In the judicial construction of contracts, ambiguities are construed against the drafter based on the canon of “Ambiguitas contra stipulatorem est.” On July 25th, 2021, the Tunisian president Kais Saied imported this technique to constitutional law by dismissing the Prime Minister (PM) and suspending the parliament chaired by “Rachid AL Ghannouchi,” the head of Ennahda (the Muslim Brotherhood party), the current majoritarian party in the parliament. The last is the very same majoritarian party during the drafting and adoption process of the 2014 constitution. The president used Article 80 of the constitution and its ambiguities as a cover to solely declare the “State of Exception.”
What happened in Tunisia on July 25th?
Following Ennahda party leaders’ calls to their supporters to take the streets if the government did not grant them reparations by July 25th, several young people and activists started calling to counter this move and take to the streets and protest the ruling class mismanagement of the country.
The president used the discontentedness of people to impose a de facto state of exception on the country. Despite the invocation of Article 80, most of the measures he took were extraconstitutional, as the latter does not allow him either to dismiss the Prime minister, freeze the parliament,[1] or to head the public prosecution.
He used the double ambiguity in this article to cover his extraconstitutional measures. The first ambiguity is the concept of “imminent danger.” The president interpreted this concept to include the Prime Minister and the parliament as dangers hampering the normal functioning of the State in the letter of Article 80. The second ambiguity was the notion of Article 80 itself and its entire concept of “State of Exception,” as it is nothing more than a mere contextless reproduction of the same concept enshrined in Article 16 of the French constitution.
The French constitution [2] and constitutional doctrine distinguish between three fundamental concepts within the emergency response framework; the State of exception (article 16), [3] sometimes characterized by the word full powers – Pleins Pouvoirs –referring to the vast expansion of presidential powers, the State of siege (Article 36), and the State of emergency framed by the Law n°55-385 of April 3rd, 1955. [4]
This concept of State of Exception has no clear definition, as Giorgio Agamben highlighted in his book “State of Exception”. However, thinking of the concept [5] as developed by the German jurist Carl Schmitt and its traditional use in the French constitution, [6] we can see how dangerous it is. Article 80, precisely like its French ancestor, condensates absolute powers in the president’s hands, which turns him into a sovereign in crucial times of his nation’s history. In France, for example, the application of those exceptional powers sometimes resulted in the creation of exceptional[7] and military [8] courts [9] with jurisdiction over civilians by decrees during the Algerian independence war. Similarly, the Tunisian president’s activation of article 80 paved the way for the military prosecution and military courts to sue [10] and arrest [11] some members of the suspended parliaments.
The concept of State of exception inspired by article 16 of the French constitution might not only open the doors to authoritarianism-backsliding in Tunisia, but there is also no practical, legal, historical, or political need in Tunisia to adopt such an ambiguous concept. In France, the concept was pushed in the constitution by General de Gaulle to preserve the State during severe exceptional circumstances, compared to those of June 1940. However, in Tunisia, this concept contributes to the current political crisis. [12]
The Tunisian fascination with French historical solutions does not stop within the limits of adopting the French constitutional ideas, but it goes to the extent of trying to reproduce the French political history.
The Tunisians’ Future Trapped in the Hole of French Constitutional History
Following the president’s solo activation of article 80 to grab “Full Powers,” his supporters and legal experts [13] started drawing comparisons with the French political history. Describing the president as a Tunisian General De Gaulle [14] does not hold for several reasons. Maybe the two men have things in common on a personality level, but regarding the political moves, they are different. Firstly, from a legal point of view, De Gaulle, in 1958, moved based on a constitutional law, i.e., the Constitutional Law of June 3rd, 1958, voted by both chambers of the French parliament, putting an end to the IV republic, nominating de Gaulle to lead the country following the coup of Mai 1958 “Putsch d’Alger” and establishing the V republic. President Kais Saied moved based on his twisted interpretation of article 80. Both men moved following a popular resurrection, but their movements are incomparable when it comes to legal legitimacy. Article 16 of the French constitution was a consequence of De Gaulle’s return to political life, [15] while Saied moves were based on the article 16 look-alike in the Tunisian constitution. Consequently, we can consider the Tunisian political crisis looks like an indirect result of General De Gaulle insistence to insert this article in the French constitutional order.
Secondly, De Gaulle worked with coalition governments [16] with all the French political parties except the communist party, while President Saied declared his measures solely, and past the constitutional deadlines, it is not clear both for the political parties and civil society in Tunisia, and the international community, what will be the next step.
