Following independence from France in 1956 and the deposition of the Tunisian Bey, the constitution of the Republic of Tunisia was promulgated in 1959. It provides for a president with broad powers, including the right to select the prime minister, appoint the cabinet, and rule by decree during legislative adjournments. As the chief executive, the president has considerable power over the cabinet, prime minister, and the armed forces. He also nominates the highest civil and military officers upon the recommendation of the government.
Separation of Executive, Legislative, and Judicial Powers
The Tunisian constitution divides legislative power between the president and a bicameral legislature, with an upper house, the Chamber of Councilors (Majlis al-Mustasharin), and a lower house, the Chamber of Deputies (Majlis al-Nuwaab). The president is elected by popular vote for five years, concurrently with the Chamber of Deputies. Half of the Chamber of Councilors is renewed every three years. The president can propose legislation and send bills back to the legislature for a second reading. According to the constitution, the judiciary is independent; however, the president heads the Superior Council of the Judiciary, which is charged with the appointment and dismissal of all judges. The Constitutional Council, a consultative body charged with determining the constitutionality of proposed legislation, has the power to remove the president if he is deemed unfit for office, in which case the President of the Chamber of Deputies becomes President of the Republic.
The president is the guarantor of national independence, of territorial integrity, and of respect for the constitution and the laws as well as the execution of the laws and treaties. He watches over the regular functioning of the constitutional powers and assures the continuity of the state. He directs the general policy of the nation, defines its fundamental options, and, in doing so, communicates with the parliament. He ratifies treaties, declares war and concludes peace with the approval of the parliament. The president has judicial immunity for all acts committed while in office.
The president may submit to referendum any bill relating to the organization of the public powers or seeking to ratify a treaty, which, without being contrary to the constitution, may affect the functioning of the institutions. When the referendum has resulted in the adoption of the bill, the president promulgates it within a maximum period of fifteen days.
When the parliament is on vacation, the president may issue decrees with the force of law. However, he has to consult the relevant permanent parliamentary committee when doing so.
In case of imminent danger to the institutions of the republic and to the security and independence of the country, the president may take “exceptional measures,” after consulting the prime minister and the president of the parliament. During this period, the president may not dissolve the parliament and no motion of censure may be presented against the government. These measures cease to have effect as soon as the circumstances that produced them come to an end. The president addresses a message to the parliament on this subject.
The constitution grants personal freedoms within the context of public order. It provides for the free exercise of belief provided that public order is not disturbed and stipulates that the exercise of rights cannot be limited except by law enacted for the protection of others, the respect for public order, the national defense, the development of the economy, and social progress. The freedoms of opinion, expression, press, publication, assembly and association, are all guaranteed under and within the limits of the law. Article 7 defines the circumstances under which the exercise of personal rights may be limited. They include “the protection of others, the respect for public order, the national defense, the development of economy, and social progress.”
The right to unionize is guaranteed constitutionally. There are provisions respecting the inviolability of home, secrecy of correspondence, guaranteed except in exceptional cases by law, presumption of innocence, right to property, and duty to defend the nation and to pay taxes.
The Constitutional Council was created in 1987 to ascertain the compatibility of enacted legislation with the constitution. The Council’s rulings have been made binding by virtue of an amendment to the constitution introduced in 1999. The Council of State deals with legal disputes between citizens and public institutions and also includes an Audit Court. The Economic and Social Council, enlarged in 1988, is a consultative body concerned with issues of economic and social planning.
Constitutional Amendments and Procedures
In 1969, a constitutional amendment provided for a premier to be appointed by the president who would assume the presidency in case of death or disability. Based on this amendment, in 1987, Zine El Abidine Ben Ali, the prime minister and the constitutionally ordained successor of the president, replaced Habib Bourgiba as the president by declaring him mentally unfit to rule. Constitutional amendments then eliminated the lifetime presidency that had been bestowed on Habib Bourgiba in 1975. The amendment of July 12, 1988, permitted the president to serve for three five-year terms of office. The president or one-third of the parliament, however, may initiate a constitutional amendment. The constitution has been amended several times after 1991, substantially affecting elections, parliament, and the eligibility of the president. In 1999, some restrictions on candidacy were relaxed, allowing opposition candidates to contest presidential elections.
A sweeping package of constitutional reform passed on May 26, 2002, altering 38 of the 78 articles of the constitution. Its provisions abolished the term limits on the presidency and extended the age of eligibility from 70 to 75. The amendments established an upper house for parliament, the Chamber of Councilors, making the formerly unicameral legislature into a bicameral one. The reform also broadened civil liberties, among other things enshrining tolerance and human rights in the constitution, requiring judicial approval for all ‘preventative’ detentions and providing a guarantee of humane treatment for prisoners. On another note, the article that formerly obligated all citizens to participate in national defense was expanded to require all citizens to defend Tunisia’s independence, national sovereignty and integrity. Activists fear that the new wording could potentially be used against Tunisians who criticize the regime and its policies in domestic or foreign publications.
Tunisia is a party to the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR).