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Tunisia’s Constitution (and a View to Egypt)

Tunisian and Egyptian Political Context

On Sunday, January 26, 2014, the Tunisian National Constituent Assembly (NCA) members celebrated the adoption of a new Tunisian Constitution – the second constitution in the modern state’s history. After weeks of heated debates, death threats, speeches, arguments, peaceful deliberations, and approval votes on each and every article, the entire document was approved by 200 of the 216 parliamentarians. President Mustafa Ben Jaafar celebrated, saying:

This constitution, without being perfect, is one of consensus. We had today a new rendezvous with history to build a democracy founded on rights and equality.

His sentiment was echoed around the world, with the international community lauding the process and the new Constitution as “meet[ing] the objectives of the revolution” and “guarantee[ing] the rights of all Tunisians.” Many analyses have focused on the compromises that were made between the Islamists (chiefly Ennahda) and the secularist factions of the NCA. Similar discursive strategies (the delineation of Islamism and secularism) continue to saturate analyses of Egypt’s political landscape. Often, the Tunisian experience, which has garnered an overwhelmingly more positive response, has been framed as a sort of lesson to the Egyptian people: See what happens when Islamists and secularists work together?

However, the reductionism inherent in issuing either congratulations or condemnations based only on compromise along the Islamist-secularist axis masks the robust and complex nature of the political fields. In both Egypt and Tunisia, these framings insinuate that the socio-political landscape is easily bisected.

On the other hand, analysts seeking to explain the differences between the two experiences have highlighted a number of factors—the absence of an entrenched military presence in Tunisian politics – compared to the strong and deepening engagement of the military in Egyptian politics;  Ennahda Party heads of government Hamadi Jebali and Ali Larayedh voluntarily agreed to step down; and the reality that shari’a does not form the basis of the Tunisian constitution. These distinctions, while not without merit, are perhaps overly simplified.

If there is a lesson for Egypt in the Tunisian experience, it is the importance of a robust parliamentary system that allows for deliberation and the development of democratic institutions. While a great many still lament the ouster of democratically-elected President Muhammad Morsi, the fact remains that a centralization of power, even in the hands of a democratically elected leader, precludes any steps towards true deliberative process. When Morsi issued a presidential decree to declare extra-judicial presidential powers on December 22, 2012, this motion was received as an effective move to enshrine greater power in the seat of the presidency. Massive protests occurred against this maneuver. This was not the only concern at the time either; the military’s heavy-handed role in dictating political agendas clouded the drafting process of the constitution.

In Tunisia, it was parliament’s commitment to democratic process in spite of the presence of destabilizing elements (not in their absence) that is truly noteworthy. Despite political assassinations, extremist violence, partisan cleavages, and successive resignations, Tunisia was able to move forward with a political roadmap.

A brief overview of the process: after the 2011 election of the NCA, the plurality-winning Islamist Ennahda party and the ostensibly secularist CPR and Ettakatol parties formed a powerful coalition, known locally as the Troika. This coalition severely marginalized the traditional opposition (some of whom later formed the Nidaa Tounes party, which was criticized for its ties to the former regime). The Troika continuously pushed back elections and the rewriting of the constitution, and the assassinations of opposition leaders Chokri Belaid and Mohamed Brahmi further contributed to tensions between the Troika and the rest of the NCA. It was in this context that Ennahda Prime Minister Hamadi Jebali resigned, stating that he was no longer interested in holding the premiership without a clear timeline for elections. Tunisia’s own Tamarod campaign, backed by the opposition, called for the dissolution of the democratically-elected NCA, blaming Ennahda at least partially for the murders of Belaid and Brahmi. Finally, political agreements between Nidaa Tounes leader Beji Caid Essebsi and Ennahda leader Rachid Ghannouchi led to the subsequent resignation of Prime Minister Ali Larayedh.

Not six months ago, these deep divisions led many analysts to criticize the lack of compromise on the part of political actors in Tunisia. Clearly, the Tunisian government emerged from these crises without descending into large-scale political repression (the likes of which is seen daily in Egypt), and the new Constitution is a testament to this. Regardless, these political milieus cannot be understood simply as a series of Islamist/secularist compromises and agreements. Rather, they are sui generis environments with shifting lines of domination/marginalization and alliances/oppositions.

