Summary of Day 10, Sunday 12th January

Summary of Day 10, Sunday 12^th January: Assembly Debates Executive Powers

Following the heated exchanges that had brought an adjournment to Saturday’s session, Sunday’s session opened with an apology from Samia Abbou (CPR) for having attacked Ennahdha Party over the consensual amendment to article 73 to remove the upper age limit for Presidential candidates. The consensual amendment had failed to pass the previous evening despite having been the subject of a consensus among all the parties within the Consensus Committee.

The debate then opened with a return to article 73, which had not been voted on the previous evening. The article failed to pass, with 55 votes for, 23 abstentions and 79 against, meaning that the article will have to be returned to at the end once all draft articles have been discussed and voted on.

Article 74 setting out the length of the Presidential term and procedures for Presidential elections was passed with a consensual amendment to ensure that the maximum number of Presidential terms may not be amended or increased. Article 75 setting out the Presidential oath proved uncontroversial, as did article 76 setting out the powers of the President, after a consensual amendment was passed giving the President the power to “set” general state policies in the domains of defense, foreign relations and national security related to protecting the State and national territory from internal and external threats, rather than merely “outline” them.

Article 77 on Presidential powers to appoint and dismiss holders of senior positions in state institutions also proved uncontroversial and was passed with a high majority, as was article 78 on the right of the President to address the Chamber of Deputies, and article 79 on the powers of the President in the event of imminent danger threatening the nation’s institutions. Article 80 was subject to a number of amendments to the procedure for ratifying and issuing laws, which gives the President of the Republic the power to return laws to the Chamber for a second reading.

Articles 81 which gives the President powers to submit laws to a referendum, 82 to 85 setting out procedures for instances of temporary vacancy of the Presidency, 86 on immunity and 87 on impeachment were also passed with little controversy or amendment.

The second section of Chapter Four sets out the powers of the government. Article 88 setting out the composition of the government and 89 prohibiting membership of both the Government and the Chamber of Deputies at the same time also proved uncontroversial.

However, article 90, which gives the Prime Minister responsibility for setting general state policies and ensuring their execution proved to be problematic. The draft wording appears to have been agreed in previous drafts and had not been raised as a contentious point previously, and no amendments had been put forward by any deputy. Tahar Hmila (CPR) argued that the Prime Minister should be responsible for setting government policies and not “state policies”. Hbib Khedhr, the General Rapporteur on the Constitution, responded that the text had been the subject of consensus since the beginning of discussions and that Hmila had not raised any issues before or proposed an amendment. The article was rejected at voting, with 93 for, 7 abstentions and 71 against.

The plenary was adjourned till the following day to allow for further discussions around the article. The debate around article 90 raises the issue of the division of powers between the two heads of the Executive Branch, the President of the Republic and the Prime Minister. While the draft constitution gives the government the powers to set the policies of the state, there is a carve-out for foreign and defense policy, which are assigned to the President of the Republic. The government is held accountable before the parliament, according to draft article 94, and can be questioned orally and through written questions by any member of the Chamber of Deputies. The Chamber has the power to dismiss the government through bringing a motion of censure, which requires the support of a majority of the members of the Chamber to pass. Impeaching the President requires a higher threshold – two-thirds of members and a ruling by the Constitutional Court that there has been a gross violation of the Constitution by the President. The President also has the power to dissolve the Chamber of Deputies.

This “hybrid regime” is a departure from the Presidential system in place in Tunisia since 1959, which had concentrated executive power in the hands of the President. It seeks to divide up power and avoid its consolidation in one institution, as had occurred under Bourguiba and Ben Ali. However, the division also raises potential uncertainty with regards to overlapping competencies – for instance, where Tunisia is to be represented in an international economic summit, where the domains of both economy (the responsibility of the government) and foreign affairs (the domain of the President) are engaged. The scenario where the Prime Minister and President are from different political parties is also highly likely in coming years, leading to “cohabitation” similar to that seen in France between 1986 and 1988, 1993 and 1995 and 1997 and 2002. The draft constitution states that where there is a conflict over the division of powers between the Prime Minister and the President of the Republic, it shall be referred to the Constitutional Court, to be created after the adoption of the constitution.

Article 73

Proposed amendment to amend the lower age limit for Presidential candidates to 35, rejected with 42 for, 22 abstentions and 84 against.

Article 74

Draft: “The President of the Republic shall be elected for a five-year period during the last sixty-day period of the presidential term by means of general, free, direct, secret, fair and transparent elections, and with an absolute majority of votes cast.

