New constitution and the future of democratic transition in Tunisia

Published in North Africa
By Fethi Jarray
Historians are unanimous that Carthage was a beacon of civilisation. Its constitution, representative institutions and political system in general were cited by Aristotle, who labelled it the best system as the time. In modern Tunisian history, the ‘Fundamental Pact’ is considered a constitutional precedent in the Arab-Muslim world,[1] as it was the first legal document that guaranteed the Tunisian people their political rights to have their lives, property and honour safeguarded, regardless of their religion, race or social class.
That constitutional document was followed by the constitution of 1861, which is considered one of the most significant events in the political history of modern Tunisia, as it was the first modern Arab constitution that contributed to entrenching the principles of political reform and administrative revival. After the French protectorate of Tunisia was established, this constitution constituted an intellectual reference for the struggle movement. Even the names of successive parties were derived from it, foremost of which the Tunisian Liberal Constitutional Party, which led the battle to liberate the country from colonialism, and whose leaders and fighters called for reactivating the 1861 constitution and establishing a Tunisian parliament.
The Constitution of the First Tunisian Republic was issued three years after the country’s independence, and is known as the 1959 Constitution. Drafted by the National Constituent Assembly, it is considered modern in terms of its wording and content. It abolished monarchy and declared Tunisia ‘a constitutional republic whose legislative, executive and judicial authorities are governed by the Constitution’.[2]
That constitution was suspended in March 2011 as it had been subjected to drastic revisions during the era of deposed President Zine El Abidine Ben Ali. After the first multiparty elections in Tunisia in October 2011, the constitution was temporarily replaced by the Law of the Provisional Organization of Public Authorities,[3] until a new constitution was endorsed in late January 2014 by the National Constituent Assembly.
Context of the vote
The vote on the new Tunisian constitution – which was conducted chapter by chapter, and then a vote for the entire text – was consistent with the procedures stipulated by the Law of the Provisional Organization of Public Authorities. The process was managed in accordance with this law’s provisions pertaining to the transitional phase that followed the elections held on 23 October 2011. The overall context of the vote was marked by a sharp political alignment and ideological struggle between Islamists (who led the drive for identity preservation and authenticity) and the secularists (who advocated modernity and universal rights). This resulted in a state of dual polarisation that the mechanism set to achieve consensus, approved and codified by National Dialogue Quartet, failed to break. However, the mechanism evidently helped curb the impact of the polarisation on the positions of parties.
The dialogue between the leaders of the parties represented at National Constituent Assembly was jointly sponsored by the General Union of Tunisian Workers, the Tunisian Union of Industry, Commerce and Handicrafts, the Tunisian League for the Defense of Human Rights, and the National Bar Association. The quartet sought to activate the roadmap it had proposed as the way out of the political crisis triggered by the assassination of member of the National Constituent Assembly and the leader of the Popular Current, Mohammed Brahmi, on the anniversary of the republic, 25 July 2013. The dialogue led to the voluntary resignation of the Troika Government consisting of the Ennahda Movement, the Congress for the Republic Party and the Democratic Forum for Labor and Liberties within the framework of an agreement that provided for the inseparability of constituent tracks: drafting the constitution, election of the Higher Independent Elections Commission and change of government. It was also agreed that Mehdi Jomaa, minister of industry in Ali Larayedh’s government, would form a new government made ​​up of technocratic and independent national figures to manage the remainder of the transitional phase and create the right climate for the first presidential and legislative elections under the new Constitution of Tunisia.
Despite the tension that overwhelmed most of the marathon voting sessions held by the National Constituent Assembly in an obvious race against time, dictated by the calendar of constitutional requirements set by the roadmap, the heads of the different blocs succeeded in achieving the minimum consensus necessary on the contents of most of the constitutional chapters. Consensus was reached despite the differences over terms of reference and partisan and electoral agendas that constantly cast a shadow on their positions. However, the biggest challenge that faced these parties and rendered their agreements fragile was the lack of confidence among them, and the resultant fear that marked the debates over the controversial chapters, especially Chapter VI, which was endorsed only in the final session after numerous amendments.
Elements of the Constitution
Tunisia’s new constitution includes 149 articles spread over ten chapters, making it one of the longest constitutions in the world. Its final version, as at 23 January 2014, covered thirty-six pages of A4 paper. The length – compared to the 1959 Constitution, and constitutions of other countries – is attributed to the inclusion of lengthy legal details and explication of minor issues whose place might be in legislation that flows from the constitution.
If we remember the political rivalries, legal disputes and parliamentary bickering that overwhelmed the drafting of the constitution, we will discover the secret behind the verbosity and redundancy in the document; parties were meticulous in debating its clauses. They were worried that the wording of the provisions might become legal traps when the constitution takes effect, in that they may be interpreted in different, or contradictory, ways. This could, they feared, lead to the kind of polarisation that marked discussions over the constitution, particularly in relation to controversial parts such as Chapter VI, which includes a reference to ‘freedom of conscience’, a term that sounded vague and misleading to some. The same chapter also stipulates the state’s commitment ‘to prevent and address calls for apostatising others and incitement to hatred and violence.’
