Constitutional Authoritarian Populism in Tunisia

 –José Ignacio Hernández G., Catholic University Andrés Bello (Venezuela); Invited professor, Castilla-La Mancha University (Spain); Fellow, Harvard Kennedy School

Tunisia is the most recent example of an authoritarian backslide covered by constitutional formalities and boosted by populist rhetoric. Since July 25, 2021, Tunisian President Kais Saied has adopted several authoritarian decisions that were justified as extraordinary constitutional measures to protect the Tunisian people. The last episode of this constitutional fraud was a rigged referendum held on July 25, 2022, to approve a new Constitution, violating the 2014 Tunisia Constitution.[1]  

One of the lessons of the authoritarianisms of the 21st century is that democracy can be decimated through authoritarian measures covered by a veneer of constitutionality and supported by a populist rhetoric. We have analyzed those cases as Constitutional authoritarian-populism.[2]  Tunisia is, precisely, a remarkable -although regrettable- example of this trend.

• The 2021 coup covered with a veneer of constitutionality

On July 25, 2021, Tunisian President Saied dismissed the prime minister, suspended the parliament for 30 days (blocking access to the parliament building with tanks), and announced the concentration of the legislative function based on decrees. Amidst social unrest, those measures were adopted, according to Saied, “until social peace returns to Tunisia and until we save the state”.[3]

Saied invoked Art. 80 of the 2014 Constitution to justify those measures. That provision authorizes the President to adopt “any measures necessitated by the exceptional circumstances”. From a comparative perspective, Art. 80 covers the extraordinary decisions that could be adopted in a state of emergency, commonly through legislative decrees. However, the state of emergency cannot hinder the functioning of the branches of the Government because its main effect is to temporarily expand the scope of the Executive authority. That is why Art. 80 states that the extraordinary measures must be consulted “with the Head of Government and the Speaker of the Assembly of the Representatives of the People and informing the President of the Constitutional Court”.[4] President Saied couldn’t suspend the other branches during a state of emergency because, among other reasons, he wouldn’t  be able to consult them, as Art. 80 orders.

In addition, the extraordinary measures adopted by Saied didn’t last 30 days: In March 2022, Saied dissolved the parliament.[5] In April, he appointed the members of the electoral management body, the Independent High Authority for Elections (ISIE).[6]

The abusive use of extraordinary presidential powers is a characteristic of constitutional authoritarianism. Instead of protecting the Constitution in exceptional times, those extraordinary powers are used to decimate the foundations of constitutional democracy.

Also, the abusive extraordinary powers were justified as measures to protect the Tunisian people against the Legislative Power. From a comparative perspective, this was the same mechanism used in Venezuela by Nicolás Maduro when in 2016, indirectly dissolved the Legislative Power and advanced a fraudulent constituent process.[7]

• The continuation of the coup through an ad-hoc constituent process

The authoritarian measures adopted in 2021 were part of a continued constitutional fraud in which Saied implemented an ad-hoc constituent process.[8] That constituent process violated the amendment procedure established in the 2014 Constitution, according to which only the Legislative Power has the authority to amend the Constitution, subject to a referendum (Art. 144). Therefore, President Saied usurped the competencies of the Assembly by approving a new Constitution.

The “new constitution” was narrowly approved in a referendum held on July 25, 2022, characterized by a low turnout and the lack of basic electoral integrity conditions, including a biased electoral management body.[9] In addition, the new Constitution has been criticized due to the President’s concentration of powers -substantially modifying the republican system of the 2014 Constitution, that according to its Art. 1, “might not be amended”.[10]  

Consequently, the new constitution should be deemed unconstitutional from a procedural and substantive perspective. Rather than an amendment, the new Constitution is a significant modification that, in any case, was not approved by the Legislative Power.[11] In addition, it suppressed core and unamendable elements of the republican system embedded in the 2014 Constitution.[12]

The referendum didn’t modify that conclusion. From one side, the referendum cannot be considered a free and fair election due to the gross rule of law decimation and the political intervention of the electoral management body.[13] Besides that, constitutional violations cannot be justified by referendums.

Appealing to popular sovereignty through a rigged referendum is another benchmark of Constitutional authoritarian-populism, which swaps the Constitution’s supremacy for the “supremacy of the people”.[14] As the Spanish jurist Eduardo García de Enterría concluded, in constitutional democracies, popular sovereignty is not an absolute power because it is bound by constitutional supremacy and human rights.[15] A referendum -not even a fair one- cannot validate gross constitutional violations

• Some lessons from Tunisia

Tunisia demonstrates that democracies can die from the inside out in a slow-motion process that usually starts with the election of an authoritarian and populist leader.[16] The paradox of that backslide is that democracies die by a sequence of authoritarian acts adopted with constitutional coverage, such as presidential decrees. If a positivist interpretation is adopted -based only on constitutional formalities- the democratic backsliding could be missed.

