Moncef Marzouki, President of the Tunisian Republic, is indignant and outraged. He is so annoyed that he promised to bring the issue to the Constituent Assembly of Tunisia. Why all the fuss? Because the government did not wait for his signature to decide to extradite [Former Libyan Prime Minister] Al-Baghdadi Al-Mahmoudi to Libya. Worse, Mr. Marzouki had said "No!" to the extradition.
Yet still, the extradition took place and Marzouki is now faced with a bitter fait accompli. For its part, the government says that it acted legitimately because it has the final say on this matter. Is this a legitimate tug of war between the government and the president, or is Marzouki simply playing the victim?
On Sunday, June 24, 2012, at dawn, a helicopter carrying Mahmoudi, Gadhafi's final prime minister, took off from Tunisia and landed in Tripoli, Libya. Thus, the Tunisian government carried out its decision to hand over the former Libyan Prime Minister to his country’s authorities, a decision that president Marzouki had challenged although he did nothing to prevent its implementation.
It is true that the issue of fugitives and refugee extradition is very complex. It involves the judiciary as much as foreign relations. The Tunisian people would like to judge Ben Ali, his wife Leila Trabelsi, their allies, sons, relatives and many others. However, due to the lack of repatriation, these people remain warm with our friends and brothers, their host countries. The Tunisian people are very frustrated to see those responsible for so much injustice escape the law.
Following the same logic, the Ennahda-led Troika government expressed its agreement in principle on the extradition of former Libyan prime minister. This agreement was subsequently confirmed by the Court of Appeals which issued a decision signed by Prime Minister Hamadi Jebali. However, President Marzouki had repeatedly stated that he opposes this decision because "as a human rights activist, the decision contradicts his principles." He even said several times that he does not intend to sign the said decision.
In spite of this, the government clearly said that it can simply implement the decision without his signature and approval. Indeed, on June 8, 2012, the prime minister said in an interview with AFP, that pursuant to the "little provisional Destour" Marzouki's signature is not essential. In other words, with or without his "blessing," the decision had already been made and would be executed shortly.
The decision was made public on June 8 in official statement by the Prime Minister to an international news agency. But neither Mr. Marzouki nor his dozen advisers lifted a finger to protest or contest this statement. The statement received media coverage, but it did not seem was going to upset anyone. Mr. Marzouki had probably chosen to bury his head in the sand, or maybe he thought the government would not dare to go through with it.
And now that the extradition has been carried out, the president’s office is literally boiling. It is moving heaven and earth with statements and press releases, and it announced that it firmly intends to bring the matter to the Constituent Assembly for "overstepping the presidential prerogatives and seriously trespassing the national consensus." But do we even know the exact powers of the president and why is are we only now realizing how limited they are?
Many spoke up against the decision, especially elected opposition figures. In addition, the media started writing that the powers of the president are too limited and that the president will have a ceremonial role compared to the dominant position and absolute powers of the Prime Minister. At the time, those known as "the community of the 0.00%" and "the media of shame" had indeed seen this imbalance in power sharing coming. The opposition even decided to withdraw from the vote and did not participate in the Marzouki’s election.
Consequently, the government accused its detractors of wanting to "put a spoke in the wheel of the democratic process." For its part, the euphoric and "megalomaniac" president was too blinded by the power and prestige of the post to realize to what extent he had been duped... how perceptive and considerate were the media and the opposition!
Alternatively, the president knew full well the limits of his powers, but took advantage of the extradition — a sensitive and controversial issue — to flex his political muscles, cry foul over being disrespected and bypassed, and because his prerogatives were trampled upon.
Thus, the controversy surrounding governmental power has resurfaced because everyone discovered the true extent of their power, but the president’s turned out to be minor.
Those who revisit Article 11 of the provisional destour [constitution], which lists the presidential prerogatives, will realize that the only powers that the president has are the leadership of the armed forces, granting amnesty, receiving the credentials of representatives of foreign states and making appointments within the presidency. Any other prerogative must either be subject to a proposal, consensus or a consultation with the government. And we know full well that once adopted, any given law must be respected and that at this point it is too late, really too late, to challenge it.
However, it should be noted that Article 324 of the Criminal Procedures Code provides that the government may accept or refuse the extradition decision, but that it remains imperative when deciding on the extradition of persons wanted by the justice of their country, that the president signs the extradition document. There was no signature in Mahmoudi's case. The president may not have much power, but in this case it is clear that the government broke the law. This is an unprecedented and very serious offense because it involves the entire government and not only a few individuals.
If Marzouki does not resign after this, it will be because his "principles" will prevent him from doing so!