The Tunisian Constitution: The Process and the Outcome Mohamed-Salah Omri, University of Oxford

Aimen Zine/AP Photo The National Constituent Assembly (NCA) Paradoxically, the second phase was designed recently passed the new Tunisian Constitution to facilitate the writing of a constitution by on 26 January (and endorsed it officially on electing the NCA, but got bogged down in 27 January), to emotional and widely reported electoral politics and sidelined its own mission. scenes. This constitution may be as important Another paradox is that the parties entrusted in the way it came about as in what it actually with this task ended up literally unable (many says. In both its formation and its content, of them perhaps unwilling) to bring it to much is at stake for , the continuing a conclusion, until civil society mediators revolutions in the Arab world, and beyond. In compelled them to turn their minds to it in a previous extended article, I discuss the culture the aftermath of political assassinations and of constitutionalism in Tunisia, and how this mass street protests. The first of these, the latest episode is related to this tradition and killing of Chokri Belaid on 6 February 2013, bears its imprint. was a turning point in the transition period in the country. It marked the silencing of The first phase of the transition after the Ben an influential voice that often spoke about Ali dictatorship was rich in constitutionalism. “Tunisian intelligence,” by which Belaid meant High Election Commission, and to complete a critical mass of educated elite formed through the constitution while protecting against a a specific educational system, and a confluence power vacuum. The president was largely kept of historical and geographic factors unique to in place to provide legal continuity, while the the country. That intelligence, he argued, was NCA was recognized as a legitimate body. In both what would save the nation and in what order to speed up the constitutional track-our the post-revolution state should invest. focus here—the formula was as follows: the Consensus Committee within the NCA would Part of this cadre of intellectuals and elite are review every article before presenting it to the the labor movement and civil society. Indeed, general session of the NCA for debate and vote. throughout the past three years, and through When agreement proved impossible within five governments and three presidents, one the committee, the presidents of blocs within thing remained constant; this was namely the the assembly would meet with the assembly culture of dialogue, compromise, and what may president to hammer out a compromise. If be called institutionalism. By the latter, I mean no agreement was reached there--and this did a belief in and a consolidation of institutions happen when dialogue broke down both over even as the system as a whole was faltering. The Article six and over the status of the judiciary- frame of dialogue and the “political road map” -then party presidents and the Quartet were masterminded by the main trade union sponsoring the dialogue would meet and find a (the Tunisian General Labor Union, known way through. by its French acronym, UGTT) and three key civil society organizations: the association A thorough comparison between the 1 June of business owners (Union Tunisienne de version of the constitution and the one that l’Industrie, du Commerce et de l’Artisanat), was eventually adopted reveals the extent of the the Tunisian League of Human Rights, and the compromises reached and hints at the tensions, Lawyers’ Association. These groups have been the drama, and even the comical moments the determining factors in the text as well as the played out for all to see. (Debates were aired context of the constitution. live on a national channel and painstakingly monitored by the media as well as dedicated There has been a lot of pressure from outside civil society associations, chief among them parties, the European Union, Algeria, and the Bawsala.) Overall, most of the contentious United States (to name a few), but the dialogue elements in the previous version have been in its leadership, mechanisms, and the road eliminated or smoothed out. I will focus on map emerging from it was an indigenous key issues, referring to the relevant articles, invention. A brief reminder is in order here: in an attempt to trace their history, note their When polarization and mistrust reached transformation, and draw some conclusions their climax in the aftermath of the July 2013 about both the text and the process. I will assassination of NCA member Mohamed conclude with some remarks on drawbacks and Brahmi, a leader in the , the prospects. UGTT leadership and its partners, (which When the Shouting Match between Two will become known as the Quartet) stepped Deputies Is Only the Tip of the Iceberg in to forge agreements. They worked out an overall plan based on three key points. These Perhaps no two members of the NCA have were: a governmental process, a constitutional generated more controversy and attention than track, and an electoral track. The overall aim Mongi Rahoui and Habib Ellouz. In important of the plan was to establish a new government ways, they illustrate the diversity within the of independent technocrats, to establish the assembly in terms of style, generation, region, Nevertheless, preventing accusations of apostasy and ideology, and how the constitution came marks a key innovation among constitutions to be. Rahoui, in his late forties, represents in the Arab world, a matter consolidated in Jendouba, a poor area in the northwestern the chapter devoted to rights and freedoms. part of Tunisia, and hails from the same leftist These include freedoms of creativity, academic party as the late Chokri Belaid. Ellouz, in his research, and improved rights for women. sixties, is a founding member of Ennahda and Indeed, the adopted constitution brought about is considered an unreformed hawk. He comes further gains to an already relatively advanced from the powerful and dynamic city of Sfax. legislative situation. The conflict stared around Article 1 and ended up affecting Article 6. Article 1 reads: “Tunisia In earlier versions, women were designated as is a free, independent, and sovereign state. “complementing” men, which was vehemently Islam is its religion, its language, and opposed by active and powerful Tunisian the republic its system [sic].” While debating women, among others. Article 46 extends whether Islam is the religion of the state or rights of women to parity in elected office and the people in the phrase “Islam is its religion,” equality in work opportunity. This was achieved Ellouz mentioned on a radio program that thanks, in part, to a coalition of women from Rahoui, who insisted the pronoun “it” refers across party lines within the ANC. to the people rather than the state, was known The other key achievements, again in line with for his enmity toward Islam. Immediate the aims and demands of the revolution, are in reactions resulted in threats to Rahoui’s life on the areas of the judiciary, good governance, and the grounds of apostasy. Rahoui addressed the the consolidation of democratic rule. threats in the NCA effectively and emotionally, and he insisted that unless calls for apostasy The battle to enshrine the independence of the were banned, no freedom of conscience judiciary has been long and arduous, and it was could take place, and thus, a key demand of not