Dissolving tensions between the groups and resuming the work of the Constituent Assembly The Transitional experiment in : between conflict and agreement

Mohamed EL HAMDI

The day Mohamed El Brahmi was assassinated, I telephoned one of the opposition leaders to discuss what action should be taken, and he responded grimly that everything was over and the country was on the path to nowhere. Obviously, the aforementioned leader had exceeded a state of shock and exaggerated the political situation; however, the feeling that troubled him and many of us on that day truly expressed the dangers facing Tunisia on the sad day of Ramadan.

On 25 July 2013, Mohamed El- Brahmi was assassinated and the work of the Constituent Assembly, the source of political legitimacy following the elections of 23 October 2011, was effectively suspended.

During the summer of 2013, we witnessed the climax of the political crisis following the revolution. However, the crisis did not begin with the withdrawal of 60 opposition members affiliated to the Democratic Group and the sit-in protests organised by them. The Convention of 23 October was in a permanent state of crisis, which reached its peak on two occasions. The first occasion was upon the assassination of Chokri Belaid on 6 February 2013, which expedited the fall of the government of Hamadi Jebali and the formation of the second government under the leadership of Ali Al-Arayedh. The second incident was the assassination of Mohamed El Brahmi, which almost destroyed the entire political process, as it led to the suspension of the legislature, namely the Constituent Assembly.

Neither a political nor a security context could justify the members of the Troika infringing the suspension that came into effect with the withdrawal of almost a third of the Assembly members, despite the attempts by some in the Troika to rely on the quorum rules to resume the work of the Assembly (the Bardo sit-in almost descended into a storming of the Assembly). These attempts ended with an official announcement by the leadership of the Assembly on 6 August 2013 suspending its operations. This was a declaration of the extent of the crisis afflicting the Constituent Assembly and the course of the entire democratic transition.

The operation of the Constituent Assembly was officially and effectively suspended and the entire political process was blowing in the wind. Positions ranged between the intransigence and obstinacy of the Troika, which insisted upon its legitimacy and did not see any link between the assassination of El Brahmi and the need to suspend the Assembly, or the call for the resignation of the government; and the obstinacy of the "Radical" opposition which called for the nation to be rescued from the Convention of 23 October and the removal of the transitional process completely. The third position began as a minority and reticent view, which perceived the assassination of El Brahmi as no accident, but an indication that it was time to reset the course of action by separating the executive branch and radically altering the duties of the Assembly. Those holding this third point of view believed that the situation did not require a "rescue" that would destroy the political process and push the country into oblivion, but required the correction of deviations. Moreover, it did not involve one party eradicating the other, but rather required agreement and settlement between numerous parties, none of which could successfully direct the transitional process alone.

It is now possible to state, with the benefit of hindsight, that 25 July 2013 was the height of the crisis and the beginning of the "solution". Even if the Democratic Alliance Party was the only opposition party who advocated this position and remained outside of the salvation front, it would gradually beat every radical or militant party in the view of both those governing and the opposition—particularly when this standpoint is adopted by parties with democratic and moral weight, such as the Tunisian General Labour Union. The choice of reaching agreements and reconciliation will prevail after a summer in which Tunisia almost slid into civil war, as the Assembly was suspended, thousands protested in Bardo and friction between opposition and government supporters almost led to confrontations. The scenario in Egypt was not far from the minds of many people, neither those who feared such a scenario and sought to avoid it and those who considered it a "possible way out of the crisis".

Regardless of whether the radical standpoints of both of the most divergent parties represented their real convictions or were tactics implemented to improve the terms of negotiation, as claimed by some in the aftermath, the conditions for a confrontation were already present. Therefore, the efforts of the National Dialogue Quartet were extremely important, as merely getting the conflicting parties to the negotiating table became necessary to defuse the crisis and reduce the tensions and public protests.

Therefore, it is evident that the Constituent Assembly was both the focal point of the crisis and its solution. It frames the constitution; it elected the government and supports it; and is responsible for all aspects of the democratic transition, whether positive or negative. These issues had been in dispute between the Troika and the opposition from the beginning, as the Constituent Assembly was simultaneously the subject of the conflict and its first result.

The conflict over the Assembly emerged early, as the political parties held differing views in relation to its nature, powers and the limits of its duties. Was it merely mandated to draft the constitution, or did it have powers in relation to the election of the government and oversight of all elements of the democratic transition?

