The National Constituent Assembly (NCA) has recently submitted a new constitution draft for the third time, as the first two were severely criticized by experts and human rights advocates. Yadh Ben Achour, professor of constitutional law and former head of the High Commission for the Fulfillment of Revolutionary Goals, Political Reform and Democratic Transition, which paved the way for the elections of October 23, 2011, gives his take on the long-awaited constitution.

Mr. Ben Achour, how do you evaluate the current constitution draft?

The National Constituent Assembly (NCA) has recently submitted a new constitution draft for the third time, as the first two were severely criticized by experts and human rights advocates. Yadh Ben Achour, professor of constitutional law and former head of the High Commission for the Fulfillment of Revolutionary Goals, Political Reform and Democratic Transition, which paved the way for the elections of October 23, 2011, gives his take on the long-awaited constitution.

Mr. Ben Achour, how do you evaluate the current constitution draft?

We may consider it acceptable compared to the previous two. Most political parties agree on this draft, but this does not mean it is the best version. It could be subject to further improvement, particularly with respect to certain issues, such as the civil state and freedom of religion. I believe that it is important for the new constitution to provide for the individual’s freedom to change religion or not to follow any religion at all, especially in the presence of a religious party with extremist allies.

Would you elaborate more on the shortcomings of the constitution draft?

There are some technically and linguistically confusing parts. For example, the word ‘emergency’ – which reflects our current situation, which allows for tightening of public freedoms while granting broader influence to the state – is used instead of ‘exception’ – which is meant for conditions great than a civil war.

There are other mistakes relating to the nature of the political system and balance of powers between the president of the republic and the prime minister on one hand and between the legislative and the executive branch on the other. Besides, there are few violations related to the judiciary and the Constitutional Court in particular.

We want an entirely well-formed constitution including all aspects relating to values, techniques and even language.

Has forming the constitution taken a lot of time?

NCA has wasted a lot of time indulging in matters out of its intended mission’s context thus delaying drafting the constitution, which has disappointed Tunisians and consequently turned NCA into an unmonitored parliament.

The NCA mission was determined to be finalized in one year, which is more than enough as it would have accomplished this mission in three to six months maximum would it have restricted its activities to formulating the constitution considering the country’s troubled and unstable conditions.

Why have you described the NCA as a parliament?

The people elected the NCA to formulate the constitution and did not elect a parliament. But today, we have a parliament unbound by a definite period, unmonitored by the Constitutional Court, and irresolvable by the executive and a litigation against any of its ratified laws is not acceptable at the Constitutional Court.

Would the elections be held in 2013?

The constitution in hand contains unacceptable technical and legal violations and must be revised, especially in regards to the Constitutional Court. Some transitional provisions should be stipulated and such an issue takes a lot of time. In Italy, for example, electing the Constitutional Council and the Constitutional Court took 10 years.

Even if the Constitution is finalized and the Independent Higher Electoral Commission is elected, the Commission would have to open offices, employ adequate administration and staff, create and legalize its work methodology, establish ballot offices and formulate an electoral law, which takes at least six to eight months. Consequently, no presidential or legislative elections will take place in 2013, but if the country’s conditions have improved and the security situation is stabilized, elections will be held in the summer of 2014.

Depending on your law expertise, are there any unidentified loopholes?

The constitution draft lacks necessary transitional provisions. For example, the constitution draft does not include provisions demonstrating the mechanism of transferring authority from the current president to the newly elected one or from the current NCA to the new parliament. When we moved from the first transitional period to the second, we controlled this movement, but this is now not in place.

Why have you criticized the Revolution Immunization Bill?

This immunization has ignited the current unrest in Libya and we must be realistic as we are not in need of this law in Tunisia since we are seeking stability. I do not mean that corrupted figures are entitled to be appointed to the new government, but the judiciary is to be consulted to prosecute all those involved in corruption or abuse of authority and I quote here Hamadi Jebali’s former advisor and a prominent leader of Ennahda Movement Lotfi Zitoun, “Exclusion must be based on fair trial.”

Why have you criticized the way the government deals with media?

Unfortunately, attempts to control the media, especially TV and radio stations, have belittled the state. The Tunisian media still lacks professionalism and needs more development. And to enable it accomplish its mission, an independent body is to be established to oversee the ethical aspect of the profession and support journalists against any unacceptable practices by the government.

No democracy is without free media and despite the shortcomings, benefits remain greater.

How do you evaluate Ennahda’s performance?

Winning the elections by a majority of votes on October 23, 2011 was a great opportunity for Ennahda and the happiest day in the history of Tunisia, because they were the first real elections. But Ennahda’s ignorance of the meaning of the state and administration, in addition to their lack of political experience has led them to practice suppression, elimination of opponents and assaulting the media. As a ruling party, they should have not cursed their enemies but rather used methods representing the state as a whole not just the movement. As a state, they should not have been involved in party quotas when distributing ministerial portfolios and public departments and institutions or in appointing the Higher Electoral Commission.

Do you expect Ennahda to win the next election?

Even if Ennahda wins the election – perhaps through buying votes or pressuring the voters – they will not gain the same percentage of votes as last time. Therefore, we are counting on electoral monitoring and the role of the Higher Electoral Commission, in addition to radical changes in governance mechanisms.

Are there any parties close to you?

Although political parties are necessary in the democratic process, I refuse partisanship. I am not and will not be a member of any party since I refuse the partisan spirit and prefer rationality over ideology. Reason is a must. For example, when I discover some fault or disapprove a law, such as the Revolution Immunization Bill, would I let my partisan loyalty overcome my belief?

Have you received invitations from certain parties?

Most parties want me to be affiliated with them, especially the Republican Party and Call For Tunisia, but as an intellectual and educator, I refuse partisan affiliation.

The revolution has given us a great opportunity at the levels of rights and freedoms and we must not fail to achieve democracy because such an opportunity only comes once.