Government Approved After Thirteen Hours of Debate | Source: Facebook

As Middle East Burns Tunisia Debates Constitutional Procedure

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The Tunisian Assembly of the Representatives of the People (ARP) voted in favor of all thirteen of Habib Essid’s ministers appointments, approving Tunisia’s first government reshuffle since the adoption of its 2014 Constitution. A reshuffle had been widely anticipated since Essid had announced his intentions at the opening of the Assembly of the Representatives of the People (ARP) budgetary debates on November 27. Though when Essid announced sweeping changes to his government on Wednesday, January 6, there were several surprises. Tunisia’s politicians, political commentators and everyday Tunisians, in addition to which outgoing ministers had deserved their sacking or which replacements benefitted whom, noticed some gaping procedural holes in the 2014 Constitution. 

On January 5th, Tunisian President Beji Caid Essebsi had nominated Habib Essid as prime minister and charged him with forming a government. The first proposed government had been vocally rejected for having been too heavily drawn from the victorious Nidaa Tounes and withdrawn before it faced a vote. After all Nidaa Tounes won the presidency outright, but in parliament it had to form a coalition government to obtain a majority, and as the junior members of in such an arrangement:


‘to the victor goes some, not all, the spoils’.


It was Mehdi Jomaa, still serving as interim Prime Minister from Tunisia’s post-Troika post-‘National Dialogue Quartet’, who had represented Tunisia a year ago on January 11th amongst the world leaders at the Solidarity March in Paris following the Charlie Hebdo Attacks. President Essebsi, only in office one week when the attacks had happened and in the process of forming Tunisia’s government had, like U.S. President Barrack Obama not attended, though unlike Netanyahu, Essebsi had in fact been invited. 

The second government, which featured ministers from four other parties (including de-jure coalition member, de-facto opposition party Ennahda), had eventually been approved in one vote on February 5. When on January 6, Essid announced a government reshuffle, replacing thirteen ministers but not the entire government confusion set in. 

That the Prime Minister is entitled to dismiss ministers was not in question. In October of 2015, Former Justice Minister Mohamed Saleh Ben Aissa had been sacked, at the prerogative of the Prime Minister the dismissal had not required consultation with the ARP.  Yet when it came to individual appointments, rather than dismissals, no procedure had been set forth in the Constitution, nor did any precedent yet exist in Tunisia’s year long experience as a parliamentary democracy. When Farhat Horchani, Tunisia’s , had been named interim Justice Minister pending a reshuffle the temporary nature of his appointment had not raised questions as to when or how the post would be filled. Thus, without precedent for a partial ‘reshuffle’ and lacking explicit Constitutional procedural instructions, it was unclear how the ARP was to vote on a ‘reshuffle’. 

Furthermore, Essid had not just reshuffled but restructured the government by eliminating sub-ministerial but cabinet level State Secretary positions. The Constitution did stipulate that any such change to the structure of the government required approval from the majority of the cabinet ministers, cabinet ministers of whom a majority had just been dismissed, albeit through the Prime Minister’s constitutionally provided prerogative. 

When thirteen non-interim ministers were named, the ARP and Tunisia’s most experienced Constitutional experts (with a full year of expertise behind them) suddenly noticed no one knew how the process was to take place. APR speaker, Mohamed Ennaceur quickly declared that each minister would be voted on individually, precedent, after all goes to the first and fastest.
Rather than fighting Essid on the elimination of the State Secretaries the ARP acquiesced, Essid could theoretically have called in the remaining ministers to approve the structure, had any refused he could have just constitutionally dismissed a few more. Essid, in turn acquiesced to the ARP’s self-granted individual approval process, rather than contesting the process which if Essid had forced the ARP to vote on the entire government wholesale his own position would have voted on as well. 

Both, the Executive and Legislative branches carved out new and necessary powers which had not been formally articulated in the Tunisian Constitution. It wasn’t quite a Marbury v. Madison moment, which established judicial review in the United States, in fact in acquiescing to one another the Executive and Legislature specifically avoided the Judiciary.

Which would have opened an entirely new problem. As acting Justice Minister would it have fallen to Defense Minister Farhat Horchani, to oversee? That is a question for the philosophers. and Tunisia’s now slightly more experienced, constitutional scholars.

In two days Tunisia will mark the five year anniversary Ben Ali’s flight from the country. This last week’s confusion reflects how far the nation has come, neither the path nor the process have been perfect, nor will the path ahead. While the Tunisia’s ARP, constitutional scholars, political commentators and more importantly Tunisia’s intrigued citizens observed and debated. They did so in opposition to one another, with widely differing opinions on which ministers should be appointed and how, but they did so peacefully.

A quote to sum up Tunisia’s beautiful chaos:


“Democracy is the worst form of government, except for all the others.”


― Winston S. Churchill

While Tunisians debated ministerial appointments and constitutional procedure Egypt remembered it had a parliament for the first time in two years, Libya saw its oil wealth go up in smoke (literally) and Syrians were intentionally starved by a despot.