The draft of the preamble to the Tunisian constitution has aroused heated debates, as the committee in charge of drawing it up has declared the “constants of Islam” to be above the basic principles of the Tunisian constitution.  Many have asked if these constants give Sharia preferential status compared to other laws?

Tense atmosphere of preamble drafting

The draft of the preamble to the Tunisian constitution has aroused heated debates, as the committee in charge of drawing it up has declared the “constants of Islam” to be above the basic principles of the Tunisian constitution.  Many have asked if these constants give Sharia preferential status compared to other laws?

Tense atmosphere of preamble drafting

The Islamic-oriented Ennahda Movement won 41% of the seats in the Constituent Assembly, which is an indication of the anticipated role of Sharia in the constitution. Moreover, when we look at the formation of the Constituent Assembly Committee in charge of drawing up the Constitutional preamble and basic principles and revising its draft, we find that it represents the most extreme part of the Ennahda Movement.

By this we mean the two Minsters of Parliament (MP) Sadeq Chouro and Sahbi Atig. The former spent the longest prison term amongst all Tunisian Islamists and is the most determined to incorporate Sharia into the constitution. This was evident in his statements and speeches during the assembly deliberations, which were mostly quoted from the Holy Quran. Moreover, he persistently stressed “the need for constitutionalizing a primary role of Sharia and depending on the Islam texts as a source of legislation.”

Sahbi Atig, the preamble committee chairman, has emerged as the most enthusiastic advocate for including a special chapter in the constitution stating that Sharia is the main source of legislation.

These stances aroused heated debates with many people accusing Ennahda of being two-faced and of having hidden agendas, especially that it never mentioned such issues in its electoral platform.

To respond to rising criticism, Ennahda declared its formal stance that it did not call for allocating a special chapter for Sharia and that it is satisfied with chapter 1 of the 1959 constitution, which states that the official religion of Tunisia is Islam.

However, the conflict seems to focus on the constitution preamble rather than its chapters. The committee decided, immediately after glorifying the Tunisian revolution, that the preamble should declare the “constants of Islam” as a reference.

This is why some critics say that the Islamist current has taken in one hand what it gave to the other, and that the term “constants of Islam” is a Trojan horse intended to insert Sharia into the highest law: the constitution.

What are the constants in the “constants of Islam”?

The Preamble Committee meeting minutes did indeed mention something about the potential role of Sharia in the constitution. Opinions were divided about Islamic values and principles, but there was a unanimous agreement in the final wording, which affirms that “the constitution is based on the “constants of Islam” and its objectives characterized by openness and moderation.”  Another paragraph says “the constitution is a culmination of the cultural and civilizational affiliation of the nation”.

“The preamble has three references: the constants and objectives of Islam, the gains of human civilization and the Tunisian reformist school”, explained the committee chairman.

It is worth mentioning that some have applauded this purposive, rather than stringent textual reading of Islam, especially the highlighting of “openness” and “moderation”.

As a concept, the “constants of Islam” sounds vague; its content cannot be accurately determined, and it certainly doesn’t rule out the Sharia.

Although this phrase cannot be traced back to the traditional Islamic juristic school, it is a key concept in the literature of the Muslim Brotherhood, especially in the thought of Hasan al-Banna, who distinguished between the constants and the variances and underlined the need to stick to the former while not ruling out the possibility of adapting the latter.

The “constants of Islam” are those unequivocal doctrines and maxims that cannot be interpreted or replaced. This is the strict aspect of Sharia and it likewise constitutes a legal system and has its own convictional feature.

So, this “apparently” innocent concept could open the Pandora’s Box of possible interpretations and could make the constitution fall beneath a dark sea of contradicting juristic opinions; which, will deepen the already heated debate about personal freedoms and religious principles.

Islam has unequivocal ideological constants such as monotheism but it also has economic constants, such as the prohibition of usury, moral constants, like the prohibition of alcoholic drinks and abortion and social constants, such as the prohibition of child adoption.

The problem here is the fate of positive laws, which allowed some institutions to engage in activities prohibited by Islam and also the fate of some existing laws.

For example, what will be the fate of child adoption? Will the parentage ascertainment law survive or be abrogated? And on what basis will the “constants of Islam” be interpreted by the Constitutional Administration and Constitutional Court? Will they do so referring to Islamic jurisprudence or to the literature of the Muslim Brotherhood, who declared that the Quran is their only constitution?

The “constants of Islam” importance stems from that of the preamble

Earlier, prominent constitutional law jurists declared that the preamble has no constitutional value given that it is an introductory collection of principles, which doesn’t constitute legal rules, unlike the chapters of the constitution.

However, the events that followed overtook this juristic interpretation and today constitutional law jurists unanimously agree that the preamble is part of the constitutional whole, which is confirmed by the comparative constitutional jurisprudence (France). Moreover, the Tunisian Constitutional Assembly referred to the preamble of the 1959 constitution to give its opinion regarding the constitutionality of some laws.

The preamble defines the general principles and orientations of the governmental system and it also lays down the philosophy of the constitution, but it has no extra-constitutional value and it seems that the committee has opted for this role.

The Islamist movement MPs insisted on including the “constants of Islam” in the preamble, which gave the impression that the preamble is the protective barrier of the constitution that cannot be crossed over by any law and it is the indispensable foundation stone of every legal construct.

Legally speaking, one cannot be absolutely positive that putting the “constants of Islam” upfront mean they have priority over other constitutional principles since the constitution is integral; its components may not be separated or prioritized over one another, which conceals another controversy about the constitution.

Present controversies

The first controversy is the variability of the “constants of Islam”; they should have been specified explicitly to close the door to contradicting interpretations.

The second controversy is the risk of emptying the constitution of its content. Some Committee members, as confirmed by its chairman, tried to reach a consensus but it seems that this consensus resulted in putting forward contradicting texts related to the same subject.

Apart from the “constants of Islam” and its objectives, the civil nature of the state has been affirmed, in addition to the universal human values. This made the preamble look like a mosaic with parts from different pictures forming a hybrid setting with unclear features.

The ostensible consensus may conceal a seed for future conflicts and create a fertile ground for contradictions and lobbying, thus making the constitution a colorful text that changes its color according to the inclinations of those at the helm.

The third controversy is the course of the Tunisian constitutional law. In 1861 Tunisia was the first Arab country to issue an Arabic constitution, so this preamble will not be a rarity. It will simply put the Tunisian constitution amongst other Arabic constitutions that make legislation subject to religion; hence, forcing legislators to take Sharia into consideration in any lawmaking process, which is the most preferred solution in the Arab and Muslim worlds (Egyptian constitution for example). Thus, this preamble may be even less novel compared to that of the 1959 constitution, which underlined the need to adopt from the principles of Islam but only after underlining that it is an integral part of the universal system of human rights and its pillars: dignity, freedom and justice.

Those controversies need solutions by the Constituent Assembly and the discussions about the preamble are expected to have a deep impact on the work of all other committees.

This opening signal has aroused more questions than answers and instead of devising solutions, it has deepened the controversies around the role of Sharia and further enflamed the debate between secularists and Islamists; despite the fact that they all agree that freedom, dignity and justice are what the revolution, which is the reason behind the new constitution in the first place, was asking for.