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.

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* 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.

Suspension of the Tunisian constituent assembly

Tunisia’s transition, which once seemed very promising, has entered quite a crisis, especially since the assassination of a prominent opposition leader on 25 July.

From the BBC:

Tens of thousands of protesters have marched in the Tunisian capital, Tunis, to demand the resignation of the Islamist-led government…

Earlier, the constituent assembly was suspended until the government and opposition open negotiations…

The speaker of the National Constituent Assembly (ANC), Mustapha Ben Jaafar, said work on a new constitution and electoral law would resume once “dialogue commences”.

The constituent assembly’s being “suspended”, I take it, is more like a recess and not a precursor to a dissolution. Still, not a good sign. It was elected almost two years ago, and is well overdue to produce a constitution.

Egypt draft constitution on religion

I was pleasantly surprised to see this in the draft constitution for Egypt:

Article 3 The practice of Christianity and Judaism

Persons embracing Christianity and Judaism shall have the right to revert to their respective religious laws in matters relevant to personal affairs, the practice of religious (affairs) or (rituals), and the nomination of spiritual leaders.

On the other hand, there is this (in Art. 2):

Islam is the religion of the State and Arabic is the official language. The principles of Islamic Law are the main source of legislation and Al-Azhar is the final authority in the interpretation thereof.

and this:

Article 4 Al-Azhar

Al-Azhar is an independent Islamic authority, headquartered in Cairo, and responsible for the affairs of the Islamic nation and the world as a whole. […]

(Egypt’s draft, at least the English translation posted, does not yet define the system of government.)

Tunisia’s draft constitution: Contention over parliamentary vs. (semi-)presidential

A draft, in English, of the Tunisian constitution has been posted at Constitution Net. The draft includes the competing provisions that are being debated by various factions in the Constituent Assembly. Most of the remaining contention concerns the executive format.

The Ennahdha party, which won by far the largest share of seats in the Constituent Assembly election of October 2011, but short of a majority, is campaigning for parliamentarism. This is not surprising, for if the fragmentation of the rest of the party system continues, Ennahdha would be almost assured of holding the prime ministership in a parliamentary system. However, it might struggle to win a presidential election, given that Ennahdha was short of a majority of the vote, and that the opposition might more easily come up with an electable individual candidate than coordinate on an alliance for parliamentary elections.

The two main options are parliamentary and semi-presidential. Under the former proposal, the head of state would be a president selected by the parliament, and all major executive authority would be vested in the prime minister, who along with the cabinet depends on the confidence of the parliamentary majority. Under the latter, the head of state would be popularly elected by two-round majority (see Art. 45).

Moreover, in the proposal with the elected presidency, it would be this president, more than the premier, who would have significant executive power. For instance, the semi-presidential proposal grants the president a veto. If the law is one that the constitution classifies as an organic law, it would take two thirds to override the veto. Otherwise, it would take an absolute majority (half plus one). Even the latter is stronger than the veto that the (unelected) president would have under the parliamentary proposal, which is suspensory only, requiring no larger majority than the original passage of the bill. In case of passing the bill over the objections of the president, it is the president of the chamber, rather than the president, who promulgates the law in the parliamentary proposal (see Art. 57).

Both proposals feature a constructive vote of no confidence (Art. 71), by which the cabinet can be voted out by a majority of legislators only if, on the same vote, the majority elects a new prime minister. Both proposals say that it would take one third of members to initiate a no-confidence vote.

However, the semi-presidential proposal places restrictions on no-confidence (or “censure”) votes :

In the event the specified majority is not attained, the motion of censure may not be reintroduced against the government except after the elapse of a six-month period.

In the event the specified majority is not attained, the motion of censure may not be reintroduced against the government except after the elapse of a six-month period.

I do not see any provision clearly granting the president the right to dismiss a prime minister and cabinet unilaterally. In fact, in addition to the confidence vote provision, both versions at Art. 67 say, “The government shall be held accountable before the Chamber of Deputies.” Without a provision empowering the president to dismiss a cabinet, the system does not meet the criterion of president-parliamentary, the subtype of semi-presidentialism in which the president has a more dominant constitutional role (compared to premier-presidentialism, with its exclusive accountability of the premier and cabinet to the legislative majority). Nonetheless, I might be tempted to classify this proposal as president-parliamentary, given the limits on government responsibility in Art. 71. It would seem that somehow the cabinet must remain responsible to someone during the periods when the parliament can’t engage the government’s responsibility, and that someone would be the president (even if de facto).

The semi-presidential version also allows no-confidence votes against individual ministers, which would seem to undermine the core parliamentary principle of collective responsibility. Such provisions are, however, common in president-parliamentary systems (but not, I think, in premier-presidential ones).

