Constitutional impasse in Tunisia: the ugly side of “the most beautiful constitution in the world”

Tunisia has been experiencing repeated constitutional and institutional crises for months. The latest is of particular gravity since it has led to a deadlock and open conflict between the head of government and the President of the Republic against the backdrop of a ministerial reshuffle deemed unconstitutional by the latter. The absence of the planned Constitutional Court only exacerbates the crisis by making any arbitration or constitutional amendment impossible, leading to a vicious circle with no end in sight  – writes Nidhal Mekki.

After the adoption of the Tunisian Constitution on 27 January 2014, many welcomed the text and went so far as to describe it as “the most beautiful constitution in the world”. Today, such a statement would be greeted not only with disbelief but also with derision. The Constitution was hailed as an agreement between parties that did not see eye to eye on a number of issues: the system of government was a compromise between parties, but now represents one of its key weaknesses. This weakness, creating potential for deadlock, was pointed out at an early stage by a large number of policy makers and jurists, who argued for a constitutional amendment, especially regarding the system of government. The conundrum is that a weak and fragmented parliament has hampered the establishment of a Constitutional Court, which is necessary to amend the Constitution – and small parties represented in parliament will veto strengthening parliament as this will likely mean they will be out.

The conflict between the President of the Republic and the head of government has become a constitutional and institutional deadlock.

In this second term after the 2014 Constitution entered into force, the conflict between the President of the Republic, Kais Saied, and the head of government, Hichem Mechichi, has worsened to the point of becoming a constitutional and institutional deadlock. Frictions between the two protagonists date back to the first days of the head of government’s inauguration in September 2020. President Saied chose Mechichi as head of government, even though the latter had no experience as a politician and did not belong to a party. However, Mechichi was able to count on the support of a coalition that was strongly criticized in the country (including the Ennahdha party and the Al karama coalition, both of Islamist persuasion, and a third party led by media magnate Nabil Karoui, imprisoned for corruption).

Knowing that his survival in politics depended on the support of this unusual coalition, the head of government dismissed a number of ministers close to the President of the Republic and appointed new ones in January 2021. These new ministers won a vote of confidence in the Assembly of People’s Representatives (APR), as required by Article 144 of the Internal Regulations of the APR, so all that remained for them to take office was their swearing in and appointment by the President of the Republic.

From the outset, the President of the Republic did not agree with the ministerial reshuffle, and furthermore indicated that he would not invite the new ministers to take their oath of office. The President of the Republic has three main reasons with legal bases for his refusal: first, the President argues that the APR vote of confidence on the occasion of a partial ministerial reshuffle has no constitutional basis; second, because the reshuffle should have been discussed in a Council of Ministers; and finally, because of suspicions of corruption hanging over some new ministers and court cases pending against others.

Constitutional questions, some without answers

This unprecedented crisis in the history of the Second Republic of Tunisia has raised several constitutional questions:

1. Is the APR vote of confidence during a ministerial reshuffle, as required by Article 144 of the Internal Regulations of the APR, in conformity with the Constitution?
2. Does the President of the Republic have the right to refuse to swear in ministers who have obtained the approval of the APR?
3. If the President of the Republic persists in his refusal to invite the new ministers to swear their oath of office, can the head of government resort to a well-known theory in administrative law, that of the “impossible procedure”, to overcome the deadlock?
4. In the absence of the Constitutional Court, who is empowered to interpret the Constitution: the President of the Republic alone or also the head of government? the APR? the Administrative Court and the Provisional Body for the Constitutional Review of Bills?

First, the Tunisian constitutionalist doctrine has been unanimous from the outset on the unconstitutionality of Article 144 of the APR’s Internal Regulations because it adds a requirement not provided for in the Constitution. The latter requires a vote of confidence only during the initial formation of the government.

On the third question, the administrative law “impossible procedure” theory could potentially be invoked if the impossibility of completing a procedure would totally block the institutions of the State. The functioning of the State institutions might thus overshadow, under these precise conditions, the letter of the Constitution. In this case, the head of government finds it impossible to implement the constitutional procedure for ministers taking up office. Invoking the “impossible procedure” theory would allow him to simply override the procedure, and consider that the procedure has been respected. Nevertheless, most experts agree that the recourse to the theory of “impossible procedure” is not applicable in matters of constitutional law and may aggravate the crisis instead of resolving it, since it will be interpreted by the President of the Republic as a forceful move by the head of government. The head of government found an unusual solution to this problem by instructing five ministers already in his government to assume the portfolios of the five ministers he dismissed. In this way he avoids, at least temporarily, the question of the swearing in. Technically, the solution does not contradict the Constitution, but it is certainly not sustainable.

In relation to the fourth question, the Administrative Court refused to give an opinion because interpreting the Constitution and solving jurisdictional conflicts issues between the President of the Republic and the head of government falls within the exclusive jurisdiction of the Constitutional Court (which is not yet in place). Also, the Provisional Body for Constitutional Review of Bills is, as its name suggests, only competent to rule on the constitutionality of bills, and therefore incompetent to give an opinion in this case. This is, indeed, the answer it gave to the head of government.

The question therefore remains as to the swearing-in of the new ministers in the face of the refusal of the President of the Republic, and the absence of the Constitutional Court. These two legal and constitutional issues have a pronounced political backdrop and, as things stand, no legal solution is sufficiently relevant or convincing to unblock the situation. The following sections will, therefore, illuminate the sources of the blockages and propose potential options to break the deadlock.

