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Tunisia's New Constitution: How Compromise Won Out Over Conflict

Tunisia's new constitution marks a decisive turn to democratic and civil rule, not only in its content but in the context of how it came about.
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Tunisians taking to the streets in October 2011. Photograph by Ezequiel Scagnetti/European Parliament.

The constitution that was finally passed by Tunisia's National Constituent Assembly (NCA) at the end of January may be as important for the way in which it came about as for what it actually says. In both its process and outcome, there is a lot at stake for Tunisia, the continuing revolutions in the Arab world, and beyond.

In a previous article, I talked about the culture of constitutionalism in Tunisia and how the latest episode of it bears its imprint. The first phase of the transition after the overthrow of President Zine El Abidine Ben Ali was rich in constitutionalism; the second one, in which the NCA was elected to write the constitution, got bogged down in electoral politics and sidelined its own mission. The parties entrusted with the task ended up unable, many of them perhaps unwilling, to bring it to a conclusion until they were compelled to turn their minds to it by civil society mediators in the aftermath of political assassinations and mass street protests.

The first of these assassinations − the killing of Chokri Belaid on 6 February 2013 − was a turning point in the transition and marked the silencing of an influential figure who often spoke about “Tunisian intelligence”, by which he meant a critical mass of educated elite formed through a specific educational system and confluence of historical and geographic factors unique to the country. That intelligence, he argued, is both what would save the nation and what the post-revolution state should invest in.

Part of this intelligence and elite is the labour movement and civil society, and indeed, throughout the past three years − through five governments and three presidents − one thing has remained constant: namely, a culture of dialogue, compromise and what may be called institutionalism. By the latter, I mean a belief in, and consolidation of, institutions even as the system as a whole was faltering. The frame of dialogue and the road map masterminded by Tunisia's main trade union (UGTT) along with three key civil society organisations − the association of business owners (UTICA), the Tunisian League of Human Rights, and the Lawyers Association − have been the determining factors in the text as well as the context of the constitution.

Compromise not conflict

There has been a lot of pressure on the country from outside parties such as the EU, Algeria and the US to name a few, but the dialogue amongst Tunisia's leadership and the mechanisms and road map that emerged from it was an indigenous invention. A brief reminder is in order here. When polarisation and mistrust reached their climax in the aftermath of the assassination of Mohamed Brahmi, a leader in the Popular Front and member of the NCA, in July 2013, the UGTT and its partners stepped in to look for agreements and common ground. They worked out an overall plan in three key points: namely, a governmental process, a constitutional track, and an electoral track.

Details of this would take too long to go into here, but the overall aim was to establish a new government of independent technocrats, establish the High Election Commission, and complete the constitution while ensuring there was no power vacuum.

The president was largely kept in place to provide legal continuity, while the NCA was recognised as a legitimate body. And to speed up of the constitutional track, the formula was as follows: The Consensus Committee within the NCA would review every article before presenting it to the general session of the NCA for debate and vote. When agreement proved impossible within the committee, the presidents of blocks within the assembly would meet with the assembly president to hammer out a compromise. If no agreement was reached there − which did happen more than once − the party presidents and the civil society organisations sponsoring the dialogue would meet and find a way through.

A thorough comparison between the first version of the constitution from June and the one finally adopted reveals the extent of the compromises reached as well as the tensions, drama, and even the comical moments that were in fact played out for all to see; the debate was aired live on a national channel, and painstakingly monitored by the media as well as dedicated civil society associations, chief among them Bawsala. Overall, most of the contentious elements in the previous version were eliminated or smoothed out.

Rahoui vs. Ellouz

In the drafting process, no two members of the NCA generated more controversy and attention than Mongi Rahoui and Habib Ellouz, and their disagreements illustrate the diversity within the assembly in terms of style, generation, region and ideology, and how the constitution came to be.

Rahoui , in his late forties, represents Jendouba, a poor area in the North West and hails from the same leftist party as the late Chokri Belaid. Ellouz, in his sixties, is a founding member of the Islamist party al-Nahda (which had been the largest party in a three party coalition government until it stepped down to make way for a neutral interim government last month) and considered an unreformed hawk. He comes from the powerful and dynamic city of Sfax.

The conflict between the two politicians started around Article One but eventually affected Article Six of the constitution. Article One reads: “Tunisia is a free, independent and sovereign state. Islam is its religion, Arabic its language and the republic its system.” The two disagreed over whether the 'it' in "Islam is its religion" referred to the state or the people, with Ellouz claiming 'it' meant the state, Rahoui the people. This dispute got personal when Ellouz, speaking on a radio programme, claimed that Rahoui is known for his enmity to Islam. Rahoui received threats to his life for apostasy, and back in the NCA argued effectively and emotionally that unless calls of apostasy were banned, no freedom of conscience could take place and a key demand of the revolution would be denied.

