphrasing the famous quote by Karl Marx, after the Tunisian 2021 summer. Tunisia has been considered for years a sort of oasis among the Arab states; Tunisia as an “exception” or an “anomaly” in comparison to the backwardness and immobility of the rest of the Arab world (Ben Ramdane, 2007; Beau and Lagarde, 2014; Masri, 2017). Tunisia was considered “different” in the darkest times of the autocracies led by Bourguiba and Ben Ali, and even in the so-called “Arab springs” (Barthe, 2015; Dakhlia, 2011; Hmed, 2016). The reasons lay in the idea of “Tunisianité” invented by Bourguiba, which was characterized by the peaceful decolonization, the Western-oriented diplomacy, the middle-class centrality in the Tunisian society, secularism, and, finally, women’s emancipation. This extremely apologetic historical narrative and tradition, as we pointed out, is not only deep rooted in the past, but also in the recent 2011 events of the “Jasmine Revolution” that did not evolve in a reactionary military counter-revolution, like in Egypt, nor in civil conflict, like Libya or the Syrian chaos. Tunisia was deemed as the only “success history” of the post-2011 Arab world (Camau, 2018), for having adopted a democratic constitution in 2014 (the most democratic constitution in the Arab world, according to L’Histoire) (De Carthage à Tunis. 3000 ans d’exception, 2016), hold multiple free and transparent political elections, and moreover, allowed the election of four different presidents of the republic and eight Prime ministers, which confirmed the possibility of a peaceful change of the political power in an Arab country. In 2014, The Economist labeled Tunisia as the “country of the year” (The Economist, 2014). Finally, the 2015 Nobel Prize awarded to the Tunisian National Dialogue Quartet, for “its decisive contribution to the building of a pluralistic democracy” (Nabi, 2019: 4), sealed the Tunisian image in the international community as a different country and the last standing democracy in the Arab world. Nevertheless, these events could be considered, using Fernand Braudel’s (1995) words, just part of the “histoire événementielle,” “surface disturbances, crests of foam that the waves of history carry on their strong backs” (p. 21). Underneath the waves, there are events that can reach again the surface and remind us that there are recurring cycles in history. In the case of Tunisia, these events seemed buried forever in its recent history, but unfortunately the grave where they rested was not so deep.
Tunisian post-colonial history is characterized by “big men” who used constitutions to protect the elite or their own leadership and power. Before 2011, political institutions were always conditioned or emptied of any meaning by hyper-presidentialism, and constitutions were more a tool of governance used to influence the action of political actors than a real binding rule. Bourguiba, the “Supreme fighter” (al-Muǧāhid al-Akbar), or “the leader” (al-zaʿīm), in 1956 used the Constituent Assembly, which had only the power to write the constitution, to change the form of government and proclaim the republic. Furthermore, he rewrote the 1959 constitution proclaiming himself the president for life in March 1975, and in April 1976, issued constitutional changes that mixed typical mechanism of presidentialism with those of parliamentarism, which produced an imbalance between the hierarchy of powers, accentuating the predominance of the executive (Le Gendre, 2019). Things got even worse after the 1987 “Medical coup” by Ben Ali that ousted Bourguiba. Ben Ali used the rule of law to de-democratize the country. While in 1988 he introduced the presidential term limit of three terms of 5 years, in 2002, he expanded the executive power enabling himself to run for a fourth mandate, because he removed any term limit. Ben Ali, being 65 in 2002, also raised the upper age limit to 75 to be elected president. The amendments deprived the Prime minister to determine if the president was unfit to govern, granting this right to the tamed judges of the constitutional council. Finally, the revisions created a new upper chamber, the Chamber of Councilors, which was in part appointed by the president of the republic. All these radical modifications were approved by a referendum with a suspicious 99.52% (Hochman Rand, 2013: 59).
According to the 2014 constitution, political power was supposed to be shared between the institution of the presidency, the Prime Minister, and the Parliament, with disputes among the two members of the executive solved by the constitutional court (art. 101 of the constitution).Unfortunately, the Court never sat because of disagreement over the appointment of the judges leading to a never-ending constitutional deadlock. President Kais Saied, a stern constitutional law professor with a preference for an ultra-formal speaking style of classical Arabic and even more outspoken than an-Nahḍa on hot-bottom social issues for conservative voters, such as Israel, death penalty, women, and lesbian, gay, bisexual, and transgender (LGBT) rights, soon magnified the struggle within the Assembly of the Representatives of the People (ARP) over the separation of powers (Nafti, 2019: 218). Saied, elected as an independent in October 2019 by a large majority and supported by a wide political spectrum (Mohsen-Finan, 2021), soon emerged as a controversial figure in the Tunisian political arena. His conservative and anti-system agenda to refresh the power structure in Tunisia hid demagogy that was the keystone to win the presidential elections, even though he often refused the allegation of populism, shuʿūbiyat (شعوبية). Kais Saied, speaking to the young people, the dispossessed and marginalized, stressed the gap between the promises of the 2011 revolution and the deteriorated Tunisian political life, the contraposition between the people, victim of the political system, and the ruling elite. He was aware of the several protests that arose in the country since the revolution, which mobilized young local populations, while government and elected officials failed to mediate social conflicts or solve the economic crisis (Desrues and Gobe, 2021). Decades of cronyism, absence of any real economic strategic planning, systematic corruption in public services, high unemployment rate, consumer goods distribution sector controlled by corrupt intermediaries were all elements that facilitated Saied’s move. Thousands of strikes and sit-ins have taken place every year since 2011, showing people’s disaffection for politics and the way democracy developed in Tunisia. Even the powerful Union Générale Tunisienne du Travail (UGTT) was often criticized for its excessive bureaucracy and blamed for hindering plans for social and economic reforms.
