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The Constitution-Making Process in Tunisia

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The Constitution-Making Process in Tunisia CONSTITUTION REPORT ✩ The Constitution-Making Process in Tunisia Final Report 2011–2014 CONSTITUTION REPORT ✩ The Constitution-Making Process in Tunisia Final Report 2011–2014 One Copenhill 453 Freedom Parkway Atlanta, GA 30307 (404) 420-5100 www.cartercenter.org Contents Foreword . 4 Constitution-Making and Adoption Process . 34 Executive Summary . 6 The Lead-Up to the First Draft . 34 Organization of the Drafting Process . 7 The First Draft . 35 Communication and Outreach to the Public. 8 The Second Draft and Draft 2bis . 36 Transparency and Accountability . 9 The Third Draft . 36 External Engagement in the Process . 9 The Fourth and Final Draft. .. 37 Key Issues in the Constitution . .. 11 The Lead-Up to the Constitution’s Adoption . 39 Conclusions and Recommendations . .. 11 The Adoption Process . 42 Implementation of the Constitution . 12 Recurring Challenges During the Process . 46 The Carter Center in Tunisia . 16 Representation and the Politics of Shifting Alliances .. 46 Constitution-Making Process Observation Methodology. 16 Absence of Issue-Based Coalitions. 50 Organizing of the Drafting Process . .50 The Constitution-Making Process . 21 Inadequacy of the Rules of Procedure . 51 Historical and Political Background: Political Context Prior to 2011 . 21 Absenteeism and Accountability . 53 The Revolution of January 2011 . 21 The Role of Experts and the National Constituent Assembly’s Legal Advisers .. 55 The Immediate Post-revolution Period . .. 22 Absence of a Judicial Review Mechanism. 56 Constituent Assembly Elections of October 2011 . .. 23 Transparency, Accessibility, and The Postelectoral Period (2011–2014): Public Participation . 58 Three Years of Transition . 24 Transparency and Accessibility of the Process . 59 The Framework for the Constitution-Making Process . 30 Public Consultations and Citizen Involvement in the Process . 67 The Legal Framework . 30 External Engagement in the Process . 71 The Organizational Structure . 31 The Role and Impact of Civil Society . 72 Political Party Outreach and Immediate Post-adoption Outreach Efforts . 95 Advocacy Efforts. 74 Conclusions and Recommendations . 98 International Input and the Role of Implementation of the Constitution . 98 International Organizations . 75 Appendix A: Acknowledgments . 102 Key Issues in the Tunisian Constitution . 78 International Law . 78 Appendix B: The Carter Center Monitoring Team . 103 Human Rights in the Constitution and Their Universality . 79 Appendix C: Terms and Abbreviations . 104 Religion in the Constitution . .. 80 Appendix D: Key Reference Rights and Freedoms . 82 Documents and Resources . 106 The Principle of Nondiscrimination . 84 Appendix E: Statements and Press Releases . 108 Protection of Women’s Rights and Equality . 84 Economic, Social, and Cultural Rights . 86 Election Rights . 87 Structure of the Political System . .. 88 Role of the Judiciary . 90 Transitional Provisions . 93 Foreword Three years following the fall of the Ben Ali the Ben Ali regime led Tunisians to opt to suspend regime and more than two years after the 2011 the 1959 constitution soon after the revolution election of the National Constituent Assembly, and to elect another Constituent Assembly to Tunisians took a decisive step in their quest draft a new constitution with the hope that it to break from the country’s authoritarian past, would represent all Tunisians and chart a path for adopting a new constitution on Jan. 27, 2014. the country’s transition from authoritarianism to Though the road to the constitution was chal- democracy and equality. lenging, a spirit of openness to compromise and The election of the 217-member National consensus-building prevailed, ensuring that Constituent Assembly (NCA) took place on Tunisia could reach this historic milestone. By Oct. 23, 2011, and was largely peaceful and cred- engaging in dialogue and compromise, Tunisians ible. Although the NCA faced many challenges, made a powerful statement that is reverberating including the tragic assassinations of opposition across the region. leader Chokri Belaïd in February 2013 and of Tunisia has an illustrious constitutional tradi- assembly member Mohamed Brahmi in July of tion that dates back 3,000 years. Carthage, the the same year, Tunisia’s political actors showed powerful Phoenician city–state located in the Gulf commitment to moving the constitutional process of Tunis, had its own constitution. Many centuries and the country forward. In the fall and winter later, the 1857 Declaration of Rights gave all of 2013, they engaged in a national dialogue that residents of the kingdom of Tunisia certain rights played an important role in resolving the political and freedoms, regardless of