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. »

Constitution watch – updates on the drafting of Tunisia’s new constitution

In what hopefully (depending on government progress and my discipline) will be a regular feature on the blog over the coming months, I give you my first “constitution watch” – updating readers on progress in the Constituent Assembly in drafting Tunisia’s new constitution.

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Two articles this week discussed contents of the preambule of the new constitution, which were leaked, separately, to reporters.

An article appearing in the Tunisian magazine Leaders reports that the new constitution will explicitly define the Tunisian republic as a civil state. According to their sources in the assembly it will also maintain the first article of the constitution and define the regime as republican, abolish the death penalty, and confirm respect for universal values.

In a separate article published by Tunisia Live on Wednesday, the English-language site reports that the constitution will emphasize “applying Islamic principles to the constitution, explicitly defining the Arab-Muslim identity of the state.” The article is unclear on whether these are separate articles in the preambule or not. “The draft also describes the new regime as “republican, democratic, and participatory,” based on respect for the people’s sovereignty and the separation of state powers.” The report also states that the draft will be released to the public next Monday, June 4.

There are no major revelations here, although it will be interesting to see how “applying Islamic principles to the constitution” will actually read in the final draft. Many secular opponents of the government have feared that while Ennahdha has specifically rejected references to sharia in the constitution, they will try to introduce a form of religion-based value tests for the country’s lawmakers and judiciary.

For a further discussion on how the constitution is actually being put together, see this article by Duncan Pickard in the Carnegie Endowment.

See also my previous discussion of including Sharia in the preambule here.

Ghorbal: Tunisia ignoring the real problem with the constitution – the courts

Samy Ghorbal, a Tunisian writer and political advisor to the opposition PDP, writes in Slate Afrique this week that while secularists celebrated Ennahdha’s abandonment of inscribing sharia law in the new constitution, they are ignoring the real problem – which is how the constitutional council interprets the constitution.

His argument, which no doubt many of my more conservative readers will take issue with, nonetheless raises the important fact that many essential debates over the shape of Tunisia’s future regime have yet to take place.

Some excerpts, translated by me, below. The whole article, in French, is worth a read.

…The real battle [not that based on Article 1 of the constitution], focusing on the architecture and processes of constitutional review, is just beginning. Because it is the role of a constitutional judge to propose and establish an interpretation of this section [Article 1). It is he who will tell how it should be understood, what it permits and what it prohibits….Everything will depend, ultimately, on the court or the Constitutional Council to be established; the checks and balances within it; and how its members will be appointed.

Tunisia has no tradition of independent constitutional justice. It is starting from zero. Established by presidential decree in 1987, the Constitutional Council, which ceased to exist after the (January 2011) Revolution, when the Constitution was repealed, was complicit in the dictatorship of Ben Ali. Can a constitutional court, which has long indulged in a servile/auxiliary role of the state, fulfill its cultural revolution and become the guarantor of rights and freedoms? Will it be given the means to do so?

These issues are of crucial importance for the future of the young Tunisian democracy. Yet they are strangely absent from public debate, and have found little echo in the Constituent Assembly. Most “modernist” parties were content to generalize about the rule of law and the need to ensure separation of powers in their election manifestos – without going into details.

The proposals unveiled by the Islamists in their program by 365 points, submitted on 14 September 2011, are equally succinct. Yet, to think about it, they leave no worry. Ennahda says it wants to establish a parliamentary form of democracy, “based on the separation of powers and judicial independence.”

In fact, in their system, all power emanates from the parliament, and, in the event a party would have the absolute majority, then all power emanates in reality from the majority party. Institutions would become hostage to one party or faction – starting with the Council or the Constitutional Court, whose president is elected directly by Parliament. There would be every reason to fear that this body is diverted from its intended liberal and turns, simply,as the guardian of the Islamic identity of the state and religious morality.

