1 July 2020
Authors : Antonio Manganella, Oumayma Mehdi, Elisa Novic, Johanna Wagman, Ragheb Zouaoui
A gradual regulatory response
As the Covid-19 pandemic entered a peak phase in China and was becoming more and more threatening in Europe, Tunisia very quickly deployed a preventative response, conscious of its health system’s weakness to contain such a crisis. The first measures were thus put in place on 26 January, with the installation of thermal cameras and, as of early March, the development of isolation practices for symptomatic people and 14-day self-confinement for asymptomatic people from at-risk areas.
The response indeed accelerated on 2 March 2020, with the detection of a first confirmed case from Milan, which prompted the Tunisian State to cross a new threshold in the adoption of measures to contain the pandemic. As the contamination curve continued to grow, on 18 March 2020, the President of the Republic announced a general curfew, followed by the adoption of a declaration of a general sanitary containment on 21 March 2020, thereby proclaiming a state of emergency under article 80 of the Constitution. On 12 April 2020, the Assembly of the People’s Representatives (APR) voted on the provisional extension of the prerogatives of the Head of Government on the basis of Article 70 of the Constitution.
An inadequate legal arsenal in times of pandemic
Since the Constitution came into force in 2014, the mechanisms provided by Articles 70 and 80 of the Tunisian Constitution had not yet been activated. Until then, in order to meet security challenges posed by the terrorist threat and the instability of its neighbour, Libya, the executive used to resort to a state of emergency, provided for by Decree no. 78-50 of 26 January 1978. In fact, the state of emergency was renewed for the umpteenth time during the COVID-29 pandemic, though there is no evident link with the fight against the virus. This decree is already largely condemned by civil society due to its institutional and obsolete nature, insofar as its origins go back to the repression of protests organised in 1978 by the Tunisian General Labour Union against the dictatorial regime and human rights violations. The implementation of the curfew following the declaration of a state of emergency is then left to the Governors, who are affiliated to the Ministry of Interior and not to the Presidency of the Republic. This led to a potential risk of dephasing or disparity in the response to the health crisis, requiring a rapid response.
The legislative instruments relating to public health did not provide an answer to the scope of Covid-19 either. Act no. 92-71 related to transmissible diseases is in fact limited to the automatic hospitalisation of persons suffering from such listed diseases for persons refusing treatment or engaging in risky behaviour.
Article 70 of the Constitution, related to the ARP’s delegation of powers to the government, could undoubtedly have filled this role much earlier in the chronology of events, except Tunisia was then in the midst of a political crisis. This crisis followed the legislative elections of October 2019, from which no clear majority emerged, slowing down the formation of a government. Out of principle, a caretaker government is not entitled to the special powers provided for in Article 70, which would allow it to legislate, in the form of statutory laws, in place of the APR. It was only on 27 February 2020 that Elyes Fakhfakh’s Government gained the trust of deputies. A month later, it was a Head of Government, whose legitimacy was still in the making, who proposed an enabling bill before the APR, which was finally passed after around two weeks of debate.
Under these circumstances, the President of the Republic himself could have introduced a bill, which would have made it possible to comply with the terms of Article 49 of the Constitution, which provides that restrictions on the fundamental rights and freedoms of Tunisians must be provided for by law and be solely for the purpose of “meeting the requirements of a civil and democratic State,” which includes “safeguarding (…) public health.” Furthermore, they must be subject to judicial control. It is important to note that the main international and regional instruments of human rights protection also emphasise the role of parliaments in limiting rights and freedoms, particularly in emergency contexts. 
However, the President of the Republic, Kaïs Saïed chose, perhaps for the sake of speed, to resort to the exceptional mechanism available, the proclamation of a state of emergency as foreseen in article 80 of the Constitution, thus acknowledging an “imminent threat to the national integrity, security or independence of the country and hindering the proper functioning of the public powers.” This provision does not refer to the status of rights and freedoms once a state of exception has been declared, which gave rise to many fears when the Constitution was adopted in 2014. While Article 80 may be questionable in terms of its adequacy as a response to a health crisis, its triggering has above all perpetrated a situation that is fundamentally unconstitutional, insofar as it is conditional upon consultation with the highest authorities of the State, including the President of the Constitutional Court. Moreover, the President of the ARP and the 30 deputies must be able to enter a provision to the Constitutional Court “to give a ruling on the maintenance of the state of exception” at the end of the 30 day period following the exceptional measures entering into force. Yet, there is no Constitutional Court in Tunisia, despite the fact that the Constitution sets strict deadlines for its establishment, which is crucial for guaranteeing the balance of powers and the rule of law. To date, Tunisia is almost five years behind schedule with regard to constitutional requirements.