His message during the electoral campaign for the presidency was directed to propose a fundamental restructuring of the state and a radical reform of the political system through a theory outlined for the first time in 2013 and suggested by his advisor, a radical left-wing intellectual, Ridha Chiheb el-Mekki, nicknamed “Lenin.” Saied sought to build a state based on independent politics from pre-revolutionary secular-religious distinction imposed by Bourguiba and Ben Ali, and above all an anti-system. He blamed the elite for co-opting the goals of the revolution, which he deemed fundamentally unfinished. Therefore, he proposed a centripetal approach to governance that involved a decentralized model of election. A revolutionary model of direct democracy, built like an inverted pyramid and called the “new construction” al-bināʾ al-ǧadīd (البناء الجديد), or a “new institution” al-tasīs al-ǧadīd (التأسيس الجديد), aimed to close the gap between citizen and politics, because in his opinion, “the role of the parties ended after they reached their climax in the 20th century” and “parties are doomed to disappear” (Acharaa, 2019). In the “new construction,” the different levels of representation start from local councils to central government; therefore, the pyramid is composed at the highest level of 264 local councils to the number of delegation in Tunisia, whose members are elected by direct suffrage by the inhabitants of the smallest administrative division (imada). At a lower level, there are regional councils, corresponding to the 24 governorates (wilāyat), containing a member representing each delegation within the governorate. The national Parliament is located at the bottom of the pyramid of powers, and its members come from local councils. Each level of representation would elaborate its own social, economic, and cultural projects of development to be harmonized in concertation with the State. The president would appoint the Premier, and ministers would be elected by Parliament on the basis of their project. It was an original interpretation of democracy that looked like a mix of several ideologies from Muhammar Gaddafi’s
Therefore, the man, who intended to wrench powers from corrupted politicians, showed compassion for lower classes and described the presidency with the Islamic concept of Ibtilā (ابتلا), a trial, sufferance or ordeal, in few months reinterpreted in a personal way the constitution and performed several disputable juridical acts that were beyond his constitutional powers, such as suspending the Parliament and the immunity of its members, and dismissing the government and Prime Minister. The assumption of all the legislative and executive authority was supported by a large part of the population, which was outraged by the inaction of the government grappling in a disastrous economic crisis and unable to manage the out-of-control COVID-19 virus wave. 1 Nevertheless, in many ways, it can be seen as constitutional coup, worthy of the best tradition of the Arab autocracies, representing also the most severe challenge to the democratic institutions in Tunisia since 2011. The aim of this article is to describe the procedure employed to pass and practically destroy the rule of law in a country that was considered the “Arab exception” and the “sweet fruit” of the Arab spring. Kais Saied’s procedure has been a step forward the cynical farce of the rule of law reforms used by Ben Ali’s regime to strengthen his standing and weaken or divide political opposition. The attitude resembles more the classic military African coup that establishes “reformer” or “redeemer” regimes who self-legitimate to defend democracy and redeem the nation from corruption (Nugent, 2004: 216). The paradox is that this did not happen in an obscure and authoritarian hybrid regime, but in a young pluralistic democracy in transition full of hopes. Hence, how was it possible that only a man could dismantle a whole political and constitutional system without any sort of opposition from the institutions and their check and balances procedures? Did the “Tunisian exception” prove to be again a myth for the Western culture?
