A preliminary look into the Tunisian President’s measures

The Union of Tunisian Writers issued a statement commending the long-awaited measures taken by the President of the Republic and the courage he exhibited in assuming his responsibility to protect his people and salvage his country in a defining historic moment. Asserting that the measures taken fall under President Kais Saied’s powers, the statement voiced absolute support for the President’s audacious decisions, which it viewed as lawful and constitutional. The Union also rejected all foreign interference that influences internal affairs, which are supposed to be a strictly Tunisian matter.

Furthermore, the statement called upon all intellectuals, citizens, and youth to rally around the Presidency and the military and security institutions in order to safeguard the freedom and dignity that the Tunisian people deserve. The statement was signed by the Union’s president, but support for the President’s measures went far beyond the Union as large segments of the Tunisian people endorsed it as well.

The Union of Tunisian Writers and the many Tunisians who backed the measures were sensing the danger surrounding their country due to the policies of the legislative and executive authorities, as well as the dangers that led Tunisia to the brink of incapacity in the face of the COVID-19 pandemic, not to mention the deteriorating economy and the disruption and hinderance of many a state institution. Taking into account all these crises and problems, are the measures taken by President Saied in line with the Tunisian Constitution of 2014 and its Articles 76 to 88 stipulating the powers granted to the President of the Republic? Or has Saied, the eminent professor of Constitutional Law and International Law and the avid human rights supporter, violated these constitutional articles and provisions?

The President’s measures did not come as a surprise to observers of the situation and developments in Tunisia, nor did they strike them as a sudden turn of events on the political scene. Rather, the initiative was taken in a pressing constitutional, national context that imposed this direction on Saied. An academic and professional expert in his field, the President knows what he is doing: he has resorted to Article 80 of the Constitution, which gives him wide discretionary powers in the event of dangers threatening the country’s stability, security, sovereignty, or the freedom of its people, coupled with a failure to resolve such threats on the part of the political system.

Article 80 of the Constitution bestows on the Tunisian President the constitutional powers needed to take measures necessitated by exceptional circumstances in the event of imminent danger. Given the ambiguity of the term “imminent danger” and its openness to interpretation, which may lead to conflicting views or even judgements, the Constitution restricted these dangers to the following instances, as per the same Article: imminent dangers threatening the Tunisian entity or the country’s security or independence, and the inability of the existing political system to resolve these dangers.

When Saied found that these dangers have become real and are indeed threatening the Tunisian entity and the nation’s security and independence, and that the legislative and executive authorities are incapable of finding solutions, he was convinced that there was no other choice than enforcing Article 80 of the Constitution and taking the measures necessitated by the exceptional circumstances.

However, these measures require the President to guarantee a return to political normalcy. Saied’s measures were taken on the basis of exceptionality. In fact, the Constitution deems the Assembly of the Representatives of the People -- currently suspended by the President -- to be in a state of continuous session throughout this period, and in this situation, the President cannot dissolve the Assembly, nor can he address a motion of censure against the government.

The President employed his professionalism and expertise in constitutional matters in taking these measures, based on the current situation in the country. Nonetheless, his rivals will undoubtedly contest the measures as unconstitutional and claim that his professionalism and expertise will not be of much service to him in the face of the constitutional violation of suspending the Assembly, which is supposed to be in continuous session according to Article 80. Furthermore, the President must only take such measures after consulting with the Head of Government and the Speaker of the Assembly and informing the President of the Constitutional Court. The Constitutional Court shall have the final word in this regard, i.e., between the President and his rivals, 30 days after the entry into force of these measures, at the request of the Speaker or 30 members of the Assembly, with the Court’s decision being issued publicly within no later than 15 days.

As soon as the circumstances justifying these measures no longer apply, the President shall issue his directives to cease the implementation thereof in a statement addressed to the people.

This article was originally published in, and translated from, Iraqi newspaper al-Mada.

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