It has been eight months — since January 2012 — that elected politicians have been drafting a new constitution for Tunisia. After eight months, and to prove that their vacation is well deserved, a draft of the constitution has been made public. What was made public was a collection of texts by each of the various constitutional commissions. Experts, politicians, and civil society leaders gathered on Aug. 22 to debate this topic at a meeting organized by the Tunisian Association of Constitutional Law. The atmosphere was professional, but a tension seems to prelude the great debate which is to start as soon as the vacation period is over.
Iyadh Ben Achour said that even though the draft contains positive points, it also has many issues. The two concepts of "rights" and "liberty" are being confused in many constitutional articles, and in it politicians are revealing their lack of knowledge and experience. Some articles in this draft do not differentiate between power and the state. Ben Achour adds that the draft presented is not a legal document, but rather a collection of writings which have no place in a constitution. The draft is neither realistic nor accurate. It opens the door to multiple interpretations, as evidenced by Articles 11 and 28 concerning the family and women.
Ben Achour takes the example of Article 28, which has been highly controversial. Other than the threat it presents to gender equality, the article makes no sense and is not logical. It mixes together different themes (family and country) in way that cannot be legally implemented. Similarly, the guarantees of freedom and human rights are rarely mentioned and are hidden inside multiple references to "protecting the sacred." Ben Achour fears that a religious dictatorship is being prepared. He said, "We wonder whether they are trying to establish a theocratic state or a civil state." He calls a religious dictatorship to be "the worst kind of dictatorships," and considers the draft constitution to be counter-revolutionary.
Other experts have also spoken out and pointed out the many deficiencies in the draft. Ghazi Ghrairi, a lawyer and former spokesperson for the High Authority for the Achievement of Revolutionary Goals, said that the draft as presented is a step backward from the 1959 constitution. He said, "The (citizens’) rights and obligations are unclear and are not clearly mentioned in the preamble nor in the fundamental principles. … There is no way we are going to accept a constitution that grants fewer liberties and rights than the last!"
Law professor Slim Laghmani spoke about religion, which he sees as negatively and subjectively enshrined in the draft constitution. Article 1, which has not been explained nor modified, is but one example of this vague interpretation. Similarly, the preamble refers to the principles of moderate Islam. Laghmani wonders what these principles are and regrets the fact that they are not clearly stated.
Moreover, the lack of equal rights for all citizens regardless of their differences has been subject to long discussions. The oft-mentioned article about the president of the republic limits this post to Tunisians citizens (who hold no other nationality), who have Tunisian parents, and who are Muslims. "How do we legally verify that the president is a Muslim?" asked one. Laghmani added, "Worse, if the parliamentary system is adopted, it will be the prime minister who holds the power, with the president having ceremonial duties. But the prime minister is not required to be a Muslim, while the president is required. This is absurd."
In the opinion of Salwa Hamrouni, this article contradicts the equal rights principle because it differentiates between Muslims and other citizens, between native Tunisians and those who have other origins or hold other nationalities. Hamrouni adds that the equality of all citizens before the law, as stated in the preamble, does not guarantee equal rights, because the law may be unequal. "Why have the politicians not listened to the multiple requests to clearly state that all citizens have equal rights and duties? Was it deliberate?" she wondered.
Others have also questioned why "affronting the sacred" was included in the constitution when it should belong to the criminal code. The fact that "affronting the sacred" was not clearly defined represents a danger to the freedom of creativity, expression, and conscience, and does not take into account fundamental human rights, said Slim Laghmani and Salsabil Klibi. Klibi said, "'Affronting the sacred’ is being criminalized but we do not know who is doing it. The state or the courts? Through a law or by decree? No limit can be placed on liberty except when the absence of that limit represents a danger to others. But in this draft constitution freedoms are being limited with no good reason."
With regard to international treaties already ratified by Tunisia, the draft constitution stipulates that those treaties are only applicable if they do not contradict the new constitution. Some wanted to remove that clause because ratifying a treaty and then conditioning its implementation on a future event does not make any sense.
The discussions have also included the views of elected officials, many of whom were in the room. We cite, among others, Mustapha Ben Jaafar, Fadhel Moussa, Lobna Jeribi, Khemais Ksila, and the Ennahda politicians Zied Laadhari and Sonia Toumia. Ben Jaafar did not speak but Fadhel Moussa and Lobna Jeribi welcomed the draft, which they said will undergo many changes. Lobna Jeribi asked experts and civil society leaders to make suggestions to give the text a more legal dimension and to eliminate confusion. "We have requested that experts be present in the commission to help us write the constitutional articles but the majority in the other camp refused," she said. The Ennahda's Zied Laadhari justified including the phrase "affronting the sacred" in the constitution.
Sonia Toumia, on the other hand, gave a long tirade condemning what was said during the debates. Toumia, the elected Ennahda official who recently distinguished herself in the Constituent Assembly, was indignant that lawyers described the draft constitution as a step backward. Toumia also denied the shortcomings of the draft and said that those assembled misunderstood Article 28 concerning women. "If we say that the woman complements the man, it means that the man is incomplete, which is not the case. This article is a step forward for women. And what is the family without the woman? And what is the woman without the man? You misunderstood!" she kept shouting until she was asked to slow down so that the translators (who were translating simultaneously into French and English) could keep pace with her.
Ghazi Ghrairi said that a constitution is not about what its authors intend but about what it actually says, and that if some members do not see this draft as a step backward because it is not what they intend, it does not change that the text is not sufficiently clear and is, in fact, a step backward relative to the 1959 constitution. "This is why we are doing this criticism. It is so that the intentions and the text agree and thus avoid any future confusions," he said.
During the session, other negative comments were made, particularly concerning the primacy of the family over individual rights, the lack of clarity in the articles concerning children’s rights, the protection of religion at the expense of individual rights, the danger to women’s rights, the constitutional bodies, the judiciary and its independence, and other subjects.
This first debate on the draft constitution revealed its shortcomings and dangers. Islam was seen as a main topic in the constitution, which may open the door to a theocratic dictatorship and does not meet the aspirations of freedom and dignity — the values of the revolution. This is just the first debate of many and, when the vacation ends, the Bardo Palace (where the Constituent Assembly meets) could be the scene of protests — both inside and outside.