It is necessary, then, to pierce the veil of Constitutional authoritarian-populism. From a comparative perspective, several techniques could be implemented. For instance, the continued coup d’état concept can be used to appreciate the chain of authoritarian decisions adopted by constitutional bodies.[17]  The abuse of rights in the Constitutional Law helps to identify decisions that, despite their formalities, are consequences of an evident excess of power that decimate constitutional democracy.[18]  Finally, when the final purpose of constitutional decisions is to defraud constitutional democracy, they can be challenged due to a constitutional deviation of power.[19]

The actions adopted by President Saied since July 2021 cannot be interpreted either from a formal or isolated approach. A holistic approach is needed. Following Art. 146 of the 2014 Tunisia Constitution, Constitutional Law “shall be understood and interpreted in harmony, as in indissoluble whole”. That holistic interpretation must consider that the final purpose of the Constitutional Law -quoting the preamble of the 2014 text- is to nurture the “sovereignty of the people, exercised through the peaceful alternation of power through free elections, and on the principle of the separation and balance of powers”. Faced with authoritarian constitutional forms, constitutional principles and values should prevail.

From that holistic perspective, it is possible to identify several constitutional authoritarian-populism indicators in Tunisia: (i) the abusive exercise of the state of emergency; (ii) the decimation of the separation of power, particularly hindering the authority of the Legislative; (iii) the unlawful constitutional reform conducted to formalize the authoritarian measures adopted, and (iv) the populist rhetoric.[20]

Because autocratic rulers are keen on constitutional formalities, principles, and values most guide the constitutional interpretation. Only that interpretation can lead to conclude that beyond the constitutional patina created by President Saied (a former Constitutional Law professor)[21], the constitutional decisions adopted in Tunisia since July 2021 are a gross violation of the 2014 Constitution’s core values and principles.[22]

Suggested citation: José Ignacio Hernández G., Constitutional Authoritarian Populism in Tunisia, Int’l J. Const. L. Blog, Sept. 9, 2022, at: http://www.iconnectblog.com/2022/09/constitutional-authoritarian-populism-in-tunisia/

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[1] The 2014 Constitution was approved as a result of the 2011 Revolution to set the foundations of a constitutional democracy based on a distinctive separation of power design, labeled as a “parliamentary republic”. See Sayah, Jamil (2013), La révolution tunisienne: la part du droit, Paris: L´Harmattan, 75. Despite the ongoing economic and social unrest, Tunisia was considered a remarkable example of democratic transition in the aftermath of the Arab Spring. According to Feldman, “the very consensus structures that helped Tunisia avoid the fate of Egypt have created conditions in which the underlying economic causes that sparked the Arab spring protests have not been addressed”. See Feldman, Noah (2020), The Arab Winter: A tragedy, Princeton: Princeton University Press, 150.

[2] See my post: José Ignacio Hernández G., Towards a Concept of Constitutional Authoritarianism: The Venezuelan Experience, Int’l J. Const. L. Blog, Dec. 14, 2018, at: http://www.iconnectblog.com/2018/12/towards-a-concept-of-constitutional-authoritarianism-the-venezuelan-experience/

[3] Grewal, Sharan, “Kais Saied’s power grab in Tunisia”, The Brookings Institute, July 26, 2021, at: https://www.brookings.edu/blog/order-from-chaos/2021/07/26/kais-saieds-power-grab-in-tunisia/

[4]The state of emergency, in the Constitutional Law, allows the temporary concentration of the legislative function in the Executive to address extraordinary circumstances that cannot be adequately tackled with ordinary legislation. From a comparative perspective, see Oren, Gross, “Constitutions and Emergency Regimes”, in Ginsburg, Tom, and Dixon, Rosalind (ed) (2011), Comparative Constitutional Law, Northampton: Edward Elgar Publishing, 334.

[5] “President Dissolves Tunisia’s Parliament, Deepening Political Crisis”, New York Times, March 30, 2022, at: https://www.nytimes.com/2022/03/30/world/africa/tunisia-president-dissolve-parliament.html

[6] “Décret-loi amendant la loi sur l’ISIE: Polémique autour de l’indépendance de l’instance électorale”, La Presse, April 24, 2022, at: https://lapresse.tn/128904/decret-loi-amendant-la-loi-sur-lisie-polemique-autour-de-lindependance-de-linstance-electorale/

[7] Landau, David, “Constitution-Making and Authoritarianism in Venezuela: The First Time as Tragedy, the Second as Farce”, in Graber, Mark A. et al., (ed) (2018), Constitutional democracy in crisis?, Oxford: Oxford University Press., 161.