The juridical and political framework of the crisis
The constitution of 2014 intended to establish a semi-presidential form of government characterized by a “rationalization of parliamentarism”
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(Olivetti, 2015; Achour, 2014). One of the original features of the 2014 constitution is the dualism of the executive power: the president of the republic, who is the guarantor of the nation and its highest representative, and the Head of the government, who is the real cornerstone of the executive power. Notwithstanding, the two executives are intertwined in a check and balance system. The functions of the president of the republic and the Head of the government are distinct, but there is a sensitive area of intersection and co-decision concerning foreign policy, defense, and national security. Unfortunately, in case of political conflict between the two executives (or one of them and the Parliament), the constitution does not give information about who will prevail. Art. 101 (constitution of the Tunisian Republic—Dustūr al-
The political, social, economic, and health-related turmoil caused the extraconstitutional reassertion of the president of the republic in the system of political power. The Islamic party achieved a plurality of votes and parliamentary seats in the 2019 political elections but had always to rely on weak government coalitions. Kais Saied appointed Hichem Mechichi, an independent technocrat with no political affiliation, as Head of the government, sustained by an-Nahḍa, the Islamic coalition al-Karāma, and Qalb Tūnis, a populist and secularist party. Even if Mechichi was not designated by the parties but resulted as Saied’s personal choice, 3 he obtained the necessary parliamentary confidence. However, in January 2021, after a government reshuffle, Mechichi did not achieve support to appoint some ministers he had proposed, because Saied deemed them corrupt; therefore, it was necessary to resort to ad interim ministers. A political strife between an independent Head of the government, who was sustained by parties and had acted quite independently from Saied, and the “anti-party” president was born (Olivetti, 2021). Kais Saied’s moralizing political view gained immediately popular support, and it was directly proportional to the chronic loss of popular support of an-Nahḍa (Albrecht et al., 2021), which abandoned its role as conventional Islamist movement in favor of being a more conventional political party to meet the demand of consensus (McCarthy, 2019). Between the election of the Constituent Assembly in 2011 and that of the ARP in 2019, an-Nahḍa lost one million voters (from 1.5 million to 571,000) and its share shrunk from 37% to less than 20% of the votes.
The Tunisian public opinion, weakened by years of governmental inefficiency, political chaos, and corruption, blamed the Islamic party to be solely responsible for the crisis. According to the common people, an-Nahḍa indulged and promoted clientelism in the political arena, tailoring legislation for its own interests, and hiring relatives of its members in government institutions. an-Nahḍa showed lack of political culture and expertise, failing in the long run to balance political pragmatism and ambitions with the creation of an “Islamic alternative” (McCarthy, 2018; Pargeter, 2016). In September 2021, an-Nahḍa leadership even admitted its failure to manage the affairs of governance in Tunisia and acknowledged the mistakes it had committed since its entry into power, which contributed not only to fuel street anger against it, but also the decrease in the loss of seats in the more recent elections (Al-Arabiya, 2021).
In any case, it is out of question that the constitutional flaws and the chaotic parliamentary situation contributed to create the “perfect storm” and the breeding ground for Saied’s overpower. Particularly, the uninterrupted presence of the “state of emergency” regulating Tunisian political and social life since 2011 and the absence of the constitutional court were catalyst factors that fostered the Tunisian involution.
Even if it is hard to believe it, Tunisia has been living in a state of emergency since 2011. However, from the juridical point of view, the worst thing is that the law regulating this state, which deeply influences the daily life of every Tunisian, has its roots in laws that were issued during the Burguiba authoritarian regime.
When the UGTT called Tunisia’s first general strike on 26 January 1978, which 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 78-49, which proclaimed the state of emergency (ḥalāt al-ṭawāri) in all the territory of the republic to “restore public order and to counter acts of anarchy, rebellion and terrorism” (Journal Officiel de la République Tunisienne (JORT), 1978; Mullin and Rouabah, 2016); the 78-50 regulating the state of emergency; the 78-51 declaring the prohibition of demonstrations and imposing the curfew in Tunis. The state of emergency enabled governors of the provinces to forbid the movement of people or vehicles, to forbid any strike or lockout even decided before the declaration of the state of emergency, to regulate the residence of citizens, and seize 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 78-49 made specific reference to art. 46 of the 1959 constitution (emended in 1976), 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. 4 The same confusion persisted during the Ben Ali autocracy. 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 “Jasmine Revolution” and inspired other revolutions in the Middle East and North Africa (MENA) region. Although a brutal security crackdown followed, with the use of live rounds and arrests of demonstrators, Ben Ali did not recur to art. 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 art. 56 of the constitution. It was this man, who paradoxically represented the first step of the transition from dictatorship to democracy that issued through the decree 2011-184 the state of emergency on all the Tunisian territory on 15 January (JORT, 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 emergencies almost continuously until the present day. 5 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 2015 6 and the general instability of the region, all the Tunisian governments (even during the Kais Saied Presidency) decided to extend indefinitely the ḥalāt al-ṭawāri. The long-running state of emergency became the normality, and even if issued in a different historical moment, the almost 30 presidential decrees that has been proclaiming the ḥalāt al-ṭawāri since 2011 always made reference to the law 78-50. Saied’s presidential decree 2021-59, issued on 24 June 2021, “on the entire territory of the republic” (fī kāmil turāb al-ǧumhūrīa), was not an exception.
The confusion between state of emergency and state of exception 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 behavior 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 and the control of opposition during the Bourguiba and Ben Ali regime. Unfortunately, this situation continued after 2011, even though the 2014 constitution envisaged jurisdictional control of a constitutional court.
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 constitutional court, an ambitious project that intended to represent the cornerstone of the newborn Tunisian democracy (Vizioli, 2015).
