President Qaies Saied of Tunisia claimed he was acting constitutionally when he arrogated broad powers for himself on July 25, after months of stalemate among Tunisia's governing institutions and amid a deepening Covid-19 crisis. The constitutional provision he invoked states that after 30 days, the Constitutional Court, upon a request from the Parliament, is to rule on whether the exceptional conditions still exist that would warrant the exercise of extraordinary powers.
On August 23, just before 30 days were up, the President renewed the emergency measures until further notice, plunging Tunisia deeper into a constitutional crisis. The Parliament cannot ask the Constitutional Court to rule on this alleged Presidential overreach for the simple reason that Saied suspended the Parliament, while the Constitutional Court - one of the crown jewels of Tunisia's post-revolution democratic Constitution - does not exist. The institutional checks designed to keep Tunisia from reverting to the authoritarian rule it endured from independence in 1956 until the Arab Spring in 2011 are not in place.
Saied, a former constitutional law professor, claimed authority under Article 80 of the Constitution when on July 25 he fired the Prime Minister, suspended the Parliament, stripped members of their immunity and declared that he would assume control over the office of the public prosecutor. Critics denounced his move as an unconstitutional "self-coup."
The President has insisted that he has no dictatorial ambitions and would protect the human rights of Tunisians. So far, the trend is worrisome. While there has been no widespread crackdown, the authorities have jailed a couple of parliamentarians for past speech offenses, padlocked the local office of Al Jazeera TV, and taken a number of other repressive steps, including placing some figures under house arrest or preventing their travel abroad.
Many Tunisians who initially supported the president's actions as a bold attempt to break the paralysis in governance had publicly urged him to present a road map before the 30 days ended earlier this week, a demand that the president recently dismissed. He has promised to address the nation in the coming days.
Speculation is rife that the President, who won the presidency in a landslide in 2019 as an independent candidate promising to fight corruption, will try to retain extraordinary powers long enough to amend the Constitution in favor of a more presidential system. The U.S. on August 13 urged Saied to appoint a Prime Minister, who shares executive power with the President under the Constitution, and "a swift return" to parliamentary democracy.
In such a scenario, the Constitutional Court is sorely missed.
It is worth pausing to admire what Tunisians had sought to do in establishing a powerful, independent judicial body with a power to strike down laws and presidential and parliamentary actions it deemed unconstitutional. It contrasted sharply with Tunisia's own history of a servile judiciary and with the norm in the Middle East and North Africa, where Constitutional Courts and councils tend to be weak and deferential to the executive branch.
The Constitutional Court, if it were around, would surely scrutinize Saied's suspension of Parliament in light of the provision of Article 80 that states when the President seizes emergency powers, the Parliament "shall be deemed to be in a state of continuous session throughout such a period" and the president cannot "dissolve" it.
In addition to its role under article 80, the court exercises other powers that made it central to Tunisia's effort to consolidate democracy. It was to be the guardian of the constitution's strong human rights provisions. When asked to do so, the court could scrutinize and strike down both draft and existing legislation and treaties it deemed unconstitutional. It could, for example, have reviewed the repressive laws that have survived from the country's decades of authoritarian rule, in light of guarantees of free speech in the 2014 Constitution. These laws continue to land Tunisians in prison year after year, including MP Yassine Ayari, who was convicted in 2018 for blog posts and jailed on July 30 after the President lifted parliamentary immunity.
The Constitutional Court represents the noblest aspirations of the Tunisian revolution. It is, in fact, so central to the vision of the 2014 Constitution that some Tunisian commentators say that in its continuing absence, the constitution itself cannot be said to be in force.
The Court does not exist anymore because the Parliament has failed to appoint its share of judges, who serve nine-year terms, to the Court's bench. Although the Constitution obliged the Parliament to complete their four appointments by 2015, only one judge has so far won the required two-thirds majority of votes in parliament, thereby holding up the designation of the other eight judges, four each by the President and by the High Judicial Council.
President Saied rejected earlier this year parliamentary bills designed to break the logjam by reducing from two-thirds the required number of votes to approve judges, saying that having failed to meet the constitutional deadline of 2015 to fill the bench, the country was already in an extra-constitutional situation with respect to the Court. Critics accuse Saied of finding pretexts to block the establishment of a body that could review and strike down his decrees.
Americans in particular can relate to the stakes of high court nominations to a democracy in danger. Less than a year ago, President Trump was determined to fill a U.S. Supreme Court vacancy with a ninth judge who might cast the deciding vote in legal disputes over the November 2020 elections. In both Tunisia and the United States, the battles over nominations to the Court are so contentious precisely because the Court exercises real power. The stakes are far lower when Constitutional Courts or councils are docile and feeble, as was the case for Tunisia's now-defunct Constitutional Council during decades of authoritarian rule.
Little wonder then that Tunisia's political camps wanted a highest court aligned with their own orientation, as American political parties seek the same in the Supreme Court.
Tunisia's ten-year-old democracy is living its most precarious moment. The absence of a Constitutional Court that was intended to provide guardrails against executive overreach makes the moment all the more precarious.