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Home , Diarchy, Monarchy

in the Tunisian

Rafaâ BEN ACHOUR

On 27 January 2007, Tunisia finally adopted its third Constitution of the modern era.1 The new Constitution, now known as the Constitution of the 3rd , is designed to end a transitory period that lasted far too long.2 The new constitution was drawn up by the National Constituent Assembly (ANC), elected on 23 October 2011, who were partially given a "blank page" "to draft the Constitution within a maximum of one year starting from the date of their ."3 The ANC disregarded the set time limit, and also overstepped the purpose of their strictly constituent role4 in the name of the of the constituent power.

The constituent work was laborious and four differently named texts had to be published5 before reaching the final version, adopted on 27 January 2014. The four preliminary texts were widely criticised by jurists, by members of and most political parties. Indeed, they contained several imperfections and blatant legal contradictions. Moreover, certain clearly

1 The two previous are: - the constitution of 26 April 1861, a constitution granted by Sadok, of Tunis (20th Bey of Tunis who reigned from 23 September 1859 to 29 October 1882) which established a sort of constitutional ; constitution suspended in 1864. - The constitution of 1st June 1959, adopted by a National Constituent Assembly, elected following the independence of Tunisia in 1956. It established a presidential regime and was amended 16 times, always in order to strengthen presidential rights. It was suspended as of 15 March 2011, following the of 14 January 2011. Cf. BEN ACHOUR (Rafâa) and BEN ACHOUR (Sana). "The democratic transition in Tunisia: between constitutional legality and ", RFDC, N° 92, October 2012, p: 715 – 732. 2 Following the revolution of 14 January 2011, Tunisia experienced three transitory periods: - From 15 January to 15 March 2011, period governed by article 57 of the constitution of 1st June 1959. - From 15 March to 15 December 2011, period governed by the statutory order of 23 March 2011 regarding the provisional organisation of public authorities. - Since 16 December 2011, period governed by the constituent of 16 December 2011 regarding the provisional organisation of public authorities. Since the adoption of the Constitution of 27 January 2014, the transitory period has not finished. It remains governed by certain parts of the aforementioned constituent law and by article 148 of the constitution. 3 Decree N° 2011-1086 of 03/08/2011, which convened the electoral body for the election of the National Constituent Assembly on 23 October 2011. Cf. BEN ACHOUR (Rafâa). "What will come out of the ANC", La Presse de Tunisie, 04/09/2012, p: 9. 4 Among other things, the ANC took over a legislative power. 5 These texts are the following: - The text of 8 August 2012. It bears the "Draft version of the constitution of the Republic of Tunisia". This is a compilation of different chapters written by the six constituent committees; - The text of 22 April 2013, entitled "draft constitution"; - The Text of 14 December 2012 entitled "Draft version of the constitution"; - The text of 1st June 2013, entitled "Draft constitution of the Republic of Tunisia", presented during a formal session by the President of the ANC and the general rapporteur of the constitution, and initialled by them in front of cameras and journalists. 1 backwards provisions, in particular those relating to women presented as inherently complementary to men,6 were strongly rejected by civil society.7

Luckily, the final text of the Constitution is very different from the four preliminary texts. Significant improvements, both in form and in substance, were made, thanks, in particular, to the resistance of civil society and the decisive contribution of the national dialogue initiated by four civil society organisations on 23 October 2013.8

Almost unanimously adopted,9 in an atmosphere of jubilation and harmony rarely observed in the assembly room of the ANC, the new Constitution is undeniably a consensual text. This is its strength, but also its weakness.

Generally, when compared to other contemporary constitutions, both in the and Northern , and in , the Tunisian Constitution of 2014 has an excellent position and undoubtedly advances the and the respect of fundamental freedoms. It marks a new era for a society that has definitively broken away from an authoritarian power and resolutely committed to a democratic process. It still contains grey areas and significant ambiguity, and everything will depend on the application and interpretation given to the provisions in question.

