Tunisian legislators showed overwhelming support for the new constitution Sunday night when they voted it in by a wide margin of 200 in favor, 12 against, and 4 abstaining. They also decided their preference for “consensus”-based agreements as a way to settle differences between the main protagonists of the democratic transition.
Up until last summer, acute polarization prevailed between the main political players making the majority of Tunisians gradually lose confidence in politicians and political institutions.
A University of Michigan (U-M) study of “changing values in the birthplace of the Arab Spring” (released last month but conducted in April-May 2013) showed that only 24% of Tunisians expressed some level of trust in the political parties and 25% had confidence in the National Constitutional Assembly (ANC).
With their raucous debates and chronic mudslinging broadcast live on national television, legislators were often accused of being too detached from national realities. While 77% of Tunisians had economic issues and security concerns on their minds, the 217 members of the Constituent Assembly of Tunisia (ANC) did not seem to be achieving much progress towards drafting the new constitution or promoting economic recovery and better security.
Then, there were the dramatic events in Egypt of last summer. After the initial tremors, political actors of all shades realized that an “Egyptian scenario” was not possible in Tunisia and that a protracted political impasse in the country was to nobody’s advantage. Key regional and international actors, who had failed to mediate a solution in Egypt, were eager to see the main Tunisian parties settle for mutual concessions to pave the way for negotiated agreements.
By Oct. 25, Islamist and secularist political formations were sitting around the same table during its National Dialogue process, sponsored by a quartet of civil society organizations led by the main trade union federation, UGTT.
Completion of the constitution drafting process was among the agreed upon objectives, along with the setting up of an independent electoral commission and the formation of a new technocratic government, replacing the Islamist-led government of Ali Lariadh. The main Islamist party, Ennahdha, accepted to leave government.
“Ennahda seems to have learned from the Muslim Brotherhood’s defeat in Egypt, and chose to compromise instead of lose everything,” argued Khalil al-Anani, resident senior fellow at the Washington-based Middle East Institute.
The secularist opposition, led by the Nida Tounes party, did not object to the choice of Mehdi Jomaa, a member of the Lariadh government, to form a new government of independent cadres.
The new constitution was supposed to be signed on the third anniversary of the fall of the Ben Ali regime, on Jan. 14, 2014. But nobody really minded the nine-day delay, as the members of the ANC could not finish voting individual articles of the new constitution before January 23rd.
Reasons to be satisfied
In Tunisia itself, there was palpable relief after the announcement that an agreement was reached about the text of the constitution. There were a few reasons for satisfaction. The first had to do with the realization that with the democratic transition seemed finally on track.
Also, there was almost something in the final text of the Constitution for everybody. Articles seemed to reflect the demands of both conservatives and liberals. The end-result often consisted in composite articles reflecting more than one side of the debate. If Article defined Tunisia as “sovereign state” whose “religion is Islam,” other passages in the constitution stipulated that “the state is civil.”
The process of drafting the Constitution has been described as a demonstration of the “politics of the possible.” Success in the future will depend a great deal, however, on “the economics of the possible.”Oussama Romthani
Votes on proposals for amendments and counter-amendments made sure almost all voices were heard and most viewpoints incorporated. All articles were always put to the vote regardless of how wide the agreement about them was. ANC members even voted on the religiously-inspired idiomatic phrase “Allah is the Arbiter of Success,” which concludes the text of the constitution (which two members abstained from).
A more complex example was Article 38 which committed the state to “strengthening and promoting the Arabic language and expanding its use.” The polemics, and amendment proposals that followed, ended up adding to the article a provision guaranteeing “openness on foreign languages, human civilizations and the promotion of the culture of human rights.”
If liberal analysts ended up describing the final text of the constitution as “acceptable,” it was because an ultraconservative hijacking of the drafting process did not happen. The Sharia, or Islamic law, was not enshrined as the source of legislation.
Women’s rights were safeguarded. For months, pro-women organizations and other civil society organizations worried that Islamists would dilute the achievements brought about by the 1956-“Personal Status Code.”
But Article 45 of the new constitution ended up including a number of provisions further anchoring the rights of women, instead. Not only did the voted article commit the state to safeguarding previously-sanctioned rights, it also stipulated that “the state guarantees equal opportunities between men and women in assuming various responsibilities in all fields.”
