Constitution watch – Reaction and problems with the preamble

Last week the Constituent Assembly officially released the agreed upon preamble to the new constitution. Here are a few brief takeaways from its release.

1) It’s just a preamble. Constitutional preambles set the tone and background for a constitution, but they are rarely in and of themselves law. The preamble to the U.S. constitution is one sentence (54 words)(1). The French constitution is 100 words and two sentences(2). Even the UN, not known for its brevity, has a charter in bullet points of only 236 words.

The Tunisian preamble, on the other hand, runs 433 words (in English) and 8 paragraphs. It includes references to Tunisian history, Arab history, Muslim culture, the Palestinians, and the environment. The fact that the preamble took six months to draft, and the fact that it is a kitchen sink of ideas does not necessarily bode well for the timeline set out by the Constituent Assembly speaker Mustapha Ben Jafaar, who has promised that the document will be complete by October 2012.

Additionally, Constituent members took the not so humble step of honoring themselves in the first line. “We, the deputies of the Tunisian People, members of the National Constituent Assembly, elected through the merits of the Revolution of dignity, freedom, and justice”. It’s noteworthy in comparison to other constitutions, such as the U.S. and French, which make pains to show that the constitution itself emanates not from their leaders, but from the people themselves (“We the people”).

2) This is clearly a document of compromise. The length and wordiness of the document is no doubt a result of compromise positions within the Constituent Assembly. More conservative members were no doubt pacified by the document’s reference to the country being founded on the “fundamentals of Islam” – something that liberal Tunisians see as a back door to introducing Sharia law.

Meanwhile more liberal members will be happy with references to an “open and moderate” Islam based on its reformist movement. The latter is a reference to Tunisian intellectual theologians who in the early part of the 20th century helped provide a path toward a civil state through a more modern interpretation of Islamic theology. Contrast this with previous versions of the document that were released through members of the constituent assembly, which provided a much more bold references to Islam and the country’s Islamic identity.

3) The document is careful to avoid references to universal values or rights. While the document does endorse human and equal rights among Tunisians, it does not take the bold step of endorsing universal rights, such as the UN’s Universal Declaration of Human Rights. Many Muslim countries have refused to sign on to this document as some consider it to subjugate Islamic sharia to man-made rights. Liberals in Tunisia had hoped that the assembly would have taken this bold step which would have set precedents for the country’s judges to use as a basis for adjudicating rights claims. The document as is remains so vague that the constitution itself or the country’s civil code will have to set out exactly what rights will be considered fundamental.

4) The question of Palestine makes a not-so-subtle, and somewhat problematic, appearance. The document states that “individuals have the right to self determination, and for movements of justified liberation, at the forefront of which is the liberation of Palestine.” It’s a curious construction,  obviously based first and foremost by the motivation to include the populist sentiment to support the Palestinian cause. What’s interesting is the reference to self-determination, which is the legal basis for Palestinian statehood, in the absence of warfare. However, self-determination is also the basis for independence movements across the world, notably among Western Saharans in their dispute with the Moroccan government and in Berbers in Kabylie in Algeria. It will be interesting to see whether this clause will cause diplomatic problems for the government at the same time that it is looking to restart the cause of pan-Maghreb unity.

Finally it’s important to note that beyond calling for the separation of powers, the preamble does not provide for the system of government (parliamentary, presidential, mixed) or outline a “bill of rights”. These hugely important questions will be the subject of future debates at the Constituent Assembly.

Tunisia Live has translated an English version of the preamble into English, it can be accessed here.

For more on the constitution see also Alice Fordham’s article in the National and Thierry Bresillon’s excellent article in French at Rue 89, and Nadia from Tunis on her blog.

Previous Constitution watch can be found here and here.

1) We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

2) « Le peuple français proclame solennellement son attachement aux Droits de l’homme et aux principes de la souveraineté nationale tels qu’ils ont été définis par la Déclaration de 1789, confirmée et complétée par le préambule de la Constitution de 1946, ainsi qu’aux droits et devoirs définis dans la Charte de l’environnement de 2004.En vertu de ces principes et de celui de la libre détermination des peuples, la République offre aux territoires d’Outre-Mer qui manifestent la volonté d’y adhérer des institutions nouvelles fondées sur l’idéal commun de liberté, d’égalité et de fraternité et conçues en vue de leur évolution démocratique. »

Have Tunisian politicians skirted the issue of Sharia?

Short answer – not quite. But it certainly will not be secular.

The official government press agency, TAP, reports today that a consensus has been found on the issue of the preamble of the constitution. This is where many conservative/Islamist politicians (e.g., Sadok Chorou) have argued Sharia (Islamic) law should be enshrined in the preamble to the constitution.

The TAP press release quotes Ennahdha member Abdelmajid Najjar:

…the preamble will state four essential elements that will be the source of inspiration in writing the next constitution, namely “the system of Islamic values,” “the reformist andcivilizational heritage of the Tunisian people,” “the goals of the revolution,” and “high human values. “

This is a step further than the current constitution which states in article 1:

Tunisia is a free, independent and sovereign state. Its religion is Islam, its language is Arabic and its type of
government is the Republic.

Of course, it should be remembered, this is just the preamble. In Ennahdha’s draft constitution, Sharia is only mentioned by the time you get to article 10.

Ennahdha leader Rached Ghanouchi spoke about the constitution in an interview with Turkish newspaper, Zaman:

Noting that the new constitution will reflect the will of Tunisian people, al-Ghannushi said the constitution will strongly emphasize that Islam is not incompatible with democracy and modernity. He said all the members of parliament think that some values of Islam should be reflected in the constitution. Additionally, there is strong consensus among Tunisian parties that democracy, gender equality, human rights and plurality should be included in new constitution. Moreover, al-Ghannushi noted that the terms “secularism” and “laicism” will not be included in the constitution.