In this article, we are interested in the question of the political regime set out by the new constitution and, more specifically, the question of the division of competence between the President of the Republic and the head of . Does the Constitution set out a diarchy, i.e. a mode of operation of the State in which the power is jointly exercised by two bodies with an equal position?10

In order to answer this question, we should briefly consider the nature of the political regime established by the 2014 constitution. For this, we shall highlight that the decision regarding the nature of the political regime selected by the constitution of 27 January 2014 is challenging, since the provisions relating to this are so convoluted, confused and sophisticated, and the organisation of powers and relations between them do not correspond to any classic framework. The Tunisian

6The draft article 28 read as follows: "The State guaranties the protection of women’s rights and the promotion of their gains, as a real partner of men in the mission of the homeland building, and the roles of both should complement each other within the household". 7 Many political organisations, human rights defence groups, trade unions and representatives of civil society strongly reacted during an impressive demonstration organised on 13 August 2012 to defend the principle of equality that the Islamists sought to repeal. For the organisers of the demonstration, this draft "is damaging to the accomplishments of women and establishes a paternalistic approach which gives men absolute power, while denying women their full citizen rights". Cf. COLLET (Anne). "No, women shall not be complementary to men", SlateAfrique, blog.slateafrique.com/femmes-afrique/2012/08/14/non-la-femme-n’est-pas-et-ne-sera- pas-le-complement-de-l’homme/ 8Following the of the Member of Mohamed Brahmi on 25 July 2013, a large-scale popular movement called for the departure of the ANC. A sit-in and impressive demonstrations punctuated the summer of 2013. Some sixty members of the ANC stopped all participation in the work of the Assembly. Faced with this situation, the President of the ANC personally decided to suspend the work of the Assembly on 6 August 2013 sine die. A quartet formed of the central trade union, the Tunisian General Labour Union (UGTT), the employers' , the Tunisian of Industry, Trade and Handicrafts (UTICA), the Tunisian Human Rights League and the bar of Tunis proposed a roadmap to exit the crisis and initiate a national dialogue. This was officially launched on 23 October 2013, with a signing ceremony for the roadmap involving 21 representatives of political parties. 9 The draft constitution was adopted by 200 votes against 12 and 4 abstentions 10 http://michel-lascombe.pagesperso-orange.fr/CDicoD-F.html#Dyarchie 2 constituent was obsessed with a set idea: to break with the deceptive presidential regime - the presidential regime enshrined in the 1959 constitution, and compounded by the multiple revisions of this document. Officially, it is a mixed regime, half presidential and half parliamentary. In reality, the Tunisian regime only relates to the presidential model insofar as the President of the Republic is elected through direct, . It is more a parliamentary regime, into which the constructive vote of no confidence, valued by the Germans, has been transposed and the right of dissolution remains restricted to the sole case of inability of the Assembly to nominate a new .

In order to understand the choices that were set out in the final text of the constitution of 27 January, relating to the question of the political regime, one must consider the ulterior motives of the different political forces represented in the National Constituent Assembly. Indeed, the Ennahdha movement favoured a purely parliamentary regime where the President of the Republic would only benefit from symbolic rights. This position is explained by the fact that they intended to win the legislative and form the government. Consequently, they were not very interested in the presidential elections, to such an extent that they did not present a candidate for these elections.11 Three other parties (Al jomhouri, Ettakattol and the CPR) advocated for the idea of a president elected through direct, universal suffrage, an idea that signifies the establishment of a two- headed , otherwise known as a diarchy of the executive. For these three parties, this was a question of defending their respective candidates for the presidency: Considering that Ennahdha was not particularly interested in the presidency of the Republic, their leaders were aiming for the supreme magistracy and thought that they would be consensual candidates, providing the Tunisians with more than one Islamist candidate. Their reasoning therefore had nothing to do with the idea of balancing the political regime, but reflected the considerations of an inflated ego. The position of the other members of the ANC was more attached to legal considerations and a balance of the . Therefore, this was a question of defending the idea of a President of the Republic, who would benefit from the role of arbitrator between the powers in the case of an institutional crisis and who, above all, would ensure the balance between the powers by creating a guarantee against the supremacy of the head of government and the move away from the prime ministerial regime which was in no way less damaging to than presidential supremacy. This objective would only be fulfilled by having a President of the Republic with a popular legitimacy as broad as that of the assembly of representatives of the people, i.e. the election of the president through direct universal suffrage. It took several months of debates to have this choice of the Ennahdha party accepted.