In the end, the whole consensual process came to a deadlock over the wording of Islam's place in the constitution, until a compromise was found. Article One remained the same, but Article Six was changed to accommodate Rahoui and others' demand. It now reads: “The state shall protect religion, guarantee freedom of belief and conscience and religious practices, and ensure the impartiality of mosques and places of worship away from partisan instrumentalisation. The state shall commit to spreading the values of moderation and tolerance, protecting sanctities and preventing attacks on them, just as it shall commit to preventing calls of takfeer [calling someone an unbeliever] and incitement to hatred and violence and to confronting them.”

This revised article remains less than straightforward and could prove challenging to protect in terms of legislation, but al-Nahda did climb down and preventing accusations of apostasy marks a key innovation among constitutions in the Muslim world, a matter consolidated in the chapter devoted to rights and freedoms. These include freedoms of creativity and academic research but also improved rights for women.

In fact, the adopted constitution brings about further gains to an already relatively quite advanced situation and legislation. In earlier versions, women were designated as “complementing” men, which was vehemently opposed by, among others, active and powerful Tunisian women. Article 46 extends rights of women to parity in elected office and equality in work opportunity. This was achieved thanks in part to a coalition of women from across party lines within the NCA. But the other key achievements, again in line with the aims and demands of the revolution, are in the areas of the judiciary, good governance and the consolidation of democratic rule.

The battle to enshrine the independence of the judiciary proved been long and arduous, and it was not achieved until the very last debate of the relevant articles in the constitution (Articles 102-124). Al- Nahda insisted all along on some level of control or oversight by the executive over the judiciary but in the end it lost that argument. The appointment of judges is now by 'exclusive' right of the Supreme Judicial Council. That council also has financial and legal independence. Corruption and politicisation in the judiciary has been high, and it will be interesting to see how much this self-governance can impact matters on the long run.

Good governance is addressed in the constitution through devolution to elected bodies at the regional level, a Constitutional Commission for Good Governance and Anti- Corruption (Articles 125-130), and some other measures of control. The commission is part of a number of independent constitutional bodies not commonly found in other countries. In addition to the one just mentioned, there will also be a Constitutional Commission for Human Rights, a Constitutional Commission for the Audio Visual Communications (which will oversee the media), and a Constitutional Commission for Sustainable Development and the Rights of Future Generations (which will act as watchdog on development policy).

For those in marginalised parts of the country seeking tangible improvements in their social and economic situations, however, the constitution will not bring change in the short term, and does not guarantee it on the long-term. Article 12 promises the government will 'strive' to rather than 'commit' to achieve regional balance within the framework of positive discrimination.

A further troubling feature of the constitution relates to amendments. While room for future change is much more prominent in the adopted version than in the previous one, a number of articles are expressly protected from amendments. These exceptions reflect mutual distrust between the two main poles in the country in the issues of religion and state as well as protection of freedoms (Articles 1 and 2) and a desire to prevent the return to the practice of extending presidential terms (Article 75). However, this finality deprives the right of future generations to change the constitution to suit their time and aspirations, except by suspending the constitution itself.

The next step

With such a complex constitution − which enshrines principles of devolved government, an independent judiciary and media, and a complex set of principles; which in parts seem contradictory (e.g. protecting sanctities as well as freedom of artistic expression); and which establishes an elaborate balance of power between the President and the President of the Government − one can foresee a situation where constitutional interpretation and counter-interpretation will be the order of the day.

The Tunisian constitution is the outcome of a struggle over what post-revolution society is going to be like. But while deadlock could have led to open conflict, it instead led to negotiation and tradeoffs. The development of the constitution over the last three years is organically linked to the dynamics in the country over the same period. Its final version bears the traces of mutual distrust among the two main political poles. And just like any compromise, it leaves room open for interpretation. One thing, however, is sure: the turn towards a religious state in Tunisia has been aborted. And now begins the work to consolidate and enshrine into law the foundations of a democratic, civil and just state. For this reason, the next elections are absolutely crucial to the future of Tunisia, to the role of political Islam, and to the region as a whole.

On a more prospective level, this process is ingenious and I am not sure how it came about or whether it had a precedent elsewhere. But it is certainly worth studying and perhaps even emulating, as it has been central in determining the processes which appears to have been a decisive turn to democratic and civil rule in Tunisia.

For now, attention is directed towards defending the constitution and capitalising on the outcome. For Islamists, the question is how to sell it to their base. Al-Nahda has been forceful, at least at the public level, in packaging the outcome as a party victory and as the best way to avoid the fate of the Muslim Brotherhood in Egypt and avert an Egyptian scenario in Tunisia. On the other side, the effort is underway to claim it was the secularists who delivered a democratic and honourable constitution to the country, restoring the image of Tunisia as a success story to the outside world.

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