A Balancing Act: Ennahda’s Struggle with the Salafis

My new article, co-written with Brandeis researcher Aaron Zelin, has been published at the Sada Journal of the Carnegie Endowment. An excerpt:

On a day when organizers had called for a peaceful protest to honor the Qur’an, most Tunisians will remember the images of young protesters who climbed a clock tower at Tunis’s main intersection to raise a black and white flag inscribed with the shahada, the Muslim testament of faith: “There is no god but God and Muhammad is His Messenger.” On that day, March 25, a small group of protesters also attacked and harassed a troupe performing in front of the city’s municipal theater. These controversial and heavily covered events raise questions over how the Tunisian government, led by the Islamist party Ennahda, will handle growing conservative movements.

While much of the Tunisian and Western press has focused on the debate between Ennahda and the secular opposition, Tunisia’s ruling party has also faced criticism both from within its own party and from more conservative Salafi groups. Ennahda’s approach to instilling Islamic values in society contrasts sharply with that of Salafi trends: while the party believes that society should gradually, and through democratic institutions, adopt the principles it once lost under colonialism and secular dictatorships, many Salafis assert that democracy infringes on God’s sovereignty by establishing humans as legislators. This intra-Islamist debate may prove to be the true battleground in the ongoing transition.

Read the full article here.

Photo courtesy of Sada Journal.

The strange return of Habib Bourguiba to Tunisia

On Saturday in Monastir a strange event took place. Gathered together in the same place for the first time in decades were the Destourians – supporters of the former Tunisian president, Habib Bourguiba. They met to discuss plans to provide a unified political front in an effort to return the country to what it described as the path it departed from under Ben Ali, and the equally fatal path of the Islamists.

Blogger for French magazine Marianne, Martine Gozlan, described the event:

…forces of modernity are looking to unite to resist obscurantism: that was the sense of the mass meeting held Saturday, March 24 in Monastir under the auspices of Beji Caid Essebsi, the previous Prime Minister, and in the wake of the founding father whose massive portrait dominated the meeting: Habib Bourguiba….The old Beji Caid Essebsi, who was once his traveling companion, and had the difficult task of leading post Ben Ali Tunisia to the polls last October 23rd, had assembled all the forces of the centrist opposition on Saturday March 24th.

The reformation of Destourian parties has elicited many reactions here from across the political spectrum. While the potential impact of a return to Bourguibism excites many Tunisians, to others it is the first step toward a return of authoritarianism.

You don’t have to go far in Tunisia to find people who love Habib Bourguiba. A populist and a nationalist, Tunisia’s first leader after independence modernized the country, Many Tunisians, particularly those born before independence, see Bourguiba not only as a force for good, but as a true leader of Tunisians – he is their Papa. And while many of his supporters will decry his authoritarianism, they also applaud what they saw was a relatively uncorrupt individual who only wanted the best for his country. These people often also supported Ben Ali, at least up until the point that his nepotism and kleptocratic ways became known. During the uprising last year, they didn’t want an overthrow of the system, just a cleaning up.

Detractors of Bourguisme tell a very different story. They see Bourguiba as a meglomaniac who denied human rights and set the stage for Ben Ali. To Ennahdha supporters, Bourguiba relentlessly pursued, persecuted, and imprisoned them. But not only that – Bourguiba reviled Islamists. When asked what separated him from an Islamist, Bourguiba replied: “Fourteen centuries.”

When Bourguiba-era minister Beji Caid Essebsi stepped back into the political scene last February to take over the caretaker government, both hardcore Ennahdha supporters and human rights activists squirmed. While he justified his lack of fundamental reforms by saying that he was just an interim leader and that the elected leaders should make those decisions, his opponents saw someone who wanted to preserve the status quo and keep the ancien regime well-placed to retakeover the country.

Recent statements, followed by Saturday’s conference in Monastir, by other so-called Destourians have put many people edge, just as they have excited many who see in the party a chance to unify the country.

To the secularist left, Bourguibists represent a major threat to their support base. The left struggled in the last elections, unable to get popular support or shed their image as elitists – or God forbid – atheists. Destourians never had a problem relating to their base. Through populist rhetoric and strategic handouts, they were able to reach out to the common Tunisian. And most importantly, they were able to do so without coming across as out-of touch. Thus, the consolidation of Destourian parties may be an attractive pull and secularist parties may be coopted by them.

