Losing Afghanistan Was Inevitable. Losing Tunisia Is Not.

(Bloomberg Opinion) -- Afghanistan wasn’t the only majority Muslim country that the Joe Biden administration lost in the last week.

Establishing a functioning democracy in Afghanistan was hard — so hard it turned out to be impossible. Tunisia, which on Monday passed from the status of functioning democracy to effective autocracy, would have been an easy win for Biden’s nominal commitment to sustain democracy around the world — if the administration had bothered to pay meaningful attention to it.

Instead, the administration stood by and did nothing while the elected president of the Arab world’s only democracy suspended parliament in violation of the Tunisian constitution and announced that the members of the parliament would henceforth be subject to arrest.

The facts here are remarkably simple. The Arab Spring started in Tunisia, where the dictator Zine El Abidine Ben Ali fled the country in January 2011 in response to popular protests. In the other Arab Spring countries that followed Tunisia’s example, dictators were challenged and sometimes toppled, but the ultimate result was more dictatorship (as in Egypt) or civil war (as in Syria, Libya and Yemen).

Not so in Tunisia, where popular elections led to a constituent assembly that drafted and eventually ratified a liberal democratic constitution. Many could claim credit for this success, including four civil society institutions that were awarded the Nobel Peace Prize for their stabilizing role in the process.

Another important breakthrough occurred when the Islamic democratic party in Tunisia, known as Ennahda, dropped its demand for sharia to be inscribed in the constitution. It reinvented itself as a party of Muslim democrats on the model of Christian Democrats in Western European countries.

In short, Tunisia was a success for constitutional democracy, and remained so until July of 2021. To be sure, the country has faced serious problems. The consensus-based political culture that enabled elites from different parties to settle on the constitution has also hampered bold policy making, leading to charges of political paralysis.

Unemployment, one of the root causes of the Arab Spring protests, hasn’t been solved. Democracies don’t have a magic-bullet solution to economic woes any more than autocracies do. More recently, the country has suffered from a series of Covid-19 related troubles.

Tunisia’s democratically elected president, Kaies Saied, decided in recent months that circumstances were ripe for a major power grab. Saied is a former professor of constitutional law, and he proceeded to unroll a gradual coup d’état by exploiting a loophole in the Tunisian constitution.

Article 80 of the constitution allows the president, “in the event of imminent danger” to the state, to adopt “any” emergency “measures necessitated by the exceptional circumstances.” The same provision says that parliament must remain in session during the emergency period.

The drafters of the constitution feared precisely that an unscrupulous president would adopt an outrageously broad interpretation of the idea of imminent danger and try to use Article 80 to undermine democracy. So they added a provision to it specifying that, after 30 days, the speaker of the parliament or 30 members of that body could appeal to the constitutional court to determine if exceptional circumstances really applied. The idea was that the independent court would check the president if he was distorting the true meaning of exceptional circumstances.

Here’s the loophole: Because of political disagreement within parliament, the constitutional court established by the Tunisian constitution was never actually set up. So there is nowhere for the parliament to appeal the state of emergency.

On Aug. 23, 30 days after first announcing the state of emergency, Saied further violated the constitution by suspending parliament. He is now effectively an elected dictator.

The Biden administration could have stopped this from happening at any point by stating directly that it would consider such action by the president to constitute a coup. Best practice would have been to get European countries on board with such an advance condemnation, especially France, which has close ties with its former colony.

The cost to the U.S. would have been extraordinarily low. Not a single soldier would have been required, nor any threat of military force of any kind.

Tunisia depends on loans and economic aid from international institutions. Meaningful international condemnation of the falling away of democracy would have forced Saied to backtrack. Indeed, he clearly was concerned about that possibility — and chose the unusual step of staging a gradual coup to ensure he had room to reverse course if necessary.

Yet all the Biden administration managed was a neutral-sounding message from Secretary of State Antony Blinken — “encourag[ing]” Saied “to adhere to the principles of democracy” — and a still weak, if slightly better message from National Security Adviser Jake Sullivan, who “called on” Saied to form a new government and “ensur[e] the timely return of the elected parliament.” In the coded language of diplomacy, these messages basically told Saied to go ahead and do whatever he wanted.

It’s not too late for the U.S. and its European allies to tell Saied that constitutional democracy does not allow a president to dissolve the elected parliament and threaten its members with arrest. Some losses, like Afghanistan, are inevitable. The loss of Tunisian democracy is not inevitable — and for that reason would be especially senseless and tragic.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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