On the Necessity of an International Constitutional Court
26/6/2022
At the end of the nineties of the last century, I wrote an article for the French newspaper Liberation, titled, “Why do we need an international constitutional court?”
This idea did not emerge in a vacuum. It was the result of the successive fake elections of the Ben Ali regime and the continuous tampering with the constitution, which the regime changed several times with sham referendums. The last such referendum took place in 2004 and was designed to increase number of times the president can run for re-election.
All of this took place in the absence of a local or international legal means to challenge such an affront to people’s intelligence, dignity, and their right to objectively evaluate the performance of their ruler. These practices of the Ben Ali regime were a hurdle standing in the way of the peaceful transfer of power.
My idea was that if there had been an international constitutional court that civil society organisations could turn to in an authoritarian state where there was no national constitutional court or an independent judiciary, it would have annulled these fake elections and referendums on the basis of unambiguous facts and the testimonies of international observers.
At the end of the nineties, I never imagined that I would return in 2011 from exile to enter the Carthage Palace and pursue the same legitimate dream. Neither did I imagine that I would one day leave the Carthage Palace to return to the same exile in 2021 and pursue the same dream.
We do not live in an ideal world governed by law where UN Security Council, for example, can declare a complete ban on regimes that violate international law and the Universal Declaration of Human Rights.
If there had been an International Constitutional Court that could annul fake elections and referendums, this would have been enough to remove the regime’s international moral legitimacy. Such a move would have stimulated the democratic opposition and contributed to accelerating the end of the dictatorship.
My arguments in this and subsequent articles as well as in all my speeches on the subject were that confronting dictatorships should not take place after they inflict countless tragedies on their people by referring the tyrants to the International Criminal Court. Confrontation should rather occur beforehand by depriving regimes, which undermine democracy by using its own rituals and mechanisms, of any local or international legitimacy.
At the end of the nineties, I never imagined that I would return in 2011 from exile to enter the Carthage Palace and pursue the same legitimate dream. Neither did I imagine that I would one day leave the Carthage Palace to return to the same exile in 2021 and pursue the same dream.
I was fortunate that the glorious Jasmine Revolution brought me to the presidency. I undertook the highest office with a set of legitimate dreams, mainly to bring two million Tunisians out of poverty in five years, achieve food security, embark on a water policy to protect our people from the constant danger of thirst, and recover our people’s looted wealth.
I closely followed the drafting of our national constitution and worked behind the scenes through my Congrès pour la République Party representatives in the Constituent Assembly to ensure that the constitution would protect future generations from autocracy, whether the individual was a president like El-Sisi or a prime minister like Orban, Hitler and Mussolini.
At the same time, the creation of an international constitutional court was one of my top foreign policy priorities. I kept this file on my desk from the first day of my presidency until I left.
In order to crystallise the project, I assigned it in 2012 to Judge Ahmed al-Werfalli and Professor Ayyad Ben Achour, Tunisia’s top specialist in constitutional law.
They organised several meetings with international constitutional experts in the Carthage Palace to deepen the discussion and get down to the nitty-gritty.
In 2013, I presented the idea for the first time in my address to the United Nations during the annual Heads of State and Government Meeting and in the following meeting in 2014, I handed over a draft proposal to Secretary-General Ban Ki-moon.
We expected that such an idea would be met with strong opposition from all small and large authoritarian regimes and that the procedures would take decades to materialise, as happened with the International Criminal Court. Besides, there was no guarantee that all these attempts would yield any results.
I was motivated by the notion that while it is true that not all dreams come true, all human achievements were once nothing more than dreams. I began to prepare a list of 20 democratic countries that I hoped would support the Tunisian Republic’s project for an international constitutional court.
Did the dream suddenly end in 2014 when I lost the presidential elections to Mr. Beji Caid Essebsi, the representative of the counter-revolution?
I would say that this issue is bigger than both of us. I would not have minded a meeting with him to hand over the project because the dream is that Tunisia will be the seat of this international constitutional court, just as The Hague is the seat of the International Court of Justice. This is a dream that no Tunisian president can ignore.
But he was too petty to accept a project from an opponent that might take credit for it, even if it is beneficial to Tunisia. He refused to receive me, even though I had welcomed him several times during my presidency while he was launching a vicious campaign against me.
This is how this project was shelved, along with many legitimate dreams that were aborted by the counter-revolution and a succession of incompetent and corrupt governments that hated people in parties, politics and the parliament. These governments paved the way for the coup d’état that took place in the summer of 2021.
Egypt, Tunisia and many African countries are in dire need of such a court. After all, the tyrannical snake has returned, and we are ready to defeat it.
How funny and sad that Tunisia returns to a scenario from which we thought we were completely immune. It is truly a tragedy. We have returned to Ben Ali’s farces, but with weaker and more stupid actors. Following the farce of the failed e-consultation platform and the mock meetings that deans of law faculties refused to attend, El-Sisi’s student had no choice but to present a ready-made constitution to a people mired in the worries of poverty, unemployment, frustration and despair. The undeclared goal of the constitution was for the people whose powers were stripped by the coup d’état to grant all powers to the man responsible for the coup.
The lesson that the Tunisian experience should teach us is that a revolution that does not fortify itself against its enemies or a democracy that does not have claws and fangs from the beginning is nothing but a reprieve between two tyrannies.
The other lesson is that nothing is inevitable or final with respect to human rights and freedoms. Even in the oldest democracies, such as India and the United States, the transformation of people from subjects to citizens and from autocracies and kleptocracies to the rule of law and institutions is an endless struggle.
The last lesson is that we are witnessing the return of the legitimacy of force within states, and among them. If we do not mobilise internally and externally to support the force of legitimacy, this world will become, more than ever before, a jungle in which there is only predator and prey. It is, therefore, necessary for us to work hard internally against tyranny, which is the third scourge of history, preceded only by slavery and colonialism. We should also endeavour externally to create a world governed by the force of legitimacy, not the legitimacy of force. An international constitutional court would be one of the tools of this legitimacy. This court should one day be granted to future generations in the same way previous generations granted us the International Criminal Court.
All darkness shall dissipate.
