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The Quest for a Way Out of Tunisia’s Constitutional Quagmire

[Image of candidate posters on a wall in Tunisia. Image by Malek Khadraoui for Heinrich-Böll-Stiftung/Flickr] [Image of candidate posters on a wall in Tunisia. Image by Malek Khadraoui for Heinrich-Böll-Stiftung/Flickr]

Successfully passing the tests of democracy while the whole region seems to be doomed to a chronic state of turmoil, Tunisia is considered to have set a good example for the “Arab Spring” countries and is expected to prove that a happy ending is actually possible. In fact, Tunisia has come a long way from the shadows of the police state to the perspective of a sustainable democracy. And it is Tunisian political life that has witnessed the biggest shift from a vegetative state to an interesting and complicated case study. From one crisis to another, the Tunisian political landscape evolved into the site of recent elections, which resulted in redistributing the cards between different actors and eventually leading to a new political crisis centered on the interpretation of the constitution. Thus, it is imperative to study both the political and legal outcomes of the Tunisian elections, as both are substantially linked and essential to understanding the short-term future of the democratic transition in Tunisia.

Understanding the New Political Landscape

The first observation to make in the aftermath of the Tunisian elections (both parliamentary and presidential) is the tragic fate of the historical opposition parties. Ettakatol (Democratic Forum for Labor and Liberties) and the Congress for the Republic Party (CPR), both of which were members of the former ruling coalition, in addition to the Republican Party (formerly the Progressive Democratic Party) and the Massar Party (formerly the Ettajdid Movement), which were represented in the constituent assembly, were all highly penalized during the legislatives. In fact, the Massar Party and its coalition, the Union for Tunisia, and Ettakatol ended up with no seats at all, while the Republican Party won only one seat and the CPR dropped from twenty-nine seats in the constituent assembly to just four in the current elections. The presidential elections confirmed these results as the candidates of the Republican Party and Ettakatol had derisory percentages. Moncef Marzouki (CPR), candidate in the second round of the presidential election, is an exception. Even though the Ennahda Party did not support him explicitly, he is considered to have benefited from the Islamist electorate that was sensitive to his campaign centered on blocking the rise of the former regime figures.

As much as it is possible to interpret these results as representative of the weakening alliance between Ennahda, CPR, and Ettakatol, it is just as likely to demonstrate the Massar Party and the Republican Party’s gradual loss of influence. Overall, it is fair to say that these elections mark the end of the traditional Tunisian opposition as we knew it. In fact, the new political landscape is highly polarized and based on the influence of big parties. In order to avoid vanishing from the political scene, the historical figures of Tunisian politics need to adjust to this reality by joining forces and creating influential partisan coalitions. With this in mind, the rise of Nidaa Tounes and Ennahda as the main political forces in the country is not surprising at all. The former obviously won but the latter did not entirely lose and still has cards to play despite the serious controversies it has been involved in during the past three years. Contrarily, we could argue that the biggest surprise and the real winner in both elections is the Popular Front. With fifteen seats at the assembly and their candidate Hamma Hammami coming in third during the first round of the presidential elections, the Popular Front has acquired enough power to negotiate with Nidaa Tounes, which does not have a sufficient majority to be able to form a government on its own. Therefore, Nidaa Tounes will be looking for alliances.

Ranging from activists to potential statesmen, Tunisian leftists have come a long way and are ready to play a major role in the upcoming transitional period. Nevertheless, their position regarding whom they intend to support during the second round of presidential elections is still unclear. Generally speaking, the Popular Front, or at least its voters, consider both candidates to second round of the presidential elections to be against the revolution and its ideas. They tend to think it is not beneficial to be involved in a fight that is not theirs, as they blame Marzouki for joining forces with the Islamists and do not want to be associated with Béji Caïd Essebsi’s image as a member of the Bourguiba and Ben Ali regimes. The Popular Front is facing a dilemma and its decisions will impact the future of Tunisian leftists. In fact, despite being a heterogeneous coalition of leftist parties, the Popular Front succeeded beyond all expectations in propagating a new image of the Tunisian left which other politicians and society, in general, have always denigrated. Since the Tunisian leftists have never had the opportunity to put their projects to the test of power, the Popular Front’s rise to the circles of influence is an incredible chance to convince their reluctant electorate and to assert themselves as major political actors. Therefore, the next step will serve to determine whether they are able to shift from their perceived roles as the eternal critics and to get involved in a more pragmatic practice of power.

Regarding the general atmosphere, the presidential election campaign is taking place in an environment of increasing tension and incomprehension. In fact, the results of the first round of presidential elections confirmed the perception of division between the northern voters of Nidaa Tounes and Caid Essbesi in opposition to the southern voters of Ennahda and Marzouki. This opened the door for vehement discourses based on regional considerations and on blaming the voters for their choices. As both political sides seem to be proposing different visions for the country, the narratives make it difficult and even impossible for political opponents to interact peacefully. This general context where political parties are all demonizing each other has led to a situation where they most often communicate through mediation, which has given capital importance to the Quartet that is still harboring the national dialogue.[1] This has given the impression that every time Tunisia is making a step toward finalizing its transition, the lack of adaptation to the political realities has created dead end situations. And as the presidential contest is shifting toward becoming one of a personal conflict, the constitutional crisis starring Marzouki and Nidaa Tounes is nothing but symptomatic.

