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Defending Tunisia’s constitution

Tunisia faces the challenge of responding to security threats while avoiding a return of the security state that Tunisians rose up against in 2011. It's a rocky but clearly marked path.

Last week’s attack on the Bardo museum right in the heart of Tunis put the spotlight on Tunisia’s vulnerability. The country is rightly hailed for its inclusive transition from dictatorship to democracy, which was carried out by elected civilians. Since the adoption of the new constitution in January 2014, it has also been widely described as the one country in the region that is achieving democratic stability. But the reality is more complicated.

Demonstration in front of the Bardo museum after the attack. Hamideddine Bouali/Demotix. All rights reserved.

With its weak economy and now even more obvious security challenges, Tunisia could derail in two different ways: on the one hand, the country could gradually be drawn into the regional vortex of violence, if the state fails to respond to the security challenges that have become more acute since neighbouring Libya descended into chaos.

On the other hand, fighting terrorism could lead to the return of the security state that Tunisians rose up against in 2011. The challenge is to avoid both extremes and to stay on the rocky but clearly marked path of strengthening a nascent democracy that defends itself within the parameters of its new constitutional order.

It may or may not have been a coincidence, but at the time of the attack, a parliamentary committee was holding a hearing on a new anti-terrorism law—just a hundred metres from the museum. The law will be a test for how the new constitution will be implemented. Understandably, the government is proposing procedures that allow for state institutions to deal with specific security threats.

It is however imperative that the law is not now re-written and rushed through parliament to remove fundamental principles like access to a lawyer during detention, a judge’s authorisation for wire-tapping, or clear timetables for prolonged detention periods for suspected planning of terrorist acts. It is essential that a truly independent judiciary supervises the respect for these fundamental principles.

Many key institutions designed to protect the new constitutional order in Tunisia are still to be set up. According to the constitutional timetable, a Constitutional Court will be established later this year. It should serve as a judicial guarantor of the Constitution. An independent human rights institution is also planned, as well as decentralised councils to better serve the basic needs of Tunisians where they live.

Furthermore, long overdue local elections should also take place. The new parliament and government, elected in December last year, need to start working to establish these institutions. After more than four years since the 2011 revolution, Tunisians should be able to reap the fruits of their revolution by having a real say in local affairs.

The increasing security challenge will however put massive pressure on Tunisia’s fragile emerging constitutional framework. It is worth remembering that Germany’s constitution was under serious strain in the 1970s when left-wing militants attacked the political and business elites.

Many called for measures that would have steamrolled fundamental rights. But at that point, the German constitution had already been in place for 30 years and withstood the pressures. In Tunisia, the security challenge is far greater while the legal framework is still new. Democratic institutions and traditions still have to take root, some have yet to be established.

After more than two years, the deliberations in the constituent assembly resulted in a constitution based on broad consensus, adopted by more than 90 percent of the assembly’s members. That alone makes the constitution an asset for the entire Tunisian society, worthy of being protected by all. 

But the document now needs to be implemented and to start shaping public life. The security services and the executive in general must respect it, students must learn it, attorneys must use it and judges must defend it.

This is a critical time then for Tunisia’s new political order. Political parties should clearly signal that democracy is not a luxury to be reserved for better times, but that it remains a foundation for the real stability most Tunisians yearn for. They should also make clear that democracies have the right to defend themselves.

After witnessing the destruction of Weimar democracy in the early 1930s, German jurists in exile during the Nazi period developed the concept of ‘militant democracy’, perhaps better translated as ‘democracy with teeth’. Human rights can be limited to avoid extremists abusing them to attack and suffocate democracy itself.

Tunisia has a clause in its new constitution, which is in line with international human rights conventions on how rights can legitimately be limited. It includes guarantees that such limitations do not ultimately dismantle the essence of these fundamental rights, including political rights such as freedom of expression, assembly and association.

This is one of the legal foundations for fighting terror without destroying democracy. Last week, Tunisia’s emerging democracy came under attack. The next steps taken will be decisive. They could undermine the constitutional foundations of Tunisia’s democracy, or build on them to defeat violent extremism.


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