Des Pouvoirs Souverains des Assemblées Constituantes Post-Révolutions : Réflexion à Partir du Cas de L'assemblée Constituante Tunisienne (ANC)

Abstract

The experience of Tunisia's Constituent Assembly has raised important constitutional questions regarding the assembly's powers, and has provoked a dispute both political and doctrinal between two opposing constitutionalist discourses. One discourse would like to attribute to the Assembly an ‘original’ and absolute power, thereby exempting it from an obligation to respect a pre-Constitution road map and to ‘prepare’ the constitution within a one-year deadline; the other contests the Assembly's very legitimacy following the deadline's expiration, arguing that the real constituent power belongs to the people. In referring to multiple constitutional experiences, the present article will seek to the find a middle ground between these opposing views, and argue that the Assembly does not have a constituent power; rather, the Assembly has an inherent constituting competence that is limited by pre-constituent moral obligations, and especially by the peremptory norms of international law.