Consensus Document

Thus, while the Tunisian Constitution represents a document of consensus, the political context in which it will be employed is at least as – if not more – important than the consensual political context in which it was written. This means that due attention is required to the nature of shifts in the structure of dominant and marginalized representation. This fact has been very well documented with regard to the Egyptian constitution, which has been analyzed through the lenses of various minority groups. Hence, we need to shift the gaze in the Tunisian context from the NCA to the ground and explore the possible political implications of the document for the Tunisian people, implications that go beyond whether Islamists gave up the language of shari’a.

In fact, these implications form the concerns of many in Tunisia who were not as quick to glorify the document as a “beacon of democracy,” particularly minority groups and other dissenters who were not present in the drafting of, and voting on, the constitution. Despite their willful or enforced absence from the process, their rights still deserve protection. Indeed, while the overwhelming international response to the document has been positive, the response from Tunisians has been considerably more tempered. Rather than a glorified celebration of the document as the apex of revolutionary current, Tunisians are looking ahead to life with this new constitution, a life that will depend on access to judicial protection for minority groups, broad social integration, and a development plan to deliver the constitution’s ambitious proposals for social justice.

The very nature of political consensus tends to eclipse marginalized voices. As compromises are made, minority voices lose out to the majority. While debates on any form of deliberation that is better than consensus building may be relegated to discussions of radical political theory, consensus processes do cast into relief those minority groups whose demands were not adopted by the majority. The concessions that lawmakers made in this process did not represent mere personal beliefs, but were political acts that will have tangible effects on the futures of Tunisian citizens. In short, the “deep compromises” that are reflected in the constitution deserve both celebration and critical scrutiny.

The second half of this analysis will make some general observations about those voices that may not have been comprised in the Tunisian constitution. The following points mark not necessarily weaknesses of the constitution, but rather are opportunities for civil society to ensure that they are interpreted in the most emancipatory ways possible. The adoption of the new Tunisian constitution is undoubtedly a step in the right direction, but it will be its socio-political life, rather than its invention, that will determine whether the objectives of the revolution are truly achieved.

Social Justice

The Tunisian revolution began not in Tunis, where the constitution was developed, but rather in the poorer industrial and rural areas in the interior of the country. It is well known that poverty serves to further marginalize already marginalized groups: abject poverty precludes groups from fighting for rights as survival concerns take precedence. Relative poverty marginalizes groups as well, in that it does not permit them a platform from which to be adequately heard. As early as 2008, miners had organized long strikes to protest corruption and impediments to social mobility. When the coastal and urban areas joined in the protests, the demands of the underprivileged were echoed.

The new constitution includes ambitious language offering some legal protections for these demands. Article 40 declares: “Work is a right for every citizen, male and female alike. The state shall take the necessary measures to ensure the availability of work on the basis of competence and fairness. All citizens, male and female alike, shall have the rights to adequate working conditions and to a fair wage.” Article 44 includes language guaranteeing the right to water, Article 13 includes language on citizen stewardship of natural resources, and Article 12 describes a commitment to social justice and sustainable development.

These articles are ambitious in their objectives, but it is difficult to imagine how they might be enforced. It will be all but impossible for Tunisia to completely eradicate unemployment, and a “fair wage” remains undefined even by international standards for labor rights. ((Of course, a zero-unemployment scenario would also not necessarily be desirable, as a small amount of unemployment can be seen positively in any economy (for example, as an indicator that job-seekers have quit in order to look for better positions, indicating opportunity for social mobility) )) The true concern here is that by including such lofty ideals in the constitution, policymakers may then avoid presenting any real reform that might achieve them. As a worrying testament to this possibility, Tunisia recently accepted the second tranche of a 1.25 billion Euro loan; this may undermine the country’s ability to enact indigenous reform. Sami Ramedi, the president of the Tunisian Association for Financial Transparency, recently explained to Magharebia, “Tunisia is now taking loans from European countries to live and eat with, not to execute development projects or create jobs.”