Tunisian-American journalist Wafa Ben Hassine sees trouble in the potential alliance between leftists and members of the former regime:

It appeared that Essebsi and his crew were desperately seeking to rebrand the RCD. The Caid Essebsi and co. are succeeding, albeit only within a small niche. To this niche, Essebsi is simply the reincarnation of Bourguiba, representing modernity and ‘balance’ in social values….

….What is alarming are the scores of left-wing parties that made their way down to Monastir yesterday. The left should be more careful about its actions and what they reflect – the Tunisian left is already painted as an elitist segment of society. Why exacerbate the image, and in turn appear to betray the very values that led to Ben Ali’s ouster?

Bourguiba, over 24 years since being deposed, still stirs emotions and makes headlines in this country which he built in his image.  Almost half of the population knows Bourguiba only from history books – many of which are being rewritten as we speak. Whether the reconstitution of his party and his ideas will take hold is far from certain.

Have Tunisian Salafists written themselves out of the new constitution?

Tunisian Salafists demonstrated this weekend on Avenue Habib Bourguiba in central Tunis. Thousands of supporters rallied for the Quran, for the institution of Charia law, and to show Tunisians that they would not back down.

But the image that will remain for most Tunisians is one of a half dozen Salafists scaling the clocktower in front of the Ministry of the Interior and waving their black flags with the shahada. See above photo courtesy of Tunisia Live.

The government, led by moderate Islamist movement Ennahdha, has been walking a tightrope with Salafist groups. The Interior Minister told Le Monde last week that jihadist groups were the number one danger for Tunisia, but he was also careful to distinguish between Salafist groups and jihadist ones. Ennahdha leaders have told me that their goal is to not push these groups underground, but to neutralize them by allowing them to protest.

Nevertheless, Ennahdha seems to be feeling the pressure from ordinary Tunisians, who group both violent and non-violent fundamentalist groups as extremist. This might partly explain Ennahdha’s announcement today that it will leave the first article of the constitution as is. Article 1 has been the subject of debate, particularly for those who argue that it should include charia as the principle source of legislation.

The debate over charia is far from over. However, it appears that the more the Salafist are in the news, especially when they are allowed to deface public buildings, the less popular they become. The question is whether or not the public will continue to support Ennahdha’s “light touch” when it comes to these groups – or whether it will force Ennahdha to track further toward the center.

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.

A democratic coup d’etat? Secularists debate the new Tunisian constitution

As debate over the new constitution begins in the Constituent Assembly, Tunisian secular activists are crying foul of attempts to introduce Islamic law in the new constitution. Ons Bouali writes in Nawaat:

After months of comedy, the masks are falling off. Ennahdha’s true colors have been revealed, abandoning the charade of “a civil party with Islamic references” and seeing its theocratic project go ahead successfully, all with our blessing. Without unfounded dramatizing or timidity as to the question of the compatibility of Islam and democracy, Proposing Charia as the “essential” source of law, coupled with criminalization of any damage to public order as constitutional principles, we are plunged into dark tunnel which we will inevitably fall into the trap of a religious dictatorship

She goes on to condemn the prospect of putting the question to voters in a referendum:

If the Constituent Assembly cannot reach a consensus, this article will be subject to a referendum. “Let the ballot boxes decide! Let the people choose! Long live democracy!” Nonsense. Submitting this article to a referendum will deeply divide Tunisia and will have irreversible consequences given the noxious atmosphere prevailing in the country. The question “For or against charia as an essential source of law” will be transformed in public opinion as “for or against Islam” when in reality the question is actually “for or against a religious dictatorship.” It’s all a question of interpretation and individual analysis. The lunacy of such a referendum rests in the invitation of a people to renounce their own sovereignty, putting it in the hands of religious men who because of their high religious authority will be impossible to “degage.”

The rest of the article is an interesting analysis and an insight into secularist thought in Tunisia.