Unpredictable moves. Tunisian President Kais Saied (2nd-L) inspects the guard of honour upon his arrival at the Carthage Palace in Tunis, October 23.(DPA) [https://thearabweekly.com]

President of the Republic of Tunisia: Commander-in-Chief of all Armed Forces or only Military Forces?

Away from all legal wrangling or political controversy, the term “Commander-in-Chief” has been in circulation in recent days, in an explicit reference to Article 77 of the Tunisian constitution. This is a phrase used in many modern and comparative constitutions, despite its ambiguity at times. In Tunisia, although Article 77 of the Constitution of 27 January 2014 explicitly states that the President of the Republic has the power of being the “Commander-in- Chief of the armed forces”, which gives the president constitutional powers over the military forces, the constitutional framework resulted in many important, complex, unclear, and sometimes, unanswered questions. In fact, the central issue around which today’s debate revolves is whether the President of the Republic assumes the supreme command of all the armed forces of the state or only the military forces.

This question calls for determining what the designation of “Supreme Commander-in-Chief of the Armed Forces” is, the purpose of its inclusion in the Constitution, and its legal and practical dimensions.

I. “Commander-in-Chief” in the Tunisian Constitution

Usually, the designation of “Commander-in-Chief of the Armed Forces” refers to the authority that ultimately has “absolute control” of the state’s armed forces (although in Tunisia we have always preferred to use the term “supervision”).

1. What this Designation Is

Article 77 of the Constitution of 27 January 2014 regulates the powers of the President of the Republic as the Head of State and its representative. Consequently, the president is designated as, and given the role of, the Commander-in-Chief of the Armed Forces. This article has at least two objectives:

- The first is to ensure civil supremacy over the military, and as such, the armed forces, with all their constituents, are subject to civilian control and democratic accountability. This principle was the foundation for the concept and basis of the democratic control of the armed forces.

- Whereas the second is to place civil supervision of the armed forces, which is, along with the supremacy of the law, one of the most important foundations of democratic systems, in the hands of one individual, or rather one authority, in accordance with the principle of unity of command.

The textual definition of the president being the Commander-in-Chief of the Armed Forces is intended to ensure that this “supreme officer”, and no other, will ultimately be responsible for carrying out this role, no matter what.

This is highlighted in the second paragraph of Article 77, which reads that the duties carried out by the President of the Republic in the areas of defense and national security, even if among their core powers, are not assigned to them for being the Commander-in-Chief of the Armed Forces. These are rather carried out by the president as the one who exercises executive authority alongside the government which is presided over by the head of the government (Article 71 of the Constitution), and mainly as the Head of State, the symbol of its unity, the guarantor of its independence and continuity, as they ensure respect of the Constitution (Article 72).

To this end, Article 77, as far as certain powers are concerned, does not authorize the delegation of command of the armed forces to any individual other than the president, subject to the temporary inability of the president to perform their tasks as stipulated in Article 83 of the Constitution. In this particular case, it is worth asking whether the designation of “Commander-in-Chief” could be delegated if it does not necessarily involve a role in itself. However, if it does involve specific powers, then the components of this designation need to be specified, and its significance and scope need to be outlined.

2. Components of the Designation

The designation of Supreme Commander-in-Chief of Armed Forces calls for a reading of the most important characteristics and of the main objectives that this position relates to.