The president, on the other hand, would have little discretion in selecting a prime minister, having to grant the leader of the largest “electoral party or coalition” the first right to form a government after an election (Art. 66). This almost seems, in the present Tunisian party-system context, like a provision meant to maximize the chance for cohabitation! ((Of course, if other parties hold out for a coalition including parties allied with the president, then the resulting cabinet would not be a cohabitation cabinet. But my point is that the constitutional provision appears to give more leverage to the head of the largest party than to the president, which is unusual in a semi-presidential system. An exception that comes to mind is Ukraine, between 2005 and 2012, but in a very different party-system context.))

There is a potentially good argument to be made for a popularly elected counterweight to the dominant Islamist party that has emerged in Tunisia. However, the semi-presidential proposal currently under consideration would seem to risk confrontations over powers between the presidency, on the one hand, and the government and assembly, on the other hand.

Tunisia preliminary results

See the Tunisian Election Live Results Table for regularly updated district-level results.

There are still many districts not reported, and some missing data in those districts that are reported. However, the pattern is clear. Out of a total of 217 seats, 145 have been allocated as of my check. The Ennahda has 60 of these, which is 41%. The next largest parties, Congress for the Republic (CPR) and Aridha Chaabia (Popular Petition) have 21 and 20, respectively. Then Ettakatol with 13 and PDP with 6. No other party currently has more than 4. Thirteen parties are currently on one seat apiece.

The picture is thus one of a single dominant, but likely not majority, party, and a fragmented rest of the field.

At the district level, the expected pattern for the simple (Hare) quota and largest remainders (SQLR) system can be observed. This system is well known among electoral-systems specialists for its tendency to benefit small parties. Seats are much “cheaper” in terms of votes required to win, via remainders than via quotas.

The way SQLR works is that a quota is defined as 1/M of the votes, where M is the magnitude of the district (the number of seats available). In the first state of seat allocation, a party wins seats according to how many of these full quotas it has. Whatever number of seats are not yet allocated after seats by quota are determined are then allocated via largest remainders. In this stage of allocation, the parties’ remainders are ordered from largest to smallest, and a seat–at most one per party–is assigned to each in descending order until all are filled. ((It is this incorrect to call systems like this a “largest remainder” system, as is often said, because that term describes only the stage of allocation that takes place after quota seats are assigned. There are several different quotas (for instance, 1/(M+1) instead of 1/M), and the definition of quota that is used will have a significant effect on the remainders that parties have left over once quotas are assigned.))

A party’s seats in each district are thus the sum of its quotas earned, plus a remainder seat, if any. Under SQLR a large party will use up most of its votes on quotas, and then be eligible for at most one remainder seat. Smaller parties, on the other hand, often will have their full vote totals in the district as their remainder, and hence the last seats allocated in a district often require a much smaller number of votes to win than did the first (quota) seats that were assigned.

The process, and its impact on the cost of a seat, can be demonstrated by reference to a couple of the declared district results.

In the district of Gabes, M=7, Ennahda won 4 seats, and three other parties have one each. All three seats allocated to parties other than Ennahda were remainder seats. Total votes were 138,375. Ennahda had 73,416, or 53.5%. So it is only slightly over-represented, with 57.5% of the district’s seats. Its cost per seat is 18,354 (73,416/4). Each of the three other parties that won a seat has fewer votes than this, and the smallest of them paid only 7,351 votes (5.3% of the total) for its one seat, or 40% of what Ennahda paid for each of its four seats, three of which it won via quotas, and one by remainder.

A second, very striking, case shows how SQLR can sometimes under-represent the largest party. In Jendouba, M=8, Ennahda won 2 seats, and six other parties won a single seat apiece. Ennahda’s votes were 33,136 out of 118,376, or 28%. Yet it won only 25% of the district’s seats. The quota is 118.376/8=14,797. Thus both of Ennahda’s seats were won via quota, and it paid 16,568 votes for each of these. The other parties that won a seat each had vote totals ranging from 12,433 to 3,599. So the smallest party won a seat at a cost that was a mere 21.7% of Ennahda’s per-seat cost. Ennahda missed winning a third seat by 57 votes, as its remainder was 33,136-(2*14,797)=3,542. One party winning a seat on 3% of the votes cast, while another wins 2 seats on 28% is an odd result, but one that is inherent to the formula used, SQLR.

Tunisia Live does not seem to have a running total of national-level votes, so it not possible to tell the vote percentage upon which the preliminary 41% of seats for Ennahda is based. As the two district results discussed here show, SQLR can either over-represent or under-represent the largest party, depending on whether the precise vote totals allow the largest party to win one of the remainder seats or not, and of course on the district magnitude.

It is possible that Ennahda has won a bit more than 41% of the votes. It is also possible that it has less than 40%. Even the latter would imply a lesser degree of over-representation than most “proportional representation” systems would provide the largest party.

With one party so dominating the rest of the field, and smaller parties earning seats much more cheaply than the dominant party, we might anticipate that SQLR will not be the electoral system that this Constituent Assembly adopts for the next election.

Tunisia’s election

(Corrected)

Tunisians voted today in elections for a constituent assembly. Turnout is reported to have been around 70%.