Architecture of the political regime

To understand the current impasse, we must first consider the architecture of the political regime established by the Tunisian Constitution of 2014. This “unclassifiable hybrid” architecture results in a regime that is neither purely parliamentary nor presidential or even semi-presidential. At the core of this original but not ingenious configuration was the fear of all political actors during the constituent process of re-establishing a regime that allowed a President of the Republic to concentrate powers and establish a dictatorship. While the various actors agreed on this point, they differed over the distribution of powers and prerogatives between the President of the Republic, the head of government, and even the APR.

Thus, the Islamists (supporters of a pure parliamentary regime) obtained absolute control of the government through the APR (where they believed they would have a large majority in future elections). The other political forces insisted that the President of the Republic be elected by direct universal suffrage in order to endow him with popular legitimacy equal to or greater than that of the APR. However, the forces in favor of a semi-presidential system have had to be satisfied with fairly limited powers for the President of the Republic. Thus, it is the head of the government who formulates the general policy of the State and chooses his ministers, except for the ministers of foreign affairs and defense, for whom he must consult with the President of the Republic. The President of the Republic is obliged, at least in the first instance, to appoint the leader of the party or coalition that received the most votes in the legislative elections to chair the government. The government is, moreover, responsible only to the APR and not to the President of the Republic.

The political regime can work quite well if the President of the Republic and the head of government belong to the same political family, but that is not currently the case.

The architecture of the political regime established by the 2014 Constitution means that the nature of governance will vary depending on whether the party of the president has a majority in parliament or not. The political regime can work quite well if the President of the Republic and the head of government belong to the same political family, but the head of government and the President of the Republic might not be on the same political side, as is currently the case. This is accentuated by the configuration of the third actor in this power triangle, the APR, which due to a proportional electoral system is extremely fragmented and hampered in achieving coherent majorities. As a result, the head of the government is forced to rely on a disparate coalition of medium and small parties, which can keep the government at their mercy, and blackmail it on all issues.

The necessary revision of the Constitution

Under these conditions, it becomes urgent and imperative to think about revising the Constitution. This question was taboo when the new Constitution started being implemented, as it would imply that the “most beautiful constitution in the world” was badly conceived and able to generate additional political instability. Today, seven years after the 2014 Constitution came into force, this psychological and political obstacle is no longer relevant, and it should be noted that, in addition to the calls by jurists and a large number of politicians to revise the Constitution, the two Presidents of the Republic (Essebsi and Saied) have pointed out the text’s weaknesses and openly called for its revision. The revision will imply a political choice between systems of government: either a classic parliamentary system or a system where the President of the Republic will truly become the central decision-making and policy-setting figure. It will be up to the parties represented in the APR to decide, and this will not be easy.

The two Presidents of the Republic have pointed out the text’s weaknesses and openly called for its revision.

In a shift toward a parliamentary regime, the main revision would be for the head of government to have full control over the composition of his or her government and full decision-making power for its general policy. Thus, the President of the Republic, who would not be directly elected, would have more of a symbolic role, and defense and foreign affairs would be the purview of the government and not the President. These two points would reduce the risk of friction between the two heads of the executive and deprive the President of the “Trojan horse” that he can use to destabilize the government and even the authority of the head of government over his ministers.

If we opt to continue with a semi-presidential regime, we might consider expanding the powers of the President of the Republic, as for example, provided for in the Portuguese Constitution. This would give the President more freedom in the choice of the Prime Minister (as the head of government would be called) and make the Prime Minister and ministers accountable to the President in addition to their accountability to the APR.

Each of these modifications would require the revision of other articles of the Constitution, and while the task is technically enormous, the hardest part would be to reach a political consensus to launch and complete it. But, in addition to the political agreement on the principle of the revision of the Constitution, there remains one important legal point: the amendment procedure requires the establishment of the Constitutional Court.

The impossible revision of the Constitution...for the moment!

According to Article 144 of the Constitution, any initiative to revise the Constitution must be submitted to the Constitutional Court. However, this Constitutional Court is still not in place seven years after the promulgation of the Constitution, even though, according to the transitional provisions of the Constitution, it should have been in place within one year of the first legislative elections (Article 148-5).

The obstacles to the establishment of this Constitutional Court are political, due to the lack of a two-thirds majority in the APR to elect the four members it must appoint. Four other members are to be appointed by the Superior Council of the Judiciary and four others by the President of the Republic.

Therefore, another necessary revision is to the electoral law, resulting in a less fragmented assembly with stronger parties and coalitions capable of providing stability to the government. A less fragmented assembly is also necessary to enable a revision of the Constitution because any revision, once validated by the Constitutional Court, would have to be adopted by two-thirds of the members of the Assembly. Currently, the small parties oppose any revision of the electoral law that will reduce their weight in the APR or expel them altogether. Only a political initiative for a comprehensive and consensual settlement can bring the country out of this impasse.

To unblock the country’s constitutional and institutional crisis, a Constitutional Court is needed, and to establish this Court a less fragmented legislature is also required.

Thus, in order to unblock the country’s constitutional and institutional crisis, a Constitutional Court is needed, and to establish this Court a less fragmented APR is also required. To achieve this goal, the electoral law will have to be amended, but to amend the latter there should be a consensus between the parties. We are, therefore, well and truly facing a vicious circle and we will be stuck if we continue to think in purely legal and constitutional terms. The solution to the current crisis is primarily political. It can only come from a consensus within the political class, which must recognize the seriousness of the historical moment that the country is experiencing, and remember that there is no glory in governing a country in ruin.

Nidhal Mekki is a researcher at the Faculty of Legal, Political and Social Sciences of Tunis and a former advisor to the National Constituent Assembly, Tunisia.