achieved until the very last debate of the the revolution would be denied. The whole relevant articles in the constitution (Articles consensual process came to a halt until a 102-124). Ennahda insisted all along on some change was debated and approved. Article 1 level of control or oversight by the executive remained the same but Article 6 was changed to over the judiciary, but in the end, they lost accommodate this demand. It now reads: that argument. The appointment of judges is now by “exclusive” right of the Supreme The state shall protect religion, guarantee Judicial Council. The latter also has financial freedom of belief and conscience and religious and legal independence. It must be noted that practices, and ensure the impartiality of corruption and politicization in this sector mosques and places of worship away from has been high; it will be interesting to see how partisan instrumentalization. The state shall much this self-governance can impact matters commit to spreading the values of moderation in the long run. But there may be mechanisms and tolerance, protecting sanctities and built into the new constitution, which could preventing attacks on them, just as it shall tackle this. commit to preventing calls of takfeer [calling someone an unbeliever] and incitement to Indeed, good governance is addressed hatred and violence and to confronting them. through devolution to elected bodies at the regional level, and a dedicated Constitutional Ennahda made a major climb down, but the Commission for Good Governance and Anti- article remains less than straightforward and Corruption (Articles 125-130), together with should prove a serious challenge for legislation. other measures of control. This commission is part of a number of independent constitutional The Tunisian constitution is the outcome bodies not commonly found in other countries: of a process of a struggle over what the post- the Constitutional Commission for Human revolution society is going to be like. The Rights; Constitutional Commission for the deadlock did not lead to open conflict, but Audio Visual Communications to oversee the instead, to negotiation and tradeoffs. The media; and the Constitutional Commission development of the constitution over the last for Sustainable Development and the Rights three years is organically linked to the dynamics of Future Generations to act as watchdog on in the country over the same period. Its final development policy. version bears the traces of mutual distrust among the two main political poles. And Narratives and Prospects just like any compromise, it opens room for This complex constitution enshrines principles interpretation. One thing is certain: the turn of devolved government, independent towards a religious state in Tunisia has been judiciary, and media. It entails a complex set of aborted. Now begins the work to consolidate principles that in parts seem contradictory (e.g. and enshrine into laws the foundations of protecting sanctities and protecting freedom of a democratic, civil, and just state. For this artistic expression), and outlines an elaborate reason, the next elections are absolutely crucial balance of power sharing between the office of to the future of Tunisia, to the role of political the president and that of the president of the Islam, and to the region as a whole. government. I can foresee a situation where On a more prospective level, this process is interpretations and counter-interpretations ingenious. I am not sure how it came about or will be the order of the day. I can also foresee whether it had a precedent elsewhere. But it how the two branches of the executive may be is certainly worth studying, and perhaps even one of the thorniest issues. It is no secret that emulating in similar situations, since it has Ennahda has always preferred a parliamentary been the determining factor in bringing about system. Their main argument has been that a decisive turn to democratic and civil rule in such system would prevent the dangers of Tunisia. One further issue is worth bearing accumulating executive power in the hands in mind. The national dialogue in Tunisia of a president in a situation that might open resulted in three simultaneous outcomes: an the door for a return to previous abuses. The independent government whose members party also estimated that its chances would be are not allowed to run for office in the next better within a parliamentary framework due elections, a consensual constitution, and an its perceived popularity, particularly in 2011. independent election commission. All three Other political actors argued that a mixed have been designed to remove political parties system would create chances for better balance, from government until next elections. This especially if parliamentary elections result in a has evened out the playing field and changed dominant winner. Now that a mixed system has the rules of the game for the next elections. been agreed upon, elections become important, Ennahda is no longer driving the agenda, as does whether they take place at the same time and its opponents can no longer continue or at different times (the latter an argument put capitalizing on opposing its policies. The forward by Ennahada’s rivals). However, the outcome of this unprecedented situation is electoral code is now under debate within the anyone’s guess. For now, attention is directed same dialogical framework mentioned above toward constructing narratives of a complex and should settle this issue. process and capitalizing on the outcome. For Islamists, the question now is how to sell the new constitution to their base. Ennahda has in truth, does not guarantee it on the long-run. been forceful, at least at the public level, in The state, in Article 12, promises no more than packaging this as a party victory. The party’s “striving to,” rather than the much demanded political future depended on its ability to “commits to” achieve regional balance within remain a major player, which could only be the framework of positive discrimination. achieved by offering meaningful concessions. Many of the party’s supporters were only too A further troubling feature of the constitution aware that a situation similar to Egypt must relates to amendments. While there is more be avoided. On the other side, the effort prominent room for future changes in adopted is underway to claim it was the opposition version than in the previous one, a number who delivered a democratic and honorable of articles are expressly protected from constitution to the country, restoring the image amendments. These exceptions reflect mutual of Tunisia as a success story in the outside distrust between the two main poles in the world. country with regard to the issue of religion and the state, the protection of freedoms (Articles Measured against the aims of the revolution, 1 and 2), and a desire to prevent the return to the constitution can be said to have met a the practice of extending presidential terms number of key expectations. But for those in (Article 75). However, this finality deprives the marginalized parts of the country, seeking future generations the right to change the tangible improvement in their social and constitution to suit their time and aspirations, economic situation, the constitution is not except by suspending the constitution itself. K going to do that-not immediately at least-and,

A version of this article was published on 12 February 2014 by .