However, the political regime provided for by the constitution of 2014 remains characterised by a clear imbalance, on the one hand between the President of the Republic and the head of government and on the other hand between the government and the Assembly of representatives of the people (ARP). We shall first of all examine the rights of the President of the Republic on the one hand, and the head of government and the government on the other (I) before dealing with the question of relations between these two powers, as well as their relationships with the assembly of representatives of the people (II).

I- The unbalanced sharing of rights between the President of the Republic and the head of government

11 This position was a main reason behind the disagreement between the head of government, Hammadi Jebali, and his party, Ennahdha. He ended up resigning from the party following the presidential elections.

3 A significant imbalance characterises the sharing of rights between the President of the Republic and the head of government. The latter is the true master of the executive branch of power. However, the PR is not totally removed or reduced to a symbolic role of representation.

1- The rights of the President of the Republic

Although elected through direct universal suffrage12 for a 5 year term of office, renewable once, which grants him popular legitimacy equal to that of the Assembly of representatives of the people, the President of the Republic only benefits from a few rights, essentially regarding the sovereignty of the State. Within the limits of executive power, he is in an inferior position with regard to the head of government. In addition to his role of representation,13 he is "competent to define the general in the fields of defence, foreign relations and national security, relating to the protection of the State and national from internal and external threats, after consulting the head of government."14 Therefore, even these powers are not granted to him exclusively; he shares them with the head of government, or even with the president of the Assembly of representatives of the people.15

The President appoints the head of government but his freedom with regard to this is strictly limited. Therefore, he does not choose the head of government, but he "tasks the candidate of the political party or the electoral coalition which obtained the highest number of seats within the Assembly of Representatives of the People to form the Government."16 Once confidence in the Parliament is obtained, the President of the Republic immediately proceeds to appoint the head of Government and its members. However, he is involved in the nomination of the defence and foreign affairs ministers, appointments that must be made "in coordination" with the two heads of the executive power. In addition, if the head of government does not manage to form his within a period of one month, renewable once, "or if the confidence of the Assembly of representatives of the people is not granted, the President of the Republic shall consult with the political parties, coalitions and parliamentary groups within ten days, with a view of tasking the person judged most capable of forming a government within one month maximum."17 The President has legislative , but does not have exclusivity of this.18

The President of the Republic evidently has the right to dissolve the Assembly of representatives of the people, but only in a case where the ARP exceeds the time frame imposed upon it without granting confidence, or if it does not declare its support for the new government.19