The President himself didn’t clarify what he has in mind, Rather than that, he added to the confusion as following the one-month deadline prescribed in article 80, the presidency of the republic extension of the state of exception comes in a brief announcement. The prolongation disregarded all the constitutional standards regulating all emergency response frameworks concerning their scope and deadline.[17]
The attempts to create an illusion of resemblance [18] between the two experiences might be a contribution from the president’s supporters to build up nonexistent legality to his moves even if it means trapping the Tunisian future in the French constitutional history despite the differences. Alternatively, it may contribute to consolidating the popularity or popular legitimacy of the president’s measures by diminishing the danger of the measures and their capability to jeopardize the nation’s right to development by creating this illusion of resemblance with a success story.
The Legitimation Dilemma, a Déjà-vu?
Once again, the Tunisian ruling class pushes the State to the edge of collapse. As usual, they resort to the Tunisian politico-constitutional custom of misinterpreting the constitution and the legal texts. Even though this custom is as old as the republics, its most apparent manifestation was in 2011. Despite the suspension of the 1959 constitution, the legal and political elite could not openly revendicate the idea of revolutionary legitimacy [19] or popular sovereignty like their eastern counterparts in the region. The legitimacy of all the post-revolution measures was, to some extent, based on the suspended constitution representing the legitimacy set up by the Ben Ali regime. The power handover to the head of Ben Ali’s parliament, the creation of the “Higher Authority for Achieving the Goals of the Revolution, Political Reform, and Democratic Transition,” the government reshuffle, the suspension of the two parliament chambers, and finally, the formation of the post-revolution government by the interim president’s law decree “No. 2011-14 [20] issued on March 23rd, 2011, on the provisional organization of public authorities,” all represent the architecture of the revolutionary government and the post-revolution polity which was based on a suspended constitution’s namely article 57. The Tunisian ruling class’s obsession with keeping things within the constitutional legality made them bring to the world what we can call in Tunisian Arabic a “Lāhu–Lāhu Legitimacy,” which translates to “neither this nor that.” This contextual form of legitimacy was neither a revolutionary legitimacy nor a constitutional one. The justification given by the post-revolution polity engineer, Professor Yadh Ben Achour, [21] was the exceptional circumstances [22] that the country passed through, which is the same justification of every major political change in post-colonial Tunisia. In 1987, Ben Ali arranged medical certificates of the former president Bourguiba proving that he was incapable of governing and toppled him in the end. This “medical coup” plays out in the same direction of all the significant political changes in the country’s history, starting from proclaiming the republic on July 25th, 1957, until the activation of article 80 of the constitution by president Kais Saied on July 25th, 2021, which confront to the criteria of this Lāhu–Lāhu Legitimacy syndrome.
Based on the above, we can understand the legitimation attempt made by president Kais Saied and supporters of the extra-constitutional measures, as he invocates article 80 while applying a political maneuver that has nothing to do with the indicated article, except for the fact that this article gives him full powers over the country’s polity.
Political Settlements and Packed Processes are always the Answer?
Even though president Kais Saied’s measures lacked legality as they had no legal basis except for his twisted interpretation performed autonomously, they still enjoyed considerable popular legitimacy and supports.
The past ten years were a total failure for the ruling class in the economic and social regards, and they were not a big success in the legal and political level either, with the misinterpretation of the constitution becoming a tradition since 2014. The parliaments committed a striking failure in overhauling and modernizing the legal framework. The situation ended up with the ruling class mismanagement of the COVID-19 pandemic that led to an obscene death toll, all in addition to rising unemployment, corruption, and a democratic transition that became a consolidation of kleptocracy.
Most local experts and commentators supported the measures as this chock was needed to push the political process out of its deadlock. Two days after the activation of Article 80, the parliament members complied with the measures and the majoritarian party, Ennahda, declared its willingness to seek a political settlement in favor of the democratic transition and understand the people’s anger. [23] All the civil society organizations and political parties unanimously agreed on the importance of investigating figures accountable for corruption, going back to normalcy, and continuing the country’s development process.
Despite the above, past the one-month constitutional deadline, the president did not announce a road map until now. Based on Article 72 of the constitution, he symbolizes the country’s unity; He guarantees the State’s independence and continuity and ensures respect for the constitution. The president claims he took these measures to guarantee the well-functioning of the State’s institutions; one of the significant missing institutions is the constitutional court. The court’s formation is the reason for the tension between the State’s institutions, which ultimately led to this crisis. The court, as an adjudicative body, is the party supposed to absorb the institutional conflicts.
What is Next?
A turn back to pre-25 July is impossible, and even if it were possible, it would not be wise. In this context, one of the possible way-out-scenarios could be:
By September 24th, the president appoints a capable person to lead the government.
One week after, the president establishes a commission of experts to produce a consensus charter and a policy framework for development and recovery and presents them to the parties and the civil society organizations to sign;
Within the same deadline, upon consultation with the major political parties and civil society organizations, he establishes a committee formed from the political parties and civil society organizations and activists to monitor and evaluate the reform’s advancement.
