The government circular faces local authorities
In an interview with Nawaat, professor Marrakchi indicated that « from a formal standpoint, circulars are not a means for government to deal with local authorities ». Local authorities’ powers are conferred by the Constitution and Code of Local Collectivities. A circular, on the other hand, is considered « an internal procedure that facilitates relations within an institution or between a minister and regional director ».
According to Marrakchi, a circular contains concepts that are « legally implausible » such as a « supervisory authority » and « prior approval ». The constitution upholds principles of administrative freedom for local collectivities and ex post judicial review. For the public law professor, this denotes the « Prime Ministry’s lack of legal knowledge ». In this context, she called for « coordination between central and local authorities in respecting each party’s powers and scope of intervention ».
Professor of constitutional law Moôtaz Gargouri defends a similar position. During a webinar on the theme « Local authorities in the time of Corona », he pointed out that « the circular issued by the head of government contains terms that are non-compliant with the Constitution, since no authority is supposed to supervise municipalities ». In this sense, Gargouri laments the « condescending discourse addressing local collectivities », considering that such rhetoric has been « eclipsed by current events ». He added,
It would have been better to commend the work carried out by local collectivities, then to discuss the necessity of coordinating between regional and central authorities to deal with the epidemic.
In these exceptional circumstances, notes Professor Marrakchi, France published exceptional legal texts to manage citizen affairs. These texts stipulate the necessity of « respecting the powers of local collectivities » since decentralization is a « sacred principle » in French law, Marrakchi remarks.
Tunisia offers a contrasting example. On March 26, Prime Minister Elyes Fakhfakh addressed parliament during an examination of the draft law intended to authorize him to promulgate decree-laws, stating, « No decentralization in a time of crisis, and in a time of war, there is no place for interpretation. We must come back to the centralization of decision-making ».
The prime minister’s push for joined efforts in implementing the decisions made by central government (including curfew and national confinement) was cause for concern for the Tunisian Confederation of Mayors. Adnen Bouassida, president of Raoued’s Municipal Council and of the Tunisian Confederation of Mayors, considers that the government circular « contradicts the law ». Bouassida nonetheless confirms his readiness to « stand with the regional and central authority against the Coronavirus ».
As Bouassida explained to Nawaat, « the central authority cannot face the Coronavirus without local authorities ». « Municipalities are on the front line since the announcement of the first case on March 2 with the creation of crisis cells within municipal councils in collaboration with businessmen and civil society », he noted. He further indicated that the local authority had proved proactive, taking preventative measures like sterilization procedures, preventing gatherings and closing wedding halls. According to Bouassida, these measures have born their fruits. The proof:
The regional authority took the same measures, but at a late stage compared with the municipalities.
In the same context, mayors of municipalities in the governorate of Manouba published a joint statement on April 2. The mayors of Tozeur followed suit shortly thereafter, calling regional authorities to « boost relations with towns to the level of an effective partnership ». They expressed their « refusal of the non-communication of information concerning the health situation, particularly the list of infected individuals ». The mayors considered that this information « would help municipalities confront the spread of the virus ».
On April 4, the Interior Ministry and Ministry of Local Affairs issued their own joint statement, calling to strengthen coordination between public authorities at the central, regional and local levels. The statement urged authorities to « avoid lack of cohesion and fragmentation of decision-making amongst public authorities at all levels » while recalling the demands of the Constitution and Code of Local Collectivities as a means to reinforce decentralization.