Furthermore, the state was entrusted with seeking “to achieve parity of representation for women and men in elected councils.” According to Ghazi Ghrairi, general secretary of the international law academy, social pressure mattered a great deal. “Gender quality was in fact imposed by society. But it is to the merit of the ANC to have been responsive enough,” he said.
The final text of the constitution also reflected a desire to heed lessons of the past. New provisions were aimed at preventing major political and constitutional crises of Tunisia’s post-independence history from happening again.
Any risk of hyper-centralization of power, the Achilles heel of Tunisia’s “authoritarian decades,” was pre-empted by Article 70, which split executive authority between the president of the republic and the prime minister. To prevent crises which could be brought about by presidents overstaying their welcome in office, the new constitution made sure to stipulate that “no-one can hold the presidency for more than two terms, whether consecutive or otherwise.” It also emphasized that “the number of presidential terms may not be amended or increased.”
Addressing socio-economic issues
Taking stock of the socio-economic factors which contributed to the fall of the Ben Ali regime, and particularly the December 2010 to January 2011 uprisings in the Midwestern provinces of Sidi Bouzid and Kasserine, the constitution outlined a new development course for the country, based on decentralization and more “balance between regions.”
During the last three years, the population in many of parts of the Tunisian hinterland has not stopped protesting thepast decades of development neglect and clamoring for compensation. In certain parts of the country, such as the southern province of Gabes, there was protest over the effects of chronic industrial pollution. To expedite the launch of remedial processes in these regions, the constitution adopted the “principle of positive discrimination.”
The constitution also guaranteed “the right to a sound and balanced environment and the contribution towards climate safety” throughout the country. Dhamir Mannai, member of the ANC and of the London-based international “Climate Parliament,” was the author of the amendments which introduced the issue of climate warming into the constitution.
He told Al Arabiya News his initiative was based on the observation that climate warming has been for years affecting snowfall levels in the northwest as well as the pace of encroachment by the desert in the south. "The purpose is to anchor a new vision of sustainable development that is inclusive of all parts of the country and of the needs of future generations," he said.
The process of drafting the Constitution has been described as a demonstration of the “politics of the possible”. Success in the future will depend a great deal, however, on “the economics of the possible”.
But as with most good texts of law, the potential problem is likely to reside in implementation and interpretation of the constitution. Many are confident the country’s dynamic civil society and independent judicial authorities, especially, the constitutionally-ordained Constitution Court, will make sure the new progressive values are not lost in translation when it time comes time for ideas to take shape.
International attention to Tunisia is also likely to be a factor. Around the world, hope is pinned on Tunisia to continue proving that violent confrontation does not have to be the fate of all post-Arab Spring transitions. When it came out on Jan. 24 that “Tunisia offers hope that there is a pluralist democratic light at the end of the tunnel,” The Dallas Morning News expressed a widespread notion among Tunisia watchers. This attention will undoubtedly continue influencing the behavior of many of Tunisia’s domestic actors.
There are remaining reasons for caution and concern, according to some. Editorial writer Lotfi Larget fears the "contradictions" within the text of the constitution could lead to “political and legal battles” each time a new law is introduced in the future.
The implementation of the social vision of justice and equity, described in the new constitution, will require more than good will. Robert Zaretsky, professor of history at the University of Houston, describes the approach followed by Tunisia’s Constituent Assembly as a demonstration of the “politics of the possible.” Success in the future will however depend a great deal on the “economics of the possible.”
That certainly will be one of the considerations of the newly-appointed government of Mr Mehdi Jomaa as it starts in the next coming days to deal with realities on the ground. Despite the serious challenges it will have to face, this technocratic government might have a chance if the spirit of compromise, which has made the drafting of the constitution possible, is allowed to carry the day between now and next elections.
Oussama Romdhani is a former Tunisian minister of Communication, previously in charge of his country's international image. He served as a Tunisian diplomat to the United States, from 1981 to 1995. A recipient of the U.S. Foreign Service Distinguished Visiting Lecturer Award, he was also a Washington DC press correspondent and Fulbright Research Scholar at Georgetown University. Romdhani is currently an international media analyst. Official blog page: www.oussama-romdhani.com