The draft constitution released by the Tunisian Constituent Assembly on 14 December 2012 for public comment is the latest episode in a long Tunisian romance with constitutions. In fact, Tunisia entertains an intriguing and surprisingly long relationship with constitutions in which love and loathing intertwine.
It is not uncommon to hear proponents of institutions and the concept of the state in Tunisia accuse those who advocate Shari’a as the basis for law or newly-formed states, such as Qatar, of ignoring the key fact that Tunisia had one of the oldest constitutions on earth, the so-called Carthage Constitution dating back almost 3000 years, which attracted Aristotle’s interest and praise.
They also refer to the oldest written constitution in the Muslim world, the 1861 documents supplementing the Security Covenant (‘ahd al-aman), which limited the authority of the Bey but gave wide rights to Europeans, and a strong and forward-looking modern constitution written as early as 1957. The liberation movement in Tunisia would take this history as a basis for its demands, first in the shape of the Free Destour (Constitution) Party founded in 1920 by Thaalibi and then through the New Destour Party led by Habib Bourguiba from 1934. Members of these parties call themselves dusturi up to the present moment, a term which carried flattering or derogatory overtones depending on the politics of the time.
The truth behind this array of superlatives and claims to ordered state power warrants some investigation and recall. It is worth asking how this legacy of constitutionalism affected the formulation of the current draft constitution, which is intended to enshrine into long-term law the aims and ideals of Tunisia’s surprising and now famous revolution.
The power of constitutionalism
First, it must be noted that the transfer of power in the early days of 2011 and the several transitional phases since then reveal much about the power of constitutionalism in the country. One may indeed speak of an orderly, leaderless transfer of power in January 2011 specifically because constitutionalism was strong and alive.
When Ben Ali fled the country on 14 January, the activation of articles 56 and then 57 of the 1957 Constitution was immediate, top down and of lasting effect. The first article, pertinent to temporary vacancy in the office of President, allowed the latter’s powers to be transferred to Mohamed Ghannouchi, his Prime Minister. The second article was soon enacted by making this vacancy permanent and transferring authority to the Speaker of Parliament. This constitutional mechanism, ironically strengthened by Ben Ali in the 2002 amendments, allowed nothing short of the continuity of institutions along with the economic, social, political and legal activity in the country.
“Where in the world would you find a people who made a revolution on Friday and went back to work on Monday?” commented one observer. There was a sense that nothing and everything had changed at the same time. The key to this transition was a thoroughly institutionalised state, and key to the latter was the long and well-entrenched constitutional history of the country, despite decades of abuse by successive leaders.
Since then, a number of telling contradictions– always with reference to constitutionalism – have taken place and must be noted.
The constitutional richness of the first transitional period vs. the poverty of the current one
The main part of the transition was run by a scholar of constitutional law (Yadh Ben Achour) who chaired the Committee for Political Reform, Democratic Transition and Protection of the Aims of the Revolution (CPRDTPAR); its first spokesperson, Ghazi Ghrairi, was also a constitutional law scholar.
Among its members were a powerful cast of individuals nominated on the basis of their standing as national figures (intellectuals, academics, human rights advocates, regional leaders, etc...). The committee also had its own panel of experts who drafted key legislation, most prominent of which was the Independent Election Commission (ISIE) and the electoral code of 2011 on the basis of which Tunisia ran its widely acclaimed elections on October 23, 2011. These elections resulted in the current Constituent Assembly and government. They also gave rise to a reversal of constitutional culture.
Of the 217 members of the Assembly, only one is an expert in constitutional law; no prominent intellectuals were elected and very few members of Ben Achour’s committee won seats. Instead, and due to the elections, the meteoric rise in the number of parties and electoral system based on lists and parity between men and women, a large number of elected candidates with very little political training, and in some cases, even low education level, found themselves in an Assembly entrusted with the writing of a new constitution.
For example, the region of Kasserine is represented by eight members, six men and two women, who include a primary school teacher, a lawyer, an exiled businessman, and one unemployed community college graduate. Al-Nahda’s heads of lists were almost exclusively the old guard who spent years in jails or in exile, and had little professional experience and knowledge of the country.
This composition of the Assembly resulted in a low level of debate and uninformed engagements with the complex work of a body responsible for all legislation as well as the oversight of the government. The Constituent Assembly soon became a favourite subject of jokes among cartoonists, on social media and television shows.
The Tabula rasa approach caught between revolutionary aims and eradication of secularism
The Assembly made the decision to start drafting the constitution from a blank page. This in itself was initially argued as a radical move designed to meet revolutionary expectations and start anew the construction of a nation plagued with autocracy and corruption.