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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. Art. 124 stated that law regulated the organization and the procedures of the constitutional Court, as well as the guarantees enjoyed by its members. In few words, 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 1 year from the legislative elections (constitution of the Tunisian Republic—Dustūr al-
After the ARP, it was the Superior Judicial Council that should have appointed four members to the constitutional Court. Nevertheless, since it could intervene only after the Parliament’s appointment, the Council did not start the selection of the members of the Court, therefore blocking the president’s choice.
In May 2018, the ARP presented the project of law 2018-39, which amended the law 2015-50, providing, in case of failure of the first vote, two other ballots with lower thresholds, basically reducing the necessary number of votes from 145 to 131. 12 Moreover, the project deleted the term “sequentially” from art. 10 to allow the Superior Judicial Council and the president to appoint their members independently. Most part of the deputies were hostile to this project, above all part of 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, president Kais Saied refused to sign the bill referring the text back to the Parliament. Saied stated that it was unconstitutional, contradicting art. 148, according to which the constitutional Court had to be created within a maximum of 1 year from the elections. Saied’s refusal, based on foggy and controversial constitutional reasons, was the tip of the iceberg of a political clash between the Head of the state and the Prime Minister Hichem Mechichi and his ally Rachid Ghannouchi, parliamentary speaker and an-Nahḍa’s leader, who were accused by the president of tailoring a law to oust him out. Whatever the reasons, the Parliament approved for the second time the project after 1 month, but on 8 May, a group of deputies of the ARP (38 out of the 217) 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. 13
The absence of a constitutional court prevented any kind of control of revision of the constitution and allowed new norms to penetrate the legal order with the risks that they jeopardize the supreme law. The only existence of “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. Moreover, as part of the fight against the spread of the Covid-19 epidemic, the president of the Republic adopted the presidential decree 2020-24 (18 March 2020). This decree quotes art. 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 this 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 real controversial point is that the president believed that his signature on the laws is not just a simple formality, but in his vision, he had discretionary power over the fate of any text emanating from the Assembly. He viewed himself as the ultimate arbiter notwithstanding the constitutional division of powers. This vision fits with his way of thinking about the state and represents for him a sort of “Cultural Revolution” in the field of constitutional law. Therefore, he granted himself a right of veto which is not provided in the constitution, which offers the president several possibilities after that a law is issued by the Parliament: to promulgate the law through the publication on the JORT; to ask a second approval by the Parliament; to ask a constitutional review by the constitutional Court (the Provisional Authority); 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. This is what happened with Saied. In other words, there were the conditions for a ẖaraq al-ǧasīm, the “serious violation,” envisaged by the constitution and the law 2015-50, but, unfortunately, there was not a constitutional court that could complete the procedure of the president’s removal from his office.
Kais Saied is not the only one to blame for the absence of the constitutional court as an impartial arbiter of the Tunisian politics. The roots of the failure of the election rest on the lack of unity of the ARP, which ignited and boosted the steeple chase for the judges of the constitutional court. However, it cannot be denied that this sort of “Mexican standoff,” in which no strategy seems to exist, benefited immediately the Head of the state.
The incertitude of the rule of law and the failure of the consolidation of the democratic process created the conditions for the emergence of a dangerous throwback to an uncontrolled autocratic regime characterized by presidential decrees.
The savior of the nation or the beginner of a new form of hybrid regime?
The vacuum power within some of the core institutions of the Tunisian political system, together with an agonizing economy and the effects of the COVID-19 pandemic, created the conditions for the “perfect storm,” which could result in two different scenarios: social unrest and the subsequent fall of the established order, that is, total anomy and a new popular revolution; the appearance of a new leadership within the institutions that could bridle tensions and curb chaos in the country. The latter prevailed, creating two different risks: the detour from the democratic procedures and the jeopardy of the syndrome of the “single man leading the country.”
On 25 July 2021, the day of the commemoration of the birth of the Tunisian republic, nationwide protests broke out in several towns, such as Sfax, Bardo, Mahdia, Tozeur, asking for the dissolution of the Parliament and the dismissal of the government. During the night of the same day, Saied relieved the Prime Minister, and Minister of Interior, Mechichi, and froze for 30 days the ARP during a TV speech addressed to the Tunisian nation. The president, accusing “those who loot public money,” affirmed that it was necessary for the return of the “social peace in Tunisia” and to “save the state.”
The dismissal of the Prime minister was formalized in the presidential decree 2021-69 of the 26 July 2021, which also included the dismissal of the Minister of the Defense, Brahim Bertegi, and the Minister of Justice, Hasna Ben Slimane (JORT, 2021a), while on 29 July, the decree 2021-80 suspended, taʿlaq (تعلق), the competencies of the ARP, waiving the immunities of all its members (JORT, 2021b). Both decrees quoted art. 80 of the constitution as the legal base for Saied’s action, as the 2021-70 (26 July 2021), which imposed the curfew on all the national territory from 10 pm to 5 am and limited the movement of citizens across the country, the 2021-77 (28 July 2021), which created an “operation room,” directed by the General Manager of the military healthcare system, to face the COVID-16 emergency. Many other presidential decrees quoting art. 80 were used to replace prominent figures of the Tunisian institutions. 14
Art. 80 is a controversial Article because it empowers the president of the republic to take measures imposing the “state of exception,” the ḥalāt al-āstaṯnāīat (الحالة الاستثنائيّة) 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, and informing the president of the constitutional Court. The president shall announce these measures in a statement to the people. (constitution of the Tunisian Republic—Dustūr al-
The aim of these measures was to guarantee the return to the regular functioning of the public authorities as soon as possible. Throughout this period, the Assembly of People’s Representatives is in a permanent meeting, and it cannot be dissolved. On the other hand, it cannot present a motion of no confidence to the government. At any time, 30 days after the entry into force of these measures, and at the request of the president of the Assembly of People’s Representatives 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 check and balances to the state of exception/emergency (the Parliament in permanent meeting and the role of the constitutional Court).