Despite all this, the constitution, which was enacted with consensus and drafted with a modern, twenty-first century language, claims to represent the will of a large spectrum of Tunisians. Civil society was engaged in the drafting process at a level unmatched even in the most democratic and human rights-respecting countries. In this regard, it is expected that the manner in which the new constitution was drafted would provide study material for jurists specialised in constitutional law.
The constitution’s preamble made several references to Tunisian nation and its symbols, in a bid to root the document in its Tunisian environment and culture and highlight Tunisia’s openness to diverse human experiences. It also included a tribute to the sacrifices of the martyrs, highlighted national sovereignty and reasserted the independence of national decision making.
The first chapter of the constitution includes the general principles that reflect the republican features of Tunisia, and the identity, nature and orientations of the Tunisian state. Article 1 stipulates: ‘Tunisia is a free, independent and sovereign state. Its religion is Islam, its language is Arabic and its form of government is a republic.’ Article 2 reads: ‘Tunisia is a civil state that is based on citizenship, the will of the people and the supremacy of law.’ Article 12: ‘The state shall seek to achieve social justice, sustainable development and balance between regions,’ and Article 13 reads: ‘Natural riches belong to the people of Tunisia and the state exercises sovereignty over them in the name of the people.’ Articles 18 and 19 stress that of the national army and security forces belong to the republic.
The second chapter deals with rights and freedoms such as the rights to life, health care, and a healthy environment. Article 22 states: ‘The right to life is sacred and shall not be prejudiced except in exceptional cases regulated by law.’ Significantly, a number of provisions focus on rights such as the right of access to information and a number of individual and collective liberties such as the freedoms of conscience, thought and expression and media and publishing, as well as the freedom to form political parties, trade unions and associations, and the freedom of peaceful assembly and demonstration. In addition, there are elitist freedoms such as creativity, scientific research and academic freedoms.
Chapter Two also includes references to the rights of people with special needs and the state’s obligation to protect them from negative discrimination, along with explicit commitments to protecting women’s rights. Article 40 includes an important provision, that, ‘No amendment shall undermine human rights and freedoms guaranteed in the Constitution.’ Similar statements entailed in the general principles chapter prevent modification of Articles 1 and 2, to avoid a return to tyranny, change in the nature of the regime or the identity of the state, or any attempt to circumvent the constants of the society.
The third chapter is concerned with the legislative authority and the way it is exercised by people through their representatives in the Chamber of Deputies. Additionally, it details the legislative and oversight functions of the Chamber. Chapter Four verbosely explains the roles of the heads of the executive authority (the president and the prime minister) and their powers.
Much controversy has been triggered by Article 74 in Chapter Four regarding the age and nationality of the president, in the event that the president had dual nationality. This controversy was resolved by agreeing not to set an upper limit on the age of candidates for the post of president, and to compel each candidate with dual nationalities to provide a written pledge to renounce the non-Tunisian citizenship in the event that the candidate is successfully elected. Article 75 stipulates: ‘No one shall assume the presidency for more than two full terms, consecutive or separate,’ and to entrench the point, ‘No modification shall increase the number or duration of presidential terms.’
As for the powers of the prime minister, Article 94 states that the premier ‘exercises general regulatory power’, while Article 93 clarifies that ‘the head of the government is the prime minister’. Given that the cabinet is accountable to the Chamber of Deputies, which gives confidence to the government through an absolute majority vote, the Chamber has the power to withdraw confidence from the government or one of its members in the same manner, provided that the legal conditions and regulations are observed.
Chapter Five is concerned with the judiciary, ‘an independent authority that ensures the prevalence of justice, the supremacy of the Constitution, the sovereignty of law, and the protection of rights and freedoms,’ according to Article 102. The judiciary is divided into two parts: ‘the judicial, administrative and financial judiciary’, and ‘the Constitutional Court’. The former will be overseen by a Higher Judicial Council ‘which enjoys administrative and financial autonomy and self-governance’.
Independent constitutional bodies – the Election Commission, which manages and organises elections and referenda; the Audiovisual Commission, in charge of reforming and developing the audiovisual communication sector; and the Human Rights Commission, which monitors and works to strengthen respect for freedoms and human rights – are given their powers in Chapter Six. This chapter also creates the Sustainable Development and the Rights of Future Generations Commission, an advisory body that advises on matters related to its field of specialisation; and the Good Governance and Anti-corruption Commission, which contributes to the policies of good governance and efforts to combat graft, and promotes the principles of transparency, integrity and accountability.
Chapter Seven is concerned with local government, which ‘shall be based on decentralization’. Article 131 states that, ‘Decentralization shall be represented in local authorities made up of municipalities, districts, and regions.’ It is stipulated in Article 132 that ‘local authorities shall enjoy legal personality as well as financial and administrative independence,’ and in Article 133, ‘local authorities are managed by elected councils’. ‘Local authorities shall enjoy dispositional power in satisfying their mandates. Decisions of local authorities shall be published in the local authorities’ official gazettes,’ states Article 134, while Article 136 clarifies that, ‘The central government shall guarantee the provision of additional resources for local authorities in order to consolidate the principle of solidarity between groups, and to adopt the mechanism of settlement and amendment.’ Other clauses provide: ‘Local authorities shall have the freedom to dispose of their resources within the frame of the approved budget in accordance with good governance rules and under the financial judiciary’s oversight,’ (Article 137) and ‘Local authorities shall adopt the mechanisms of participatory democracy, and the principles of open governance to ensure a broader participation of citizens and civil society in development programs and the municipal preparations and the follow up on their implementation as specified by the law,’ (Article 139).
