The Parliament in the Constitution

Jean-Raphael GIULIANI

The watchword of the Tunisian Revolution, which prompted former president Zine El Abidine Ben Ali to flee on 14 January 2011, then led to a profound transformation of the Tunisian institutional system, was restoring "dignity". The popular protest movement was founded on economic and social considerations, and aimed to challenge a social model characterized by deep geographical, economic, social, and generational disparities. However, the protesters' demands rapidly took a more institutional turn: the Tunisian people, and in particular young people, no longer wanted to be excluded from decisions that affected them directly. They wanted to be able to have their say in shaping the direction taken by their country and, above all, to have the tools to challenge political power, so that it would never again be monopolized by a single individual or an elite free from any popular control.

The discussions on possible changes to Tunisia's institutions which took place at the start of 2011 thus aimed not only to ensure the eradication of a system of widespread corruption and to release the stranglehold of a small number of privileged individuals over the country's wealth and economy, but also to establish a balanced regime enabling the emergence of effective checks and balances, and to introduce mechanisms requiring State institutions to account to the public for their actions.

The Constitution enacted on 27 January 2014, recognized outside the country as eminently modern and democratic, thus re-established the Tunisian people as the sole source of legitimacy for the exercise of any political power. How? First of all, through its representatives. Tunisia has expressed its profound attachment to the principle of representative democracy, even if hints of direct democracy are emerging here and there, in accordance with the zeitgeist. The name of the unicameral parliament established the "Assembly of the Representatives of the People" offers a constant reminder of that principle. As early as Article 3 of the Constitution, it is asserted that "The people are sovereign and the source of authority, which is exercised through the peoples’ representatives and by referendum." Even the order of the chapters of the Constitution offers a reminder of the supremacy accorded to the Parliament: Chapter III, which deals with legislative power, comes directly after those devoted to "general principles" and "rights and freedoms", and before those on the other powers, particularly the executive.

So what is the mandate of this new parliament created by the 2014 Constitution? What exactly are its roles and what tools are available to it under Tunisia's new constitutional order? How does the Constitution provide that it should operate?

A constitution is an eminently dynamic instrument; often, it can only be meaningfully analysed in the light of its practical application by the country's main institutional players. The Second Republic is still in its infancy, and the application of its constitution is rapidly evolving. The understanding of Tunisia's Constitution will thus develop over time, and with it the role of parliament. This article aims primarily to explain how the parliament is defined by the Constitution, and what principles emerge from the constitutional text. It will, therefore, gloss over the practices of the Assembly of the Representatives of the People, which are already known and, in particular, the

1 substance of the provisions of the Assembly's rules of procedure and the interpretation of the Constitution by the various jurisdictions, which is a work in progress.

The different stages in the constitution-making process, and particularly the political crises that arose and the ways in which they were resolved, essential to a proper understanding of the process as a whole, will be mentioned only for explanatory purposes. Finally, the "general structure" of the Constitution and analysis of the other powers constituted will only be considered in this article through the prism of the Parliament. Those subjects will be covered in other articles in this collection.

We will begin by looking at how the constitutional process established the Parliament as the central institution of democracy under Tunisia's Second Republic (I). We will then examine how the 2014 Constitution created a strong, autonomous Assembly of the Representatives of the People with the necessary means to fulfil its mandate (II). Finally, we will consider how it allows the parliament to represent citizens, hold the executive to account, legislate, and vote on the budget (III).

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I. The constitution-making process enshrines the Assembly as the pivotal institution of Tunisian democracy

The operation of the National Constituent Assembly between 2011 and 2014 (A), as well as the debate within it on the nature of the institutional regime and the role of parliament (B), enabled the development of a strong parliament at the heart of the Tunisian institutional system.

A. Developing modern, democratic parliamentary practice: the functioning of the National Constituent Assembly (2011-2014)

When the question of establishing the terms of the constitutional process arose in early 2011, two procedural options were considered for a while; simply amending the 1959 Constitution, or having a new constitution drafted by a group of experts. Those two scenarios had the major disadvantage of not providing enough symbolic change to satisfy the Tunisian people. In fact, under pressure from the public, and particularly following the two Kasbah sit-ins1, a brand new constitution created by a National Constituent Assembly elected by direct universal suffrage was quickly established as the only solution likely to see the aims of the Revolution realized.

In late February 2011, a few days before the resignation of Mohamed Ghannouchi's government and the formation of the first Beji Caïd Essebsi government, the outline of a first transition scenario was approved. A constituent assembly would be elected in July of the same year, with the task of writing a new constitution for the country. In the end, that election was postponed until October 2011, in order to ensure that it could be held in optimal technical and logistical conditions2.

The primary objective of the National Constituent Assembly (NCA), elected on 23 October 2011, was to draft a new constitution. But under Constitutional Act N° 2011-6 of 16 December 20113,

1 For a description of the Kasbah movements and their demands, see, in particular, Éric Gobe, "Tunisie an I: les chantiers de la transition", L’Année du Maghreb, VIII | 2012, 433-454. 2 For an analysis of the transitional period preceding the National Constituent Assembly, see "La Révolution tunisienne dans ses manifestations constitutionnelles", Y. Ben Achour, in this collection. 3 "Law on the provisional organization of public powers" (OPPP).

2 it was also established as Tunisia's transitional parliament. Article 2 of the Act provides that the NCA "is also responsible for exercising legislative power and (…) for scrutinizing the actions of the government".

During the NCA period, that dual role had a notable impact on the operation of the Assembly, and particularly on the management of its work calendar. Each of these tasks was considerable, and it was partly because of that combination of responsibilities that the constitutional process ended up taking longer than the one year initially allotted4. The fact that the NCA operated as a fully-fledged parliament also enabled the development of new parliamentary practice in Tunisia, which fostered the development of a new institutional system.

Politically, first of all, the proportional voting system chosen for the National Constituent Assembly election led to very fragmented political representation in the NCA, necessitating the creation of a coalition to support the formation of a government likely to win the confidence of the House5. That phenomenon helped give an important role to the parliamentary groups. Three of the top four parties in the elections of 23 October 2011, Ennahdha, the Congress for the Republic (CPR), and Ettakatol, thus formed the governing coalition known as the "Troika", with each of them securing the presidency of one of the three main institutions of the transition period. The presidency of the Republic thus went to the President of the CPR, Moncef Marzouki, the presidency of the government was given to the General Secretary of the Ennahdha movement, Hamadi Jebali, and the presidency of the NCA was handed to the President of the Ettakatol party, Moustafa Ben Jaafar.