By mid-October, the president presents a refinement to the law of the constitutional court to make it in line with the rule of law’s international standards and add articles that guarantee strict deadlines to all the players to give their appointments; otherwise, they lose their nominations. Then, he appoints his four members and gives a one-time deadline of one week to the political parties represented in the government to appoint the parliament’s four members and the same deadline to the judicial council. The candidates should be among the national figures known for their integrity and efficiency, who made significant contributions within their area of expertise, equipped with international recognition and exposure.
On October 15th, the consensus pact gets signed by all the political parties to guarantee political settlement, and the policy framework of development and recovery gets approved by them.
The next day the parliament gets back to work, except for the accused members in cases before the judiciary. The parliament should come back to operation with a clear parliamentary agenda to assure the overhaul of the legal framework and the achievement of the needed reforms.
The policy framework for development and recovery could focus on legal and constitutional reforms, judicial reform, security sector reform, a political parties’ law favoring intraparty democracy and accountability, and maybe a rationalized electoral law. The socio-economic reforms, such as healthcare, land reform, public sector reform, agri-environment climatic measures, and the development of urban planning, electrification, clean water, and housing, in several regions of the country, all should be urgently considered on the parliament reforms’ agenda.
All these measures conform to the 2014 constitutional legitimacy, with no twisted interpretations that power a party at the expense of another, which should be the prime concern of Tunisia at this point.
[[1]] Bouazza, Bouazza Ben. “Tunisia on Edge as President Suspends Parliament, Fires PM.” AP News, 2021. https://apnews.com/article/africa-business-religion-tunisia-tunis-dc7ae5d0f2b3650badfdd3431cecb886.
[[2]] France’s Constitution of 1958 with Amendments through 2008 (n.d.). https://www.constituteproject.org/constitution/France_2008.pdf?lang=en.
[[3]] Platon, Sébastien. “From One State of Emergency to Another – Emergency Powers in France.” Verfassungsblog, 2020. https://verfassungsblog.de/from-one-state-of-emergency-to-another-emergency-powers-in-france/?fbclid=IwAR1iARLg3NWw75ORZmT4pZlRWbplznFOc45UpMz-1pRkV-lY7quv09JbTz8.
[[4]] Loi n° 55-385 du 3 avril 1955 relative à l’état d’urgence. Accessed September 1, 2021. https://www.legifrance.gouv.fr/loda/id/JORFTEXT000000695350/.
[[5]] Wellman, Carl, Olivier Beaud, and Pierre Auriel, eds. The Rule of Crisis: Terrorism, Emergency Legislation and the Rule of Law. Springer, 2018. https://books.google.tn/books?id=TfNRDwAAQBAJ&pg=PA234&lpg=PA234&dq=state+of+exception+and+constitutionalism+re-examination+of+the+case+of+france&source=bl&ots=EDhcS9BoT6&sig=ACfU3U0wA0uoCkd-
[[6]] Cours de droit.net. “Article 16 : Les Pleins Pouvoirs En Période de Crise,” 2019. https://cours-de-droit.net/article-16-les-pleins-pouvoirs-en-periode-de-crise-a127004134/.
[[7]] Décret n°62-307 du 19 mars 1962 INSTITUANT UN TRIBUNAL DE L’ORDRE PUBLIC EN ALGERIE. Accessed September 1, 2021. https://www.legifrance.gouv.fr/jorf/id/JORFTEXT000000850178.
[[8]] Décision du 27 avril 1961 instituant un Haut Tribunal militaire. Accessed September 1, 2021. https://www.legifrance.gouv.fr/jorf/id/JORFTEXT000000340743.
[[9]] Décret n°62-302 du 18 mars 1962 INSTITUANT A TITRE PROVISOIRE UNE COUR MARTIALE A ALGER ET UNE A ORAN. Accessed September 1, 2021. https://www.legifrance.gouv.fr/jorf/id/JORFTEXT000000301486.
[10]] Salmi, Yamna. “تونس.. القضاء العسكري يصدر أوامر توقيف لنواب عن ‘ائتلاف الكرامة’ [Tunisia- the Military Judiciary Issues Arrest Orders for Representatives of “Eatelaf Al Karama].” الأناضول, 2021. https://www.aa.com.tr/ar/الدول-العربية/تونس-القضاء-العسكري-يصدر-أوامر-توقيف-لنواب-عن-ائتلاف-الكرامة-/2320631.
[[11]] RT Arabic. “تونس.. القضاء العسكري يكشف سبب سجن النائب ياسين العياري [Tunisia- The Military Judiciary Reveals the Reason for Prisoning the Representative Yasin El Ayari],” 2021. https://arabic.rt.com/middle_east/1257232-تونس-القضاء-العسكري-يكشف-سبب-سجن-النائب-ياسين-العياري/.
