La mancata attivazione della Corte costituzionale tunisina
Di Francesco Tamburini
Tunisia, one the Arab countries that more than others can be considered close to Western values and one of the best results of the 2011 Arab springs in terms of transition to democracy, failed in building and effective Constitutional court.
The Tunisian 2014 constitution enshrined a completely new model of constitutional control, in the framework of a real democratic state. The result was the creation of the al-Maḥkamat ad-Dustūrīa, the Constitutional court, an ambitious project that intended to represent the cornerstone of the newborn Tunisian democracy. Lamentably, this project contained several congenital malformations that prevented its concretization. The Court could not immediately start its work, since the constitution itself was not the only legal basis. Art. 124 stated that the law regulated the organization and the procedures of the Constitutional Court, as well as the guarantees enjoyed by its members. In few words, before appointing the new judges it was necessary to issue a specific law. Moreover, pending the election of the judges, which had to be done within a maximum of one year from the legislative elections, it was created the “Provisional authority on the constitutionality of projects of law”. Nevertheless, while the provisional authority was enacted through the law 2014-14 on 18 April 2014 and the law 2015-50 of 3 December 2015 accomplished the task assigned by art. 124, one year passed without that the judges could be appointed. Therefore, the “Provisional authority”, or Bāhīat al-waqtīa, composed of six members, remained the sole arbiter of the constitutionality revision and the Court fell in a sort of limbo. Although, the 2014-14 specified that the Provisional authority is a jurisdictional body, it is far from being a real constitutional court. Above all it lacks all the powers that the constitution and the law 2015-50 granted to the court. The Provisional Authority in facts performs only a control a priori, checking constitutionality, with an absolute majority, of any legislative text adopted by Parliament and not yet promulgated. Nevertheless, it cannot control many other issues such as the conflicts of jurisdiction between the Head of State and the Head of Government; the dismissal of the Head of State and the extension of the state of emergency (art. 80), which remain under the jurisdiction of the non-existent Constitutional Court.
The inadequacy of the Provisional Authority was proved in the days following the death of the President of the Republic Béji Caied Essebsi (25 July 2019). The Authority was unable to ascertain the definitive vacancy of the office of President of the Republic, a task that was expressly entrusted to the Constitutional Court by Art. 84, par. 2 of the Constitution. Furthermore, the Provisional Authority suffers from several congenital flaws that block its operativity: the exigence of the absolute majority for its decisions; the composition of six members leads to draws in the votes; the lack of preponderance of the president in the event of draws in the votes.
All members of the Court are appointed sequentially by three different institutions: four by the Assembly of the Representatives of the People (ARP), four by the Supreme Judicial Council and four by the president of the republic. Unfortunately, this procedure has created several drawbacks, above all as far as concerned the four judges elected by the parliament. Each parliamentary block, or group, has the right to present four names (three of which must be non-jurists) that will be elected in a secret ballot with a two-thirds majority (145 votes out of 217) for each proposed name. In any case, this tricky election system, due to the ideological differences and fragmentations within the parliament, delayed the appointment of the four judges. During the first legislation (2014-2019), the 217 members of the ARP were only able to appoint one judge of the Court: Mohamed Bougzghiba, belonging to the Islamic party Ḥarakat al-Nahḍa (Dahmani, 2021; Albawsala, 2019). The strife between the Islamic party and the ‘secular’ block led to a further fragmentation of the ballots, which prevented any agreement.
After the ARP, it is the Superior Judicial Council that must appoint four members to the Constitutional Court. Nevertheless, since it intervenes only after the parliament’s appointment, the Council has not yet started the selection of the members of the Court, also blocking the president’s choice.
In May 2018, the project of law 2018-39 was presented in the parliament. It amended the law 2015-50 and provided, in case of failure of the first vote, two other ballots with lower thresholds, basically reducing the necessary number of votes from 145 to 131. Moreover, the project deleted the term “sequentially” to allow the Superior Judicial Council and the president to appoint their members independently. Most part of the deputies were hostile to this project, above all part of the opposition, which saw it as an attempt by the majority to seize the constitutional body and control it. The project could be approved only on 25 March 2021 during the second legislature. Nevertheless, on 3 April, President Kais Saied refused to sign the bill referring the text back to the parliament. Saied stated that it was unconstitutional, because it contradicted art. 148, according to which the Constitutional Court had to be created within a maximum of one year from the elections. Saied’s refusal, based on foggy and controversial constitutional reasons, was the tip of the iceberg of a political clash between the Head of the state and the Prime minister Hichem Mechichi and his ally Rachid Ghannouchi, parliamentary speaker and Ḥarakat al-Nahḍa’s leader, who were accused by the president of tailoring a law to oust him out. Whatever the reasons, the parliament approved for the second time the project after one month, but this time a group of deputies recurred to the Provisional Authority arguing that the second approval violated parliamentary procedural rules. Like in a never-ending saga, the Provisional Authority decided to refer the bill to the President of the Republic for not reaching the required absolute majority in the vote.