The Assembly was also pulled in different directions regarding the boundaries of its role. Was its actions confined to boundaries it should not exceed, or was it the "master of itself", as claimed by the members of the majority?

The term of the Assembly was also a subject of intense conflict from the onset of discussions regarding the drafting of its interim powers. The opposition argued that a term of one year subject to renewal should be stipulated, as agreed upon by the main parties in the High Authority for the Achievement of the Objectives of the Revolution. The Troika denied this pledge, which was the basis upon which the call for Assembly elections was made. Instead it left the Assembly as the "master of itself" and did not specify a parliamentary term. This renunciation of previous pledges raised fears regarding the intentions of the Troika, particularly their intention to remain in power for an undefined period, or until a peaceful transfer of power was possible. Therefore, the legitimacy of the Assembly was challenged once the first year of its term had ended and its leaders were accused of stalling and of having no intention of leaving power. This was all prior to the assassination of Chokri Belaid.

The first image of the Assembly as an Assembly of the majority or of progress raised concerns among an element of the elite regarding the intentions of the majority to frame a constitution that represented the Tunisian public, would guarantee freedoms and protect the gains of modernisation. Therefore, doubts were raised regarding the ability of majority logic (the simple or the advanced) to protect national companies and frame a reliable constitution. Talk began of the dangers of authoritarianism and the protection of the gains of modernisation. Initial claims thus insisted on the need to reach an "agreement" and not to rely on democracy by "hand count". What has been said about the Assembly applies even more so to the government. If the Assembly provides an arena for the opposition, despite the fact that a section of the opposition often viewed the Assembly to be governed by the majority (particularly the parties with a weak representation in it, such as the and , founded after the elections), then the government is the government of progress, and its tool in controlling the elements of the state and re-engineering society. This fact resulted in the idea of protecting the social fabric of Tunisia from the dangers of Islamisation.

The intense conflict over the constitution and the government first took place within the Assembly, and then progressed to the media and public arena (political and civilian). The Assembly was indeed the focal point of the political life and the arena for its conflicts.

Despite the enumeration of the parliamentary groups and the official image of the Assembly as politically divided and experiencing political tourism (transfers between groups), the main struggle within the Assembly gradually developed into a larger struggle between two main groups. A group led by Al-Nahda, which included the members of the Troika and some "independent" members; and a second group led by the Democratic Group, comprising of numerous parties (Republican, Alliance, Social Democratic Path, Afek, Al-Watad...) and able to attract democratic members. These allegiances governed the operation of the Assembly prior to its suspension on the 6th August 2013, and their effects lasted in a less obvious manner after the suspension. The differences and the line of conflict were generally obvious during the televised Public Sessions, in the operation of the committees, in the organisation surrounding the leaders of the groups and in the Consensus Committee.

The matters in contention between the two groups were basically:

1. The contents of the constitution and the political and ideological pledges relating to it, including the organisations stemming from it and responsible for interpreting and implementing it, namely, the entire constitutional framework.

2. The executive branch, which was the first issue to divide the political arena into the majority and the opposition, despite the conviction of some that the outset of the Assembly's work during the founding stage could not sustain such a division, a view particularly propounded by the Troika as an accusation against the actions of the opposition. However, the course of events that followed confirms that this division was necessary, as it revealed a deep political gap which could not be bridged at times.

Therefore, the conflict revolved around the contents of the constitution and how to manage the earlier stage of this constitution. There was also a lively opposition to prevent Al-Nahda from solely framing this stage and irreversibly defining the entire political future of the country by taking advantage of the result of 23 October. These were not merely fears or suppositions by the opposition, evidenced by the conduct of Al-Nahda towards its own partners (Congress for the Republic, Democratic Forum....). The Congress for the Republic and the Democratic Forum for Labour and Liberties were both partners of Al-Nahda in the government, but were not partners in governing.

Therefore, it was the duty of the opposition to present a balance to the Al-Nahda movement and limit its attempts to control the present and future, as well as limiting its control of the democratic transition to the point where it would destroy the chance for democracy itself. For this reason an early request was made to separate the executive branch or part of it (the relevant ministries: Interior, Justice...). Doubts arose in relation to the role of Democracy by "majority" in framing laws in general and of the constitution in particular. The struggle between Al-Nahda and the opposition developed to the point that it influenced the opposition in the Assembly and its ability to draw media and public attention to the issues, while expressing the fears of a large number of Tunisians. It also drew attention to the regional situation, particularly the Egyptian scenario, which cast a long shadow over the Tunisian experiment and made the Al-Nahda movement act more cautiously, thus, reducing its tendency to dominate.