[[12]] Briki, Aymen. “Tunisia: Crafting a Consensus Democracy in a Dissensus Environment.” IACL-IADC Blog, 2021. https://blog-iacl-aidc.org/spotlight-on-africa/2021/8/6/tunisia-crafting-a-consensus-democracy-in-a-dissensus-environment.
[[13]] الإخبارية التونسية. “امين محفوظ: عودة البرلمان مرتبطة بإرادة الرئيس .. ويجب معالجة الدستور ‘سبب الداء’ .. [Amin Mahfouz: The Parliament Return Is Conditioned with the President’s Will – and the Constitution ‘Reason of the Illness’ Should Be Treated],” 2021. https://www.alikhbariaattounsia.com/ar/article/print/30825/امين-محفوظ-عودة-البرلمان-مرتبطة-بإرادة-الرئيس-ويجب-معالجة-الدستور-سبب-الداء.
[[14]] Ali Elsaqqaf, Mohamed. “قيس سعيد على خطى الجنرال ديغول [Qais Saied Following the Steps of General De Gaulle].” الشرق الأوسط, 2021. https://aawsat.com/home/article/3108801/د-محمد-علي-السقاف/قيس-سعيد-على-خطى-الجنرال-ديغول.
[[15]] Williams, Philip. “How the Fourth Republic Died: Sources for the Revolution of May 1958.” French Historical Studies 3, no. 1 (1963): 1. https://doi.org/10.2307/285892.
[[16]] Guillaume, Sylvie. “Les Ministres Non Gaullistes Dans Les Gouvernements de Gaulle et Debré (Juin 1958-Avril 1962) : Techniciens et Politiques.” Histoire@Politique 12, no. 3 (2010): 2. https://doi.org/10.3917/HP.012.0002.
[[17]] Saiedany, Al Monji Al. “الرئيس التونسي يمدّد «حالة الاستثناء»… والغنوشي يقيل قيادات من «النهضة» [The Tunisian President Extends ‘the State of Exception’.. and El Ghannouchi Fires Leaders from ‘Al Nahda’].” الشرق الأوسط, 2021. https://aawsat.com/home/article/3150651/الرئيس-التونسي-يمدّد-«حالة-الاستثناء»-والغنوشي-يقيل-قيادات-من-«النهضة».
[[18]] Zantour, Kawthar. “قيس سعيد في طريق إرساء جمهورية ثالثة على خطى الجنرال ديغول [Qais Seaied on His Way to Establish a Third Republic Following the General Degaulle].” الشارع المغاربي 272 (2021): 6. www.acharaa.com.
[[19]] Ramadany, Massoud El. “قراءة في كتاب ‘تونس، ثورة في بلاد الإسلام’ لعياض بن عاشور [Reading Book ‘Tunisia, a Revolution in the Countries of Islam’ for Ayad Ben Achour].” رواق عربي | ROWAQ ARABI, 2019. https://rowaq.cihrs.org/قراءة-في-كتاب-تونس،-ثورة-في-بلاد-الإسل/.
[[20]] The Tunisian Gazette/ الرائد الرسمي. مرسوم عدد 14 لسنة 2011 مؤرخ في 23 مارس 2011 يتعلق بالتنظيم المؤقت للسلط العمومية [Decree-law n° 2011-14 dated 23 March 2011, relating to the provisional organization of the public authorities] (2011). http://www.legislation.tn/detailtexte/Décret-loi-num-2011-14-du-23-03-2011-jort-2011-020__2011020000142.
[[21]] Wikipedia. “Yadh Ben Achour.” Accessed September 1, 2021. https://imera.univ-amu.fr/fr/resident/yadh-ben-achour.
[[22]] Daif, Kamal El. “‘الديمقراطية التشاركية مسألة ترتبِط بالعقليات’ [The Participatory Democracy Is a Matter of Mentalities].” SWI swissinfo.ch, 2015. https://www.swissinfo.ch/ara/منتدى-دولي-في-تونس_-الديمقراطية-التشاركية-مسألة-ترتب-ط-بالعقليات-/41394758.
[[23]] Facebook Page. “بسم الله الرحمان الرحيم بيـــــــــــــان:… – حركة النهضة التونسية [In the Name of Allah the Most Merciful: A Declaration of Ennahda Tunisian Movement],” 2021. https://m.facebook.com/story.php?story_fbid=4648338075190282&id=185603771463757&_ft_=mf_story_key.4648338075190282%3Atop_level_post_id.4648338075190282%3Atl_objid.4648338075190282%3Acontent_owner_id_new.185603771463757%3Athrowback_story_fbid.4648338075190.