Following the uprisings that toppled Tunisian president Zine El Abidine Ben Ali and his Egyptian counterpart Hosni Mubarak, a need arose for constitutions to embody the ambitions of the revolution, or to mark the beginning of democracy.
Egypt has already adopted its new constitution, despite its revolution starting later than Tunisia’s, so in this study we are comparing the ratified Egyptian constitution to the draft Tunisian constitution.
Constitutions in the Arab region are often full of rhetoric, emotion, narcissism and can be very repetitive - the opposite of the traditional constitutions of the West. They also include unconstitutional sentences that usually belong to other legal documents. In this study we are trying to compare the two constitutions in structure and content:
Both constitutions have a prelude divided into sections (Egypt) and chapters (Tunisia). The prelude is just one line in the American constitution, eight in Portugal and Spain, and is inexistent in Italy, Holland, Belgium and Greece. But Tunisia’s draft constitution consists of 24 lines, while Egypt’s extends to a lengthy 50. These preludes don’t just repeat the same ideas. They are full of self-praise (“we who are well deserving to be elected” - Tunisia) and grandiose statements (“we earned back our great civilization” – Egypt). The Egyptian constitution has 236 items, which makes it among the longest in the world. The Tunisian constitution consists of 149 chapters, and so can be considered a medium-length constitution.
While constitutions concentrate on broad principles such as liberties and rights, our study found many additional items, some of which were in direct contradiction with the constitution itself. Unconstitutional content is more present in the Egyptian constitution than the Tunisian, be it in the prelude or in different sections talking about social topics (“the prison is a school for correction”) and economic (“new types of agriculture”) and moral (“the state promotes morals”). The Egyptian constitution tries to define the raison-d’etre of the state on a religious basis, and gives significant status to the army.
Rights and freedoms
Both constitutions pledged to protect all types of rights, civil, political, economic, social and cultural freedoms. But neither agreed on the universality of human rights. Tunisia’s draft constitution gave the country the right to refuse to adapt any international conventions that contradict the constitution, while Egypt’s constitution says that the practice of freedoms and rights “should not contradict” with what’s in the constitution and “the Islamic Shariaa”.
There were slight vocabulary changes, as the Tunisians replaced “the parliament” with the “people’s council” to dissociate from the previous regime terminology, although some items still mention MPs. Egypt did the same but adopted a two chambers system consisting of “the parliament” and “the Shura Council”, while keeping the final vote in the hand of the lower chamber.
Both constitutions kept the age of 40 years as a minimum age, while Tunisia put 75 as a maximal age. In Egypt, the constitution states that the president should not be married to a non-Egyptian. The Egyptian president should reveal their financial status every year, but the Tunisian constitution does not include such a clause, although the prelude mentions good governance. The presidential mandate in Tunisia is five years renewable once, while in Egypt it is four years renewable once. Under the Egyptian constitution, the president doesn’t have any immunity. The Tunisian president, if accused of betrayal by the people’s council, can only be convicted to be ousted by the constitutional tribunal, while in Egypt the president can be prosecuted and sentenced according to the penal code.
Governments and ministers are appointed by the president, but need to win the vote of confidence of the people’s council (in Tunisia) and the parliament (in Egypt). The president has the right to dissolve the lower chamber.
The prime minister
Both constitutions allow the parliament and the people’s council to oversee the work of the government and hold it accountable. The Egyptian constitution is more flexible while the Tunisian constitution has put difficult-to-implement conditions that might create a real government crisis, such as the need to introduce an alternative government prior to changing it.
Misdistribution of powers
While the Egyptian constitution considers the president as the “head of the Executive Authority”, it doesn’t explain the responsibility of the prime minister towards the president. In the Tunisian example, it is more mysterious and full of ambiguity, with contradictory items.
The judiciary authority
The Tunisian constitution has two chapters about the judiciary: one about the penal, administrative and financial court, and the other about the constitutional court.
The Egyptian constitution has a judiciary authority section divided into five: the penal court, the public prosecution, the state’s council, the supreme constitutional court and the judiciary committees. Both constitutions pledge to protect judges and their role on preserving the rights and freedoms.
The vertical structure
The Tunisian constitution talks about “the local authority” while the Egyptian talks about “the local administration system”. While both constitutions support decentralization, it is based on “territorial units” in Egypt and “local communities” in Tunisia, giving them an administrative and financial status.
Any constitution which doesn’t defend rights and freedoms, nor ameliorate the power structure is due to fail. And while our brothers in Egypt rushed the adoption of their constitution, the Tunisians has the opportunity to benefit from the delay in adopting theirs by filling the gaps. The constitution shouldn’t be built around the ambitions or aspirations of a specific group, faction or political party, and any talk about the particularity of this or that people in the Arab region isn’t accurate, so shall we cease the opportunity?
(Written by Dr Ameen Mahfouz, who specializes in constitutional law and political systems at Sousa University, Tunisia)