Duncan Pickard, a nonresident fellow at the Rafik Hariri Center for the Middle East and a JD candidate at Stanford Law School.
The terrorist attack on the Bardo Museum did not come out of nowhere. Tunisian security services have been trying to root out terrorist cells across the country for several years, most recently in Chaambi Mountain. Tunisia’s struggle with violent jihadism represents perhaps the biggest threat to its fragile transition to democracy. The threat of violence could convince government officials and the public at large to privilege security over democracy, and it is not clear that the new government will be able to balance both.
The current administration has begun to erode some of the protections ensuring the balance of power envisioned by the constitution. President Beji Caid Essebsi was elected after his campaign espoused the strong executive model of Habib Bourguiba as an antidote to increasing domestic and regional security threats. The constitution attempts to balance executive power by creating a dual executive, with responsibilities shared between an elected president and a prime minister chosen by parliament. But in reality, the parliament, also controlled by Essebsi’s party, deferred the selection of the prime minister until the presidential election, allowing Essebsi to handpick his choice. A new Constitutional Court and Human Rights Commission are also supposed to check executive power, but they will not be up and running until the end of this year at the latest. The new constitutional order is particularly susceptible to renewed expansion of executive power, given the country’s legacy of a central executive (which Essebsi helped construct), the weakness of new political institutions that can check that power, and the reality of the jihadi threat.
That is not to say that the constitution is an ineffective restraint on executive power. The constitution provides a strong role for parliament and opposition parties. Ennahdha, the Islamic party that was in power during the constitution-making process, joined the government (albeit with a single, minor cabinet post). The constitution also protects political rights and only allows the government to limit those rights under certain circumstances. For example, a provisional committee of jurists that reviews the constitutionality of draft laws recently struck down a bill that, in its view, would have violated protected property rights. The committee’s opinion sparked a dialogue between the executive and legislative branches about how to pass a new law within constitutional limits.
But the provisional committee has jurisdiction only over draft bills, not administrative decisions. The danger is in the precedents that are set for the implementation of the constitution, given that Tunisia is currently under a credible jihadi threat and the leadership of a president with an expansive view of executive power.