If the Assembly was where Al-Nahda could isolate the opposing minority, then the political movements activated by this opposition succeeded in imposing mechanisms to limit the dominance of Al-Nahda and deprive it of the ability to force the logic of the majority. These mechanisms were first utilised within the Assembly and then outside of it. They also influenced the terms of negotiation and agreement with regards to the voting mechanisms.

Consensus Committee:

The consultative format utilised by the groups was also utilised by the Assembly from the outset and was stipulated in its Rules of Procedure, which governed the regulation of the groups, the powers of their leaders and the consultative role of the Chamber of Advisors.

The role of the meeting of the leaders of the groups put pressure on the opposition, which was vocal about the need to reduce the imbalance within the general sessions and for the need to reach understandings with the opposition, due to the latter's ability to obstruct the general sessions and reject draft laws, as was the case with first draft of the Transitional Justice Bill.

Whether among the public or in the midst of the conflict, the Democratic group developed its ability to influence, oppose and obstruct despite its little number (it grew from 16 members to 24 and then 36) by attracting nearly 60 democratic members, boycotting votes and sessions, conducting media campaigns and informing public opinion in order to reach the peak of suspending the Assembly.

The Consensus Committee was formed due to the conviction of the opposing groups that it was necessary to reach an understanding, particularly as all were in agreement that the "final" vote on the constitution would require a two thirds majority.

An expanded form of the organisation of group leaders applied to the Consensus Committee, on the basis of representing all the political ideologies within the Assembly. The representation of the Democratic Group was proportional, whether in the first form, which included a larger representation (2,3) representation of Al-Nahda and the Democrats, as the first is the largest group; or even the second form where all ideologies were represented (Social Democratic Path, Republicans, Afek, the independents,...).

The announcement of the establishment of this committee came as a result of the extreme conflict over the draft constitution of 1 June 2013, and the role undertaken by the Coordination and Drafting Panel, as well as the General Rapporteur in relation to this draft, which merely reflected the dominance of Al-Nahda.

What is of importance, is that the Consensus Committee began its work prior to the assassination of El Brahmi, namely at the beginning of July 2013, and after the failure of the extraordinary session, in which the Troika sought to impose the 1 June version of the constitution, on the basis that it was the draft constitution being debated by the general session. This illustrated the awareness of both parties in the conflict of their inability to pass anything without the agreement of the other group, within a political context which could be called a balance of weakness.

In this political context, in which the need for agreement was becoming evident, as two thirds of the votes in the Assembly were required to pass the constitution; and the repeated arm twisting that occurred in the general sessions was revealed, came the assassination of Mohamed El Brahmi. If the fallout from the assassination of Chokri Belaid shook the Troika and convinced some of its leadership of the need to separate the executive branch (the aborted efforts of Hamadi Jebali) then this second earthquake convinced them. It forced them, not only to agree to an unelected government and to abandon ambitions of hegemony over the country, but also to accept a constitution with minimum compromise, to abandon the ambition to re-engineer society (Islamisation), and to submit to a process, which even if it would preserve the Convention of 23 October (Constituent Assembly), it would revise, amend and limit its powers. This is the process of a national dialogue.

National Dialogue

With the assassination of El Brahmi the fears and concerns regarding the future returned. It almost destroyed all the prior and fragile partial understandings that had been reached, particularly as the ruling majority bore the political responsibility for the growing phenomenon of religious extremism and political violence (even if we do not go as far as some protesters in accusing it of direct involvement). The crisis of confidence returned to record levels, which prevented discussions and negotiations from taking place. Therefore, the initiative of "moderate" political opposition parties was required; parties that were not engaged in any ideological extremism, such as the Democratic Alliance Party and social groups not directly involved in the partisan political conflict and which were closer to the opposition in their stance and orientation, such as the Tunisian General Labour Union, the National Bar Association, the Human Rights Association and the Tunisian Confederation of Industry and Trade. This was necessary in order to specify the contents of a settlement proposal and a mechanism to execute and adhere to it.

The terms of a settlement would include the resignation of the government, the limitation of the government apparatus and altering the work of the Assembly with regards to its calendar, the items to be addressed and the mechanism for reaching agreement. This was expressed in what was called the Road Map. As for the implementation and monitoring mechanism, it was part of the national dialogue, therefore, of the parties represented in the Assembly under the care of the four social parties.