In the event of failure by any candidate to achieve an absolute majority in the first round, a second round shall be organized during the two weeks following the announcement of the final results of the first round. The two candidates who won the highest number of votes during the first round shall run for elections. In the event of the death of one of the candidates in the first round, or being prevented from continuing by force majeure, candidate registration shall be reopened and new dates for elections shall be set. In the event of the withdrawal, death, or prevention for other reasons of any of the candidates from participating in the runoff, the candidate who received the next highest number of votes shall take his or her place.

In the event of failure to hold the elections on the set date as a result of a state of imminent danger, the term of presidency shall be extended by law. It shall not be permissible to hold the position of President of the Republic for more than two full terms, whether separate or consecutive.”

Consensual amendment to add “the number of Presidential terms may not be amended or increased” and “in the case of resignation, the term shall be regarded as a full Presidential term” passed with 140 for, 4 abstentions, 3 against.

Proposed amendment 204 to amend to “in the event of death of one of the candidates in the second round, or he or she is prevented from standing by force majeure or withdraws, nominations shall be reopened and a new election date shall be set” falls, with 99 for, 21 abstentions, 32 against.

Amended article 74 adopted with 137 for, 9 abstentions, 17 against.

Article 75

Draft: “The elected President of the Republic shall, before the Chamber of Deputies, swear the following oath: “I do solemnly swear to God to maintain the independence of Tunisia and the safety of its territories, to respect its Constitution and legislation, to safeguard its interests, and to remain loyal to it. The President of the Republic may not hold a party political post while President.”

Unamended article 75 adopted with 166 for, 1 abstention, 0 against.

Article 76

Draft: “The President of the Republic is responsible for representing the state. He is responsible for outlining the general state policies in the domains of defense, foreign relations and national security related to protecting the State and national territory from internal and external threats, in compliance with the general policy of the State.

He is also responsible for:

– Dissolving the Chamber of Deputies in accordance with the Constitution’s provisions.

– Presiding the National Security Council.

– Being the Commander-in-Chief of the armed forces.

– Declaring war and establishing peace, upon the approval by a majority of the Chamber

of Deputies by three-fifths of its members, as well as sending troops abroad with the approval of the President of the Chamber of Deputies and of the Prime Minister provided that the Chamber shall convene with a view to deciding on the matter within a period of no more than sixty days.

– Taking measures that are required by a state of emergency, and to declare such measures in accordance with article 79.

– Ratifying treaties and authorising their publication.

– Awarding state awards of honour.

– Granting special pardons.”

Consensual amendment to amend to the President shall “be responsible for setting the general state policies…” and amend “in compliance with the general policy of the State” to “after consulting the Prime Minister” passed with 161 for, 3 abstentions, 2 against.

Proposed amendment to add “within a period of no more than sixty days from the date of the decision to send troops” passed with 139 for, 9 abstentions, 12 against.

Amended article 76 adopted with 156 for, 3 abstentions, 3 against.

Article 77

Draft: “The President of the Republic is responsible for:

– Appointing and dismissing the General Mufti of the Tunisian Republic.

– Appointing and dismissing holders of senior positions in the Presidency of the Republic and affiliated institutions. These senior positions are determined by law.

– Appointing and dismissing holders of senior military and diplomatic positions that are related to national security. These appointments can only be made if the relevant parliamentary committee does not object within 20 days. These senior positions are regulated by law.

– Appointing the Governor of the Central Bank upon a proposal presented by the Prime Minister to the President of the Republic and after approval by the Chamber of Deputies by a majority of its members present, and by no less than one third of the total number of members. The Governor shall be dismissed in the same manner or upon the request of a third of the Chamber of Deputies and by approval of a majority of the members present on the conditions and by no less than one third of its members.”

Consensual amendment to insert into third paragraph after “appointing and dismissing holders of senior military and diplomatic positions that are related to national security after consulting the Prime Minister” and amend the fourth paragraph to “Appointing the Governor of the Central Bank upon a proposal from the Prime Minister and after approval by the Chamber of Deputies by an absolute majority of its members, and by no less than one third of the total number of members. The Governor shall be dismissed in the same manner or upon the request of a third of the Chamber of Deputies and by approval of an absolute majority of members present on the conditions and by no less than one third of its members” passed with 166 for, 4 abstentions, 2 against.

Amended article 77 adopted with 165 for, 1 abstention, 2 against.

Article 78

Draft: “The President of the Republic may address the Chamber of Deputies.”

Unamended article 78 adopted with 161 for, 0 abstention, 3 against.

Article 79

Draft: “In the event of imminent danger threatening the nation’s institutions and the security and independence of the country in such a manner preventing the normal operation of the institutions of the state, the President of the Republic may take any measures necessitated by such exceptional circumstances, after consultation with the Prime Minister and the President of the Chamber of Deputies. The President shall announce the measures in an address to the nation.