  • Supremacy : The supreme command of the armed forces, and not the general command or joint staff command of the army, is vested in the President of the Republic. This means that it is prohibited in principle for any party or authority, including the legislative authority, to assign this capacity to an individual other than the president and to place them at the head of the hierarchy of the Tunisian armed forces in the place of the president. It is also understood that excluding components of the armed forces from the supervision of the president or interfering in the president’s supervisory role in a way that turns the designation of supreme commander into an “empty title” is not permissible.
  • Protection : Under the Constitution, the president, as the Commander-in-Chief of Armed Forces, is the ultimate military commander vested with the responsibility of protecting and defending the state. This is reached following the logic of Article 77 of the Constitution, where the president, as the Commander-in-Chief, has the role of “protecting the state and the national territory from all internal and external threats.”
  • Decision-making: The supreme command is intended for military and political decision-making by the President of the Republic, either exclusively or jointly with the Parliament or the head of government (Prime minister). The president is in command of the army, and as such, he has the possibility to make important military decisions and conduct military operations. Therefore, the Commander-in-Chief’s clause establishes the president’s authority not only to “command forces”, but also to “conduct operations.” When it comes to the distribution of powers among the various authorities of the state, the Commander-in-Chief’s clause “grants broad fundamental war powers to the president”. Thus, the president is the only one competent to declare war and conclude peace, and the decision to resort to as well as declare exceptional measures is essentially exclusive to the President of the Republic pursuant to the provisions of Article 80 of the Constitution.
  • Appointments : This designation gives the President of the Republic the power to appoint and dismiss individuals in senior military positions as per Article 78 of the Constitution. In this context, Law No. 32 of 2015 dated August 17, 2015 was issued specifying senior positions in accordance with the provisions of Article 78 of the Constitution. Article 3 of this law included a detailed list of senior military and national security positions - coming as a deeper understanding of the provisions of Article 77 of the Constitution, despite our reservation on the constitutionality of Article 6 of said law. The most prominent of these positions are Chief of Staff of the Armed Forces to the Minister in charge of National Defense, Inspector General of the Armed Forces, Chiefs of Staff of the Three Armies, Director General of the Intelligence and Security Agency for Defense, Commanding Officers. However, the appointment and dismissal of individuals in senior military positions that the President of the Republic is concerned with do not have to do with individuals in senior internal security positions. In fact, the appointment and dismissal of individuals in senior security positions, whether in the internal security forces or those of the customs, are one of the prerogatives of the head of government. This distinction will be essential in defining the concept of armed forces at a later stage.
  • Responsibilities : As a result of the Supremacy principle, the President of the Republic bears the consequences of military-related political choices and decisions, such as the decision to deploy the army or to use lethal force in exceptional cases. For example, when the Assembly of the Representatives of the People approves military operations (such as declaring war), the president is necessarily responsible for this decision.

Next is defining the concept of the armed forces - whose supreme command the President of the Republic assumes - by first referring to the Constitution then by tackling the issue in the light of the components of the various forces bearing arms and their legal, structural and functional characteristics.

II. Armed Forces in the Tunisian Constitution and Law

Armed forces are institutions established by the state for the primary purpose of national defense against external threats and internal conflicts. The specific composition of the armed forces depends on the legal definition adopted by each country. When it comes to Tunisia, Article 17 of the Constitution refers to armed forces and internal security services by affirming that only the state may establish armed agencies and legally resort to means of physical coercion, including the use of lethal force.

The Tunisian constitution clearly and explicitly distinguishes between armed forces and internal security services. It also differentiates between armed forces represented by the national army, and internal security forces as well as customs, as it is clear in the second paragraph of Article 65 that stipulates: “Laws relating to the following areas are deemed organic laws: Organization of the national army; Organization of the internal security services and customs...” Therefore, it is important to distinguish between the various military and security forces, and customs forces as well, since these organizations are all different in terms of their composition, tasks, roles, command, and legal systems.

1. The Constitutional Definition of the Armed Forces

The Constitution does not clearly define the armed forces which is not the case regarding the internal security services. This is mainly due to the absence of a unified term for the military establishment. However, the Constitution has given a definition of the national army in Article 18, which stipulates the following:

“The national army is a republican army. It is an armed military force based on discipline that is composed and structurally organized in accordance with the law and charged with responsibility to defend the nation, its independence and its territorial integrity. It is required to remain completely impartial. The national army supports the civil authorities in accordance with the provisions set out in law.”