This discussion began in early October after numerous consultations and mediations and concluded at the end of October. The resignation of the government was announced and the Constituent Assembly resumed its work in accordance with a new mechanism, which included the national dialogue and the Consensus Committee, designed to strengthen the Assembly. If the mechanism for dialogue was the mechanism of public consensus, then its executive arm in the Assembly was the Consensus Committee, which was established prior to the assassination of El Brahmi. To identify the historical role of the Consensus Committee in framing the constitution, it is sufficient to compare the draft of 1 June 2013 and the final text that was voted upon on the 26 January 2014. The Committee identified all the issues in dispute and presented solutions to reach a settlement, which became principle elements of the constitution. It also amended these solutions so they could be agreed upon while implementing international standards, which has created the constitution in the form we now recognise.

The most important points of consensus are: - To resolve the problem of amending the constitution, namely the inability to amend sections one and two without sliding anew into the ideological problems raised by the slogan "Islam is the religion of the state". - Improving freedoms and framing Section 49, which defines the regulations for the exercise of freedoms in accordance with international standards. - The constitutional recognition of the opposition and stipulating its rights (Presidency of the Finance Committee, the position of Rapporteur in the Foreign Relations Committee...). - To alter the distribution of power between the Prime Minister and the President, in favour of the latter, as well diluting the move towards the parliamentary system which Al-Nahda attempted to implement. - To impose a balanced membership of the Supreme Judicial Council, which should include two thirds of judges as opposed to half of judges as stipulated in the 1 June 2013 draft. - Confirming the role of Supreme Judicial Council in appointing some of the members of the Constitutional Court, where this was previously the preserve of the legislative and executive powers. - To stipulate the freedom of belief and conscience in clear and balanced terms, as in Section 6.

The Consensus Committee also worked to solve any urgent problems arising in the general session prior to and during the vote on the constitution, such as the issues of compensation and the rules for being nominated for President. This was after the amendment to the Rules of Procedure was ratified, allowing the incorporation of the agreements as amendments raised in the general sessions and added to the "original" draft of 1 June 2013.

This work, which continued into the early hours of the morning (four in the morning on many occasions), was important practice in the art of political negotiation. Sessions were often stopped, alliances formed and pressure applied, such as the threat to withdraw and speak to the media. Such work was an important attempt to open the Assembly to the civil population and the "experts". Three committees were utilised:

- With regards to the content: Two committees under the leadership of each of Yadh Ben Achour and Hafiz Ben Salih. - With regards to wording: The Proofreading Committee under the leadership of Sheikh Mokhtar Al-Salami.

On the whole, it is possible to attribute the significant development in the text of the constitution (despite the important developments made in the Constituent Committees and the consultations at the guest house) to the work of the Consensus Committee and the political framework that it operated within. It was a framework of consensus as defined in the road map and set by the national dialogue.

We could distinguish between the negotiation techniques, the management of the conflict and the reduction of tensions, whether by the Consensus Committee or the public dialogue, but we preferred to describe the political context in which this complicated process took place and led to the "national consensus".

We have attempted to describe the founding stage as one of constant crises, which was in our opinion its main catalyst. We have also attempted to describe the mechanisms created by the Tunisian political and social elite to resolve these crises and to push to advanced levels of constructive political action. We shall end with a few conclusions in relation to this stage and in which we acted as leaders of the Democratic group, or the General Secretariat of the Democratic Alliance Party. The following two points shall suffice:

1. The success of the Tunisian experiment in graduating from the first transitional phase, from a more settled phase to the phase of permanent institutions, can be attributed to what we have referred to as a balance of weakness. Namely, the awareness of the key political players that none of them could do as they wished with the country, i.e. to realise all of the political power. Therefore, each was forced to negotiate with the other players, to make compromises, accept settlements and half-solutions.

This "prudence" and pragmatism which distinguishes our political and social elite has saved the experiment up to now.

2. The importance of the opposition in the founding phase, contrary to the idea propagated by the supporters of the Troika to discredit the opposition, as well as by some of the well intentioned advocates of "consensus". We believe that the arduous political negotiation in which we were involved for more than three years, reveals without a doubt that consensus was the result of each one of us testing the limits of their abilities to remove the conflict between us. The Troika was not interested in consensus from the time of its formation, but became so as a result of our struggle with it.

The existence of an active and effective opposition is the only safety valve offering protection from any desires for hegemony, particularly in a fragile and emerging democracy.