The broad wording of the art. 80 always raised concerns, above all for the absence of definition about what represents an “imminent danger,” ḵaṭar wašīk (خطر وشيك), or the “measures,” tadābīr (تدابير), that the president can issue. Was the Tunisian economic, political, social, and health crisis comparable to an “imminent danger” for the institutions and the independence of the country, hampering the normal functioning of the state? In other words, did Saied act within the parameters of the constitution? The only body that could answer such questions, the constitutional court, was yet to be formed, fueling the debates and controversies over the interpretation of art. 80. Saied, in the absence of the constitutional court and being the Head of the state and the symbol of its unity, in charge of respecting the constitution (art. 72 of the constitution), seemed to self-identify as the only possible interpreter of the constitution. The president of the republic as interpreter of the constitution has a long-standing tradition in the constitutional history of Tunisia. The 1959 constitution did not envisage a constitutional control by constitutional court. The Tunisian Parliament and other institutions were confined to a mere secondary role and obedient instrument of Bourguiba, the president of the republic, since the most important laws were enacted simply by presidential decrees (Silvera, 1960). The Head of the state appointed the members of his cabinet, who were responsible only to him, and, according to art. 38, he ensured respect of the constitution, or according to the Arabic version of the constitution, he was the al-sāharʿalī (السّاهرعليه), literally the observer, the one who watches over of the constitution. In other words, the only person able to perform an unlikely “constitutional review” was the president of the republic. The constitutional law 76-37 (8 April 1976), which instituted life presidency for Bourguiba, also reformed art. 38, which no longer mentioned the president as al-sāharʿalī, but stated that he 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. Even though Ben Ali created in 1987 a consultative institution, the Maǧlis ad-Dustūrīa, constitutional council, the president of the republic remained “guarantor of the respect of the constitution” and gave his opinion on their compliance with the supreme law.” Things did not change much when constitutional council received a constitutional status in 1996, and 2 years later, the Council ceased to be only a consultative body and its opinions had juridical value. The president of the republic still was the center of the interpretation of the constitution (Tamburini, 2021).
It is likely that Saied’s juridical background led him to take inspiration of the former constitution and the attitude of the former presidents of Tunisia. Whatever the reason, the interpretation and implementation of art. 80 still present some loose ends.
Art. 80 states that the president may take any measures after consultation with the Head of the government and the speaker of the ARP and informing the president of the constitutional court. Saied did not consult any of these institutional leaders, even though art. 80 does not indicate if the consultations are binding or not. What Saied did was the announcement of the measures to the people through the national public TV.
The “measures,” tadābīr, taken are also rather tricky to adjust to the spirit of art. 80, which denies that ARP cannot be dissolved and must be deemed in a state of continuous session during the state of exception. The presidential decree 2021-80 suspended, taʿlāq (تعلق), all the ARP jurisdictions, but technically did not dissolve it, even if in practice it was a dissolution. This play of words allowed some experts and jurists to write that Saied acted within the framework of the art. 80, since he simply froze the Parliament activity, rather than dissolving it (Jrad, 2021). Nevertheless, the ARP absolutely cannot be considered in session, since the army guarded the entrance preventing its members to enter the building. Without any doubts, the constitution does not grant any prerogative to the president to dismiss the Head of the government, or, as art. 1 of the 2021-69 states, to “suspend,” īuʿfā (يُعفى), him.
With the presidential decrees, like a magic wand, Saied removed all the major political institutions and figures, paralyzing the legislative powers and assuming the absolute leadership of the executive power. Therefore, it is hard to state the president of the republic still embodies the role of moderator and guarantor envisaged by the original constitution of 2014. There are many evidences that could suggest that on 25 July 2021 there was an Inqilāb ad-dusturīa (انقلاب الدستورية), a constitutional coup, led with the instrument of the presidential decree, or ʿamri riʿāsī (أمر رئاسي). Without any doubts, the 25 July 2021 was an historical event, as it was the 14 January 2011, the day that marked the end of the Ben Ali’s regime. Nevertheless, thousands of Tunisians took the streets to celebrate Saied’s decision, while the army, which remains the most trusted state institution, backed the president’s bold move. Even the influential and powerful UGTT, co-recipient of the 2015 Nobel peace prize, defended presidential decrees as entirely constitutional, even if it demanded that the exceptional measures were limited in time so Parliament could soon reopen.