12 Article 75 13 Article 72: "The President of the Republic is the and a symbol of its unity. He guarantees its independence and continuity and he ensures the Constitution is respected". 14 Article 77. 15 The President of the Republic "chairs the meetings of the Council of national security, to which the head of government and the president of the Assembly of representatives of the people are invited". He decides on when to "send forces abroad, with the agreement of the President of the Assembly of representatives of the people and the head of government". 16 Article 89. 17 Other exceptional scenarios authorise the President of the Republic to appoint the most capable person as head of government. Cf. Articles: 98, 99 and 100. 18 Article 62: "Legislative initiative is exercised by proposed submitted by at least ten members of parliament or by draft laws submitted by the President of the Republic or the head of government". 19 Article 99: "The President of the Republic may ask the Assembly of representatives of the people to carry out a vote of confidence in the government, a maximum of twice during the presidential term of office. The vote requires an absolute majority of the members of the Assembly of representatives of the people. If this assembly does not renew its vote of confidence in the government, the government is considered to have 4 In addition, the President of the Republic has the right to declare a state of emergency, but his powers with regard to this are strictly controlled: "In the event of imminent danger threatening the institutions of the Republic and the security and independence of the country and impeding the proper functioning of the government authorities, the President of the Republic may take exceptional measures required by the circumstances after consultation with the head of government and the President of the Assembly of representatives of the people and after having informed the president of the constitutional court. He announces the measures in a statement released to the public". However, "thirty days after these measures enter into force, and at the request of the President of the Assembly of representatives of the people or thirty members of said Assembly, the Constitutional Court is called upon to verify if the state of emergency continues. The decision of the Court is announced publicly within fifteen days".

The President of the Republic also has the power to appoint and dismiss persons "in high-level military and diplomatic roles and those relating to national security," but this power can only be exercised "after consultation with the head of government."20 In addition, and at the suggestion of the head of government, the President of the Republic appoints the of the central bank.21 2- The rights of the head of government and the government

The head of government is omnipotent within the executive power: he "determines the general of the State, [...], and ensures it is implemented"; he "manages the administration and enters into international treaties of a technical nature"; he has the legislative initiative, he exercises the general regulatory power; he "chairs the Council of Ministers," calls meetings of the council and sets out the agenda, but if the issues to be handled relate to defence, foreign relations, national security, the protection of the State and national territory from internal and external threats, it is the President of the Republic who "must" chair the council of ministers.

The government is accountable to the ARP22. Governmental accountability is invoked by a constructive vote of no confidence or by a question of confidence. With regard to the vote of no confidence, this is carried out following a reasoned request presented by at least one third of the members of the ARP. However, the non-confidence vote requires the approval of the absolute majority of the members of the Assembly, and the presentation of a candidate to replace the head of government, whose candidature must be approved during the same vote. In this case, the replacement candidate will be tasked by the President of the Republic to form the government.

In addition to the collective accountability of the government, the individual accountability of one or more members of the government may be invoked by the ARP. Indeed, confidence may be withdrawn from one the members of the government following a reasoned request made to this end and presented by at least one third of the members; the non-confidence vote requires an absolute majority.

resigned, and the President of the Republic is in charge of appointing the most capable person to form a government within 30 days, in accordance with paragraphs 1, 5 and 6 of article 89. In the event that this period is exceeded or if the Assembly does not grant its confidence in the new government, the President of the Republic has the right to dissolve the Assembly and to call for a new legislative election to be held early, within a minimum period of 45 days and a maximum of 90 days. In the case of a vote of confidence in the government held twice, the president of the republic shall be considered to have resigned". 20 Article 78. 21 Article 78. 22 Article 95. 5 With regard to the question of confidence, this may be set forth either by the head of government or by the President of the Republic. In the first case, the head of government may request a vote of confidence from the Assembly of representatives of the people with regard to the government's continuation of its activities; the vote requires an absolute majority of the members of the Assembly of Representatives of the people. If the Assembly does not renew the confidence granted to the government, this government is deemed to have resigned. In the second case, "The President of the Republic may ask the Assembly of representatives of the people to carry out a vote of confidence in the government, a maximum of twice during the presidential term of office. The vote requires an absolute majority of the members of the Assembly of representatives of the people. If this assembly does not renew its vote of confidence in the government, the government is considered to have resigned".

In this respect, the Tunisian constituent has not chosen simplicity. It sought to establish a political regime that prevents authoritarian abuse, but it has gone to the other extreme and opened up jurisdictional disputes that must be decided by the Constitutional Court.

II- The relationships between the powers in the constitution of 27 January 2014

Given the imbalance of rights, the relationship between the PR and the head of government is imbalanced in itself (1). The same applies to the relationship between the PR and the ARP (2).