[8] Grewal, Sharan, et al., “Tunisia’s new constitution will only worsen its political crisis”, The Brooking Institution, July 6, 2022, at: https://www.brookings.edu/blog/order-from-chaos/2022/07/06/tunisias-new-constitution-will-only-worsen-its-political-crisis/

[9] “Tunisia constitutional referendum marked by the low turnout as opposition boycotts”, France 24, July 26, 2022, at: https://www.france24.com/en/africa/20220726-tunisia-constitutional-referendum-marked-by-low-turnout-as-opposition-boycotts

[10] International Commission of Jurists (2022), Codifying Autocracy The Proposed Tunisian Constitution in Light of International Law and Standards, at: https://www.icj.org/wp-content/uploads/2022/07/Tunisia-proposed-new-constitution-Legal-briefing-2022-ENG.pdf. As was concluded, “in addition to the serious concern around the lack of legitimacy and the illegality of the entire process leading up to the constitutional referendum, the proposed Constitution, if adopted, poses a serious threat to the rule of law, the separation of powers – including, in particular, the independence of the judiciary – and to the protection of human rights in Tunisia” (1).

[11] Regarding the limits of the constitutional amendments, see Albert, Richard (2018) Constitutional amendments. Making, Breaking and Changing Constitutions, Oxford: Oxford University Press,  61.

[12] Generally see Yaniv Roznai, Unconstitutional Constitutional Amendments: The Limits of Amendment Powers, Oxford (OUP, 2017), 15.

[13] The Venice Commission concluded that “it is not realistic to plan to hold a constitutional referendum on 25 July 2022 in a credible and legitimate way, in the absence (…) of clear rules, established well in advance, on the modalities and consequences of the holding of this referendum and especially in the absence of the text of the new Constitution which will be submitted to the referendum”. Urgent opinion issued on May 27, 2022, at: https://www.venice.coe.int/webforms/documents/?pdf=CDL-PI(2022)026-e

[14] See Mark Tushnet and Bugaric, Bojan (2021), Power to the People, Oxford: Oxford University Press, 9.

[15] García de Enterría, Eduardo (2003), Democracia, jueces y control de la Administración, Madrid: Thomson-Civitas, 153.

[16] Like Chávez in Venezuela -wrote Levitsky and Ziblatt- “elected leaders have subverted democratic institutions in Georgia, Hungary, Nicaragua, Peru, the Philippines,  Poland, Russia, Sri Lanka, Turkey, and Ukraine. Democratic backsliding today begins at the ballot box”. See Levitsky, Steven, and Ziblatt, Daniel (2018), How democracies die, New York: Crown, 5. Also, see Naím, Moisés (2022), The revenge of power, New York: St. Martin´s Press, 7.

[17] Coined in France, the expression is used to describe a chain of decisions that, collectively appreciate, are a gross violation of the constitutional democracy. See Brewer-Carías, Allan (2002), Golpe de Estado y proceso constituyente en Venezuela, México D.C.: Universidad Nacional Autónoma de México.

[18] Eck, Laurent, (2010), L´abus de droit constitutionnel, Paris: L´Harmattan. 

[19] Sánchez, Ángela María and Mosquera,  “Desviación de poder constitutional. Un estudio en construcción”, in Moreno Velásquez, Carolina and Malagón Pinzón, Miguel (ed) (2020),  Problemas actuales del Derecho Administrativo, Bogotá: Universidad de Los Andes, 223.

[20] From a comparative perspective, another indicator is the abusive exercise of judicial review. However, the Constitutional Court created in the 2014 Tunisia Constitution has not been implemented.

[21] “The law professor who set out to dismantle Tunisia’s democracy”, The Washington Post, July 25, 2022: https://www.washingtonpost.com/world/2022/07/25/tunisia-kais-saied-referendum-constitution/

[22] “In short, Tunisia was a success for constitutional democracy, and remained so until July of 2021”. See Feldman, Noah “Losing Afghanistan Was Inevitable. Losing Tunisia Is Not”. Bloomberg, August 26, 2021, at: https://www.bloomberg.com/opinion/articles/2021-08-26/losing-afghanistan-was-inevitable-losing-tunisia-is-not#xj4y7vzkg. As Elliot Abrams concluded, “the consolidation of power in Tunisia is reminiscent of Nicolás Maduro’s Venezuela, Daniel Ortega’s Nicaragua, and dozens of other creeping dictatorships over the decades. Saied’s new constitution simply allows him to rule as he sees fit: he holds all executive and legislative power” (“Saving Democracy in Tunisia”, Foreign Council Relations,  August 29, 2022, at: https://www.cfr.org/article/saving-democracy-tunisia