religion, language, or deadlock and paved the way for the constitution’s color. The constitution of 1861, considered the adoption in January 2014. The new constitution first written constitution in the Arab world, would lays a strong foundation for the guarantee of soon follow. Nearly a century later, shortly after human rights and creates institutions to ensure the country gained its independence from France, respect for the rule of the law in the country. Tunisians opted to form a National Constituent The NCA’s work was an achievement marked Assembly to draft a new constitution, which was by dedication, compromise, and democratic adopted on June 1, 1959. In the decades that engagement. It represents the best of the social followed, the constitution was amended several movement and goals of Tunisia’s revolution and times in order to strengthen presidential powers, the Arab Spring, providing a concrete path for first of Habib Bourguiba, who maintained power Tunisia to re-establish democratic institutions, for 31 years, and then of his successor, Zine El strengthen the rule of law, and promote respect for Abidine Ben Ali. fundamental human liberties. Although the 1959 constitution enshrined The Tunisian experience offers rich lessons certain rights and freedoms, its association with for other countries in the region engaging in 4 constitution-building projects, especially those existing legal framework to ensure that Tunisia’s experiencing political transitions. But the story is laws are consistent with international commit- not finished yet. ments to human rights and those rights protected The constitution’s adoption opened the door by the new constitution. In addition, we urge the for the legislative and presidential elections that judicial system to protect the freedoms of religion occurred in 2014, as mandated by the constitu- and speech, the Assembly of the Representatives tion’s transitional provisions. Tunisians have to make information about their work readily grown weary of interim state structures and available to the public, and civil society to desire permanent institutions that can tackle the continue to participate actively in the construc- significant economic and security challenges that tion of new institutions. A steadfast commitment face their country. With a newly elected assembly to the core principles found in the new constitu- and president in office, Tunisians must focus on tion will ensure that Tunisia’s democratic future bringing Tunisia’s laws and regulations, most is protected. of which date from the prerevolution era, into We wish the Tunisian people and its leaders alignment with the human rights commitments continued success in these endeavors. provided by the constitution. The Carter Center is inspired by the eagerness of Tunisian citizens as they move forward on their path to democracy. We hope to support Tunisia’s Former U.S. President Jimmy Carter progress by highlighting the recommendations laid out in this report. Our foremost recommendation Founder of The Carter Center is that the government of Tunisia reform the The Constitution-Making Process in Tunisia 5 Executive Summary Following a popular uprising — dubbed “the constitution and the rights and freedoms enshrined Jasmine Revolution” — in December 2010 and therein. Throughout this period, the Center January 2011, which ended the 23-year rule issued public reports on the content of the various of President Zine El Abidine Ben Ali, Foued drafts as well as the drafting process, including its Mebazaâ, the interim president of the republic, inclusiveness and the extent to which it upheld suspended the 1959 constitution, and Tunisia principles of transparency and participation of opted to write a new constitution. The first citizens in the public affairs of their country. step in the constitution-making process was the The main goals of the Carter Center’s work election of a 217-member National Constituent were to help make the constitution-making Assembly on Oct. 23, 2011, tasked with drafting process more transparent and accessible to the and adopting the new constitution. The NCA public and to raise awareness among NCA approved the constitution on Jan. 26, 2014. On members regarding Tunisia’s international human Jan. 27, the constitution was officially adopted rights obligations, with a view to ensuring that by the president of the republic, the president of these commitments were fully reflected in the new the NCA, and the prime minister, following a constitution. During the period it monitored the challenging and complex process that seemed at work of the NCA, The Carter Center released times on the brink of collapse, notably due to an 17 statements on the situation in Tunisia, out of economic crisis, deteriorating security conditions, which nine specifically concerned developments and two political
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