It is evident that Chapter Seven is particularly important because it marks a significant change in the pattern of administration towards entrenching decentralisation on the ground, in line with the abovementioned articles, which were unanimously approved by representatives at the National Constituent Council. Additionally, Article 141, which provides for the powers of the Supreme Council for Local Authorities, will be established for the first time in Tunisia.
Chapter Eight focuses on constitutional amendments, while Chapter Nine’s Article 146 might be regarded as the spirit of the Constitution and the benchmark for its interpretation. It stipulates: ‘The Constitution’s provisions shall be interpreted as one homogenous unit.’ Chapter 10, the final section, is devoted to transitional provisions. Article 148 reads: ‘The state shall be committed to applying the transitional justice provisions in all fields and within the timeframe set in their respective legislation pieces. In this context, it is not acceptable to argue against that by citing non-retroactivity of laws, the existence of previous pardon, judicial connection or statute of limitations.
Effects on the transition process
We can safely say that the political class in Tunisia, regardless of its different backgrounds and ideological references, has placed its bets on the constitutional process. It has deemed the process a safe bridge to cross to a life of true democracy, with all its aspects, including coexistence, respect of others’ opinions and honest competition among politicians to serve the public good within a national framework.
The moments that followed the final ratification of the constitution late 26 January 2014 displayed Tunisians’ unity and agreement on the drafting of a constitution that reflects a collective national identity, and their cultural, geographic, political and intellectual characteristics. The constitution will be a reference for Tunisians when the country faces political divisions. The day of the final endorsement of the constitution, after the first reading and by consent of more than ninety per cent of deputies, coincided with the announcement of the new government that will manage the country for the remainder of the transitional phase and will create the political and social climate conductive for fair and transparent elections to be held. It will also work on reviving the economy and re-establishing security and state authority in the context of law enforcement and the activation of constitutional institutions. The success of the new government – a government of technocratic national figures – will depend on the commitment of civil society organisations, led by the General Union of Tunisian Workers, to a social compact.
* Dr Fethi Jarray is a university professor and researcher, and was minister of education in the government of Prime Minister Mehdi Jomaa
* This article was published by Al Jazeera in Arabic and was then translated into English by AMEC

[1] The Fundamental Pact was a basic document issued by Mohamed Bey on 9 September 1857. It was seen as the culmination of the constitutional reforms undertaken by his predecessor, Ahmed Pasha Bey, in the military, social and educational fields, in order to reduce the cultural gap between Tunisia and the European countries. The text consists of a preamble and eleven articles. The preamble refers to the need to be guided by the provisions of the Islamic Shari’ah, since Islam was the official state religion of Tunisia, stipulates that the Bey and the population were Muslims, and that the Ottoman Empire guaranteed the safety of its citizens as a basic right. The articles of the Pact include the following:
Article 1: Full security is formally guaranteed to all our subjects, all residents of our states, regardless of their religion, nationality and race. This security will extend to their respected persons, their property and their sacred and honoured reputations. This security will have exceptions in cases that are left for the discretion of the Council [the Grand Council of the Royal Parliament] through shura [consultation], and the ruling will be submitted to us; it will be up to us to order the execution of the sentence, commute it as much as possible, or order revisiting the ruling.
Article 2: All our subjects are subject to the existing tax law – or a tax law that may be established later, even if proportions change – regardless of the position of wealth of individuals, so that the high-status people shall not be exempt from the law because of their high status and the low-status people shall not be exempt because of their low status.
Article 3: Muslims and other inhabitants of the country will be equal before the law, because this right belongs naturally to humans just because they are humans and not according to any other criterion. Justice on earth is a scale used to ensure that those who have the right will be guaranteed their rights back from those who abused them, and the weak will be supported against the strong.
Article 10: Foreigners who wish to settle in our states may exercise all industries and trades, provided that they comply with the established regulations and those that may be established later, on equal footing with other inhabitants of the country. Nobody shall enjoy, in this respect, a privilege over another.
[2] The Constitution of the Republic of Tunisia was released on the first day of June 1959, and sealed by the late President Habib Bourguiba. It contains seventy-eight articles (2003 revised version).
[3] The Law of the Provisional Organization of Public Authorities or interim Tunisian constitution is a Tunisian constitutional law approved by the National Constituent Assembly on 10 December 2011. It included a new constitutional structure of Tunisia’s leadership, stipulating three presidencies: the speakership of the National Constituent Assembly (which enjoys the original power, given that its members were elected freely and directly by the people of Tunisia), the presidency of the republic, and the prime minister. This law replaced a decree issued on 23 March 2011, and the Constitution of 1959.
Last modified on Thursday, 19 February 2015 14:10

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