Tunisia’s National Constituent Assembly is close to passing a new constitution that legislators across the political spectrum, human rights organisations and constitutional experts are hailing as a triumph of consensus politics.
Two years in the making and now in its third draft, the charter is a carefully worded blend of ideas that has won the support of both Ennahda, the Islamist party that leads the interim government, and the secular opposition. It is being hailed as one of the most liberal constitutions in an Arab nation.
“They finally found some equilibrium,” said Ghazi Gherairi, secretary general of the International Academy of Constitutional Law in Tunis, the capital. “It is a result of consensus, and this is new in the Arab world.”
The process of drafting and approving a new constitution took a year longer than planned. It was buffeted by two assassinations and rising terrorism last year, and by political divisions that nearly derailed the government.
Ennahda ultimately gave up many of its original goals for the constitution: It says nothing, for instance, about the establishment of an Islamic state or the supremacy of Sharia law. But the party succeeded in injecting an Islamic flavour, with wording stating that Islam is the religion of Tunisia and a preamble that recognises Tunisians’ Arab-Muslim identity.
With Western support and strong lobbying by civil society groups, the country’s more liberal parties secured constitutional guarantees that Tunisia will remain a civil state with separation of powers. The constitution enshrines universal freedoms and rights, and calls for parity for women in elected bodies.
The first two articles lay out the balance between Islamist and secular views in careful language that is not subject to amendment by future governments. “Tunisia is a free, independent and sovereign state, Islam is her religion, Arabic her language and republic her regime,” they say. “Tunisia is a state of civil character, based on citizenship, the will of the people and the primacy of law.”
Although the country remains divided over the role of religion in public life, those divisions were set aside in order to guarantee freedoms and prevent a return to the kind of dictatorial rule Tunisians overthrew in 2011, at the start of the Arab Spring.
The atmosphere in the 217-member assembly drafting the charter changed remarkably in the past fortnight, as members put aside the hostilities that had suspended the proceedings for five months and worked 14-hour days to debate and vote on the draft, article by article.
“It’s a positively crazy, fantastic environment,” said Noomane Fehri, a member of a small secular party, Afek Tounes. “There is a will to complete it within the time frame, and suddenly things started to work.” The assembly is likely to ratify the full charter with the necessary two-thirds majority when the final vote is taken, he said. The vote may come in the next few days.
Gherairi, the constitutional law expert, predicted that the new constitution would endure because parties across the political spectrum had endorsed it. He contrasted the drafting process in Tunisia, which has involved an elected assembly and consensus, with the process in Egypt, where an Islamist government pushed through a new charter over widespread opposition, only to be ousted and replaced by a military-backed government that rewrote it.
The latest draft was put to Egyptian voters in a referendum this week that the Muslim Brotherhood and other opposition groups boycotted.
The latest Egyptian constitution, which strips the Islamist language of the previous one, has drawn criticism for strengthening the state institutions that overthrew the elected Muslim Brotherhood government: the military, the police and the judiciary. The new charter gives the armed forces the right to appoint the defense minister for the next two terms.
It was partly the crisis in Egypt - including the overthrow last summer of the Islamist government of president Mohammed Morsi, Egypt's first popularly elected leader - that prompted Ennahda to make important concessions and seek consensus on the new Tunisian constitution. The assassination on July 25th of a left-wing politician, Mohamed Brahmi, in Tunis - the second political assassination in the country in six months - drew a sharp public reaction, weakening the Islamists.
Although the assembly as a whole suspended work on the constitution for five months, a commission of assembly members set up by Ennahda continued working, hammering out consensus language for disputed articles. That commission is responsible for the final document.
“The revolution was based on the expectations of the people for access to work and dignity in all its depths,” said Lobna Jeribi, a member of the consensus commission. “Now that is the slogan of Tunisia, and we tried to include all the components - the right to work, to health, education, freedom of conscience, freedom of thought.”
The careful balancing led to some contradictions in the text, occasionally even within a single article, said Amira Yahyaoui, founder of Al Bawsala, a nonprofit that monitors the constituent assembly. “There are some very, very good articles and some bad,” she said.
Yahyaoui noted that the constitution guaranteed freedom of religion, conscience and expression, but that it also said it was the state’s duty to “protect the sacred,” a phrase that reflects Islamists’ desire to prevent abuse of Islam. The two passages, she said, are incompatible.
But Fehri, the secular politician, said the balance was necessary. “Our opinion is different, so you have two explanations for the same thing,” he said, referring to an assembly member who is also an imam, who praised the first article from an Islamic point of view. “So when it comes to interpretation, they will take both into account.”
Human rights organisations praised the constitution, in particular for its recognition of universal human rights standards and conventions. “We are a far cry from how it was in the beginning,” said Amna Guellali, a Tunisian lawyer and researcher for Human Rights Watch. Tunisia’s laws do still discriminate against women on issues such as inheritance and child custody, and Guellali said it would be up to future governments to decide how the new constitution changes that.
There were moments during the voting in the semicircular assembly chamber that reflected the struggles faced in 30 years of opposition to the succession of dictators who formerly ruled Tunisia. For some, those struggles included discrimination, imprisonment and exile.
When Article 45 was passed, guaranteeing women’s rights and parity for women in elected bodies - a first in the Arab world - the chamber rose as one and sang the national anthem. For Amer Laarayedh, head of Ennahda’s political bureau and brother of former prime minister Ali Laarayedh, the most emotional moment was the passing of Article 20, which recognises the rights of refugees.
“That touches me personally, because I was a refugee for 20 years in France,” Laarayedh said. “Everyone voted and then stood and applauded.” Looking around the chamber, he saw members of the opposition celebrating. “They, too, were exiles in the ‘70s,” he said. Some points of contention - including, notably, the division of powers between the president and parliament - remained unresolved on Tuesday, the third anniversary of Tunisia’s revolution. But two-thirds of the constitution’s articles had been passed.
“We did it in a very innovative, democratic way,” Fehri said. “I dream that kids who are 15 will look back when they are 60 and say, ‘Those guys put us on the right track.’”
New York Times