This distribution of roles, as well as the political and ideological divergences among the parties constituting the Troika – an Islamist party (Ennahdha), a centre-left party that is a member of the Socialist International (Ettakatol), and a composite party made up mainly of elements of the Arab Nationalist left (the CPR) – led to the development of three institutions that were meant to work together and act as checks and balances on one another at the risk of being neutralized in the event of an institutional crisis. The effect of that system, often referred to as the "three presidencies", was to strengthen the role and importance of Parliament in relation to the other two institutions of the executive, a brand new situation for Tunisia.

Institutionally and administratively, the natural choice was to base the National Assembly in the Bardo Palace, formerly the Bey's palace, and the home of the first Tunisian Constituent Assembly from 1956 to 1959, as well as the National Assembly and then the Chamber of Deputies from 1959 to 2011, and to attach to it the administrative staff of the former assembly, which ensured a certain institutional continuity in the operation of the Parliament. That posed the challenge of re- establishing trust between the Assembly members and the civil servants, the majority of whom held the same positions under the old regime, but meant the institution did not waste time, as an administrative structure was already in place and could therefore provide legal, technical and logistical support for the Assembly's work.

The Assembly's secretariat, and particularly the "committee advisers", made a full contribution to the work done on the institutional regime, and particularly the work on the remit of Parliament. That enabled it to be operational from the very first days of the Assembly of the Representatives of the People, the new parliament of the Second Republic.

4 For a brief overview of the debate on the legality of the duration of the NCA's mandate, an important feature of the constitutional process, see, in particular, Jean-Philippe Bras, "Le peuple est-il soluble dans la constitution ? Leçons tunisiennes", L’Année du Maghreb, VIII | 2012, 103-119. 5 Under the Constitutional Act of 16 December 2011 (the "OPPP law"), the government had to win the confidence of the majority of NCA members.

3 B. Constitutional debate on the nature of the regime and the role of Parliament

The other aspect of the National Constituent Assembly's work that had a direct impact on the place of the Parliament in the new Constitution was, of course, the debate that took place on the nature of the regime and the constitutional prerogatives of the various institutions. Those questions were at the heart of discussions due to the different conceptions held by the various political players represented in the NCA, including within the governing coalition. The various positions expressed were the product of a complex set of factors combining ideological considerations, positioning in relation to the institutional regime of the First Republic, and more prosaic reasoning on the political balance in the country when the Constitution was being drafted.

Some political players, foremost among them the Ennahdha movement, very quickly came out in favour of enshrining in the Constitution a purely parliamentary regime in which political legitimacy would stem exclusively from the Assembly, with the executive power merely an emanation of the Assembly. That stance, which was formulated very early on by the party6, must be considered through the prism of its history, and particularly its profound mistrust of a regime, that of the First Republic, which fought it and in which, from the beginning, the President of the Republic held the lion's share of power. A number of senior figures in the movement, starting with Rached Ghannouchi, spent a not inconsiderable part of their exile in Great Britain and thus developed a real fondness for the Westminster institutional model.

Other parties, while clearly distancing themselves from the presidentialist misuse of power under the First Republic, came out in favour of a mixed regime, often referred to as a "presidential" regime, in which electoral legitimacy would be shared between the Parliament and a President of the Republic, both elected by universal suffrage. The balance of powers would then have been ensured by a system of checks and balances providing safeguards against presidentialism, instability, and the inefficiency of an assembly regime. In the background, a degree of inspiration from continental European institutional systems could be seen, particularly the systems of Portugal and France's Fifth Republic.

Finally, the reality of the political and party-political context in Tunisia during the drafting process played an important role. Everyone was pursuing his/her own goals. Thus, Ennahdha, while it believed it could count on broad support from the population during the legislative elections7, did not take a direct interest in the presidential election, while others, notably the CPR, Ettakatol, and Al Joumhouri, largely constructed themselves as political forces, one of the stated objectives of which was to support the candidacy of their leaders for the supreme court8.

The Tunisian political players made considerable use of consensus during the drafting of the Constitution in order to overcome their differences and preserve the peaceful nature of the democratic transition process. For many observers, that was one of the defining characteristics and the big successes of the Tunisian experiment9. The regime established by the 2014 Constitution, a compromise drawing on elements desired by different players, is therefore largely original. In keeping with the revolutionary desire for an institutional system that would no longer slip too quickly

6 Political programme of the Ennahdha movement presented at the Palais des Congrès in Tunis, 14 September 2011. 7 The Ennahdha movement won 37.04% of the vote at the 2011 elections to the National Constituent Assembly. The party that finished second, the Congress for the Republic, obtained 8.71% of the vote. Data from the Independent High Authority for Elections, 2011. 8 In the presidential elections of December 2014, then, those three parties (CPR, Ettakatol and Al Joumhouri) ran a candidate, which Ennahdha did not do. 9 See, in particular, Éric Gobe & Larbi Chouikha, "La Tunisie politique en 2013 : de la bipolarisation idéologique au « consensus constitutionnel » ?", in L’Année du Maghreb, 11 | 2014, 301-322 ; or The Carter Center, "The Constitution- Making Process in Tunisia – Final Report 2011-2014", p. 12.

4 and too far from popular control, the unicameral parliament, elected by direct universal suffrage under a proportional system, plays a central role. The two-headed executive only has limited tools for keeping the Parliament in check, essentially only when Parliament is unable to grant its confidence to the government. Yet such tools do exist, even if they are very strictly controlled. In addition, the ARP must share with the president the democratic legitimacy that comes from election by universal suffrage: the regime is neither presidential nor parliamentary, instead using approaches specific to both systems: it is resolutely "mixed".

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In the Tunisian Constitution of 2014, the institutional centre of gravity thus clearly moved closer to parliament after several decades of limitations on its role to the benefit of the executive power, as shown by the resources made available to the Assembly of the Representatives of the People under the Constitution.

