Article 80 of the Tunisian Constitution of 2014 was invoked by President Kais Saied to justify what is 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 imminent danger threatening the integrity of the homeland or the security of the country and its independence, in a manner which results in the impossibility of continuing the normal functioning of the institutions of the State, may take the necessary measures this exceptional situation, after consultation with the Prime Minister and President of the Assembly of People’s Representatives [Parliament] and inform the President of the Constitutional Court, then announce the measures in a declaration which he addresses to the people.
These measures must aim to ensure the return to normal functioning of state institutions as soon as possible, and the Assembly of People’s Representatives is considered to be in permanent session throughout this period. In this case, the President of the Republic cannot dissolve Parliament or present a motion of censure against the government.
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Thirty days after the application of these measures, and at any time thereafter, the Constitutional Court, at the request of the President of the Assembly of People’s Representatives or 30 of its members, is responsible for deciding whether the exceptional situation should continue or not.
The Constitutional Court pronounces its decision publicly within a maximum period of 15 days, and the execution of the aforementioned measures ends when the reasons for its validity cease to exist.
The President of the Republic makes a declaration 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 – whose formation was blocked by Saied himself – allowed the President to invoke Article 80, without however informing the Prime Minister and the Speaker of the Parliament of this decision. The president, Rached Ghannouchi, confirmed that Saied had not shared details of what he planned to do with him beforehand. Prime Minister Hichem Mechichi has been sacked.
Constitutional law researcher Rabeh Al-Kharaifi said Arab21 that article 80 stipulates that the President of the Republic can effectively take exceptional measures in the event of an imminent threat to national security, but only if all the conditions contained in this article are met. According to the president, the current death rate from Covid-19 is an “imminent threat” to the state.
Section 80 requires the existence of facts confirming an imminent threat. Saied’s announcement that he was activating Article 80 followed limited protests across the country on Sunday, when hundreds took to the streets to demand the downfall of government and parliament due to political, economic crises. and health in Tunisia.
Al-Kharaifi stressed that article 80 requires that the parliament remain in session even after the announcement of the measures. This does not happen. Saied suspended parliamentary activities without relying on a constitutional text.
In any case, Al-Kharaifi stressed, article 80 cannot be activated in the absence of the Constitutional Court.
Constitutional law professor Jawhar Bin Mbarek confirmed Arab21 the illegality of Saied’s use of section 80, due to the absence of any exceptional event. The country is not at war, although the situation is critical and several crises are currently affecting Tunisia. âAdjusting the political and security situation as an ‘imminent threat’ to the state is a deviation from power, for which there is no reason to activate Article 80,â Mbarek added.
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As is clear from the text of article 80, exceptional measures cannot and are not of indefinite duration. After 30 days, it is the prerogative of the President – or 30 members of parliament – to ask the Constitutional Court to decide whether the measures should remain in force. There is no provision in the article allowing the president to make such a decision.
In addition, 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 the dissolution of parliament, but says it does not prevent its activities from being suspended or frozen. He also lifted the immunity of all MPs.
Al-Kharaifi stressed that Parliament cannot be dissolved, as the constitutional conditions necessary to do so are not in place at the moment. The dissolution of this sovereign body becomes obligatory by the resignation of two thirds of its members and by the activation of article 89 of the constitution, which obliges the proposed government not to obtain a parliamentary vote of confidence twice in four months following his appointment. Neither of these conditions is in place under the current circumstances.
This article first appeared in Arabic in Arab21 July 26, 2021
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