However, labor unions do now have a clear constitutional basis to demand better working conditions. The rights to organize and to strike are adequately protected under Articles 35 and 36. In fact, the Tunisian General Union of Labor (known by its French acronym UGTT) has been a force as powerful as any during the shaping of the Constitution itself. Throughout the Ben Ali era, the unions were one of the most powerful democratic forces in the country, leading them to great experience in processes of deliberation. With their adeptness at negotiation, the UGTT has been able to act as powerbroker among policymakers, while at the same time advocating on behalf of its own demands. ((For excellent analyses of the role of the UGTT since its inception in 1946, see the work of Mohamed-Salah Omri, particularly his article published on openDemocracy.com, “Trade unions and the construction of a specifically Tunisian protest configuration.”))

Identity Clause in Social Context

Article 1 of the Tunisian Constitution declares:

“Tunisia is a free, independent, sovereign state; its religion is Islam, its language Arabic, and its system republican.”

This type of identity clause is not uncommon; similar clauses can be found in many constitutions. ((For instance, the French constitution defines French as the official language, and the German constitution refers to the German ethnic origin.))The clause does not necessarily provide legal basis for suits against the state. That is, one would not be able to pursue charges against the Tunisian government for providing classes in the French language, on the grounds that it is not the “national language.” However, such clauses do privilege certain groups over others in ways that range in subtlety, and they also enshrine a picture of national identity that is specific to a particular moment in time.

A robust acknowledgement and debate around a history of deeply entrenched racism is currently taking place in Tunisian society. Critical discussions about the human rights abuses against, and legal protections for, sub-Saharan migrants, who are often further marginalized by such racist histories, are also salient at the moment. The affirmation of Arab identity, while not necessarily shutting down these debates, does not fully take them into account and certainly does not contribute towards any emancipatory solutions. The clause creates a narrative of it means to be a Tunisian, to the exclusion of those who may not fit the narrative.

In this respect, the clause also causes concern about the further marginalization of Tunisia’s indigenous Amazigh populations. These populations, present in the country long before the current Arab ethnic majority, were relegated to the sidelines during the period of Bourgiba-championed Arab nationalism that followed Tunisia’s independence from France. Currently, the Amazigh-speaking populations make up only 1% of the total population. After the 2011 revolution, Amazigh rights and cultural organizations sprouted up in the country, demanding greater recognition for their culture and language. Similar campaigns in Morocco and Algeria (where the Amazigh populations are much larger) have led to the recognition of Amazigh identity and language in the constitutions.

The emphasis on Islam is also particularly troublesome for those in Tunisia who are either affiliated with other religions or atheist. Of grave concern is the fact that while the identity clause itself is not necessarily legally binding, Article 74 states that the President of the Republic must be a Muslim. This requirement has obvious repercussions for the messages it sends regarding both what religious concerns take precedence over others and what religious groups are allowed to have a full voice in the government.

Article 6 – “Incitement to Violence”

Article 6 had garnered praise in its original form for having initially committed the state to protecting religious freedom. However, after this initial approval, deliberations continued under significant duress. Sections on “protecting the sacred” and “takfir” (apostasy) were added, and the final text of the article reads:

“The state protects religion, guarantees freedom of belief and religious practices, protects sanctities, and ensures the neutrality of mosques and places of worship away from partisan instrumentalization. The state is committed to spreading the values of moderation and tolerance, and to protect the sacred and prevent it from being attacked, and is also committed to prohibit charges of takfir and incitement to hatred and violence, and to combat them.”

This article poses serious threat not only to freedom of religion, but to freedom of expression as well. ((This is also a concern in conjunction with the language in Article 49 that gives the state the right to legal jurisdiction over “public morals.”))If the past few years offer insight as to a trend, there are worrying signs about the interpretation of the clause regarding “incitement to violence.” In September 2013, Tunisian rapper Klay BBJ was arrested and charged with insulting authorities and undermining public morality; he was sentenced to six months in prison. Another rapper, Weld 15, was sentenced to 21 months in prison on the same charges. ((Both rappers were jailed for performing a song called “The Police Are Dogs.” In an interview with Tunisia Live Klay BBJ explained: “I was not arrested because of my song. I was arrested for criticizing the system.”))By the language of the 2014 constitution, neither of these charges could be declared unconstitutional. Additionally, these articles themselves do very little to protect victims of true hate speech.