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II. The Assembly of the Representatives of the People: a strong assembly with the means to act

The Assembly of the Representatives of the People of Tunisia's Second Republic is a decidedly strong assembly, the constitution-makers of which took care to give sufficient means, in order to fulfil its mandate in accordance with the principle of separation of powers. Indeed, the ARP should be able, by carrying on the practices of the National Constituent Assembly, to clearly distinguish itself from the bicameral parliament of the First Republic, whose role was often restricted to "rubber-stamping" decisions made elsewhere.

A. Representatives of the People with independence and integrity

First of all, the Constitution establishes rules on the election and mandate of the Representatives of the People. It guarantees them the independence and freedom necessary for their political action, while requiring them to exhibit exemplary behaviour.

A parliamentary term lasts five years (Article 56). To be elected member of the Assembly, a person must have been a Tunisian citizen for at least ten years, be at least 23 years old, and have full rights of citizenship (Article 53). The Constitution therefore allows naturalized citizens who have proved their lasting intention to integrate in the country to stand as candidates in legislative elections, which are held by "universal, free, direct, secret, fair, and transparent voting". The electorate consists of all citizens aged 18 or over (Article 54). In addition, the Constitution takes care to make specific mention of the Tunisian diaspora, guaranteeing them a right to vote and to be represented. It therefore establishes an obligation for the State to maintain electoral constituencies across the world.

True to the classical conception of separation of powers, Article 68 of the Constitution guarantees Tunisian Assembly members absolute judicial immunity for all of the stances, opinions or proposals they formulate, and all of the acts they commit during the course of their parliamentary duties. In contrast, the Constitution establishes strict limits on the criminal immunity of

5 parliamentarians10 during their other activities. Parliamentarians must assert their criminal immunity in writing if they wish to benefit from it. Only the Assembly can decide to lift it. If caught red-handed in the commission of a crime, a member of parliament may be arrested. In such an event, the President of Assembly is informed immediately and the Bureau of the Assembly may demand his/her release. It is no longer up to the judge to request that immunity be lifted but the responsibility of the member of parliament or, in the last resort, the Assembly, to exercise it. This inversion of the procedure may seem surprising in view of the will to guarantee Assembly members' independence, particularly in the context of a democratic transition following a police state. However, this measure needs to be considered in the context of post-revolution Tunisia, where precedence is taken by the desire to prevent any holder of political office from using their position to flout the law. That intention to make politicians exemplary figures is also found in Article 11 of the Constitution, which provides that representatives, like all other holders of a "senior public position", must declare their assets when taking office. Parliamentarians are thus largely protected, but not exempt from following the rules of integrity that apply to everyone else.

Once elected and after swearing an oath, representatives11 must regularly travel to the capital, with the Constitution providing that they must vote at the Assembly in person and cannot vote by proxy (Article 60).

B. An autonomous assembly with the means to act

The Assembly has administrative and financial independence, with the constitution-writers having taken care to mention that this independence applies "within the framework of the state budget", and that the state must "put at the disposition of the Assembly of the Representatives of the People the necessary human and material resources to allow for members of the Assembly to fulfil their obligations" (Article 52). That constitutionally enshrined autonomy is a major step forward, which once again guarantees that the institution is not subjugated to the executive when it comes to managing its own internal operation, and that it will have the necessary means to fulfil its mandate. These include the material and technical resources that the parliamentarians, and the parliamentary groups they form, must have at their disposal. There is also a dedicated parliamentary civil service, which did not exist under the First Republic, but whose development is the only way of ensuring that the administration of the Assembly is not subject to the influence of the executive, which controls the State civil service.

The ARP sets its own rules of procedure, which must be approved by an absolute majority of its members, and are subject to verification by the Constitutional Court (Art. 120). The Assembly thus has great leeway with regard to its organizational structure (Bureau, Vice-Presidents, Conference of Presidents, parliamentary groups), but the Constitution does impose some mandatory rules.

Its president must be elected during the first plenary session (Article 59). The President of the Assembly plays a special role in the institutional architecture developed by the Constitution. The existence of a "Bureau of the Assembly" is also mentioned in Article 69 on the criminal immunity of Assembly members, though the Constitution makes no mention of its composition nor of the nature of its mandate. In addition, Article 59 requires the creation of permanent committees and special

10 Article 69: "If a member of the Assembly of the Representatives of the People asserts criminal immunity in writing, he/she may not be prosecuted or arrested during his/her term of office for a criminal charge unless immunity is lifted. In the event of being apprehended committing a crime, the member may be arrested. The Speaker of the Assembly of the Representatives of the People shall immediately be notified and the member shall be released if the Bureau of the Assembly so requests." 11 Article 58 of the Constitution: "Every member in the Assembly of the Representatives of the People shall, upon assuming their functions, swear the following oath: 'I swear, by God Almighty, that I will diligently serve the nation, that I will respect the provisions of the Constitution, and that I will bear full allegiance to Tunisia.'”

6 committees, taking care to mention that their composition and the division of responsibilities within them would be determined on a proportional representation basis. This provision is to be clarified in the rules of procedure, and reflects the important role given to the parliamentary groups – an organic expression of the political diversity within the Assembly.

If the Rules of Procedure must establish the number of permanent and special committees, and the mandates of each of them, some such committees already have a constitutional footing: the "Finance Committee" and the "External Relations Committee", of which the positions of chair and rapporteur, respectively, are assigned to the parliamentary opposition (Art. 60); and a "specialized committee" responsible for investment contracts concerning natural resources (Article 13 of the Constitution), as well as a "competent committee" for discussing the budget of the Supreme Judicial Council (Article 113).

The ARP sits in a single annual ordinary session, from October to July (Art. 57), the precise details of its calendar being left to the discretion of the Assembly. The Assembly may also hold an extraordinary session at the request of the Head of State, the Head of Government, or one-third of its members. Barring exceptional circumstances, the Assembly of the Representatives of the People sits in Tunis (Article 51).

