Tunisia power grab: And a challenge to claims that premier-presidentialism avoids ‘perils’

Add Tunisia to the list of countries with events that likely qualify as an autogolpe. The elected president, Kais Saied, has undertaken a power grab in which he “froze” parliament, dismissed the prime minister, and announced he would rule by decree.

Tunisia’s system of government, since the emergence of democracy following the fall of the dictatorship in 2011, is premier-presidential. This is the subtype of semi-presidential regime that is generally thought to have good institutional safeguards against presidential over-reach. The elected presidency of Tunisia has constitutionally limited power. It is worth quoting some of the constitution’s provisions that pertain to presidential authority. For instance, Article 70:

In the event of the dissolution of the Assembly, the President of the Republic may, with the agreement of the Head of Government, issue decree-laws which shall be submitted for ratification to the Assembly of the Representatives of the People during its next ordinary session.

The Assembly of the Representatives of the People may, with the agreement of three-fifths of its members, authorize by law for a limited period not exceeding two months, and for a specific purpose, the Head of Government to issue decree-laws of a legislative character, to be submitted for ratification to the Assembly immediately after the end of the period of authorization.

The electoral system might not be amended by decree-laws.

Note that the Head of Government (prime minister) must agree to decrees that occur during dissolution, which in any case must be submitted to the assembly. However, in the current case, the president has already dismissed the PM and dissolved (“suspended”) the assembly. The second paragraph allows for delegated degree powers, but not to the president, and only by a super-majority.

What about dissolution power? Article 77 includes within its list of presidential powers:

Dissolving the Assembly of the Representatives of the People in accordance with provisions of the Constitution. The Assembly shall not be dissolved during the six months following granting confidence to the government, or the six months following legislative elections, or during the last six months of the presidential or parliamentary terms.

The dismissed PM had been appointed in February, 2020, so more than six months ago. Thus perhaps a dissolution could be permissible. However, does the president have authority to dismiss the PM? Articles 97 and 98 govern the process of government termination, and do not give the presidency any unilateral dismissal authority. The government depends on the exclusive confidence of the assembly majority. This is why I class it as a premier-presidential system. Moreover, per Article 89, the president has almost no discretion in who will be appointed prime minister. The process is quite “parliamentary” in that the leader of the largest party must be tasked first, and if that leader fails, then the “person judged most capable to form a government.” If after four months there is no government approved by the assembly majority, then there may be a dissolution and call for early elections. In other words, the president has no unilateral parliamentary dissolution power just as he has no government dismissal authority.

What about emergency power? Article 80 allows for a state of emergency “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… after consultation 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.” The article goes on to restrict the president’s powers under a state of emergency, including that “The Assembly of the Representatives of the People shall be deemed to be in a state of continuous session throughout such a period.” Obviously, this article has not been followed.

The president claimed he was acting within the constitution. I am not a constitutional lawyer nor any sort of authority on Tunisia. But as I read the constitution, he is lying about respecting institutional order, and has carried out a coup against the government and legislature.

In many of my own writings I have been quite favorable to premier-presidential constitution designs, on the grounds that they provide clear restrictions on the powers of the president, and give presidential aspirants strong incentives to build parties or links to parties in order to sustain an allied government in office. Tunisia now is an example that strains this argument. This president is an independent, elected with 72.7% in the second round on 13 October, 2019, after having secured only 18.4% in the first round on 15 September (his nearest opponent had 15.6% and the third candidate 12.9%–both runners-up were party-backed).

The last assembly election was on 6 October, 2019. Aside: Is this only case ever in which an assembly election has been between rounds of a presidential election? In the assembly election, the largest party was the Islamist party, Ennahda, on only 19.6%. (Their candidate finished third in the presidential first round.) Ennahda won 52 of the 217 seats (24.0%). The second largest party, Heart of Tunisia, won 14.6% and 38 seats; this was the party of the other presidential runoff contender. No other party broke 7% of the vote. The effective number of seat-winning parties is presumably in excess of 8.0.*

Thus we have here a case of extremely high party-system fragmentation, combined with a president lacking party ties. This is the classic Linzian “perils of presidentialism” combination. However, premier-presidential systems are supposed to overcome these perils (although Linz himself had his doubts). One case does not disprove a thesis, and maybe Tunisian democracy would have broken down even if there were no directly elected presidency. Nonetheless, the precise means of breakdown–an autogolpe carried out by an outsider nonparty president–should give us pause about the claim that premier-presidentialism is an antidote to the perils of presidentialism.

____

* I can’t say precisely because the source I am using–Wikipedia–groups 12 seats under “independent lists” which obviously should not be treated as a single party; if it were a single party, the effective N would be 7.85.

17 thoughts on “Tunisia power grab: And a challenge to claims that premier-presidentialism avoids ‘perils’

  1. This isn’t the first time that the president ‘exploits ambiguities’ in Tunisia’s constitution (that is to say violates it). The president isn’t supposed to have a veto power, only being able to return a bill to parliament (with majority override) or send it to the constitutional court. But the constitution is apparently silent on what happens if the president doesn’t act on a bill – so the president did just that, managing to entirely block a number of bills, including one on electoral reform that would reduce party fragmentation in the assembly. It’s a failure of constitution writing, but also a political failure of the PM and assembly, who should have declared the law promulgated and made every effort to make that a reality. Maybe they did, but it doesn’t seem that way from the sources I have. It could be there was just too much of a collective action problem and opposition from the small parties – the very problems that electoral reform bill was meant to reduce.

