Constitutional debate

Some lawyers argue the prime minister’s assumption of presidential powers evades the Tunisian constitution.

Mohammed Ghannouchi, who was the prime minister, took over as president of Tunisia on Friday [REUTERS]

Zine El Abidine Ben Ali, Tunisia’s president, fled the country on Friday amid a wave of deadly social protests in a dramatic end to his 23 years in power.

In an address on state television Mohammed Ghannouchi, the country’s prime minister, announced that he had taken over as interim president.

He invoked Article 56 of the constitution saying it allowed him to take over temporarily if the president was not able to carry out his duties.

However, legal circles in Tunisia fear that Ghannouchi’s statement was an act of evasion of the constitution, merely to serve Ben Ali’s interests.

Article 56, on which Ghannouchi’s statement was made, states that in the event the president of the republic is incapable of discharging his duties temporarily, he may order for his powers and authorities be delegated to the first minister, save the right of dissolving the parliament.

During this period of temporary incapacity, the government shall remain standing until such state of incapacity is eliminated, even if the government is chastised (impeached).

The president shall inform the speaker of the parliament and the chairman of the advisers board of the temporary delegation of his powers.

Legal experts, however, argue that in the current situation, the head of parliament is the only legitimate person granted the right, as stipulated in article 57 of the Tunisian Constitution, to form a legitimate [caretaker] government, for about 45 days to be followed by presidential election.

In an interview with Al Jazeera, Ghannouchi said it was not the right time to argue “law or constitution”.

“Adoption of Article 57 is a very likely scenario, yet I took over as Acting President based on Article 56.

“Parliamentary elections will be held, meetings with all political and social powers will be convened. Tomorrow after consultation with parties, further details will be announced. Other measures will be adopted if it is ascertained that Ben Ali’s departure is final.” Ghannouchi said.

Article 57

Article 57 states that when the post of the president of the republic falls vacant due to his demise, resignation or total incapacitation, the constitutional council shall forthwith convene and declare the definitive vacancy under the absolute majority of its members, which matter shall be expressly made known to the chairman of advisers council and speaker of the parliament, where the latter (speaker) shall immediately undertake the presidential duties on temporary basis for not less than 45 days; and not more than 60 days.

In case the said definite vacancy coincides with the dissolution of the parliament, the chairman of advisers council shall undertake the presidential duties on a temporary basis for the same period.

The officer undertaking the duties of the president on temporary basis shall take the constitutional oath before the parliament and the advisers council jointly convening, and if required, before the bureaus of the two houses. In case the said definitive vacancy coincides with the dissolution of the parliament, the constitutional oath may be taken before the advisers council, and if required before its bureau.

The officer undertaking the duties of the president on temporary basis shall not be permitted to be nominated for the presidency, even if he renders his resignation.

The officer undertaking the duties of the president on temporary basis shall discharge the presidential duties; provided that he shall not be entitled to resort to referendum, dissolve the government, dissolve the parliament, or take any of the exceptional measures set out in Chapter 46.

It shall not be permissible during the transitional presidential period to amend the constitution or chastise (impeach) the government.

And during the transitional presidential period, a new president shall be elected for the term of five years.

The newly elected president may dissolve the parliament, and call for premature parliamentary elections in accordance with the provisions of Paragraph Second of Chapter 63.

Source: Al Jazeera