C. A parliamentary opposition enshrined in the Constitution

With a view to distinguishing itself from the authoritarian practices of the past, the Constitution enshrines the role of the parliamentary opposition. This is one of the great gains made by the democratic transition process in Tunisia, one of those that was the subject of bitter discussion and clamoured for by the Tunisian people during the constitutional process12. Thus, under Article 60 of the Constitution, the opposition has become "an essential component of the Assembly of the Representatives of the People", with its "adequate and effective representation in all bodies of the Assembly, as well as in its internal and external activities" guaranteed. That means, in particular, including at least one opposition Assembly member in each ARP body and in each parliamentary delegation sent out inside Tunisia or abroad. The opposition will also have the opportunity to form and chair one committee of inquiry per year. The roles of chair of the Finance Committee and rapporteur of the External Relations Committee are also reserved for the opposition.

What the Constitution does not say, however, is how the opposition will be defined. That is left to the rules of procedure. In an assembly which, due to the proportional representation system, is relatively diverse, with no clear two-party split, the question can be a complex one. Is the opposition made up of the Assembly members who do not belong to any of the parliamentary groups forming the governing majority? If so, what about the independents, or the parliamentarians who were elected on the list of a party that is part of the government, but are members of another parliamentary group? Or should opposition status be deduced from those who vote against the government in a vote of confidence? Of course, the aim is to find a compromise between too restrictive a definition, reducing the opposition to the bare bones, and too wide a definition, covering parliamentarians from different political horizons with no common objective within the Assembly.

The role of the parliamentary opposition is indeed essential in the event of a "matching majority", that is, when the party from which the President of the Republic comes also holds a majority of seats in Parliament. It would then be incumbent upon the parliamentary opposition to guarantee effective scrutiny of the executive through parliamentary questions, hearing, and

12 On this subject, see, in particular, the minutes of the decentralized meetings held as part of the National Dialogue on the draft constitution between December 2012 and March 2013, "Dialogue National sur le projet de la Constitution : rapport général", United Nations Development Programme, March 2013, p. 35.

7 committees of inquiry. A bulwark against the return of authoritarianism, the opposition can now rely on its constitutional status and the rights granted to it. These include the possibility, outlined in Article 120 of the Constitution, for thirty members of the ARP to refer a draft law to the Constitutional Court to determine its constitutionality, up to seven days after its adoption by the ARP.

D. An Assembly at the core of the institutional balance

The only institution in which the political opposition must be represented, the Assembly of the Representatives of the People is therefore a central component of the constitutional architecture. A guarantor of democracy, it is involved in many institutional processes and the executive's powers over it are limited.

1. Parliament: the democratic safeguard of the institutional system

The Assembly of the Representatives of the People is directly involved in the formation and composition of the State institutions in which pluralism must be ensured. For instance, the President of the Republic's appointment of the Governor of the Central Bank must be approved by an absolute majority of the ARP, which can revoke its approval at the request of one- third of its members, after a vote by the absolute majority of its members (Article 78). The ARP also elects, by a qualified majority, four members (one-third) of the Constitutional Court (Article 120), and all the members of the five independent constitutional bodies established in Chapter VI (Article 125). Finally, the members of the ARP can back candidates for the presidential election (Article 74).

2. The President of the Assembly of the Representatives of the People: a coordinating role

The President of the ARP has a special role in the Tunisian Constitution, which mentions the position 20 times. In addition to his/her duties in the chamber, which will be identified and detailed in the Rules of Procedure, the President of the ARP, "first among equals", is also responsible on behalf of the Assembly for "coordination" to ensure fluid relations between institutions.

The President passes institutional information between the Parliament and the other powers. He/she is the person whom the President of the Republic informs of decisions on the unconstitutionality of a bill by the Constitutional Court (Art. 66), and he/she is responsible for passing the Rules of Procedure of the ARP to the Court to check their compatibility with the Constitution (Art. 120). He/she is also person who is informed when a member of the ARP is arrested in the commission of a crime (Art. 69), when the President of the Republic temporarily delegates his/her powers to the Head of Government (Art. 83) or when the Head of Government resigns (Art. 98); he/she is the person to whom the annual reports produced by the Supreme Judicial Council (Art. 114), the Court of Cassation (Art. 115), the Supreme Administrative Court (Art. 116), and the Court of Audit (Art. 117) are submitted. It is also the President of the ARP who is responsible for submitting proposed amendments to the Constitution to the Constitutional Court to check that said amendments do not concern any of the provisions the Constitution declares to be inviolable (Art. 144). Finally, motions of censure against the government and motions to withdraw the Assembly's confidence from a member of the government are submitted to the President of the ARP (Art. 97).

The President of the ARP also plays more active roles in guaranteeing the balance of powers. Thus, once a period of thirty days has elapsed since the start of the "exceptional circumstances" outlined in Article 80 of the Constitution, a period during which the Assembly is deemed to be in a state of continuous session, the President of the ARP may apply to the Constitutional Court with a view to

8 verify whether the exceptional circumstances still exist. He/she shares that right with the Assembly members, provided that two-thirds of them express their wish to do so.

The President of the ARP is also a member as of right of the National Security Council and must give his/her approval (along with the Head of Government) when the President of the Republic decides to send troops abroad (Art. 77). Though declarations of war must be approved by three-fifths of Assembly members, this provision is particularly important in the current context, when most military interventions are short, one-off affairs and are often decided far away from parliament. The President of the Republic cannot therefore take such decisions without the approval of the President of the parliament.

Furthermore, should the President of the Republic permanently vacate his/her office, the President of the ARP shall immediately be provisionally invested with the roles and duties of the President of the Republic, in accordance with Article 84 of the Constitution. Finally, it is incumbent upon the President of the outgoing Assembly to call the first session of the new Assembly within 15 days of the announcement of the final results of the legislative elections (Article 57).

3. Limits on the Executive's influence over Parliament

In order to preserve the central role of the Parliament while limiting the ability of the Executive to influence it, the Constitution organizes the protection of its prerogatives. Thus, the possibility for the President of the Republic to dissolve the Assembly under Articles 89 and 99 of the Constitution is very closely controlled and limited to cases when Parliament is unable to accord its confidence to a new Government. Furthermore, such dissolution is impossible in the six months following the vote of confidence in the first government formed after the legislative elections, or in the last six months of a legislative or presidential term (Article 66), as well as in the exceptional circumstances outlined in Article 80. In reality, the conditions for dissolution will rarely be met. Finally, the possibility established in Article 65 for the Executive to issue regulatory standards in the domain of laws through decree-laws in exceptional circumstances is also very tightly controlled. Strict time limits and material conditions are established, along with an ex post facto check by the legislature itself.