In reality, it was a political manoeuvre, which will prove to be costly in time, money and national cohesion. The idea of a blank page sacrificed historical memory and ignored existing expertise as well as draft projects prepared by Ben Achour’s committee of experts and ideas put forward by the national union of workers (UGTT) and civil society groups. At a high financial cost and 18 months later, the draft constitution was released to the public on 14 December. How radical is it? How does it relate to the previous constitution?
The draft of a new constitution for Tunisia
Overall, the draft is long, verbose, even narrative in places and tends to uses rhetorical rather than legal language. It remains vague about the universality of human rights and the limitations on freedom of expression. But it also contains several new elements to be lauded, particularly in the fields of media and economic rights.
All of these warrant extensive comment. But here, I will focus only on the opening of the draft, including the prelude and the closing, namely, amendments. They both bear the imprints of negotiations and compromise. They also point to the debate still ahead before a final version is released.
One major surprise has been the rise in identity politics in a country with such a settled sense of self and institutions. Article One has become emblematic of such a debate. The identity of the people, the nature of the state, and the sources of its law are the cornerstone of the constitution and its most problematic feature. After much upheaval, including violent clashes and months of haggling, largely over the demand to take Shari’a as the “source” or the basis of legislation, which was al-Nahdha’s initial demand and the key aim of salafi movements, a compromise was found. It consisted, ironically, in adopting Article One of the 1957 Constitution verbatim.
In the chapter, ”General Rules”, Article One in the published translation relating to the draft of 14 August 2012 reads: “Tunisia is a free, independent and sovereign state. Its religion is Islam, its language is Arabic and its form of government is a Republic.” In the Arabic language of the text, there is an ambiguity: “its”, in the phrase, “Islam is its religion”, has long been understood to refer to Tunisia, that is, the country or the people, not to the “state”. This is a crucial point, perhaps the most significant one, because at stake is nothing short of the civil nature of the state and the relationship between state and religion.
This compromise won consensus, which indicates how far both sides have gone to accommodate each other in the context of divided power. But the closing article of the draft constitution throws this compromise into doubt. Article 148 of the chapter, “Amendment to the Constitution” includes the statement: “No constitutional amendment shall harm (yanal min) Islam in so far that it is the religion of the state.” According to proponents of the Islamic nature of the state, it specifies this point while those who call for a civil state argue it abrogates it.
The article names other cases exempt from amendments, in an attempt to take into account all sides, rather than come to a decisive and precise binding language. The protected areas include: “Arabic language in so far that it is the official language; the republican system; the civil nature of the state; the acquired human rights and freedoms guaranteed in the constitution; the number of presidential terms and their duration by addition.”
A fractured palimpsest
Overall, the constitution reflects the fractured politics of the country since the last elections. It is also a palimpsest of the various phases, projects and views negotiated or forced through during this long period. It tells the story of its making as well as the period within which it has been written.
In some ways, one can read through it the process by which the Islamist al-Nahda has governed Tunisia so far and responses to it by a strong civil society and vocal opposition. The draft also reflects the lack of expertise in the Constituent Assembly in its language and formulation: it is vague in many ways, literary in some parts, and rhetorical rather than legal.
For a document, which strives to outlast history in terms of longevity, the draft is rather historical, even dated in some ways. However, the Tunisian constitution could not be more different than its Egyptian counterpart, which is largely one-sided in its composition and outlook, and which in the end got the approval of only around 20% of eligible voters, a result which reflects the minority nature of the conception and approval process which unfolded in that country.
With regard to Tunisia, and for the reasons just mentioned, I predict further key changes to the draft constitution in the months to come and that it will pass without being put to a referendum. Otherwise, and here again Tunisian constitutionalism can serve as our guide, another rebellion could be in store. The constitution of 1861 burdened people with taxes and triggered the 1864 rebellion, led by Ali Ben Ghdhahim, known as the Bey of the country – by people who united the central and southern tribes against government and threatened the state itself. The 1957 Constitution was amended to give President Bourguiba rule for life, then again to give Ben Ali absolute power, thereby triggering the January 2011 revolution.
In drafting the constitution, members of the Assembly ignored the legacy of constitutionalism in Tunisia openly but have acknowledged it in practice and as they found it convenient to do so. By applying finality to a document which is supposed to last for a century or more, history is ignored.
For who indeed can know for certain whether a century from now, the religion or the language of Tunisia will remain the same? The on-going conflict in the country remains about what Tunisian politicians call the societal project; and the draft constitution reflects that. Identity politics, brought to a sharp pitch by the Islamist relative majority, is contingent upon current politics, not a prediction of the future.
Will the next revolution be specifically against this finality in the constitution? If this were to be the case, it is a good thing, then, that the draft constitution has maintained the same mechanism which allowed transition of power in the case of major change at the head of the state office.