This definition highlights two main characteristics that most of the regular armed forces around the world have in common: being an armed military organization and being charged with national defense.

When we employ the term “armed forces” in Tunisia or elsewhere, it basically means “military establishment,” represented by the armed military forces composing the national army, which are: the army, navy, air force and military intelligence. The national army, with its various pillars, structures and formations, is also known as the “Tunisian Armed Forces”.

This understanding of what the armed forces are is made clearer by connecting the tasks of the national army specified in the above mentioned Article 18 with two other concepts mentioned in Article 77 of the Constitution, namely: national defense and national security.

Likewise, Article 19 of the Constitution makes things clearer by not employing the adjective “armed” to the internal security services when defining their role. Article 19: “The national security [forces] is [are] republican; they are responsible for maintaining security and public order, ensuring the protection of individuals, institutions, and property, and ensuring the enforcement of the law while ensuring that freedoms are respected, with complete impartiality.” Worth pointing out are the shortcomings of this article in terms of drafting, due to the inaccuracy of the term “national security” in Arabic (“sûreté nationale” in French”) in reference to “national security services”. The constitutional legislator should have studied the special regulations and gathered relative information in order to avoid this kind of shortcomings or confusion between concepts and institutions. Such shortcomings are today paving the way for readings not supported by the constitutional text.

Therefore, the functional criterion is the basic legal standard for defining armed forces and differentiating them from all other regular forces, including police and internal security services, national guards, prison and rehabilitation personnel, civil protection, customs, and presidential security forces. The functional standard defines their role as well as the nature of the mandate they perform, whether they are military or civil forces.

2. Forces Bearing Arms are not the same as Armed Forces

We previously mentioned the absence of a unified terminology, and how being inconsistent and using terms interchangeably in the constitutional text as well as in its various provisions were noticeable. The same can be found in the rest of the legislative and regulatory texts regulating other types of security services. Regardless of the linguistic confusion, the main element distinguishing the constitutional definition of the internal security services from that of the military forces is the fact that the first are not constitutionally defined as armed forces, even though they are, systematically, forces that bear or use arms.

In our opinion, this is key to distinguish between regular armed forces whose main goal is to defend the nation, and security services, including the official groups of the forces that are keeping watch over security and public order and are mandated to enforce the law, which, according to Tunisian legislation, are not generally included in the category of armed forces. This refers to the state’s internal security service providers such as the police, national guards, customs, and prison and rehabilitation personnel, independent of the fact that the law allows these civil agencies to bear and use arms to perform their duties.

Perhaps this difference is what prompted the authors of the bylaws of the Assembly of the Representatives of the People to name the legislative committee concerned with the affairs of the armed forces and other regular forces the “Committee on Administrative Organization and the Affairs of the Forces Bearing Arms”. This is so that customs and presidential security forces - which are not part of the internal security forces - are not excluded, as per the definition found in the Law of 1982.

Furthermore, there are the national security services that are part of the internal security forces by virtue of Article 4 of Law No. 70 of 1982, dated August 6, 1982, setting the general organic law of the internal security forces.

Article 3 of this same law also stipulates that “the use of weapons by internal security forces personnel shall be in accordance with the legislation in force,” without designating the forces’ various corps as armed forces. The legal text thus clearly and explicitly distinguishes between the character of these forces and the material and legal means they use in the carrying out of their tasks.

The statutes relating to each corps part of the internal security services, such as Article 2 of Decree No. 1160-2006 dated April 13, 2006, on the statute of the personnel of the national security corps and the national police, and Article 2 of Decree No. 1162-2006 dated April 13, 2006, on the statute of the personnel of the national guard corps, define these corps as an “armed civilian public force”.

Official security agencies, although bearing arms, remain civilian, that is non-military, unlike the national army. This common description, “armed force” among the various forces, is what raises again the question of whether the concept of the armed forces is to be understood in the Constitution in a narrow or in a broad way.