* The Assembly of the Representatives of the People is therefore a resolutely strong parliament. The independence of Assembly members is guaranteed, and the administrative and financial autonomy of the institution is placed on a constitutional footing. The Constitution also guarantees full involvement of the Assembly in the institutional system, while protecting it from pressure from the Executive. The Parliament thus has the necessary tools to fulfil its mandate, which is worth clarifying at this juncture.

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III. The mandate of the Assembly of the Representatives of the People

The Assembly of the Representatives of the People is the parliament of Tunisia's Second Republic. As such, it is invested with the duties of representing citizens, holding the Executive to account, and making the law. It also has budgetary power.

9 A. An Assembly that represents citizens

The Constitution of the Second Republic expresses the constitution-makers' profound attachment to representative democracy. That principle is expressed as early as Article 3, which, as well as stating that "the people are sovereign and the source of authority", also states that that authority is "exercised through the peoples’ representatives". Its representative role is thus both the source of its legitimacy and the foundation for the existence of various roles in parliament and in the other powers. The notion of representation is at this point so synonymous with that of the existence of the Parliament that there is no single mention of it in the constitution. It is found throughout the text.

Representation is the function around which the relationship between citizens and the Parliament is based: "Parliaments derive their authority from the public and maintaining that authority requires them to continually evolve and adapt to public expectations13". The modern conception of parliamentarism has clearly moved away from the notion of the binding mandate. The makers of the 2014 Constitution, therefore, took care to establish certain rules to guarantee the independence of parliamentarians, notably by providing that Assembly members must vote in person and not by proxy, and by enshrining the civil and criminal immunity of Assembly members with regard to the positions they express in the course of their duties. However, since Assembly members exercise their mandate on behalf of the people, it is essential that they maintain and develop their links with citizens over time, beyond the exchange and debate of the election campaign period.

The representation of citizens can be approached from two perspectives: at the level of each individual member of parliament, and at the level of the entire parliamentary institution collectively.

On an individual level, each parliamentarian interacts with citizens, particularly within his/her constituency. He/she goes there regularly, gets involved in community life, and garners citizens' opinions and grievances about the policies implemented by the government. He/she also informs citizens about the directions of travel adopted by the institutions. These important moments, made possible by the "constituency weeks" established under the Assembly's Rules of Procedure, also provide an opportunity for the Assembly member to present what he/she personally has done within the Parliament.

Institutionally speaking, the representation of citizens takes different forms, all as important as one another in the operation of the Parliament. In order to strengthen the links between the institution and citizens, it is, first of all, essential that citizens understand its role. The existence of clear, precise, and concise information on the institutional role and operation of the Assembly, as well as its day-to-day work, will be a decisive factor in determining citizens' trust in the institution. This information must be supported by a set of tools combining awareness campaigns, information and communication technologies (website, presence on social networks), traditional communication tools (press releases, press conferences), and the opening-up of parliamentary buildings, be it permanent (citizen participation in plenary sittings and committee meetings) or short-term (visits, open days), etc. The Parliament, a State institution, is subject to constitutional obligations of transparency and access to information, which applies to all State administrations, pursuant to Articles 15 and 32 of the Constitution. The Rules of Procedure of the Assembly establishes mechanisms to initiate a dialogue with citizens and civil society in order to organize regular exchanges and enrich the work of parliament with the considerations and expectations of Tunisian society in all its components. These mechanisms may, in particular, take the form of consultations on general topics or specific bills, or hearings organized for instance, as part of the work of the

13 See "Global Parliamentary Report: the changing nature of parliamentary representation", United Nations Development Programme and Interparliamentary Union, April 2012, p. 25.

10 parliamentary committees.

Finally, there is a dimension implicit throughout the constitutional text, from the fourth paragraph of the preamble14: the fact that the Assembly represents the pluralism of the Tunisian people and therefore its political diversity. One of the conditions required for the people to trust the parliamentary institutions, particularly after a democratic transition that has overthrown an authoritarian system based on an all-powerful single party, will be its capacity to build a lasting structure for the representation of the different political tendencies within it. The Constitution thus lays the foundations of this principle when it enshrines the status of the opposition (Article 60), and imposes a system of proportional representation for the allocation of seats and positions on parliamentary committees (Article 59). The rules of procedure of the ARP thus have the essential task of determining the status, role, and operation of the parliamentary groups, which are the structural expression of political diversity within the Assembly.

B. An assembly that holds the executive to account

If the representation function is based on the coordination of relations between citizens and the parliament, it has a corollary, which is itself based on the coordination of relations between the Parliament and the executive: parliamentary scrutiny. The Assembly, the primary vector for communicating the expectations of the population, scrutinizes the actions of the executive, its administration, and the policies it implements. In the Tunisian Constitution, this scrutiny is exercised with regard to the two "heads" of a two-headed executive, the President of the Republic, and the government.

1. Formation of the government and scrutiny of its action by the Assembly

The government comes directly from the parliamentary majority. According to Article 89 of the Constitution, "the President of the Republic shall ask the candidate of the party or the electoral coalition which won the largest number of seats in the Assembly of the Representatives of the People to form a government".

However, from an institutional viewpoint, the government breaks away from the Assembly after its formation. Granted, it must present "a summary of its programme" to the Assembly and obtain the confidence of an absolute majority of its members. But, it swears an oath to the President of the Republic (Article 89), and it is not possible to be a member of the government and a member of parliament at the same time, which in theory limits swapping of political personnel between the two institutions. While guaranteeing close relations between the government and the Parliament, these provisions take the system established by the Tunisian Constitution of 2014 away from a purely parliamentary regime in which there is a strong organic link between parliament and government.