UGTT’s requests remained unheeded. The presidential decrees of July were prolonged indefinitely under the shadow of the art. 80, 15 but above all, always using a political language based on anti-corruption, where all the political parties were presented as corrupt, mobster-like and unconcerned with people’s real-life needs. Even the whole Parliament was described in speeches as a problem. In fact, in August, Saied affirmed in a television speech that “al-barlamān ḵatir ʾalā dawla” (البرلمان خطر على الدولة), “the parliament is a danger for the state” (Tunisie numerique. Premier site d’actualités en Tunisie, 2021). This statement looks like a famous Bourguiba’s sentence about elections, which, according to him, caused “périodes de fièvres propices à la prolifération de microbes dangereux pour la santé du pays” (Borsali, 2008: 132). However, it was a clear Saied’s rejection of the parliamentary system, asserting his preference for the presidential political system, where the president of the republic leads the country. This preference was the cause of the following work of “constitutional dismantling,” which destroyed any hope that there might have been a return to the normality of constitutional life. In fact, hopes soon faded away on 22 September, swept away by the presidential decree 2021-117. It was a legislative shock because it was more than a presidential decree. It was a sort of “compact constitution” that almost obliterated the 2014 constitution and its procedures for constitutional revision. In fact, the right to propose amendments to the constitution owns to the president of the republic and to a third of the members of the ARP (art. 143). Furthermore, the proposal must be submitted to the constitutional court by the speaker of the ARP. In case of positive answer, the constitution can be amended upon the approval of two-thirds of the members of the ARP, while the president can submit such approval to referendum (art. 144). The 23 articles long 2021-117, once again quoting art. 80, bypassed this procedure proposing a new vision for the future, and also offering a political explanation for the amendments. The prologue of the 2021-117 was an official “J’accuse” against the political system and the Parliament, which betrayed people’s sovereignty. The 2021-117 stated that if people were not able to express his will and to exercise his sovereignty according to the constitutional provisions in force, “sovereignty prevails over the provisions related to the exercise of sovereignty” (JORT, 2021c). The decree also intended to interpret the sentiments of the Tunisian people, who “repeatedly expressed his rejection of the mechanisms for the exercise of sovereignty.” It also added that the functioning of the public powers was hampered and “the danger was not imminent but real, especially within the ARP” (JORT, 2021c). It finally gave a pseudo-juridical justification for the decree: “the principle is that sovereignty belongs to the people” and “the prominence of the principle assert itself on form and procedures.” In Saied’s vision, the political system was not going anymore in conjunction with the will of the people. The cornerstones of his thought were the paramount principle of sovereignty, mabdaʾ as-sīyādat (مبدأ السيادة), and the people, as- šaʿab (للشعب). There was a gap between the mabdaʾ as-sīyādat, which belonged to the as- šaʿab, and the constitutional procedures. The gap was unbridgeable; therefore, forms and procedures had to be erased. Saied not only was the interpreter of the people’s will, but also the instrument that solved the dichotomy between sovereignty and “unrepresentative” procedures. This kind of message perfectly matches with a populist message and with the description of populism offered by Jagers and Walgrave (2007) when they wrote that “populism is a communicative framework that appeals to and identifies with the people and pretends to speak in their name.” Saied pretends to detain his legitimacy directly from the people and under the famous 2011 revolutionary slogan of “the people want to bring down the regime” (as- šaʿab yurīd isqāṭ an-niẓām). The prologue of the 2021-117 is a typical top-down appeal centered around an emotional message where there is the usual manifestation of dualism that combines “the people,” on the one hand, and the idea of the hate for the “anti-people elite” on the other hand, represented in this case by the procedures.
The 2021-117 reaffirmed the suspension of the ARP and the immunity of its members, restructuring the legislative power. In fact, it is enacted by decree-laws decided by the Council of Ministers and issued by the president of the republic, without parliamentary ratification. Since the ARP ceased to exist, the 2021-117 provided a long list of legislative issues in which the decree-laws, which are immune to judicial oversight, have jurisdiction, 16 leaving all the remaining issues to the competence of presidential decrees. In other words the 2021-117 gave the president of the republic the prerogative to legislate in all areas whether related to the organization of justice and the judiciary, information, the press, political parties, unions, associations, and professional orders, as well as their financing, internal security forces and customs, the electoral law, freedoms and human rights, personal status, or local power, and the organic budget law. Now the Head of the state is “THE” legislative power, since he has full legislative authority over many areas, many of which have no connection to the presumptive national crisis and the state of exception.
The constitutional reshaping also affected the executive power, turning the Tunisian semi-presidential republic into a hyper-presidential system. According to art. 8 the executive power is exercised by the president of the republic assisted by a government led by a Head of the government. Both government and Head of the government are appointed by the president of the republic (art. 16) and they are liable to him (art. 18). In comparison to the 2014 constitution (art.77), the president of the republic now enjoys many more powers, such as the creation, modification and abolition of ministries, state secretaries, public institutions, and administrative services; the dismissal of one or more members of the government or the decision on their resignation.