According to an election guide prepared by the Project on Middle East Democracy [PDF], the electoral system has the following key features:

An assembly of 217 seats

33 districts, 27 domestic and 6 for Tunisians abroad.

Maximum district magnitude of 10.

Closed lists.

Gender quota requiring every other candidate on a list to be a woman.

Simple quota and largest remainders allocation rule, with no legal threshold.

The six districts for overseas Tunisians will elect a combined 18 seats (magnitudes vary from 1 to 5).

These provisions would mean an average district magnitude of 7.8 7.4, not including the seats for overseas Tunisians.

The simple (Hare) quota with largest remainders tends to favor small parties (for a given magnitude), especially given the large number of parties running lists. Thus, despite a laudable gender-balance provision, many party-district contingents will be of just one (male) legislator–a good case of the inter-party dimension affecting the intra-party dimension.

To be clear, this not a “mixed proportional system” as one blog covering the election states. It is a pure list system, with all seats (again, leaving aside those for expatriates) being allocated via PR. ((Many–in fact, most–PR systems use multiple districts; very few allocate all seats in one nationwide district. I point this out because the cited blog appeared to be referring to the presence of districts when calling the system “mixed”. This is simply not correct terminology.))

The big question, of course, is how well the Islamist party, en-Nahda, will do.

I am not sure when we can expect results. Al Jazeera is running a live blog on the election.

Of course, around here we are delighted that this vote was made possible by the actions of a fruit vendor, even if we take no delight in self-immolation, per se.

Tunisian election delayed

The election of a constituent assembly for Tunisia, originally scheduled for 24 July, has been rescheduled for 16 October.

A delay in a first post-authoritarian election is not always a bad idea, but in this case, “larger opposition parties… fear the interim government may renege on its promise to lead Tunisia toward democracy,” according to Reuters. And almost three months is a long delay.

Tunisia election plans

A promising step for Tunisia’s (potential) democratic transition is the decision to have the first election following the fall of the dictator be for a constituent assembly. It has been announced that the election will be 24 July.

It is not clear (to me) what either the shape of the emerging party system or the electoral system might be. But one item, on Magherabia.com, offers some hints, in reporting on a conference that took place in Tunis on 3 March.

“After we realised the first miracle, which is the miracle of revolution, we now need to realise a second miracle, which is the miracle of democracy, freedom and peace,” Culture Minister Ezzeddine Bach Chaouch said at the opening of the two-day seminar.

The event was organised by the Kawakibi Democracy Transition Centre (KADEM) in co-operation with the Citizenship Centre for the Promotion of Democracy (Mouwatana).

On the possible party system:

The political map is not clear for the time being, according to Kawakibi Centre President Mohsen Marzouk. “The Left is divided into several factions,” he said.

“In the midst of that, the Islamic current seems to be the only organised entity. In addition, they have several cadres who were living abroad and returned to Tunisia after acquiring several experiences,” Marzouk said. He added that he expects the development of a centre-right faction composed of people opposed to both the radical left and the Islamists.

Now, on the electoral system (not that this is highly enlightening):

They [conference participants] also stressed the need to establish an electoral system that would ensure a fair representation of women, young people and minorities. Contributors added that the new system must ensure that weak parties are not marginalised by a single political party in the next constituent assembly.

In addition, participants called for “cancelling the majority system that contradicts democracy and adopting a list system through individual voting in two rounds or a comprehensive list system of voting”.

I am not quite sure what a list system through individual voting in two rounds might be. Here’s hoping they go with the “comprehensive list system,” by which I would understand PR with a low threshold. It seems the best way for a first-ever democratic election in a setting where the shape of the party system hardly can be known.

(I am filing this, and any future entries on North Africa, under “Euro-Mediterranean” because the spirit of creating a “block” with that title some years ago was to emphasize the geographic and historical continuity of the Mediterranean–all its shores–and Europe. Now, Libya aside, we might even see a democratic community develop around the Great Sea. We can dare to hope, anyway…)

Tunisia leader ousted. No, again.

That’s three presidents in about 48 hours.

This second change, ousting the PM who had taken over the presidential role, actually reverts to constitutional procedure, as Al Jazeera notes:

The council declared [former president Zine El Abidine] Ben Ali’s departure was permanent and [speaker of parliament Fouad] Mebazaa was sworn in on Saturday under Article 57 which stipulates that when the post of the president falls vacant due to his demise, resignation or total incapacitation … the speaker of the parliament … shall immediately undertake the presidential duties on temporary basis for not less than 45 days; and not more than 60 days.

The piece of legislation states that it is not permissible during the transitional presidential period to amend the constitution or impeach the government. And during this period, a new president shall be elected for the term of five years. The newly elected president may dissolve the parliament, and call for premature parliamentary election (in accordance with the provisions of Paragraph Second of Chapter 63).

In a case like this, a “transition” following the rules of the established constitution does not necessarily augur for real change.