Once formed, and throughout its term in office, the government is accountable to the Assembly of the Representatives of the People (Article 95). That political accountability is manifested in the submission of accounts, particularly when parliamentarians exercise their constitutional right to question the government (Article 96) on the direction of its policy and the resources used to implement it. If the government or its administration ignores the questions, challenges, and suggestions of the parliamentarians, the Assembly members can bring down the entire government

14 Paragraph 4 of the Preamble to the Constitution: "With a view to building a participatory, democratic, republican system, in the framework of a civil state founded on the law and on the sovereignty of the people, exercised through the peaceful alternation of power through free elections. A political system founded on the principle of the separation and balance of powers, which guarantees the freedom of association in conformity with the principles of pluralism, an impartial administration, and good governance, which are the foundations of political competition..."  .

11 through a "motion of censure", or trigger the resignation of an individual member of the government through a "withdrawal of confidence". It is, therefore, possible for one-third of Assembly members to present a substantiated motion to the President of the Assembly via either of these procedures (Article 97).

In order to assert his/her legitimacy within the parliament, the Head of Government him/herself can request a renewal of the ARP's confidence in him/her. The government will be held to have resigned if it fails to win this vote of confidence by an absolute majority. The President of the Republic may also request that the ARP renews its confidence in his/her government, in conditions that will be set out later.

2. Removal of the President of the Republic by the Assembly

The President of the Republic, the Head of State, is the guarantor of its continuity and "ensures respect of the Constitution" (Article 72 of the Constitution). He/she has a special relationship with the Assembly of the Representatives of the People, which is closely involved in the balance of powers established by the Constitution. After his/her election, he/she swears an oath before the Assembly15. He/she may also, during his/her term, address the Assembly in the terms set out in Article 79, though the nature (oral or written) of such communications is not specified.

The President of Tunisia's Second Republic is far from the impotent Head of State found in a parliamentary regime. The constitution assigns him/her a number of direct responsibilities. One such responsibility concerns declaring the existence of "exceptional circumstances", as described in Article 80, which make it possible to derogate from constitutional normality by granting the Executive increased powers.

The Constitution did, however, include a set of provisions enabling the Head of State to be held to account by Parliament. While the text formally provides that the President cannot answer politically to the Assembly for his/her actions in office, it does provide for a procedure for removal of the President in the most extreme cases of "violation of the Constitution" (Article 88). A substantiated motion must be presented by a majority of the members of the ARP, then adopted by two-thirds of its members. If the motion is adopted, the final decision to remove the president will rest with the Constitutional Court, which will decide by a two-thirds majority. This procedure, similar to "impeachment" in the USA's presidential system, is the counterpart to the immunity guaranteed by Article 87 of the Constitution. It is a kind of legal safeguard set up by the constitution-makers who remembered the presidential excesses of the First Republic.

3. The constitutional tools for rationalizing parliamentarism

In order to prevent Parliament from making excessive use of its scrutiny tools, which could lead to considerable government instability, a set of constitutional provisions has been put in place to control it, establishing a balanced regime in which each power has means to act against the other.

First of all, the motion of censure against the government can only be adopted by the Assembly if, during the same vote, it agrees on the name of a new head of government. The Tunisian Constitution thus introduces a "constrictive" censure system similar to the one implemented by the constitutions of the Federal Republic of Germany. Tunisia cannot, therefore, be deprived of a government due to a parliamentary motion of censure. In addition, no motion of censure may be

15 Article 76 of the Constitution: Once elected, the President of the Republic swears the following oath before the Assembly of the Representatives of the People: "I swear by Almighty God to work loyally for the good of Tunisia, to respect the country’s Constitution and its legislation, to defend its interests and bear full allegiance to it".

12 brought during the six months following the failure of a first motion (Article 97), or when there is an acting President of the Republic (Article 86), when the stability of the institutions must be preserved.

Furthermore, the President of the Republic may ask the Assembly to renew its confidence in the government on a maximum of two occasions during his/her term. If the government does not obtain the Assembly's confidence and the new government composed by the person appointed by the President of the Republic does not obtain its confidence within the next thirty days, the Head of State may dissolve the ARP and trigger early legislative elections. This measure enables the Executive to maintain a means of applying pressure on the Parliament, particularly when the Assembly might have a tendency to block government action, without going as far as censure. The President can thus force the ARP to commit politically, either by asserting its support for the current government, or by forcing it to resign and, thus, accepting the formation of a new government. This tool at the disposal of the President of the Republic is a double-edged sword, however, and the holder of the Presidency must use it sparingly. Indeed, if the Assembly's confidence in the government is renewed twice in accordance with this procedure, it is the Assembly which must resign (Article 99 of the Constitution).

C. An assembly that legislates and approves treaties

"The people exercise legislative power through their representatives in the Assembly of the Representatives of the People or through referendum," (Article 50 of the Constitution). A classic parliamentary function if ever there was one, discussing and voting on laws occupy a central place in the work of the ARP. The Constitution distinguishes between legislative propositions, which must be presented by at least ten members, and draft laws, which must come from the President of the Republic or the Head of Government (Art. 62). Although the latter are examined as a matter of priority, the Assembly will retain control over its agenda, according to rules that will be set out in its rules of procedure. Finally, only the Head of Government is competent to present draft laws concerning the ratification of international treaties or draft finance laws.

1. Ordinary laws, organic laws: the domain of the law

The Constitution makes a distinction between ordinary laws, which require a majority of voting members, provided that at least one-third of the members of the ARP are present, and organic laws, for which an absolute majority of members of the Assembly is required (Art. 64). While ensuring that the subjects considered the most delicate by the constitution have broad support in Parliament and will thus not have their legitimacy questioned, this provision allows the Assembly to adopt ordinary laws by a simple majority, even if some members are absent.

Article 65 of the Constitution presents a list of subjects falling within the domain of the law, specifying those which take the form of an ordinary law and those that must be adopted as organic laws. Matters that are not mentioned fall within the domain of general regulatory authority. While using this procedure could theoretically restrict the legislative field (because it is a finite list), the list seems quite broad and should therefore, in practice, contribute to restricting regulatory incursions. Indeed, alongside the classic provisions on public and individual freedoms, nationality, the determination of crimes and offences and the corresponding sanctions, tax and the budget, the implementation of institutional provisions, decentralization and the organization of the army, a number of much more vast terms are mentioned, which could expand the field of action of the legislature16.

