Article 80 of Tunisia's 2014 Constitution has been cited by President Kais Saied to justify what is being described as a "coup" in the country on Sunday. The text of Article 80 is as follows:
The President of the Republic, in the event of an imminent danger threatening the homeland's integrity or the country's security and its independence, in a way that results in the impossibility of carrying on with the normal functioning of state institutions, may take the measures necessitated by that exceptional situation, after consulting the Prime Minister and Speaker of the Assembly of the People's Representatives [Parliament] and informing the President of the Constitutional Court, and then announce the measures in a statement he addresses to the people.
These measures must aim to ensure the return to the normal functioning of state institutions as soon as possible, and the Assembly of the People's Representatives is considered to be in permanent session throughout this period. In this case, the President of the Republic may not dissolve the Parliament or present a censure motion against the government.
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Thirty days after enforcing these measures, and at any time thereafter, the Constitutional Court, at the request of the Speaker of the Assembly of the People's Representatives or 30 of its members, is entrusted with deciding whether the exceptional situation should continue or not.
The Constitutional Court shall declare its decision publicly within a maximum period of 15 days, and the implementation of the aforementioned measures shall be terminated when the reasons of its validity cease to exist.
The President of the Republic shall issue a statement to the people in this regard.
By activating Article 80, Saied apparently wants, as President of the Republic, to take control of all presidential, executive, legislative and judicial powers. The absence of the Constitutional Court — the formation of which has been blocked by Saied himself — has allowed the President to use Article 80, albeit without informing the Prime Minister and the Speaker of Parliament of this decision. The Speaker, Rached Ghannouchi, has confirmed that Saied did not share the details of what he was planning to do with him beforehand. Prime Minister Hichem Mechichi has been dismissed.
Constitutional law researcher Rabeh Al-Kharaifi told Arabi21 that Article 80 stipulates that the President of the Republic can indeed take exceptional measures in the event of an imminent threat to national security, but only if all conditions contained in the article are met. According to the President, the current Covid-19 death rate is an "imminent threat" to the state.
Article 80 requires the existence of facts confirming an imminent threat. Saied's announcement that he was activating Article 80 followed limited protests in the country on Sunday, when hundreds of people took to the streets calling for the downfall of the government and parliament due to the political, economic, and healthcare crises in Tunisia.
Al-Kharaifi pointed out that Article 80 requires the Parliament to remain in session even after the measures have been announced. That has not happened. Saied has suspended parliamentary activities without relying on a constitutional text.
In any case, stressed Al-Kharaifi, Article 80 cannot be activated in the absence of the Constitutional Court.
Constitutional law professor Jawhar Bin Mbarek confirmed to Arabi21 the illegality of Saied's use of Article 80, due to the absence of any exceptional events. The country is not at war, although the situation is critical and there are several crises affecting Tunisia at the moment. "Adjusting the political and security situation as an 'imminent threat' to the state is a deviation of power, for which there is no reason to activate Article 80," added Mbarek.
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As is made clear in the text of Article 80, exceptional measures cannot be and are not open-ended in duration. After 30 days, it is the prerogative of the Speaker — or 30 members of parliament — to request the Constitutional Court to decide whether the measures should remain in force. There is no provision in the Article for the President to make such a decision.
Furthermore, Article 80 prevents the head of state — in this case President Saied — from dissolving or otherwise restricting Parliament. It must remain in session. Saied acknowledges that the constitution prohibits Parliament's dissolution, but claims that it does not prevent its activities from being suspended or frozen. He has also lifted the immunity of all MPs.
Al-Kharaifi stressed that Parliament cannot be dissolved, as the necessary constitutional conditions to do this are not in place at the moment. Dissolution of this sovereign body becomes binding upon the resignation of two-thirds of its members and by activating Article 89 of the constitution, which necessitates the proposed government's failure to gain a parliamentary vote of confidence on two occasions within four months of being appointed. None of these conditions are in place in the present circumstance.
This article first appeared in Arabic in Arabi21 on 26 July 2021
The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.