The measures shall aim to secure a return to the normal operation of state institutions as soon as possible. The Chamber of Deputies shall be deemed in a state of continuous session throughout such period. In such event, the President of the Republic may not dissolve the Chamber of Deputies and may not bring a motion of censure against the government.

After the elapse of a thirty-day period as of the implementation of the measures, and at any time after this, the Constitutional Court may, by request from the President of the Chamber of Deputies or thirty of the members, to examine whether the state of emergency may continue.

The measures shall cease to have effect upon the termination of the reasons causing their introduction. The President of the Republic shall address the nation to that effect.”

Consensual amendment to add to the first paragraph ” the President of the Republic may take any measures necessitated by such exceptional circumstances, after consultation with the Prime Minister and the President of the Chamber of Deputies and after giving notice to the President of the Constitutional Court” passed with 155 for, 4 abstentions, 1 against.

Proposed amendment to last paragraph: “The measures shall cease to have effect upon the termination of the reasons causing their introduction or a decision of the constitutional court” rejected with 25 for, 11, 129 against.

Amended article 79 adopted with 159 for, 6 abstentions, 2 against.

Article 80

Draft: “The President of the Republic shall seal and approve the publication of laws in the Official Gazette of the Tunisian Republic within a period of no more than fifteen days as of receipt thereof from the Constitutional Court.

Except for draft finance and budget laws, the President of the Republic is entitled, during a period of ten days as from the receipt of a draft law from the President of the Chamber of Deputies, to return the draft law to the Chamber for a second reading. If the draft law is ratified by an absolute majority of the members of the Chamber, the President of the Republic shall seal and approve its publication within a period of no more than fifteen days as of receipt thereof from the Constitutional Court.”

Consensual amendment to amend the reference to “Official Gazette” in the Arabic wording passed with 163 for, 3 abstentions, 3 against.

Consensual amendment to amend to “The President of the Republic shall seal and approve the publication of laws in the Official Gazette of the Tunisian Republic within a period of no more than fifteen days as of receipt thereof from the Constitutional Court. Except for draft constitutional laws, the President of the Republic is entitled, during a period of ten days as from the receipt of a draft law from the President of the Chamber of Deputies, to return the draft law to the Chamber for a second reading. In the case of ordinary laws, the draft law must be ratified by an absolute majority of the members of the Chamber, and in the case of organic laws, by a majority of three-fifths of its members. On ratification by the Chamber, the President of the Republic shall seal and approve its publication within a period of no more than fifteen days as of receipt thereof from the Constitutional Court” passed with 161 for, 4 abstentions, 2 against.

Proposed amendment to amend the first paragraph to “The President of the Republic shall seal and approve the publication of laws in the Official Gazette of the Tunisian Republic within a period of no more than fifteen days as of receipt thereof from the Constitutional Court if there is no contestation before the Constitutional Court” passed with 115 for, 15 abstentions, 41 against.

Amended article 80 adopted with 144 for, 9 abstentions, 20 against.

Article 81

Draft: “The President of the Republic may, in exceptional circumstances, submit for referendum, the draft laws ratified by the Chamber of Deputies that are not in contradiction with the Constitution, and that relate to human rights, freedoms or personal status, based on a ruling by the Constitutional Court. The submission for referendum shall be deemed a waiver of the right to return the draft law to the Chamber.

If the result of the referendum is the ratification of the draft law, the President of the Republic shall seal and approve publication of the law within a period not exceeding fifteen days as of the date of announcement of the results of the referendum.

The electoral law shall regulate the means of conducting the referendum and announcing its results.”

Consensual amendment to remove a comma after “that are not in contradiction with the Constitution” passed with 165 for, 3 abstentions and 0 against.

Consensual amendment to remove “that are not in contradiction with the Constitution” passed with165 for, 3 abstentions, 0 against.

Amended article 81 adopted with 170 for, 1 abstention, 0 against.

Article 82

Draft: “The President of the Republic may, in the event of a temporary inability to perform his tasks, temporarily delegate his powers to the Prime Minister for a maximum period of 30 days, renewable once. The President of the Republic shall inform the President of the Chamber of Deputies of the temporary delegation of powers”.

Unamended article 82 adopted with 149 for, 0 abstentions, 0 against

Article 83

Draft: “In the event of the position of President of the Republic becoming temporarily vacant for reasons that prevent the President of the Republic from delegating his powers, the Constitutional Court shall promptly meet and acknowledge the temporary vacancy of the office, and the Prime Minister shall undertake the tasks of the President of the Republic. The period of temporary vacancy may not exceed sixty days.

