January 27, 2014
Tunisia’s
struggle to agree on a constitution that satisfies both the
conservative-liberal majority and the liberal opposition is giving way to
consensus in many critical aspects of the new constitution. The Ennahda-led
government made concessions concerning key demands of the opposition, such as
the protection of women’s rights and freedom of expression and religion—key
values for urban middle class Tunisians who see Islamists endangering their
lifestyle and convictions. Although fearful of seeing Islam reduced to a mere
cultural accessory (and of a return of the oppression they suffered
previously), Ennahda nonetheless compromised on these key issues. But this
compromise is turning the future constitution into a text full of
contradictions, called schizophrenic by experts of constitutional law.
Article 6
of the new constitution illustrates the text’s internal contradictions. After
contentious debates led to an amendment of the originally accepted text, it now
reads:
“The state protects religion. It guarantees freedom of conscience, of faith and
of worship. It protects the sacred [. . .].” After an opposition deputy
received death threats because he was referred to by a member of Ennahdha’s
ultra-conservative wing as an apostate, the so called Democratic Fraction of
the Assembly negotiated to add to the article: “The accusation of apostasy and
the call for violence are forbidden.” Protection of the sacred and the freedom
of conscience and faith do not go together—and neither do the interdiction
against accusing somebody of apostasy and the freedom of expression (guaranteed
in article
30), as noted by Amira Yahyaoui, president of the watchdog organization
Al Bawsala (The Compass).
Issues of
defining Tunisian identity, including the role of Islam and women’s rights, took
up the bulk of the discussion about the constitution both inside the
Constituent Assembly and in the public sphere. In an attempt to compromise on
the role of religion, the preamble cites
the “attachment of our people to the teachings of Islam,” while article
1 takes
up the formula that has been part of the Tunisian constitution since its
independence: “Tunisia is a free, independent, and sovereign state, Islam is
its religion, Arabic its language, the republic its system.” While both
articles mention religion, they avoid assigning it a specific place or defining
it as a source of law.
Tunisian
women had benefited from comparatively liberal laws since independence, when
president Habib Bourguiba passed the Personal Status Law (CSP) of 1956, which
among other things gave women the right to vote and to initiate divorce, while
still keeping in place the Islamic inheritance law. The new Tunisian
constitution goes even further. Article
20 explicitly
declares male and female citizens to be “equal in rights and duties”—one of the
main demands of many civil society groups. They had been fearful that the
Islamist-led government would reverse the CSP, despite Ennahda’s reassurances.
And much to the delight of most deputies, the constituent assembly passed article
45, which states that the government not only protects women’s
rights, but supports their achievements and guarantees the equality of
opportunities, meaning that the constitution won’t touch the CSP. The main
change article 45 would bring is a concerted effort to ensure greater
engagement of women in politics, particularly local politics. The article says
that: “The state works to realize parity between women and men in elected
councils,” which means parity on the election lists even for regional
elections. Therefore, every second candidate on the election lists will have to
be a woman. This could have significant implications in rural areas where women
are still marginalized. Many members of the assembly are confident that the
guarantee of equal opportunities and a stronger role in local politics could,
in the long run, help change the situation of women, particularly in the
countryside.
Parity
among the candidates had already been applied for the 2011 election of the
constituent assembly, which numbers 65 female deputies out of 217 total
members, most of whom belong to the Ennahda party. Even though a consensus
among the parliamentary groups had been established prior to the vote on
article 45, not all Islamist deputies respected it and some voted against the
article. Others, such as the assembly’s Vice President Mehrezia Laabidi from
Ennahda, took a clear stance for more freedom and equality and repeatedly voted
with members of the opposition.
Despite
the reassurances of articles 40 and 45 as safeguards for women’s rights in
Tunisia’s next constitution, women’s rights groups nonetheless still see much
work to be done. They fear that article
7, which defines the family as “the nucleus of society” might be
used later to limit women’s rights. For example, this could mean limiting
women’s right to a divorce in the name of protecting the family. They also
argue that article
21, which states that “the right to life is sacred” could be used to
ban abortion, which is currently legal in the early stages of pregnancy. More
likely, women’s rights groups could use articles 20 and 45 to push for a
revision of the inheritance law, which is currently based in Islamic law.
To adopt
the constitution, the deputies are currently voting on each single article and
more than 250 amendments. Once every article of the draft constitution has been
approved, the deputies will vote on the entirety. The document will need a
two-thirds majority to pass, otherwise a popular referendum will be necessary.
(Editor’s note: On January 26, the
Tunisian national assembly approved the new constitution.)
Other
major issues of contention included dissent over the way judges will be
nominated, a crucial issue that blocked the work of the Assembly for three
days, before a consensus was found at the end of last week. Article
103 states
that the President nominates the judges based upon the recommendation of the
High Council of Justice. A problem was found some articles later, in article
109, which defined the creation of this High Council. In the
original version, which was refused, the majority of the Council members were
to be nominated by a state institution—a procedure judged undemocratic by a
majority of deputies. The consensus that the assembly finally adopted now
states that a majority of the members of the Council will be elected, with a
minority being nominated.
The
deputies are currently re-voting on articles that were not adopted in the first
place but are essential to the future constitution, such as article 64, which
would define the minimum necessary vote for the future parliament to adopt
laws, or article
73, which specifies requirements including the age and religion of
the president. A very liberal interpretation of the internal working rules of
the deputies allows them to re-vote and re-amend certain articles that have
previously been rejected.
While
Western observers praise the current text as the best and most modern
constitution in the Arab world, many Tunisians say that they do not want to
have the most modern one in the region, but would rather see a good, coherent
constitution. As it stands, the text reflects well the antagonisms that shape
Tunisian society itself—compared to the 1959 post-independence constitution,
which was closer to the elite’s vision of society than to social reality. The
new text also highlights Tunisia’s contradictions. It will be for the
Constitutional Court, to be established for the first time in the country’s
history, to find (for the roughly 150 articles of text) a coherent
interpretation that aims to guarantee Tunisians a democratic future.
This article is reprinted with permission from
Sada. It can be accessed online at:
http://carnegieendowment.org/sada/2014/01/21/tunisia-s-compromise-constitution/gyzs
Sarah Mersch is a Tunis-based freelance journalist.