The 2021-117 technically obliterated the 2014 constitution. In fact, art. 20 states that the preamble and the first two chapters of the constitution (on general provisions and rights of freedom) are not suspended, while the other chapters will be respected only when they do not contravene the measures contained in the presidential decree. Even the provisional authority on the constitutionality of projects of law is dissolved (art. 21), while the president has full authority over the organization of justice and of the courts (art. 5); therefore, he has placed himself above all forms of oversight.
Art. 22 announced the roadmap to drawn political reform with the support of an unspecified commission, laǧnat (لجنة) with the aim to establish a real democratic regime in which the people is effectively the holder of the sovereignty and the source of powers that are exercised through elected representative or by referendum. This regime is based on the separation of powers and the balance between them, it establishes the rule of law, guarantees the rights, the public and individual freedoms, and realization of the objectives of the revolution of the 17 December 2010 relating to work, freedom and national dignity.
The projects of reforms will be submitted by the president to a referendum for approval. This article shed a sinister light on the future constitutional reforms in Tunisia. The unclear composition of the commission can allow the president to be free in choosing individuals who share his same vision on the future of the Tunisian form of state. This would give the president full control over whatever amendment of the constitution is advanced, without any guarantee of control, debate, or external consultation. The laǧnat can be easily formed by president’s “yes men,” contributing to transform Tunisia into fully fledged presidential system, gateway to authoritarianism and one-man rule. We do not know if the laǧnat will issue a new constitution, based on the theory of the al-tasīs al-ǧadīd, the “new institution”; in any case, it is beyond any doubt that it will not solve the economic crisis, provide work and decent wages, or eradicate the political corruption.
Art. 22 is noteworthy for another reason. As the prologue contained some clear hints of populistic rhetoric, art. 22 continued and implemented the populistic political discourse: “real democratic regime,” the people as the “effectively holder of sovereignty,” the “revolution of 17 December 2010,” “national dignity” are all elements of the emotional message directed to the people in order to justify the exceptional measures and obtain legitimization. This message, which is also a closing message being inserted in the end of the 2021-117 as a seal of legitimization, seeks to leverage the epic of the “Jasmine Revolution,” which is considered a revolutionary myth. Not surprisingly, it quotes the date of 17 December 2010, the day the humble street vendor Tarek el-Tayeb Mohamed Bouazizi set himself on fire, galvanizing the frustration of the youth against Ben Ali and becoming a catalyst for the Tunisian Revolution. Moreover, it is not by chance that it refers to the national dignity, al-karāma al-waṭanīa (الكرامة الوطنية). Karāma was one of the most famous slogans during the street protests in 2010 (Jerad, 2013). The adjective waṭanīa has a populistic appeal as well. The word waṭan, literally means “the place where one was born,” nation, homeland, or patriotism, but it also expresses a common collective identity. Dignity as a “good of the collectivity” was an original goal of the upheaval like work and freedom, before corrupted politicians and the post-2011 political system led the revolution off course ruining its fruits. Saied, through the decree 2021-117 proposes himself as the savior of the values of the revolution and mentor of the Tunisian people.
The problem is that apparently the prescription to cure the supposed “illness” looks to be composed of the same poisonous elements of the “disease.” Restoring freedom through dubious constitutional acts and paving the way to an illiberal regime. Perhaps he voluntarily forgot that the 2010-2011 ṯawra (ثورة), the revolution that deposed Ben Ali, was a revolution against an autocracy. All Saied’s provisions are dictated unilaterally by the presidential power and without any pluralist debate or control by a constitutional jurisdiction. Moreover, they are supposed to be temporary, but in the 2021-117, there is no indication how long they will be in effect.
What happened on 25 July and 22 September 2021 not only can be described as an Inqilāb ad-dusturīa, but also as an “autogolpe,” by the standards of Latin American self-coups when seated presidents suspend the legislature and seize power to govern with no opposition and in order to extend his control over the political system in an extraconstitutional way (Brooker, 2014: 61). It is also a step forward the concept of “hybrid regime” or “electoral authoritarianism” (Diamond, 2002; Schedler, 2006), that is, countries where political pluralism, elections, and guided selective repression of the opposition constitute the elements of a specific political approach for the survival of the regimes and their élites in power.
The appointment in September 2021 of Najila Bouden Romdhan as the first female Head of the government in Tunisia, and the Arab world, and the choice of nine female cabinet members has been seen as populistic “pinkwashing” strategy to appease the public and convince the international community that he is a progressive and tolerant president, distracting attention from the disputable presidential decrees. It is hard to forget that in August 2020, to the disappointment of women right activists, Saied showed clear opposition to equality between genders in inheritance, stating that the Koranic text was clear on the issue and allowed for no interpretation.