1- The relationship between the President of the Republic and the head of government

The division of powers between the two heads of the executive branch outlined in the 2014 constitution means that there is a real risk of crises between the two in the event of disagreement, especially if the PR and the head of government belong to different political families. This sharing of power was actually taken from the constitutional law regarding the provisional organisation of government authorities of 16 December 2011, the practice of which was defined by tensions between the two institutions. We will distinguish between the risks of disagreement with regards to the text of the constitution, and the risks linked to political factors.

Therefore, given that it is the head of government who convenes the council of ministers, and that article 93 ultimately allows the president of the Republic to attend "other meetings of the council of ministers" and, in doing so, "chairs the Council," one can easily foresee the situation wherein the head of government neglects to invite the president of the republic and the President "invites" himself to the meeting of the council of ministers! We would then find ourselves in an extraordinary situation!

In addition, conflicts may arise between the PR and the head of government regarding matters of defence, foreign relations, and national security. Indeed, according to article 77 of the constitution, the President of the Republic "determines the general policies in the fields of defence, foreign relations and national security, relating to the protection of the State and national territory from internal and external threats, after consulting the head of government." Meanwhile, article 91 provides that "The head of government determines the general policy of the State, in accordance with the provisions of article 77, and ensures the implementation thereof.” An initial reading of these two articles showcases that the general policy of the State is set out by the head of government, except in the fields where the general policy is set out by the President of the Republic, which are defence, national security and foreign relations. We believe that it will be very difficult to define the boundaries between a "general" general policy and a "specific" general policy. Will the head of government be able to determine the general policy of the State, while glossing over areas as crucial

6 as defence, national security and foreign relations? Will dialogue between the two heads of the executive be sufficient to iron out the difficulties?

Furthermore, where does general policy end with regard to foreign relations, national security and defence (which are the responsibility of the President) and where does the organisation of these areas (which fall under the authority of the head of government) begin? A great number of questions arise from the sharing of jurisdiction, as stated in the constitution, for which no definitive response is currently available, due to the absence of practice and the absence of an "interpretation" of the constitution by the players in question.

We would like to highlight that the questions we have set out are not merely hypothetical, far from it! The proof is that such problems have already arisen elsewhere, particularly in ,23 with regard to the field of foreign relations24 and defence,25 even though the French constitution does not grant the President of the Republic the right to set any policy on the matter. The risks are therefore even more serious in Tunisia.

However, independently of the text of the constitution and its ambiguity, political factors may also be at the origin of differences of opinion or at least difficulties. This is the case in the situation that the head of government and the President of the Republic do not belong to the same . Admittedly, the first legislative and presidential elections of November/December 2014 resulted in a majority for the Nidaa Touness party, whose candidate went on the win the presidential elections. This could suggest a stable relationship between the President of the Republic and the head of government proposed by the party which won the greatest number of seats in the ARP. But eventually, in the future, having two heads of the executive that do not share the same vision and direction cannot be excluded, and in this case, we believe that there could be great tension between and Kasbah. Tension that would be even stronger if the President of the Republic has a strong personality and an extensive interpretation of the rights granted to him by the constitution.

In addition, and beyond the areas of defence, national security and foreign relations, the President of the Republic could be the real decision-maker within the executive if he had a sympathetic head of government before him. In this case, he will go beyond the role of arbitrator that the constitution grants him, in order to become the captain,26 as seen in France in cases of harmony between the presidential majority and the parliamentary majority, in particular after the constitutional revision of 1962, which introduced the election of the President of the Republic through direct universal suffrage. In this case, we would see a reduction of the parliamentary aspect and a strengthening of the presidential aspect of the political regime. We note that certain politicians have already predicted that the power balance between the President of the Republic and the head of government shall move in favour of the former and the choice of a person such as Mr. Habib Essid is explained by the fact that he will be loyal to the President. For others, the choice of Mr Habib Essid does not indicate a desire for supremacy on the part of the President, but rather a desire to open up towards other political forces than the President's party (Nidaa Tounes), since the post-transition conditions require an open government that is capable of overcoming the countless challenges faced