Legal Crisis, Political Solutions

It is important to indicate that the current legal crisis is based on the interpretation of Article 89 of the new Tunisian constitution which states that: “Within one week of the date on which the definitive election results are declared, the President of the Republic shall task the candidate of the party or the election coalition that gained the largest number of seats in the Chamber of the People’s Deputies with forming a government within a one-month period, extendable only once.”[2]

The text seems unclear on several levels, and two questions are raised from the legal point of view: 1) Which elections? 2) Which President of the Republic?

And even if the answer to the first question is straightforward considering that the formation of the government immediately follows the legislative elections, the second question remains highly controversial. In actuality, even the legal specialists diverge on this point. There are those who believe that Marzouki’s mandate ended with the dissolution of the institution that appointed him.[3] Since the National Constituent Assembly is no longer convening, he is not entitled to act as president and the duty of tasking the winner party’s candidate with forming the government goes to the democratically elected president under the provisions of the current constitution. The other point of view is grounded in reading Article 89 in light of Article 148, paragraph 2-1, which states that the provisions of “section two of chapter four relating to the government shall come into effect on the day of announcing the final results of the first legislative elections.” Additionally, Article 148 paragraph 2-2 speaks about “the President of the Republic who shall be elected through direct elections,” showing that the concept of the President used in Article 89 is more general and that constituents could have added this specification if they intended to limit the current president’s duties.[4] The emergence of these divergent views could have been avoided if the electoral law requested to organize the presidential elections took place before the legislative elections. It could have also been avoided if the temporary committee dedicated to controlling the constitutionality of laws was competent enough to also interpret the constitutional provisions.

Even though the debate is mainly regarding legal questions, the stakes remain highly political. Soon after the legislative elections took place, Nidaa Tounes announced that it would not appoint the head of government until the results of the presidential elections become official, arguing that they refuse to take orders from an illegitimate president; i.e. Marzouki. By doing so, Nidaa Tounes tried to isolate their main challenger but also presented an interpretation of the constitution assuming that the President of the Republic is the newly elected one and not the outgoing one. While the Quartet agreed to these terms in the context of the national dialogue consensus, Marzouki went against this decision and issued a letter to Essebsi asking him to appoint his party’s candidate in order to start the process and to respect the president’s constitutional duties. Marzouki then presented himself as the one who truly respects the rule of law and tried to raise fears by highlighting the links between some Nidaa Tounes members with the former regime, including Essebsi himself. He also tried to push Nidaa Tounes to uncover its future alliances before the second round of the presidential elections, as the confirmation of rumors on the alliance with Ennahda would cost Essebsi many of his voters. The Quartet’s answer was to dismiss this interpretation.

Considering the facts, there are many problematic aspects of this legal dilemma. The first aspect is that, in the absence of a legitimate institution capable of providing a valid interpretation of the legal text, the Quartet acted as a sort of constitutional court by exceeding its mediating functions and arrogating the right to explain legal texts. Choosing consensus over law could, in fact, constitute a very dangerous precedent for the Tunisian “start-up democracy.” The second aspect is that both legal “solutions” seem to be leading to other crises. On the one hand, if Essebsi continues to ignore Marzouki’s letter, Marzouki is capable of initiating his own negotiations with political parties in order to appoint someone capable of forming the government. Considering the current airless political atmosphere, this is enough to bring the transition to a halt at a very fragile period. On the other hand, if Essebsi accepts the letter’s demands, Marzouki will be able, according to the constitution, to participate in appointing the foreign and defense ministers. This will lead to a politically illogical situation, especially if he loses in the second round of presidential elections.

Therefore, the solution is mainly political, and the Quartet will have a big role to play in order to bridge the differences. The Quartet, however, should avoid turning itself into a self-proclaimed constitutional court. In the meantime, the new political landscape created after the legislative elections helps us understand the main protagonists in the current Caid Essebsi versus Marzouki fight as Ennahda and the Popular Front will have to pick a side soon and actively participate in either solving or complicating the issue. These parties will soon announce which candidate they support in the second round. As much as these legal and political issues seem to be complicating the finalization of the transitional process, one is compelled to be optimistic, provided that Tunisian political life remains as plural, active, and engaging as it currently is.

[1] After the assassination of Mohamed El-Brahmi and the crisis between the Troika (the ruling coalition) and the opposition, a national dialogue was initiated and the Quartet was in charge of mediating during the negotiations. The Quartet is comprised of the main labor union in Tunisia, the Tunisian General Labor Union (UGTT), the Tunisian Union of Industry, Commerce, and Craftsmanship (UTICA), the Tunisian Bar Association, and the Tunisian League for Human Rights (LTDH). The national dialogue is supposed to last until the finalization of the transitional period.

[2] Based on the unofficial translation of the Tunisian constitution provided by the Jasmine Foundation.

[3] For example, the Dean Yadh Ben Achour declared that “the constitution must be interpreted as whole” and that “Article 89 only concerns the newly elected president, not the temporary one.” Additionally, professor and former MP Fadhel Moussa stated that, “the presidential prerogatives stated in the constitution only concern the newly elected president including the article 89 provisions.”

[4] Professor Chawki Gaddes stated that “If the period of seven days is exceeded, we will be witnessing an unconstitutional situation.” Synda Tajine: “La constitution compte-t-elle pour du beurre?”

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