The answer lies in Article 77 itself and in the definition we have given to the armed forces. Thus, in principle, the President of the Republic does not exercise supreme command except of the military armed forces. To these can be added the presidential security forces, not for being bearers of arms, but by virtue of their institutional affiliation to the Presidency of the Republic. It is very important at this point to place Article 77 in its correct constitutional and political context for a proper reading of legal texts. It is therefore significant to once more go over the reasons why the constitutional legislator has abandoned the proposal that figured in Article 71 of the draft constitution of December 14, 2012. It was proposed at the time to assign “the supreme command of the armed forces and the national security forces” to the President of the Republic. However, the majority opinion in the Joint Commission for Coordination and Drafting considered that “security is not one of the prerogatives of the President of the Republic.” Subsequent drafts of the draft constitution were devoid of any reference to the authority of the President of the Republic over the national security services but have established the president’s general command of the armed forces, so of the military only. This reflects the intention of the constituent authority since the early stages of drafting the Constitution of 2014, which is that civilian forces bearing arms are not subject to the supreme command of the President of the Republic as it is understood in Article 77.

Nonetheless, the legislative system in force still allows the President of the Republic to issue authorizations for orders to the internal security services, as Article 2 of the 1982 Law - revised by Law No. 58 of 2000 dated June 13, 2000 - provides for the following:

“Internal security forces personnel answer to the Minister of the Interior, under the authority of the President of the Republic, who commands and orders them directly or through the Prime Minister or the Minister of the Interior (…).”

This entails a direct and indirect consequence at the same time in relation to the subordination of the various internal security services to the President of the Republic in his position as Commander-in-Chief of the Armed Forces: First, the authority to appoint, and second, the authority to order and direct.

This legal text, though, cannot be read without taking into account the constitutional system and the prevailing political context at the time. The Constitution of the first of June 1959 not only states that the President of the Republic is the Supreme Commander-in-Chief of the Armed Forces, but also that, after the 1988 amendment, the Prime Minister no longer has a prominent role in administration and public force. This back then established for good the presidential nature of the system of government in Tunisia, where the President of the Republic is the head of the executive branch that carries out the president’s orders, submits to the president’s direct instructions, and implements the president’s orientations and choices in all fields.

However, the Constitution of 2014 changed the balance of power and the head of government became the one who sets the general policy of the state, still taking into account Article 77 when it comes to tasks related to defense, foreign relations and national security, which the head of government became in charge of executing. In other words, the head of government became in control of the executive branch of the state, of the administration and of non-military forces. Additionally and most importantly, the President of the Republic can order neither the head of government nor even the Minister of the Interior.

In conclusion, one cannot forget that the armed forces are the various military organizations and resources that the state allocates to implement its defense policy. It is this defense policy that aims to always protect “against all forms of aggression, to maintain security as well as the integrity of national territory and to preserve political life.” This task is one of the duties of the Minister of Defense, under the authority of the President of the Republic who is the Commander-in-Chief of the Armed Forces, in accordance with the requirements of Article 1 of Decree No. 75-671 dated September 25, 1975, relating to the defining of the powers of the Minister of National Defense. The designation of Commander-in-Chief of the Armed Forces is thus linked to national defense and mainly to the tasks of the military armed forces.

Last but not least, the distinction between military, civilian and paramilitary organizations is not always clear and the different and various uses of these words depending on context do not help. Nonetheless, military organizations are distinguished from civilian ones by a long list of characteristics. However, the difference between military and civilian armed institutions is mainly a matter of degree, as civilian institutions may have some characteristics of the military armed forces but not all of them are armed forces in the functional, structural, and especially constitutional sense of the word.

The views and opinions expressed on DUSTOUR Talk are solely those of the authors. They do not represent those of the Arab Association of Constitutional Law or Konrad Adenauer Stiftung or any other contributor.



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