23 See, in this respect, COHENDET (A-M.), "Cohabitation and constitution", Revue Pouvoirs, n° 91, 1999, p. 48, and especially FAVOREU (L.) et al, Constitutional law, Dalloz, 5th ed, 2002, pp. 583-584. 24 Article 14 of the French constitution: "The President of the Republic accredits ambassadors and special envoys to foreign powers; the ambassadors and special envoys to foreign powers are accredited by him." 25 Article 15 of the French constitution: "The President of the Republic is the commander-in-chief of the armed forces. He chairs the higher councils and committees regarding national defence." 26 MASSOT (J.), The arbitrator and the captain: Essay on presidential responsibility, Paris, Flammarion, 1987.

7 by the country, and who can, above all, reassure the different political parties and contribute to the stabilisation of the country. However, by definition, a constitution transcends the political players at a given moment, and our constitution contains significant potential for a positive conflict of competence.

2- The relationship between the President of the Republic and the ARP

With regard to the ARP's relationship with the head of State, the Constitution provides two methods for the Assembly to exercise control over the President. First of all, the president of the ARP or thirty members of parliament have the possibility to refer to the Constitutional Court to rule on to continue or to end a state of emergency wherein the President of the Republic has taken exceptional measures (article 80). The other method is the possibility for the majority of the members of the ARP to present a reasoned motion to terminate the term of office of the President of the Republic for gross breach of the Constitution (article 88). This motion must be voted by a two-thirds majority of the members in order for it to be submitted to the Constitutional Court.

The President of the Republic, meanwhile, has two methods to exercise control over and pressure the ARP: First of all, he has a right to ,27 which means he has the possibility to send a law back for a second reading. This requires an absolute majority vote for ordinary law and a three- fifths majority vote for organic law. This is a powerful weapon, in particular in cases of draft organic laws that are not subject to a consensus between the political parties. Indeed, given the configuration of the assembly of representatives of the people, characterised by the absence of a clear majority, it may be very difficult, or even impossible, to have a draft organic law passed if it is the subject of strong political conflict. The risk of the law being blocked is therefore very possible in this case.

Article 66 §4 also grants the President of the Republic a right to veto for draft financial laws. In this case, the Assembly has three days in which to carry out a new deliberation. With regard to the failure by article 66 to specify the majority required: Should the absolute majority provided by article 81 be applied? Such a situation also risks ending in a deadlock. However, settling for a simple majority - required for draft ordinary laws - rids the right of veto of its meaning and shall only cause precious time to be lost in the budget schedule.

In light of the above, it appears that the constitution has not established a diarchy. Although the executive branch has two heads, these two heads are not equal, since the head of government is more powerful. The election of the President of the Republic through direct universal suffrage and the fact that he is granted certain "governmental" competences is part of an approach to rationalise the parliamentarism. Although the head of government is powerful, as dictated by the logic of the parliamentary regime, he is not, however, omnipotent and the abuse of governmental majority can always be counteracted by the President. In the same way, the election of the head of State through universal suffrage does not create a super-power. The fact remains, as recommended, that power must stop power, but at the same time, all these powers must co-exist.28

27 Article 81. 28 Montesquieu. The Spirit of Laws. Chapter VI (of the Constitution of England), book XI (Of the Laws Which Establish Political Liberty, with Regard to the Constitution): "Here then is the fundamental constitution of the government we have before us. The legislative body being composed of two parts, they challenge one another by the mutual privilege of rejection. They are both restrained by the executive power, as the executive is by the legislative. These three powers should naturally form a state of repose or inaction. But as there is a necessity for movement in the course of human affairs, they are forced to move, but still in concert".

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