16 Article 65: Laws relating to the following areas are deemed ordinary laws: - Creation of public institutions and facilities and the provisions regulating their work; - Nationality; - Civil and commercial obligations;

13 Article 70 of the Constitution provides for the possibility of intervention by the regulatory authority in sectors that normally fall within the legislative domain through "decree-laws", but this possibility is strictly controlled and limited to two scenarios: when the legislature is no longer in session because the ARP has been dissolved, in which case decree-laws passed by the President of the Republic alone will be submitted to the Assembly for approval at the next ordinary session, or when the ARP itself has delegated to the Head of Government the power to promulgate decree-laws on matters normally forming part of the domain of laws. There are two conditions, however. The scope of the delegation must be clearly delimited, and the duration of the delegation must not exceed two months. The texts promulgated by the government are subject to the approval of the Assembly when this period elapses.

This exception, which allows the executive to stand in for the legislature, should thus be perceived as reflecting a desire from the constitution-makers to avoid an incapacity to produce new rules, be it due to the temporary absence of the legislative power or an excessive workload, while keeping the procedure under the ultimate ex post facto control of the legislature.

Furthermore, many articles of the Constitution expressly state that certain matters form part of the legislative domain. These include the fields mentioned in the articles of Chapter I on the general principles of the Constitution, Chapter II on rights and freedoms, and Chapter V on the judicial authority. They also include Article 49, which determines the general regime for the restrictions that can be applied to constitutional rights and freedoms only by the law, "without

- Procedures before various types of courts; - Definition of felonies and misdemeanours and the corresponding punishments applicable, in addition to violations resulting in a penalty involving deprivation of freedom; - General pardon; - Regulation of taxation rules, percentages and procedures for collection thereof; except when delegated to the Head of Government under finance or tax laws; - Regulations on issuance of currency; - Loans and financial obligations of the State; - Regulation of senior public positions; - Declaration of earnings; - Basic guarantees given to civil and military public employees; - Organizing the ratification of treaties; - Laws of finance and closing of the state budget, and the ratification of development plans; - The fundamental principles of property laws, real property rights, education, scientific research, culture, public health, the environment, land and urban planning, energy, employment rights, and social security. Laws relating to the following areas are deemed organic laws: - Approval of treaties; - Organization of justice and the judiciary; - Organization of information, press and publication; - Organization and financing of parties, trade unions, associations, and professional organizations and bodies; - Organization of the national army; - Organization of the internal security forces and customs; - Election law; - Extension of the term of the parliament according to provisions of Article 56; - Extension of the presidential term according to provisions of Article 75; - Freedoms and human rights; - Personal status law; - Fundamental duties of citizenship; - Local government; - Organization of constitutional commissions; - The organic budget law. All matters which do not form part of the domain of laws shall be in the domain of general regulatory authority.

14 compromising their essence". Such restrictions can only be imposed "for reasons necessary to a civil and democratic state and with the aim of protecting the rights of others, or based on the requirements of public order, national defence, public health or public morals, and provided there is proportionality between these restrictions and the objective sought", subject to verification by the judicial authorities, and in particular the Constitutional Court.

Finally, although Parliament has a mandate to approve the finance law, said law is imposed on all institutions once adopted: the Constitution specifies that "legislative propositions and amendments presented by members of the Assembly of the Representatives of the People are not admissible if they affect the financial balances regulated in the finance law".

2. Approval of international treaties by the Assembly

The Assembly of the Representatives of the People approves the ratification of international treaties (Article 92). This approval entails adopting a draft law presented by the Head of Government, who is responsible for concluding "international treaties of a technical nature". A treaty thus approved by Parliament enters into force after ratification by the President of the Republic (Art. 77) and publication in the Official Gazette, and has a status higher than a law and lower than the Constitution in the hierarchy of Tunisian rules and standards (Art. 20).

3. Constitutional control of the legislative power

The Parliament, when exercising legislative power, must contend with the other powers within an institutional framework that establishes a series of checks and balances.

- Checking constitutionality

First of all, the constitutionality of laws is checked by the Constitutional Court. Laws may be referred to the Court by the President of the Republic, the Head of Government or thirty members of the ARP within seven days of their adoption (Art. 120). The Court has forty-five days to return its decision (Art. 121) and send the text back to the President of the Republic, who passes it on to the Assembly for amendment (Art. 122).

- Referral to the Assembly for second reading after promulgation

The President of the Republic promulgates the law adopted and orders its publication in the Official Gazette of the Tunisian Republic. However, Article 81 of the Constitution also allows the President of the Republic to refer an adopted law back to the Assembly for a second reading, no more than five days after the period for challenging constitutionality has elapsed. The decision to refer the law must be substantiated. Referral for second reading effectively demands a new vote – with or without amendments to the original text – with more constrictive majority rules than at first reading, specifically an absolute majority for ordinary draft laws and a "super-majority" of three-fifths for organic laws. It should be noted, however, that the Assembly may ignore the opinion of the Head of State, who does not therefore have a right of veto and must promulgate a law adopted after two readings by the Assembly.

- Referendums

Article 3 of the Constitution states from the outset that, "The people are sovereign and the source of authority, which is exercised through the peoples’ representatives and by referendum". The principle of sharing legislative power between the people and Parliament is reiterated in

15 Article 50 on the legislative power. During the time limit for referring a law, which is a maximum of 13 days after its adoption by the Assembly of the Representatives of the People (seven days to challenge its constitutionality, plus a five-day time limit for referral), the President of the Republic thus has the capacity to submit the draft law to a popular vote, if it concerns the approval of international treaties, human rights and freedoms, or personal status law (Art. 82). The use of referendums is thus very closely controlled in terms of time limits, substance, and the "institutional moment", as the text submitted for a referendum must first have been discussed and voted on by Representatives. Thus, while introducing a degree of direct democracy, the constitution-makers seem to have wanted to eliminate the risk of referendums being used as plebiscites: though referendums can be used to confirm the conclusion of a parliamentary debate directly with the people, in no event do they allow the President of the Republic to short- circuit the parliament.

