A State in Society the Identity of the Tunisian State in the Constitution
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A State in society The identity of the Tunisian state in the Constitution. Sadok BELAID Looking back at a founding ambiguity The question of the identity of the State is an old one, which has been asked since the very first days of Tunisian independence. That was the first time that power had been Tunisian – embodied by Tunisians, for Tunisians. Consequently, Tunisia has only been wrestling with such matters of identity since 1956. To understand the terms in which the question arises today, it is essential to look back at what was decided at the time of independence. We must look back at the key episodes in the conflict over the State's identity to understand how it shapes today's political forces in Tunisia. In the 1950s, with the advent of independence, two opposing visions emerged: on the one hand, a traditionalist view, more "Zitouna" than Muslim Brotherhood, built and advocated by sheikhs and by professors at Zitouna University, who tried to transplant their vision into the constitution; and, on the other, the vision of those close to Neo-Destour. It was the first time the Tunisian State had been independent, sovereign. It encountered all the difficulties that every religious country in the world faces: the difficulties of religion. Habib Bourguiba then found an ingenious compromise: he created a misunderstanding of the nature of the Tunisian State and enshrined it in the Constitution of 1959. That misunderstanding left everybody satisfied: some said the State was conservative, while others claimed it was liberal and reformist. The ambiguity ran deep and attracted criticism from some advocates of more radical approaches, but, when the time came, Bourguiba silenced them all, banging his fist on the table and declaring, "this is the way it is going to be". Upheaval and tensions Since then, Tunisia has changed. There was the Ben Salah experiment, for instance. The country has changed not only politically, but economically and socially. We have found ourselves confronted with a number of problems, to which we have had to find answers. For some, these answers were inspired by a liberal philosophy; for others, it was quite the opposite. Since the 1970s, the tensions and debates surrounding the definition of the Tunisian State's identity have not abated. The Hédi Nouira period brought change, then the pendulum swung back in the opposite direction. During the Bahi Ladgham and Hédi Nouira governments, Hédi Nouira, for whom I worked as an adviser for over ten years, asked me to conduct a study on the subject. That was in 1973. The line I took was as follows: from a socio-cultural perspective, we can observe that the language of the Tunisian people is Arabic and that their religion is Islam. Putting that in an article of the Constitution simply means that I, as a Tunisian constitution-maker, am observing that the Tunisian people speak Arabic and are, in the vast majority of cases, Muslims. Language is not part of the State, therefore. It has a cultural dimension, not a normative one. If it were part of the State, it would be mandatory and French would be forbidden. So the State has been relieved of that burden. There is no prohibition in this provision. People can speak in Arabic or in French; whereas in Algeria, everything is Arabized. However, we did not dare go as far as Senegal, which puts French and Swahili on equal footing. In the Tunisian Constitution, the language is not a norm. That idea was deemed to be an intelligent one and, after a debate, was accepted at a meeting. 1 That ambiguity was always in danger of exploding, and brought tensions to the surface. It was the ambiguity in that initial choice that sparked the creation of Rached Ghannouchi's Ennahdha movement, or, as it was then, the Movement of the Islamic Tendency. It was a reaction to that ambiguity, which was then hijacked and exploited by all and sundry. Rached Ghannouchi and Abdelfattah Mourou, whom I knew during the Campus university era, were asking lawyers questions. They were a minority, who were then joined by the people who would go on to become the group's historic leaders, such as Ali Larayedh. The question of State identity was not the only factor explaining the development of the Movement of the Islamic Tendency; the international context also played an important role. Ennahdha emerged outside of the Zitouna movement. Indeed, it was an anti-Zitouna movement, which criticised the Islamic university for its complicity with the regime. That was what prompted the first clashes on the campus. At the time, I was faculty dean and I saw a small group begin to congregate on the lawn in front of the administration building. There were not many of them at first – no more than twenty people – but then the group grew and there was no longer room for all of them on the grass. It was a dark period... I was there. I was known for being a liberal and a French-speaker. My policy was to keep the peace, to avoid clashes so that everyone could get on with their work. But there came a point when the tensions were running high. That was in the mid-seventies. Confrontations were taking place at the university between "liberal" students and those close to the Movement of the Islamic Tendency. The students were armed. They were slaughtering each other in the university courtyard. Those students are now politicians in positions of power. At the time, the tensions were palpable, but the social and cultural balance of the country as a whole was one of a liberal majority against an Islamist minority. The upheaval triggered by Hédi Nouira spawned violent Islamists. Then came the suffocating silence of the Ben Ali era. Revolution and Constitution This ambiguity came to the fore once again after the revolution, when the constitution- making process began. When that work got under way in 2011, we carried out a number of consultations, including my rather feeble effort, which used the 1959 Constitution as its starting point. In particular, I had kept Article 1 unchanged. At that point, only a few of my more courageous colleagues, such as Yadh Ben Achour, Fadhel Moussa, and Slim Laghmani, had suggested challenging and amending that article. The Tunisian Constitutional Law Association, presided by Farhat Horchani, played an important role in challenging Article 1. It was the first to suggest replacing it with two articles: one on cultural matters and a second dealing with normative and legal aspects. The combination of those two articles would finally remove any ambiguity, and given the context, the chances of the liberal tendency getting such wording accepted seemed remote. Article 2 was a response to the cleaned-up Article 1. However, this version of the Article, introduced in spring 2013, ran counter to Article 141, which established the points that could not be amended. Article 2 encouraged a liberal reading of Article 1, stressing the fact that it was purely declarative, whereas as Article 141 went further, inviting a reconsideration of the first two Articles as normative provisions. The lawyers immediately spotted this contradiction and proposed that a committee of legal experts be formed to settle the question of which Article should prevail. The opinions were divided. Back then, there was no majority view; whereas today, though the ambiguity remains, most lawyers interpret the Article as a declaration and not a norm. The balance of power has therefore shifted towards the liberals, and I think that as Tunisia develops and continues to cut loose, the ambiguity will disappear of its own accord. Soon, it will be impossible to make a conservative reading of the Article. Today, we find ourselves in a much more favourable situation than just after the revolution. Tunisia is a civil State… 2 The concept of a "civil State" is a new one, enshrined in the Constitution for the first time. Is this concept not another source of ambiguity? We do not know exactly what it entails, though the wording of the Article may help us to establish a definition. To understand exactly what a civil State means, we need to put it in context, and remember what was going on outside of the Assembly when people first began talking about this notion. At the time, the civil State was presented as the opposite of a military State, a fairly simplistic distinction. Today, we understand the constitutional enshrinement of the civil State to signify that Tunisia is not a religious State. It means that the State is separate from religion. It means Tunisia is a democratic State, a secular State, a non-Islamic, non- religious State. This point has even led us to the idea of civil citizenship. The question of citizenship is linked to Article 1 and its ramifications. It is an extremely important idea which needs to been given a clearly defined place in the Constitution. I had devoted a chapter to it in my draft Constitution but, unfortunately, the final text adopted by the Assembly contains no identifiable chapter or passage on the subject, which is dealt with in the preamble. I find it regrettable that the constitution-makers did not pay more attention to the concept, and I can only assume that this is why Tunisians subsequently behaved in such an uncivil and uncitizenlike manner... because of a gap in the Constitution. Appointments From the revolution in 2011 until 2014, Tunisia was torn apart as various political tendencies battled to grab power. All political tendencies behaved appallingly: the Ennahdha movement, Congress for the Republic, Ahmed Nejib Chebbi's Republican Party.