However, outside Tunisia, only the governments of the United Arab Emirates, Saudi Arabia, and Egypt immediately praised and expressed rhetorical support for president Saied’s initiative. The European parliament issued on 21 October 2021 a resolution on the situation in Tunisia expressing concern about the concentration of power in the hands of the president, and deploring Saied’s indefinite suspension of the Tunisian Parliament. The resolution called for “a return to true democracy and the resumption of parliamentary activity as soon as possible, within the framework of a national dialogue” (Resolution B12816A10), insisting that any changes to the constitution and the political system could only take place within the boundaries of the constitution.
Conclusion
It is out of question that after the “Jasmine Revolution” there was a compromise between the political forces that did not lead to a drastic rupture from Ben Ali’s regime as Tunisians expected. The newly established democratic process faced old privileges, power relations and hierarchies, as well as endemic corruption. The 2014 constitutional architecture was not able to overcome and solve this problem and was easy for Saied to highlight the shortcomings embedded in the fragile Tunisia’s democratic framework that provoked a detested political status quo. This explains the surprising popularity he obtained with his decrees among the population (a public survey showed that 87 % of Tunisian were favorable to the “state of exception,” and 79 % to the 2021-117 presidential decree) (Parks and Kahlaoui, 2021). However, popular dissatisfaction with the political system is not the only reason why all the decrees were welcomed by the public opinion. Despite the glorious 2011 revolution against Ben Ali’s dictatorship, Tunisian people seemed to have experienced some difficulties in getting rid of the faith in the traditional autocratic character of the political power. As if Tunisians could not forget the years of autocracy in which reforms mobilized more the elite than the masses. Unconsciously, the extreme individualism of the leadership and legality is connected to the figure of a strong and just leader have never been perceived as a serious drawback in the process of reform of the power. It was not possible to erase the conception of the authority linked to a patriarchal model on the national scale; the ensemble of the Tunisian society, imagined like a big family headed by a president. Moreover, Tunisians showed less commitment to democracy, whose social and economic benefits never really enjoyed, and were worried by the fact that Saied did not present a clear plan to pull the country out of the dire economic crisis. Moreover, surveys found that support for freedom of speech and democracy has weakened since the Arab Spring, while most of the country’s citizens are ambivalent or skeptical about the 2011 revolution’s benefits (Brym and Andersen, 2016).
President Saied used the classical tools of populism to present himself as the savior of Tunisia and it was a peculiar form of populism, for he articulated and developed it long before he came into politics, with his theories of the “new institution” and his negative attitude toward political parties and traditional political system. It did not matter if this operation meant the violation and the dismantling of the constitution. This behavior recalls a famous de Gaulle’s sentence: “Souvenez-vous de ceci: il y a d’abord la France, ensuite l’État, enfin, autant que les intérêts majeurs des deux sont sauvegardés, le Droit” (Le Pourhiet, 2015). In few words, the state, and the nation above the Law.
As we pointed out, the political system and the 2014 constitution proved to be severely insufficient to guide Tunisia out of the social and economic deadlock, therefore a deep reform was urgent. Unfortunately, Saied performed it all on his own, as Bourguiba and Bel Ali did in the past (and they were condemned by history). There can be a fluid borderline between the correction of the post-revolutionary path and the “correction” of democracy. It is early to judge the outcomes of Saied’s constitutional coup, as it is unpredictable how the Tunisian governance will evolve. It is sure that he could force and change the system using its weaknesses. The road followed by Kaies Said might lead to the legitimation of a new authority based on a strong personal leadership, a new raʾīs or zaʿīm, who is the personification of the stereotype of the Arab society where the charismatic “big man” reduces politics to his personality and inclinations. If we look carefully to Saied’s populistic message, we can notice that he proposes an alternative narrative of the events. There is an attempt to mystify or manipulate the audience. He simplifies the complex and dynamic political scene, reducing it to a clash between the villain (the corrupted parties) and the good (the common people), while in the background there is the savior of the state (himself). A narrative device, typical of the strong leaders (Edelman, 1991: 119–120), which is also a tool of power. The simplification of Tunisian reality brought to underestimate the creation of a real economic vision or planning. Without an economic stability Tunisia will be doomed to an abyss of insecurity and political turmoil. No strong executive power will be able to improve Tunisian economy.
Presidential decrees have many flaws that could identify them as a constitutional coup. Art. 23 of the African Charter on Democracy, Elections and Governance, 17 adopted by member states of the African Union in 2007, stated that a coup can also be described as: “Any amendment or revision of the constitutional or legal instruments, which is an infringement on the principles of democratic change of government” (Matlosa, 2018). The Tunisian case seems to perfectly match this definition. Levinson and Balkin (2010) wrote that a constitutional dictatorship occurs “when individuals or institutions have the right to make binding rules, directives, and decisions and apply them to concrete circumstances, unhindered by timely legal checks to their authority.” Saied technically did not have that “right.” Even if Saied will ever succeed in building his “new institution” in the framework of a new democratic system based on his theories it will be a poisoned fruit. It will be seen like an original sin because it was born from an unconstitutional act.
Footnotes
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.
