Constitutional crisis blocks new Tunisian ministers from oath of office

Constitutional jurists differ on reasons for the impasse and ways out.
Saturday 30/01/2021
Tunisian Prime Minister Hichem Mechichi, right, delivers a speech,  Jan.26, 2021 at the Parliament in Tunis. (AP)
Tunisian Prime Minister Hichem Mechichi, right, delivers a speech, Jan.26, 2021 at the Parliament in Tunis. (AP)

TUNIS--Amid a socio-economic crisis compounded by the pandemic, Tunisia faces a constitutional crisis preventing newly-approved members of the government to swear the oath of office.

The process of drafting Tunisia’s 2014 constitution was slow for many reasons, primarily the Islamist Ennahda party and its allies’ monopoly of power at the time.

Legal experts say the loopholes in the 2014 constitution are at least partly to blame for the political crisis the country faces after parliament voted to confirm a new government lineup.

While political realities eventually forced rivals to negotiate and draft the document, the constitution was finalised with many glitches and omissions that continue to cause problems six years later. And with the ongoing conflict between the country’s most powerful politicians – President Kais Saied, Prime Minister Hichem Mechichi and Parliament Speaker Rached Ghannouchi – any efforts to amend the basic document will wait, for now.

President Kais Saied has said that he will not allow some of the new ministers to take their oath of office, amid an ongoing power struggle between him and Mechichi who is backed by Ghannouchi. The president argued he was not consulted on the process as required and charged that one of the proposed ministers is implicated in a corruption case and three others are suspected of conflict of interest.

On Tuesday, Tunisia’s parliament approved Mechichi’s cabinet reshuffle, deepening the conflict between the prime minister and the president.

Mechichi said the 11 new ministers would breathe new life into his government.

The president, however, rejected the reshuffle and condemned the fact that no women were chosen as ministers.

Saied, who appointed Mechichi last year but has taken issue with some of his moves, said he would not allow the swearing-in any ministers suspected of corruption.  The stand-off has taken a dramatic turn with the prime minister formally requested now from the president to hold a swearing-in ceremony at the palace.

The unprecedented constitutional crisis raises questions about the government’s future.

Saied, a retired constitutional law professor, said “The government’s confidence-granting procedures have been marred by a breach of the constitution.”

“The swearing-in is not just a formality and some ministers will not be allowed to take the oath.”

The president’s position, which is leading to institutional confusion at a time of social and economic strife, stirred a heated debate among constitutional law experts.

Salsabil Klibi, a constitutional law professor at the Faculty of Legal and Political Sciences in Tunis, said the president has restricted authority and cannot block ministers from taking their constitutional oath, as that would stop them from completing their duties. Klibi told the German News Agency that parliament, not the president, has the authority to approve the government lineup.

Article 89 of Tunisia’s constitution states: “The Prime Minister and its members take oath in front of the President of the Republic” which experts interpret to be an instruction.

If Saied objects to the new ministers swearing in, parliament could present a censure bill against him for committing a “grave breach of the constitution,” which means the next step would be impeachment, an option that deputies publicly floated during parliament’s confidence-granting session.

Klibi believes the censure bill will not be legally sufficient to oust the president, as the still to be formed constitutional court is ultimately tasked with designating such a breach.

This is not the first legal approach to the current crisis due to the lack of a constitutional court to adjudicate constitutional disputes.

Constitutional law professor Otail Dharif, who was one of Saied’s students, said “there are two theories” about how much authority the president has in the dispute. “The first refers to the president’s duty to approve because his authority is restricted in this area, which is what the text of the constitution refers to. A question however remains:  Does the constitution’s text relate to a new government or applies to reshuffles as well? The constitution did not indicate that.”

Parliament’s internal guidelines indicate the president is responsible for swearing in the new ministers in a government reshuffle, a process that was observed by several previous governments before becoming customary. Saied, however, believes this custom goes against the constitution.

Dharif says that the president, as the guardian of constitution, can literally abide by the constitutional text and not recognise the rules of parliamentary procedure, but cannot violate Article 89, as that would lead to deadlock and an institutional crisis.

According to Dharif, the president cannot counter a breach with another breach, as he is the guarantor of the unity and continuity of the state.

Saied, Dharif explained, is effectively forced to accept the new ministers. Refusing to do so could lead to a triple crisis in the government, parliament and presidency.

The constitutional crisis would further complicate the situation in Tunisia, which has recently witnessed unrest in several cities and protests against poverty and unemployment that led to more than a thousand arrests.

Iyadh ben Achour, the dean of the Faculty of Legal Sciences, believes that the current crisis could push the government to adopt use the cover of “impossibility” of swearing the oath of office an allow the new ministers to start assuming their duties without the oath.

As per this theory, the prime minister can issue a declaration confirming the president’s refusal to invite ministers to take their oath of office. Once a given deadline passes, ministers could start performing their tasks without taking the oath.

This opinion differs from that of constitutional law professor Amin Mahfoudh, who believes that appointed ministers cannot legally carry out their duties if the president refuses to allow them take their oath of office. He thinks the prime minister should consult with the president over ending the crisis “politically”.

Misinterpreting an-imperfectly worded constitution was the culprit, he said. “Seeking the confidence of the parliament for the reshuffle was not even necessary. The parliamentary debate sought by the prime minister was a breach of the constitution in the first place,” he added.