The real controversial point is that the president believed that his signature on the laws was not just a simple formality, but in his vision, he had discretionary power over the fate of any text emanating from the Assembly. Therefore, he granted himself a right of veto, which was not provided in the Constitution. The Constitution offers the president several possibilities after that a law is issued by the parliament: to promulgate the law through the publication on the JORT; to ask a second approval by the parliament; to ask a constitutional review by the Constitutional Court (the Provisional Authority); to submit the law to a referendum. If these remedies are exhausted, he has no choice but to sign the law. If he does not, he is violating the constitution. In other words, there is the ẖaraq al-ǧasīm, the “serious breach”, envisaged by the constitution and the law 2015-50, but, unfortunately, there is not a Constitutional court that could complete the procedure of the president’s removal from his office.May be in the future the Tunisian politics will get over this stalemate, in any case the constitutional vacuum has been a ‘juridical havoc’ in Tunisia that led to very a very serious institutional and political crisis.
The absence of a Constitutional court prevented any kind of revision of the constitution and allowed new norms to penetrate the legal order with the risks that they jeopardize the supreme law. The only existence of ‘a priori’ constitutional check made the control of international treaties highly unlikely and in general this a priori control of projects, entrusted to the Provisional Authority, was weakened by its transitory and fragile nature.
As part of the fight against the spread of the Covid-19 epidemic, the president of the Republic adopted the presidential decree 2020-24 (18 March 2020). This decree quotes Art. 80 of the Constitution relating to the ‘state of exception’, which requires that the President of the Constitutional Court must be informed of the measures imposed by this state, which can suspend or restrict political and civil rights in order to cope with this situation. This formality could not be respected because of the non-existence of the Court. The same problem comes from the ‘state of emergency’ that is continuously in force in Tunisia since the 24 November 2015 because of the extremely difficult transition to democracy, political assassinations, terrorist attacks of Sousse and Bardo and the general instability of the region. The ‘state of emergency’ gives to public authorities almost unconditioned and unlimited powers, and, as we pointed out, there is a confusion with ‘state of exception’, making the juridical situation even more dangerous for the basic rights of the Tunisian citizens.
The appointment of the Court’s members turned into an internecine war within the Tunisian parliament, while the start of a real constitutional revision is suspiciously seen by the president of the republic as a juridical weapon pointed at him (the chance to decide the dismission of the president by the Court). Today this weapon symbolizes the clash between the Head of the state and the Head of the government, who are divided by different political orientations that cause conflicts of jurisdiction. Paradoxically, the settlement of conflicts of competence between the two Heads of the executive power falls within the tasks of the Court, which still does not exist.
Ḥarakat an-Nahḍa and its allies need the Constitutional court to get rid of Kais Saied through the impeachment procedure. On the other hand, the Head of the state desires to prolong the stalemate, increasing his prerogatives, above all the discretionary power on the promulgation of law, which jeopardizes the Tunisian democracy. In the end, it seems to prevail the old Tunisian interpretation of the constitutional review embodied by art. 72 of the constitution: raīs īashar ahtirām ad-dustūr, “The President ensure compliance with the constitution”.
On 25 July 2021 Saied dismissed the Prime minister Mechichi and suspended the activities of the ARP by invoking the state of exception from art. 80. Once again, there was no constitutional control on what looked like a ‘constitutional coup’ that highlighted the clash between the president of the republic and the an-Nahḍa party.
The arrival of the ‘procedural democracy’ in Tunisia, after the “Jasmine revolution” in 2011 meant the sudden appearance of free political dialectic and debate, which are completely physiological in consolidated democratic regimes. Unfortunately, Tunisia arrived unprepared to the rendezvous with the creation of the basic institutions of the democratic system and, above all, very few experiences concerning the rules of constitutional justice. The institutional cacophony, political fragmentation and chronic weak coalitions, combined with a dire socio-economic situation, enhanced anomic procedures that privileged political interests rather than the objectivity of the law. The birth of the Tunisian Constitutional court was the expendable victim of these interests, which also endangered the most advanced constitution in the Arab world.
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 Ricercatore a tempo determinato di Storia e Istituzioni dei paesi afroasiatici presso il Dipartimento di Scienze Politiche dell’Università di Pisa