Should the temporary vacancy exceed the sixty-day period, or if the President of the Republic submits a written resignation to the President of the Constitutional Court, or in the event of death or absolute incapacity, or for any other reason that causes a permanent vacancy, the Constitutional Court shall promptly meet and acknowledge the permanent vacancy and notify the President of the Chamber of Deputies who shall, on a temporary basis, immediately undertake the tasks of the President of the Republic for a duration of no less than forty-five days and no more than ninety days”.

Unamended article 83 adopted with 157 for, 0 abstentions, 0 against.

Article 84

Draft: “In the event of permanent vacancy, the interim President of the Republic shall take the oath set out in the Constitution before the Chamber of Deputies, and in case it is necessary before the Chamber’s Bureau or before the constitutional court in case the Chamber is dissolved”

Unamended article 84 adopted with 154 for, 0 abstention, 1 against.

Article 85

Draft: “The person undertaking the tasks of the President of the Republic, during the temporary or permanent vacancy of the office, shall exercise presidential tasks. He shall not be entitled to propose amending the Constitution, resort to a referendum, dissolve the Chamber of Deputies. During the interim presidential period, a new President for the Republic shall be elected for a full presidential term. No motion of censure against the government may be presented.”
Unamended article 85 adopted with 159 for, 2 abstentions and 1 against.

Article 86

Draft: “The President of the Republic enjoys judicial immunity during his mandate. All statutes of limitations and other deadlines are suspended. Judicial procedures may recommence after the end of his mandate. The President of the Republic cannot be prosecuted for acts that were carried out in the context of his functions.”

Unamended article 86 passes with 145 for, 3 abstentions and 5 against.

Article 87

Draft: “A majority of the members of the Chamber of Deputies may initiate a request to bring an end to the President of the Republic’s mandate for the deliberate violation of the Constitution, detailing their arguments, and it must be approved by two-thirds of members. In such event, the matter is referred to the Constitutional Court for determination. In the event of condemnation, the Constitutional Court must render an order of removal of the President of the Republic from office. This shall not mean immunity from criminal prosecution when necessary. Where the President has been removed from office under these circumstances, he is not entitled to run in any other elections”

Unamended article 87 adopted with 158 for, 7 abstentions, 5 against.

Section Two: “The Government” – title adopted with 169 for, 0 abstentions, 2 against

Article 88

Draft: “The government shall be composed of a Prime Minister, ministers, and secretaries of state selected by the Prime Minister. The ministers of foreign affairs and defense shall be selected by the Prime Minister in consultation with the President of the Republic.

Within one week of the date on which the definitive election results are declared, the President of the Republic shall assign the candidate of the party or the election coalition that gained the largest number of seats in the Chamber of Deputies to form a government within a one-month period, extendable only once. If two or more parties or coalitions have the same number of seats, then the nomination shall be based on the numbers of votes gained by each in the elections.

If the specified period of time elapses without the formation of a government or in the event of failure to receive the vote of confidence of the Chamber of Deputies, the President of the Republic shall, within ten days, consult with parties, coalitions, and parliamentary blocs to entrust the person most capable of constituting a government within a period of no more than one month.

If a four-month period elapses from the date of entrusting the first candidate and the members of the Chamber of Deputies fail to agree on granting confidence to the government, the President of the Republic is entitled to dissolve the Chamber of Deputies and to call for new legislative elections to be held within at least 45 days and not more than 90 days.

The government shall present a brief programme to the Chamber of Deputies to gain its confidence. When the government gains the confidence of the Chamber, the President of the Republic shall immediately nominate the Prime Minister and members of the government.

The Prime Minister and the members of government shall be sworn in before the President of the Republic in accordance with the following oath: “I swear by Almighty God to work sincerely for the benefit of Tunisia, to its Constitution and legislation, to promote its interests and remain loyal to it”.

Consensual amendment to amend the fifth paragraph as follows: “The government shall present a brief programme to the Chamber of Deputies to gain its confidence by an absolute majority of its members” and amend the fourth paragraph as follows: “If a four-month period elapses since the first assignment” passed with 167 for, 1 abstention and 5 against.

Amended article 88 adopted with 168 for, 3 abstentions and 5 against.

Article 89

Draft: “Membership of the government and of the Chamber of Deputies may not be combined. The Elections Law shall regulate the process of filling vacancies.

The Prime Minister and the members of the government may not be employed in any other profession.”

Unamended article 89 adopted with 170 for, 0 abstentions and 1 against.

Article 90

Draft: “The Prime Minister sets the state’s general policy and shall ensure its execution.”

The article fails to be adopted, with 93 for, 7 abstentions and 71 against.