4. Amending the Constitution

Amending the Constitution is a legislative activity of special significance. Chapter VII of the Constitution is devoted to it. Under Article 143, the right to initiate a proposed amendment is granted both to the President of the Republic and to one-third of the members of the Assembly of the Representatives of the People, with the President's right taking priority. Article 144 places very strict controls on the procedure so that it cannot be misused to change what has been determined by the constitution-makers as a fundamental element of the social compact. First of all, the President of the ARP must submit the proposal to the Constitutional Court in order to check that it does not violate the inviolable articles of the text, especially Articles 1 and 2 on the nature of the State, and the articles in Chapter II on "human rights and freedoms guaranteed", in accordance with Article 49. Provision is thus made for a double vote within the ARP: first, on the principle of an amendment, which must be approved by an absolute majority (the text does not say so, but we suppose, given the importance of the procedure, that this means the majority of Assembly members, not just a majority of members present); then on the content of the proposition itself, which this time requires the approval of two-thirds of ARP members. Any proposed amendment will, therefore, require widespread support in the Assembly to have a chance of being approved. The President of the Republic may submit the amendment to a referendum, but may only do so after a vote by the Assembly.

D. An assembly that votes on the budget and scrutinizes its implementation

Adopting a classic conception of the role of parliament, the Tunisian constitution gives the Assembly of the Representatives of the People the role of discussing and voting on the State budget. The Assembly votes on initial and corrective finance laws, as well as the closure of the budget. Article 66 sets out the parameters of the procedure, particularly in terms of time limits, while also referring to the organic budget law, which must specify the conditions for exercising this function.

1. Voting on the budget

Fluid transmission of information by the executive is essential to the proper exercise of the budgetary function; furthermore, the existence of a budget validated at the start of the year is a precondition for the normal operation of the State institutions. The time limits set in Article 66 are, therefore, both very precise and shorter than those for the usual legislative process. The draft finance law, for instance, must be submitted no later than 15 October to the ARP, which has less than two months (until 10 December) to adopt it. Similarly, for the finance law, the procedure for referral for second reading by the President of the Republic and the procedure for appealing to the

16 constitutional court have been accelerated17. As a final precaution, Article 66 establishes that "In all cases, the promulgation of the finance law shall take place before 31 December", and specifies that if this is not possible, it can be implemented in three-month tranches by presidential decree.

2. Oversight of budget implementation

Of course, the Assembly's budgetary function goes much further than the annual finance law. In a modern representative democracy, the role of parliament is essential to good governance of public finances. In addition, through its role in determining the State's income and expenditure, the parliament determines the direction of public policies, oversees their proper implementation over time, and examines the results at the end of the budgetary year. The budgetary function thus represents a kind of "common thread" for the other parliamentary functions: representation and scrutiny. It gives the parliament the capacity to regularly and directly influence and orient the action of the executive.

Budgetary oversight is a particularly important tool in a country undergoing a democratic transition following a popular uprising which called for tangible results in terms of economic development at national level, but also in the regions. The constitution-makers also included the ratification of development plans within the domain of laws, in the same paragraph as the finance law.

The constitution does not go into detail about the procedures for budgetary oversight by the Assembly of the Representatives of the People. Article 117 lists one of the roles of the Court of Auditors as being to "assist the legislative and executive powers in overseeing the execution of the Finance Law and the closure of the budget". The Parliament can, therefore, count on the Court and must strengthen its collaboration with it, particularly in order to obtain the information necessary for its budget oversight activities. The Finance Committee, one of the few to be mentioned in the Constitution, has a central role in this regard, in coordination with the other parliamentary committees in their specific fields. Article 113 of the Constitution on the Supreme Judicial Council mentions the role of the "competent committee" of the ARP, before which the Council must discuss its budget. The Assembly, particularly through its various parliamentary committees, may use Article 95 of the Constitution18 to demand the sharing of the necessary information and summon ministers or civil servants from the various State institutions to justify the use of public funds in a hearing. Assembly members may also exercise their personal rights by asking oral or written questions in accordance with Article 96.

***

Conclusion

The Assembly of the Representatives of the People, the unicameral parliament of Tunisia's Second Republic, is thus a strong and modern assembly, which has both the instruments necessary for its proper operation and the capacity to influence the other constituted powers.

17 The President has two days to refer the text for second reading, and the ARP will have three days for the second reading of the text; the time limit for appealing on the grounds of unconstitutionality will be three days and the Court must reach a verdict within five days of the date of appeal (Article 66 of the Constitution). 18 Article 95: "The government is accountable before the Assembly of the Representatives of the People."

17 The ARP is at the heart of Tunisia's institutional system. Its roles are to represent citizens, scrutinize the executive power, make the law, vote on the State budget and oversee its implementation. The Assembly is a place where the political diversity of Tunisia is reflected, an institution in which the political opposition has a constitutional role and status. The Representatives of the People have guarantees enabling them to exercise their roles with peace of mind, protected from external pressures, albeit not without checks and balances. The Constitution also places limitations on the institutional tools at the disposal of the executive power to influence Parliament. Finally, the Constitution gives the Assembly a general role as a facilitator and even as a guarantor of democracy in the country's institutional architecture.

In many respects, the Tunisian Constitution of 2014 marks a radical departure from what went before. Firstly, because of the conditions in which it was produced, following a people's revolt against an authoritarian, inegalitarian and dysfunctional regime. But also from a substantive point of view: it enshrines a number of individual rights and freedoms, and gives the central role in the institutional system, qualified as "mixed", back to parliament, whereas evolutions in the second half of the 20th century tended to limit the role of the parliamentary institution to the benefit of the Executive.

Putting the Parliament back at the heart of the institutions means, above all, putting the people and citizens at their centre. It reflects a will to provide a better response to growing expectations and demands expressed by Tunisians in a general climate of increasing mistrust of politicians.

Tunisia, its people, and its institutions face myriad challenges. There is the challenge of implementing the constitutional text, applying it in practice and interpreting it, but also a difficult economic and social climate, and a complex international environment.

Tunisia, which has already attracted admiration for the way in which it managed the first phase of its democratic transition, must find the resources it needs to meet these challenges successfully. Its Constitution promulgated on 27 January 2014, and the institutions it establishes, make that possible.

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