The APR’s democratic control of the Executive
The APR’s reluctance to vote on the Government’s authority to legislate in this context is understandable, given that this institution was the last safeguard provided for by Article 80, which stipulates that it sits in “permanent session” for the duration of the state of emergency. Similarly, the deputies have limited the risk of a monopoly of power by the executive. The Enabling Act, adopted on 12 April 2020, is in fact an amended version of the bill proposed by the executive, the scope of which is strictly limited to the response period for Covid-19. This is the case with the possibility of regulating rights and freedoms, which must thus be implemented “in a manner appropriate to the preventative measures necessary to deal with the spread and transmission of the Coronavirus, in accordance with the requirements of Article 49 of the Constitution.” According to Article 70, these statutory laws adopted by the Government are submitted to the APR for approval at the end of the two months following the delegation of powers. To avoid being faced with a fait accompli, the APR has indicated in the Enabling Act that statutory laws shall be examined according to the same procedures as “legislative proposals.” This thus allows for the referral to the Provisional Body for the review of the constitutionality of statutory laws, particularly in the event that certain measures considered by the executive would apply beyond the period of Covid-19. 
Following the Enabling Act, the President of the Republic no longer resorted to Article 80 of the Constitution. The containment measures have been gradually lifted from 4 May with the curfew measure definitively lifted on 8 June.
All is well that ends well?
While Tunisia has been in a permanent state of emergency since the attacks of 2015, the successive triggering of two constitutional provisions, Articles 70 and 80, strengthening the powers of the executive, could legitimately raise serious concerns about respect for the rule of law and democratic principles.
Having just emerged from an institutional crisis lasting several months, the political decision-makers acted responsibly in this case. However, had the actors involved been different, the outcome could have been rather different. The fact that the use of such powers may depend on the individual conscience of the leaders shows the weakness of the institutional reforms aiming at implementing the constitutional assets inherited from successive rulers since 2014.
It goes without saying that if the current political decision-makers want to mark a real breakaway from the previous five-year term, they should make the establishment of the constitutional instances, starting with the Constitutional Court; one of their priorities. This applies particularly to the APR, the Superior Council of Magistracy and the President of the Republic.
In this regard, the APR is expected to display a strong sense of responsibility, as it bears most responsibility for the absence of a Constitutional Court. Over the last four years, the APR has been unable to reach the necessary consensus for the election of its four Court members. These repeated failures should not be used as a pretext to change the required majority for such an election, and thus compromise the Constitutional Court and its members’ independence.
Until the Constitutional Court is established, the President of the Republic should refrain from using Article 80 of the Constitution and from renewing the state of emergency on the basis of an unconstitutional legal instrument, which breaches citizens’ rights and freedoms.
The review of the Tunisian legal framework is now crucial to draw lessons from this pandemic crisis and ensure that the appropriate and proportionate mechanisms are available in the future.
 See Inkyfada, Covid-19 : Chronology of the management of the epidemic in Tunisia (2020).
 These measures included the closure of the majority of educational institutions, the postponement of cultural events and of non-urgent medical operations, and the closure of maritime borders with Italy.
 The declaration was made following the first case of death and was endorsed in the presidential decree no. 2020-28 of 22 March 2020. This measure was accompanied by the prohibition of unauthorised travel under the Government decree no. 2020-156 of 22 March 2020, laying down essential needs and requirements necessary to ensure the continued operation of vital services as part of the implementation of full containment measures.
 Presidential Decree no. 2020-54 of 29 May 2020, extension of the state of emergency.
 A draft organic bill on the organisation of the state of emergency had been proposed to the APR in 2019 by the preceding Government, but eventually abandoned under pressure from civil society which pointed out its vagueness and detriment to the constitutionally guaranteed rights and freedoms. For more information, see the analysis developed by the member organisations of the Security and Freedom Alliance (2019).
 In Tunisia, the executive power is bicephalous, which means that executive power is made up of two ‘heads’: The President of the Republic and the Head of Government.
 Article. 4 of decree no. 78-50 provides for the possibility for Governors to order a travel ban, but not to limit it.
 Constitution of the Republic of Tunisia (2014), art. 62 al. 1.
 E.g. on the freedom of movement see i.a. African Charter on Human and Peoples’ Rights, art. 12(2) International Covenant on Civil and Political Rights (ICCPR) art. 12(3).
 See i.a. The Carter Center, The constitutional process in Tunisia, Final Report – 2011-2014, p. 92.
 Constitution of the Republic of Tunisia (2014) art. 148 al 5.
 Act no. 2020-19 of 12 April 2020, enabling the Head of Government to issue legislative decrees in order to deal with the repercussions of the spread of Coronavirus, art. 1(2). In addition to the provisions on rights and freedoms, the act delegates i.a. to the Government the task of legislating on questions of economic and fiscal support for economic actors, the organisation of health prevention measures, particularly in schools, and the control of the civil service
 Ibid. art. 3.
 For example, see draft bill no. 12/2020, setting up remote criminal hearings, with explicit reference to application beyond the pandemic period.