Almost five months would pass before Kais Saied proposed an exit plan for the state of exception which became effective on July 25, 2021. In his speech on December 13, 2021, the president laid out the steps necessary to wind up exceptional measures. In the first trimester of 2022, a national debate in the form of an electronic consultation would be set up as a means to survey Tunisians’ grievances.
A commission was tasked with bringing proposals before the president, who would then present a series of reforms to voters. In the meantime, the Assembly of the Representatives of the People (ARP) elected in 2019 was to remain frozen until the election of a new parliamentary chamber on December 17, 2022. According to Saied, legislative elections are to mark the end of Tunisia’s state of exception. But as election day approaches, we are drawn to wonder about the validity of this affirmation.
ARP short seven members following December elections
The boycott of elections by a large part of the political class, plus the conditions imposed on aspiring parliamentarians, limited the number of valid candidacies presented. Seven districts of Tunisian voters residing overseas thus failed to produce a single candidate, meaning that these same districts will simply not hold elections. In ten other voting districts with a single running candidate, the latter will be elected to office.
In districts with only two candidates competing for a seat, a single round of elections will be held. A second round will be organized in other districts where no candidate receives an absolute majority of votes. In this case, the two leading candidates will compete for a seat. Definitive results for the first round will be announced by January 19, the second round by March 3.
Regardless of the results, the ARP will be short seven members, specifically those representing districts where elections did not take place. According to Article 139 of the Constitution, the president holds legislative power « until the Assembly of the Representatives of the People assumes its functions following the election of its members ». Saied’s interpretation of this provision will determine whether or not the ARP can legislate in the absence of seven of its members.
Incomplete bicameral parliament
One of the surprises contained in Kais Saied’s constitutional draft submitted for referendum on July 25, 2022: a political system built on a bicameral parliament, in which the ARP only represents the lower chamber of Tunisia’s legislative authority. Whereas his initial vision for democracy was centered on a unicameral system, the president ultimately decided to introduce a Senate, called the « Council of regions and districts » (CRD). Articles 81 and 86 concerning this chamber are not very detailed. What is clearly spelled out is that the members of this authority are designated by indirect vote: each regional council designates three members to serve on the CRD. Saied’s constitution relies on the electoral code with regard to voting methods for the CRD. The one constitutional provision which evokes local collectivities, Article 133, does not specify whether or not regional councils must be elected, as was specified in the Constitution of 2014. Moreover, in the Constitution of 2022, it is the legislator’s prerogative to define relations between the two chambers of parliament, notably when a text faces opposing votes. It seems highly unlikely that parliament’s upper chamber, the CRD, will be set up at the same time as its lower chamber, the ARP.
Exceptional measures should already have been abrogated
Articles 139 and 142 of the Constitution of 2022 cover Tunisia’s exit from its state of exception. Accordingly, the new constitution becomes effective upon its promulgation, with the exception of the legislative component. As we have already observed, the president will continue to exercise legislative authority until the ARP is set up. The Constitutional Court, whose members are designated according to objective criteria (function and seniority) and which should already have been set up, would have provided an opinion on texts whose constitutionality is challenged by legal experts. Such texts include Decree-law 54 as well as Decree-law 55 which organizes legislative elections.
A new ISIE, to be formed of nine members as per the Constitution of 2022, should also have been established. Saied, however, decided to go against his own constitution and continue to act according to Decree 117 of September 22, 2021. Still more remarkable is that the president—who was elected on the basis of the 2014 constitution—has yet to swear in the new text.
Oversight of legislative decisions?
Decree 117 enables the president to legislate by decree-laws. The latter are neither subject to review for constitutionality nor any kind of appeal. This situation is justified by the exceptional measures implemented under Article 80. As for the state of exception, the new constitution, including its temporary provisions, do not cover this specific context. According to lawyer and former administrative judge Ahmed Souab, the country’s new parliament has the authority to amend or even abrogate decree-laws. Souab recalls that Tunisia witnessed a similar situation after the fall of Ben Ali. On February 6, 2011, parliament authorized interim president Foued Mebazaa to legislate via decree-laws in certain cases. Under pressure from the Kasbah 2 sit-in, however, the president dissolved the legislative chambers and took over their functions. Constitutional experts came to a consensus that an elected assembly representing the people’s will has the right to modify these decree-laws. And yet there is nothing to guarantee that the new power—which has already gone against certain legal precedents—will accept the unraveling of its legislative decisions.
Under the new constitution, exceptional measures set in stone
Article 80 of the Constitution of 2014 which was used as the basis for exceptional measures affirms that the latter «must have the objective of guaranteeing a swift return to the regular operation of public authorities». Nevertheless, the new regime has set in stone a number of elements associated with governance post-July 25, 2021. It is in this vein that parliament, which Saied sees as representing « an imminent peril », saw its authority diminished. Whereas in theory parliament can control the government’s action, in reality the government is no longer parliament’s prerogative. The conditions of the motion to censure (which becomes effective when half of the two chambers sign the motion and two-thirds of each chamber vote for it) make this control nearly impossible in practice. In the even less likely case of a second censure, the president can either accept the government’s resignation, or dissolve parliament or one of its two chambers. The new two-round uninominal system of voting weakens parties and prevents a program-based constitution of blocs. Furthermore, the president maintains a certain control over the judicial apparatus by appointing judges « based on proposals by the Superior Council of Magistrates ». The president can legislate by decree-laws during parliamentary recess (July – October). In certain cases, parliament can be circumvented so that a referendum can be held. The majority of opposing powers are considerably weakened to the advantage of the president, who enjoys absolute immunity and is under no circumstances held accountable for his actions. In spite of the fact that constitutions since the 1970s have provided for the possibility of impeachment, Tunisia’s president has been made invincible.
In his book « Les dérives contraires, autour de Carl Schmitt » (Cérès, 2022), political analyst Hatem M’Rad resumes Decree 117 which regulates the state of exceptional: « Anything that does not directly fall within president Kais Saied’s jurisdiction remains within his jurisdiction indirectly ». The election of a structurally-weakened parliament will not fundamentally change this reality.