By: Jinen Lakdawala, SVKM’s Pravin Gandhi College of Law

Edited by The Editorial Board of SAIL.

Introduction

Sovereignty is one of the most important elements in constituting the state. It is the soul of the state. Sovereignty means an ultimate overseer or authority in the decision-making process of the state and maintenance of law and order in it. The concept of sovereignty can further be classified into internal and external. Internal sovereignty means the supreme authority of the state to regulate, control, punish all individuals or groups of individuals or associations within the territorial limits of the state. The idea of internal sovereignty is that the citizens of the state enter into a social contract, entrusting a part of their sovereignty to the government in exchange of protection to their life and liberty. The concept of external sovereignty stands for complete independence of the state.

Vox Populi Vox Dei

“Vox populi, vox dei” is a Latin maxim. It translates to “the voice of people is the voice of god.” Ergo, the popular opinion should be accounted for and the rights of the populace are to be respected. Bereft of accountability, the people can often resort to either legitimate or illegitimate forms of protest to voice their opinions.

The Arab Springs

Tunisia was never established as a democracy. After achieving independence in 1956 from the French, Tunisia went into an authoritarian regime under two presidents till 2011 namely- Habib Bourguiba and Zine al-Abidine Ben Ali till 1981. Later, multiple laws were enacted to include other parties in the electoral process; subsequently the first multi-party election was conducted in the year 1988. However, other political parties did not have the resources or the organisational structure to compete resulting in the Neo-Destour party enjoying a virtual monopoly. The party later renamed itself to Democratic Constitution Rally (RCD). Despite this virtual monopoly, laws were enacted to stifle any party that seemed competent of staking a claim to form government. Such discriminatory laws prohibited the major opposition party Ennahda from participating in the elections.

The authoritarian rule of the RCD and the Ben Ali regime came to an end in 2011 due to the “Jasmine Revolution” which demanded a democratic form of government. The movement spread throughout Northern Africa and the Middle East. The movement was popularly referred to as “Arab Springs” in some parts of the world. The movement saw an end to many authoritarian regimes like Egypt, Syria, Libra, Yemen, Iran, Jordan and Algeria. New democracies were being formed and the fundamental rights of people like Justice and Equity were being recognised and granted. People were enjoying rights and liberties hitherto unknown.

In Tunisia after Ben Ali stepped down the prime minister of RCD- Mohamed Ghannouchi assumed power. The following day he was replaced by the speaker of the lower house- Fouad Mebazaa as the interim president. The protestors didn’t accept it and considered it to be an interference in the formation of a democracy. As a result, elections were announced. There was a formation of a national-unity government with no single political party gaining control over the state.

After extensive talks and negotiations between parties a constitution was formed and enacted in the year 2014. Article 80 of this constitution empowers the president to dismiss the prime minister in case of emergency.

What is Article 80 of the Tunisian Constitution?

Article 80 of the constitution, which President Saeid used to remove the Prime Minister and suspend the parliament, gives the President the power to take any measures necessitated in “the event of imminent danger threatening the nation’s institutions or the security or independence of the country, and hampering the normal functioning of the state”. The constitution states that under the article, the President has to consult the Head of Government and the Speaker of the Assembly of the Representatives of the People. He would also require to inform the President of the Constitutional Court.

Although it states that the measures taken should guarantee that a return to normalcy as soon as possible, it also adds, “In this situation, the President of the Republic cannot dissolve the Assembly of the Representatives of the People and a motion of censure against the government cannot be presented.” Thirty days after the move, the Speaker of the Assembly of the Representatives of the People or 30 people can reach the constitutional court to verify if the circumstances have changed or not. The court can take up to 15 days to reach a decision.

The legality of the Presidential act has been impugned by various Tunisian politicians and jurisits. Ennahdha, the largest political party released a statement on Facebook, stating that the Assembly of People’s representatives holds “President Saied fully responsible for the legal, ethical and penal consequences of his call, and considers it null and void”.

The socio-economic context

The ongoing pandemic has exacerbated the acute economic crisis. A total of twenty two thousand people perished on account of COVD with only 7% of the population being vaccinated. Earlier this month the Tunisian health minister accepted that the country’s health system had collapsed. Furthermore, there has been a perceptible increase in corruption in almost all walks of life causing a rise in resentment amongst people. There has been a misplaced resentment against democracy because of the situation they are stuck in. People had anticipated alleviation in their standard of living at the advent of democracy. This has not materialised, per contra, the relative economic stability enjoyed during the dictatorial regime seems to be missing since the advent of democracy in popular opinion.

This is evident from the huge demonstrations that took place with people breaking the Covid-19 protocols and taking to the streets to protest against the government for its mishandling of the coronavirus pandemic. Many protesters also demanded the dissolution of the parliament and re-election in protests organised by a group called the “25 July Movement”. It was after this protest that persuaded the President to invoke article 80.

The Political Context

The 2019 elections in Tunisia caused a lot of political fragmentation in the parliament. This resulted in no political party winning a clear majority, pushing the country towards instability. The Ennahdah party which won the maximum votes failed to form a government. This resulted in the president choosing a prime minister, Eliyes Fakhfakh from a different party. Later this year he was again replaced by Hichem Mechichi. The Executive has thus lacked stability which is much dearly required during a national emergency like a pandemic.

The President misused the popular resentment and parliamentary fragmentation and slow economic growth as an excuse to dissolve the parliament.The President stated that the move was taken amidst the economic trouble the country has been facing for years and the government’s mishandling of the coronavirus pandemic.

Aftermath of the act of president

Transition to a democratic polity is very difficult to cannot be achieved overnight. There should be independent institutions set up to look after the governance of the political regime. Their functioning shouldn’t be interfered with. Meddling with them would mean a sham in the name of democracy. In Tunisia the president has exactly done the same thing. He has dismissed the legislature and again has forced history to repeat itself by making the regime autocratic from democratic and violating the constitution. The president dismissed the legislature on grounds of extreme corruption in the parliament and the inability of the ministers to handle the pandemic. This political turmoil could have been avoided if there were independent institutions established to look after the working of the government. An example could be of Ombudsmen in the Swedish context which serves as a link between the politicians and the citizenry.

The current political turmoil is a reminder that a democratic fervent cannot be formed overnight. It is an ongoing and a continuous process. In other words, it takes more than a single protest to instill democratic spirit in the populace. A government elected by the people is not the true import of democracy, it is a necessary but not a sufficient condition. For a robust democracy. Independent institutions supervising the functioning of the government and holding it accountable for any anomalies is a sine qua non for the effective functioning of the democracy.

This has attracted the interests of political analysts throughout the world since Tunisia was the only surviving democracy formed in the aftermath of the Arab Springs. This forces one to explore as to why the democracy in Tunisia seems to be on the brink of capitulating. Lastly, democracies are meaningless bereft of local self governing institutions. A democratic polity is built starting from the grassroots, to truly acquaint the people with the intricacies of the system.

As adverted earlier, article 80 of the Tunisian Constitution has adequate safeguards and the possibility of the Judiciary overturning the President’s decision as ultra vires cannot be eliminated. However, robust democracies are contingent on capacity building and institutional autonomy. As Tunisia slowly recovers from the ravages of the pandemic, one sincerely hopes that better sense prevails and the citizenry seeks to make concerted efforts to make a recovery instead of a sporadic return to an authoritarian regime.