Tunisian Constitutional Court bill hits constitutional snag

Kais Saied refuses to ratify bill allowing for choice of constitutional Court members saying parliament was five-years-too late voting the bill.

Thursday 08/04/2021
 Tunisia’s President Kais Saied speaks in Monastir, April 6, 2021. (ANA)
Tunisia’s President Kais Saied speaks in Monastir, April 6, 2021. (ANA)

TUNIS – Tunisia’s President Kais Saied said on Tuesday that he refused to sign a bill to set up the long-delayed constitutional courtbecause it did not take into consideration constitutional deadlines.

He slammed the parliamentary initiative to activate the process of setting up the court as a merely a bid to “settle scores”.

Saied also denounced “attempts made by some parties to put in place tailor-made laws,” reiterating his adherence to the constitution, which grants him the right to object “even for political reasons.”

Speaking at a ceremony held Tuesday in Monastir on the 21st anniversary of the passing of leader Habib Bourguiba, Tunisia’s national hero and first president after independence, Saied warned against using legislation “to protect the interests of a single person or a specific party.”

He cast doubt on the democratic credentials of the new political class. “From one-party rule, we have evolved into into one-lobby rule,” he added denouncing the domination of the scene by corrupt individuals and “thieves”.

A smooth transition from authoritarian rule to democracy in 2011 brought about a new constitution in 2014, which provided for a court to be set up within a year to adjudicate constitutional disputes.

However, politicians have agreed on the name of only one judge among the dozen members of the court.

Now, with President Kais Saied in deadlock with Prime Minister Hichem Mechichi and Mechichi’s current ally, Parliamentary Speaker Rached Ghannouchi, the speaker has launched a new bid to establish the court as it might be useful in the next political stage.

— Crucial prerogatives —

The rulings of the constitutional court are necessary to confirm for the constitutionality of laws, amend the constitution or pursue impeachment of the president.  But ironically, it cannot end a conflict such as the one currently pitting the president against the prime minister on the cabinet reshuffle. The current impasse that has prevented eleven new members of government from swearing the oath of office for more than two months is considered by legal experts as a purely political standoff and not a reflection of conflict of prerogatives.

In his statements on Tuesday, Saied said the deadline for the establishment of the court had expired years ago and he will not bear the responsibility for that.

According to the constitution, the court should have been established not more than a year after elections held in the fall of 2014.

“After more than five years, after a deep sleep, they’ve remembered about the Constitutional Court … I will not accept a court formed to settle accounts,” he said.

“They have missed the deadlines … Anyone wanting me to violate the constitution is looking for a mirage.”

The president pointed out that he had set his eyes on the future, “unlike those who keep going back to history and focusing on past errors and backwardness which will by no means be accepted by the Tunisian society.”

“We have enough legal material and tools. Each party will have to bear full responsibility for blocking the dynamics of the state and the blows dealt to it from within and those targeting the Tunisian society,” he said.

Saied also denounced “a plot to undermine the public services established since the 1960’s, including education, health, and transport as well one that targets our Islamic values.”

For the first time, Saied seemed to defend the legacy of Tunisian presidents who ruled Tunisia during the first six decades after independence.

“The Tunisian people are overwhelmed by poverty and all forms of exclusion. It is their right to participate in the establishment of a new political system, one that meets their aspirations,” he said, noting that “some forces still control the state apparatus.” He noted that “the country has shifted from one party to one single lobby.”

“This is a real danger. We seem to have political pluralism but actually, we have one lobby only,” he warned, emphasising that “he will not be ready to deal with lobbies and those who got their hands on the wealth of the people.”

The constitution requires the president, parliament and the judiciary  to each name four judges to the court, which then needs the approval of parliament and the signature of the president. All but three of the twelve members of the court must be judges.

Now that he has sent back the bill on the Constitutional Court for a second vote by the parliament, the latter can vote by three fifths of its members to pass the bill but would still need then the president’s ratification a second time around.   There is no provision allowing it to over-ride the president’s decision if he decides not to ratify the bill which spells out the conditions for electing the court’s members.

The Constitutional Court, the highest judicial body, would monitor the constitutionality of draft laws, treaties, bills and parliament’s internal rules. It would decide on the prolongation of the state of emergency and resolve disputes over such issues.

The Constitutional Court would also able to end the president of the republic’s term, declaring the position of president vacant, receive the presidential oath and examine disputes between the heads of constitutionally ordained branches of power, the president, the prime minister and the speaker of parliament, in the exercise of their prerogatives.

Saied’s comments are likely to escalate the political tensions, just as Tunisia attempts to cope with the effects of the coronavirus pandemic, which has ravaged its economy and left it with a fiscal deficit of more than 11% last year.

The dispute has been building since the 2019 election delivered a fragmented parliament and brought a political outsider to the presidency.

Saied refused this year to approve a cabinet reshuffle that included the dismissal of ministers close to him including the interior minister, Taoufik Charfeddine.