    By the way, this may be a challenge to the idea that premier-presidentialism constrains presidents, but the implication is that presidents (by which I mean popularly elected heads of state) are more of a ‘peril’ than indirectly-elected heads of state. Do we know that? Would an indirectly-elected head of state with the same powers be significantly less likely to usurp the constitution in these ways? Pakistan’s president, though indirectly-elected, committed a self-coup in 1958. Tavits (2009) also shows both heads of state exercising their powers similarly with little relation to whether they are directly elected or not and in each case very much in correlation with the partisan relations between the government and president. To answer Tavits’ challenge, it’s not just enough just show examples of presidents behaving badly – we’d need to do a proper study of indirectly-elected heads of state.

    • The O le Ao Mamalu o le Malo, the indirectly elected Samoan head of state, played a major role in the attempt to prevent the transfer of power to the victorious opposition party in recent months.

      • I’d throw John Kerr into that “indirectly elected head of state doing auto-golpish things” mix as well, though obviously he wasn’t technically the head of state and didn’t seize power from himself.

      • The Australian constitution vests the power to appoint and dismiss prime ministers in the governor-general, not the queen. It would probably be more correct to say that the governor-general is the head of sate for the purpose of ministerial appointments, although the queen is head of state for other purposes.

    • I think that indeed we do not know that, JD. There is far too little interest among our political science colleagues in indirectly elected presidencies. I made this observation (that we need to know more about these institutions) in an obscure publication of mine over 20 years ago–a chapter in a textbook called The Politics of the New Europe.

    • “By the way, this may be a challenge to the idea that premier-presidentialism constrains presidents, but the implication is that presidents (by which I mean popularly elected heads of state) are more of a ‘peril’ than indirectly-elected heads of state. Do we know that? Would an indirectly-elected head of state with the same powers be significantly less likely to usurp the constitution in these ways?”

      I suspect that a president elected by the parliament will have a bigger probability of being aligned with the parliamentary majority, then less reasons for a self-coup; and perhaps in the real world there are few presidents elected by the parliament with substantial powers.

      • Miguel, I think that is right, but there are probably multiple paths to incumbent takeovers (self-coups). An unelected president is presumably less likely to claim a mandate from “the people against the politicians” than an elected president is. However, such a president can be in conflict with the current parliamentary majority inasmuch as most of them are elected for longer terms than the assembly. Also, it may be that an incumbent takeover by one of these presidents is not materially different from one by the prime minister in a pure parliamentary system (and these have happened), while one by a popularly elected president could be quite different.

        I think this is all pretty speculative, as we probably do not have enough cases and variation to draw firm conclusions. I would be happy to be shown wrong on this point, of course.

      • Sure, with an indirectly-elected head of state, you might have a lower chance of cohabitation, but it’s far from impossible, and there are still many scenarios in which the incentives for a self-coup increase. Take a parliamentary election which turns out badly for the head of state’s party – s/he will have an incentive to subvert that election; such a head of state may be at odds with most or all parties; and don’t forget that such a head of state is almost never removable by majority vote of the assembly (perhaps that is something more countries ought to adopt).

        The constitutional powers of most indirectly-elected heads of state are not that different from Tunisia’s president (e.g. India, Hungary, Italy, Estonia, Malta). A suspensory veto with possibility of referral to a constitutional court, power to appoint the prime minister and other ministers on the PM’s advice, some emergency powers.

        In any case, if the issue is the powers, then that is something separate from indirect election. If it’s all powers, the institution of direct election doesn’t have any explanatory power.

      • I think Philipp Koeker looked at veto use in Poland, Hungary, Slovakia and Estonia and found it to be positively associated with direct election of the President, although it was a small sample of cases and included supermajority-override Poland. Indirect election does at least guarantee some period of congruence with Parliament, whereas direct election offers no such guarantee, particularly in a case where (as seems to be the case here) the party system is highly fragmented and direct election of a common candidate from the legislative majority is difficult.

  2. Perhaps Tunisia would be better off if the President dissolves parliament then he or she faces an election had the same time, and if the parliament passes a vote of no confidence in the President, then they both face an election at the same time. Would a preferential voting system had been better than the two round system?

    • Well, if the president is willing to violate a clear clause that says parliament must be in continuous session when he declares a state of emergency, he’d probably also be able to find a way to not schedule an election for himself upon dissolving the assembly. Alternatively, he’d be confident of his own mandate (and/or ability to interfere in the electoral process) and just go ahead and do it anyway.

    • Labour were the incumbent government in the UK in 1951 and lost power due to a plurality reversal.

      I would be hesitant to call Samoa a plurality reversal because their elections aren’t strongly partisan. There can be multiple candidates affiliated with the same party on the ballot in the same constituency, and I don’t believe party ID is marked on the ballot. So there were constituencies where multiple HRPP-affiliated candidates split a huge share of the vote and where there may not even have been a FAST candidate on the ballot. I am not sure but I think that clan and family ties play a bigger role in voting than party ID.

      I think the role of the 10% gender quota in the election and the electoral commission trying to use that to preserve a sitting government is even more fascinating, especially because, while the “best female runner-up” logic seems sound, I can’t find any article which suggest that it is actually in the law creating the gender quota to begin with.

      • Until 1991, only matai (chiefly title holders), could vote. All heads of sate and all prime ministers, including the newly-installed Fiame Naomi Mataʻafa, have been matai. Mataʻafa actually holds a far higher position in the matai hierarchy than her predecessor. I forebear to link to a detailed description of the matai system because its complexity of makes US senate seniority and Australian federal/state fiscal relations look like child’s play.

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