The Long Awaited Tunisian Constitution: Solving Problems or Solidifying Cleavages?

By Laura Kelly, Juris Doctor Candidate (2015), Northwestern University School of Law

On January 14, 2011, President of Tunisia, Zine El-Abidine Ben Ali, fled the state after protestors flooded the streets demanding work, freedom, and national dignity (shugl, hurriyya, karama wataniyya). In November of 2011, the newly elected National Constituent Assembly (NCA) began work drafting a constitution that would replace its 1959 predecessor and projected that the constitution would be submitted to the citizenry for ratification a year later. On January 26, 2014, over two years later, the NCA finally adopted a new constitution.

Recently, I sat down with Malika Zeghal, Prince Alwaleed Bin Talal Professor in Contemporary Islamic Thought and Life at Harvard University, to discuss the state of Tunisian constitutionalism. We began our conversation examining why the constitution process was likely so protracted. Professor Zeghal largely attributed this to three key “obstacles:” (1) the NCA was a legislative body; (2) the NCA was focused on procedure; and (3) there was a political crisis in Tunisia.

Regarding this first obstacle, Professor Zeghal clarified that as a legislative body the NCA’s sole responsibility was not drafting the constitution; rather, it had to also pass legislation, which occupied a substantial amount if its time, distracting from and thus extending the constitutional process. Likewise, the NCA was forced to focus on meeting procedural standards in its constitution drafting process. In June of 2013 several NCA members threatened court action, alleging that the drafting and writing committee, which was tasked with simply combining the drafted language in one polished document, had significantly altered the constitution’s content when it released the constitution draft to the public. Reconsideration of proper procedure within the NCA significantly stalled the process. Professor Zeghal described this focus on procedure as helpful for democracy as a tool of legitimacybut noted that heightened procedural requirements can also be dangerous because it takes so much time. Finally, Professor Zeghal explained that Tunisia was in a state of political crisis following the assassinations of prominent political leaders, including secular, opposition politician Mohamed Brahmi in July. It is suspected that Islamic extremists were responsible for the assassination. Moreover, it has been suggested that the assassination was in response to the decision by Ennahda, the moderate Islamist party that leads the Tunisian government, to compromise with secularists on certain issues in the constitution. Professor Zeghal explained that these assassinations of secular political figures created an atmosphere of distrust and instability that only served to deepen existing cleavages between Islamist groups and secularists and further stalled the completion of the new constitution.

Despite these obstacles, the NCA has finally adopted a new constitution, which has been heralded by many as “An Arab Spring success story.” However, even after the adoption of the new constitution, problems persist – particularly those resulting from Ennahda’s “compromises” within the framework of an Islam-versus-secularism dichotomy.

One such compromise appears in the first few articles of the new Tunisian constitution. Specifically, the first clause states:

Tunisia is a free country, independent, with sovereignty; Islam is its religion, Arabic its language and the republic its regime.

This clause has been largely unchanged from the 1959 constitution. This is likely in part because the clause has “different meanings for different constituencies, without these differences being explicit in its formulation” (Zeghal). According to Professor Zeghal, “Islam is its religion” (emphasis added) could mean any number of things because “its” could refer to the country Tunisia, the collective people of Tunisia, or the state itself. Thus, rather than saying the state’s official religion is Islam, this first clause could simply state that Islam is the identity of Tunisia or that the majority of Tunisians are Muslim. For this reason, some have asserted that the clause “does not matter, because it does not mean anything” (Zeghal). As Professor Zeghal explained, the clause is likely strategically vague in the hopes that it will evade conflict.

The beginning of the constitution also asserts that Tunisia is a civil republic based on the rule of law and that its source of legitimacy comes from the people. Despite demands from the Salafi-influenced Reform Front and other Islamist groups, there is no mention of sharia as a source of law. At the same time, Article 6 of the newly enacted constitution proffers that the Tunisian government is “the guardian of religion” and “the protector of the sacred.” Such vague language similarly leaves the clause open to interpretation and was likely adopted in order to garner the most support for ratification purposes.

Such strategic vagueness remains a risky compromise because the clauses entrench certain ambiguities that cause some to argue that the language goes too far while others argue that it does not go far enough. Since the constitution’s adoption, secularists have charged that Article 6 is too vague and leaves the door open for abuses while 120 members of parliament have already signed a petition in favor of an amendment to Article 6 that would bolster the state’s authority against those who “insult the sacred.” Moreover, hundreds of Islamists with the radical Tunisian group Hizb ut-Tahrir have protested the new constitution, calling it “secular” and arguing that the proper source of sovereignty should be Islamic law.

Ultimately, the vague constitutional language provided a malleable enough meaning to garner the kind of support necessary to ratify the new Tunisian constitution, but it has done nothing to resolve the underlying tensions in Tunisia.

Additional Reading:

Agence France-Presse, Hundreds of Islamists Rally Against New Tunisia Charter, Global Post (Jan. 24, 2014).

Carlotta Gall, Second Opposition Leader Assassinated in Tunisia, The New York Times (July 25, 2013).

Jeremy Farrell, Tunisian Constitution: Text and Context, Jadaliyya (Aug. 23, 2012).

Malika Zeghal, Competing Ways of Life. Secularism, Islamism and Public Order in the Tunisian Transition, 20 Constellations 2 (2013).

Riddhi Dasgupta, An Arab Spring success story: Tunisia’s New Constitution, CNN Money (Feb. 19, 2014).

Robert Joyce, Tunisia’s Neglected Constitution, The Cairo Review of Global Affairs (Oct. 14, 2013).

Tunisia Accepts Civil Law Rejects Sharia, Best Current Affairs (Jan. 7, 2014).

Tunisia: Ennahda and the Role of Religion, The North Africa Post (Jan. 24, 2014).

Tunisia Opts for Civil, not Sharia law as assembly votes on new constitution, RT (Jan. 5, 2014).

Zaid Al-Ali and Donia Ben Romdhane, Tunisia’s New Constitution: Progress and Challenges to Come, Open Democracy (Feb. 16, 2014).

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Northwestern students and faculty comment on current events, speaker presentations, and original research.

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