However, the vagueness of the articles creates space for future laws that must acknowledge international legal standards for protecting free speech and dissent. ((This is even more so the case when considered in conjunction with Article 19, stating: “International agreements approved and ratified by the Chamber of Deputies shall be superior to laws and inferior to the Constitution.”))In 2012, the Office of the United Nations High Commissioner for Human Rights (OHCHR) issued recommendations for the implementation of “legislation, judicial infrastructure and policy,” on the “prohibition of advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.” The report concluded that states were obliged to incorporate language that specifically delineates what might constitute incitement to violence into legal frameworks. These recommendations were also very clear about the need for distinction between the merely offensive and the truly criminal in hate acts or speech, and they include very robust frameworks for doing so.

Gender Parity

Since the days of Habib Bourguiba, Tunisia has been home to a robust and ongoing discussion on women’s rights, and women have enjoyed high levels of participation in the government and the economy. Recent legislation regarding gender parity was adopted via Article 15 of Decree Law N 35 on May 10, 2011.

The new constitution continues to stress equality between men and women. Article 34 addresses women’s representation in elected councils, and Article 46 states:

“The state guarantees equal opportunities between men and women in the bearing of all the various responsibilities in all fields. The state seeks to achieve equal representation for women and men in elected council (parity). The state takes the necessary measures to eliminate violence against women.”

Although the gender parity provision of the constitution is not necessarily legally actionable on its own, under Article 120 the Constitutional Court has the authority to determine the constitutionality of statutes. Should a future law regarding gender parity be proposed without a 50% provision for women, the law would clearly violate this provision of the Constitution. ((Such an action may be brought to the court by two avenues: either an actual violation occurs, or a law is deemed sufficiently important and has not yet been the object of a decision by the Constitutional Court. This second type of action is deemed “Question prioritaire de constitutionnalité” and was introduced to the Tunisian judicial system in 2010.)) Thus, while the language of the article does not provide a quota for women’s participation in elected bodies, it does offer a sound legal basis for continued demands for gender parity.

Moving Forward

To reiterate, while the Tunisian constitution has many merits, the mere fact that it is a “consensus document” does not necessarily mean that it sufficiently protects the rights of all Tunisians, particularly those of marginalized groups. It also does not necessarily indicate a joining-together across the imagined lines of Islamism and secularism. The document has many strengths and weaknesses, just like the government that adopted it.

That said, perhaps the strongest and most encouraging facets of the Tunisian constitution are the mechanisms that provide for systems of checks and balances—both across local and regional lines and within the central government (between the executive, parliamentary, and judicial bodies). The constitution features language calling for “decentralization” and “participatory democracy,” and it establishes independent bodies to monitor elections, media, human rights, sustainable development, and corruption. This progressive structure adds teeth to the already-robust civil society in Tunisia, which saw a proliferation of actors after 2011.

It is this new and dynamic civil society that now has a very real and tangible opportunity to offer a counterbalance to potential regressive interpretations of the constitution. While there is no guarantee that civil society will always engender progressive interpretations, the opening of spaces for a system of social checks-and-balances invite continued deliberation. Indeed, it was the continued engagement of civil society throughout the process of drafting the constitution (as much as the internal politics of the NCA) that held lawmakers accountable. The major events of this year, which will include political elections in the country, will undoubtedly set the stage for achieving the ambitious, but achievable, goals of the 2011 revolution.

To return to earlier considerations of Egypt, it will be equally as important for Egypt to foster an environment where civil society – particularly labor unions, independent press, and human rights organizations – have an opportunity to freely voice concerns, even if these are oppositional to the government. While the recently-passed Egyptian Constitution did not make the same strides as that of Tunisia in protecting a system of democratic checks-and-balances, this does not mean such a feat will be impossible. Again here, the upcoming presidential and (perhaps even more so) the parliamentary elections will be an important weathervane for the near political future.

The author would like to thank Ryan Suto for offering his legal expertise in the development of this piece.