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The Tunisian Revolution in Its Constitutional Manifestations the First Transitional Period (14 January 2011 - 16 December 2011)

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The Tunisian Revolution in Its Constitutional Manifestations the First Transitional Period (14 January 2011 - 16 December 2011) The Tunisian Revolution in its constitutional manifestations The first transitional period (14 January 2011 - 16 December 2011) Yadh BEN ACHOUR Revolution is, from the legal analysis standpoint, an exceptional event for the existing constitutional framework in a particular country. Its consequences are either limited to the overthrow of the powers operating under the Constitution, or encompass the entire constitutional order, leading to its abolition and then replacement with a new constitutional system. What matters in a revolution is the emergence of the future's legitimacy from the phenomenon of “illegitimacy.” If we assume, in general terms, that a revolution “is not governed by the normal standards of political rationality” and its identity stems from the logic of explosion or the logic of the volcano1 - this fact would a fortiori be dominant in the legal field. For this reason, some theorists of the positivist school determined that the revolutionary phenomenon cannot in any way be subject to legal analysis. Even if the effect of the revolution is clear with regard to constitutional legitimacy as it breaches its provisions or totally revokes it, it cannot invalidate the entire legislative system. This system will remain valid, except for the abrogated or amended provisions of the texts that govern it. The revolution impacts the constitutional order much more strongly than it impacts the legislative system. In revolutions, the constitutional order often breaks down, partially or completely, and the legislative system survives with its institutions, except the part of it that is revoked or amended, as in the case of Tunisia. A revolution is a historic moment with deep consequences. It is characteristically a crucial and unequivocal message in its political and legal implications. But it is just a moment. This means that it is short-lived. Its peaceful or violent manifestations, such as demonstrations, sit-ins, confrontations, and shocks last for a few days and have a “subversive character”, until the fall of the existing system. If this is achieved, the first moment of the revolution ends. Then, it becomes necessary to switch to a “temporary” measure that pushes the political establishment to find a final solution to the crisis. Such a solution lies in establishing another procedural approach: it may be the election of a new parliamentary or presidential authority under the existing constitution; or a popular referendum on a new constitution; or a constituent action aiming to draft a new constitution by a constituent body comprised of appointed or elected representatives after a transition period during which constitutional life is based on regulatory constructive measures, based on political concord, without prior constitutional basis. This is what is called in this article “extraordinary constitutional law.” In all these cases, this procedure ends the exceptional and transitional period and brings the situation back to normalcy, perenniality, and stability under new and permanent constitutional institutions. 1 Burhan Ghalioun, "The Great Syrian Revolution: The Challenge of Victory", Strategic Issues, N°6, July-August- September 2012, p. 17. The Tunisian revolution broke out in the period between 17 December 2010 and 14 January 2011 and its first consequence was the flight of the authoritarian president. Since this president monopolised the fundamental powers - from the political, and even the constitutional viewpoint - his downfall led to the collapse of a significant portion of the regime. Therefore, it was replaced by a new entity. In this context, it should be noted that the Tunisian revolution faced many paradoxes. One of these paradoxes is the conflict between, on the one hand, revolutionary legitimacy - as a message without a leadership accompanying it - and on the other hand, the logic of order and political-administrative transitional institutions belonging to the old system. Rather than identifying with the revolution, they were often hostile to it. This paradox showed up on several occasions, and shall be explained below.2 The second paradox appeared in the vast gap between “the people of the revolution” and the people of the election”.3 The former raised the slogans of a temporal revolution and a civilian state, without adopting any religious reference, and the latter produced a parliamentary partisan majority with religious, legal, and doctrinal reference. The Tunisian experience represents, from the historical and legal perspective, a great and rare event. Indeed, it has raised the issue of the relationships between revolutions and existing legal systems from several aspects: What are the effects of the revolution on the existing legal, constitutional, and legislative system? How and to what extent does the pre- existing system disappear, and how does the new legal system come to life? How does the transition from the revoked constitutional order to the new constitutional order take place? The author will try to answer these questions by analysing the fundamental phases experienced by the Tunisian revolution and the lessons learned. First, the lessons from the fall of the authoritarian regime to the rescinding of the 1959 Constitution, with highlights on the impact of the revolution on the 1959 Constitution. Then, the challenges faced through the initial consensual Provisional Organization of the Public Authorities. Finally, the author will discuss the issues surrounding the preparation of the electoral framework. Section I: The effects of the Revolution on the Constitution of 1959 In this section the author will analyse the constitutional situation after the fall of the authoritarian regime on 14 January 2011 and the country's entry in an exceptional constitutional period during which a provisional constitutional structure was established culminating in the adoption of Decree-Law No. 2011-14 on the Provisional Organization of Public Authorities, and also during which a constituent assembly was elected. Ben Ali's flight and the issue of the mandate to the Prime Minister Late on the evening of 14 January 2011, after breaking news of the departure of the President of the Republic from Tunisia and in the presence of the President of the Assembly and the President of the House of Councillors, in an extreme state of turmoil, Prime Minister Mohamed Ghannouchi delivered the following address to the Tunisian people on the national 2 Rafaâ Ben Achour et Sana Ben Achour, « La transition démocratique en Tunisie : entre légalité constitutionnelle et légitimité révolutionnaire », Revue française de droit constitutionnel, 2012, 2, n°92, p.715. 3 Yadh Ben Achour, an interview with the Moroccan newspaper "Akhbar Al Yaoum", Tuesday, 31 January 2012, p.14 television channel: “In accordance with Article 564 of the Constitution, which stipulates that in case of temporary disability, the President may delegate his powers to the Prime Minister and considering the temporary inability of the President of the Republic to exercise his duties, I assume from now the exercise of the powers of the President of the Republic ...” Consequently, this procedure was loudly denounced for the simple reason that invoking Article 56 on temporary vacancy meant that the former president was expected to return. The consequence of such return would mean the repression of demonstrators and the increase in the number of victims. Besides, there was a procedural irregularity as the decision was not made by former president as stated later in the decision of the Constitutional Council of 15 January 2011. Commenting on the message of the Prime Minister, the Constitutional Council says in the preamble to its decision: “Whereas it has been determined especially from the said letter that President Zine El Abidine Ben Ali left Tunisia without delegating his powers to the Prime Minister in accordance with Article 56 of the Constitution.” The following day, i.e. Saturday 15 January 2011, after closing the door to a possible return of the president, who was henceforth called the “deposed president”, the Government reversed its position and announced the application of Article 57 on definitive vacancy and addressed a letter to that effect to the Constitutional Council. Declaration of the state of emergency Since the Martyr Mohamed Bouazizi set himself on fire on 17 December 2011, the country entered into a series of protest events against the regime—and all its symbols—which was eventually toppled on 14 January 2011. The protests led to a repressive state response utilizing force, resulting in the death of hundreds of victims, and subsequent looting and robberies. As a result, a state of emergency was announced on 15 January by Order No. 184, but was only published in mid-February along with Order No. 185 of 14 February 2011, which extended the state of emergency. The tense security situation caused the suspension of normal constitutional procedures, which would have provided the framework for the holding of presidential elections to replace the former president. Definitive vacancy of the Presidency of the Republic and invocation of Article 57 This time, the proceedings provided for in Article 57 of the Constitution5 were enforced and the Constitutional Council met immediately on 15 January 2011 to establish the definitive 4 Article 56 (Paragraph 3 was amended by Constitutional Law No. 2002-51 of 1 June 2002): "In case of temporary disability, the President may, by decree, delegate his powers to the Prime Minister, to the exclusion of the power of dissolving
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