Head of the National Continuant Assembly (NCA) Mustfa Ben Jaafar submitted early this month, the new constitution’s final draft. Though still a draft, the constitution has been criticized for many chapters, especially those related to state civility, nature of the political regime and rights and freedoms margins.

Head of the National Continuant Assembly (NCA) Mustfa Ben Jaafar submitted early this month, the new constitution’s final draft. Though still a draft, the constitution has been criticized for many chapters, especially those related to state civility, nature of the political regime and rights and freedoms margins.

The majority of Tunisian political parties and constitutional law experts agree that the final draft constitution is qualitatively improved compared to the previous two. However, warning signs of parliamentary bullying directed at certain orientations, which the majority party in the NCA seeks to affirm, are raised. 

While some believe the new 146-section final draft constitution meets the aspirations of the people and enhances consensus among Tunisian parties, others criticized its multi-interpretative and ambiguous provisions, including the nature of the political regime, state civility and religion-state relationship and referred also to the Transitional provisions Chapter which provides the opportunity for prolonging the transitional period and suspending the work of the Constitutional Court.

While NCA members are preparing to discuss the draft constitution, civil society activists including constitutional law experts and politicians are conducting meetings and seminars to enlighten the Tunisian public of controversial points in the draft of the country’s new constitution.

The Country Civility and Religion-Society relationship

Constitutional law experts like Ayyad Ben Ashour and Kais Said believe the nature of the state is ambiguously addressed by the constitution as one might conclude that it is religious, in reference to the preface’s statement: “In commitment to the values of Islam”, “Our culture and civilization are part and parcel of the Arab Islamic nation’s” or “Integration with the Islamic nations” while at the same time it also states, “in order to lay the foundation for a participative republican democratic regime”..

This dual perception of the nature of the state aroused many concerns over the return of authoritarianism in the name of religion, which is a gross threat to the rights and freedoms required since the 2011 revolution.

Article 141 defines Islam as the religion of the state and thus a certain view may prevail over another as Islam is the religion of Tunisia and the Tunisian majority.

The draft constitution defines the state as a protector of religion committed to protecting sanctuaries while the freedom of consciousness is stated at the same time, which is another case of contradiction.

Moreover, as the draft constitution denies mosques a partisan role, but grants them a political one, many human rights defenders and politicians perceive such moves as  Ennahda’s attempt to maneuver mosques into mobilizing their attendants against their opponents.

Rights and Freedoms

It is taken for granted by all persons well familiar with the final draft constitution that many advantages have been gained in the field of freedoms and rights in comparison with the two previous drafts. However, this does exclude the existence of negativities, especially limitations on freedoms under the pretext of maintaining personal reputations, security and health (Article 30).

On the other hand, Article 30 has not defined the standards controlling the work of the legislator as far as drafting election-organizing laws are concerned and has not granted the political opposition the character of an institution.

Within another context, though Tunisian women rights and the position they have preserved since the enactment of the 1956’s Personal Statue Law especially in terms of equity, the perception of the state as a religious one has aroused controversy and provided the opposition in the NCA with the opportunity to expose what they consider plotted intentions of the Islamists to withdraw the modern gains Tunisians have achieved over half a century.

As for the freedom of expression, article 124 states that a media authority shall be established and assigned with making amendments to the sector with all its components and will monitor the right of expression and access to information; an action that contradicts all democratic systems.

Loose wording, as in articles 30 and 31, relating the rights of expression and information access, commonly characterizes the totalitarian regime’s constitution, are used to suppress the freedom of media. Media specialists and freedom defenders fear the interpretations that commonly accompany such loose wording.

It is noteworthy that the final draft constitution has set no restrictions on the rights to join unions and stage or attend sit-ins as agreed in the national dialogue initiated by the Tunisian Republic presidency and national organizations last May. Hinders of media and expression freedoms in general, however, have not been discussed.

Finally, the draft constitution preamble did not openly state commitment to the right of expression freedom according to the article 19 of the International Convention on Civil and Political Rights endorsed by the Tunisian Republic in March, 1961. Media specialists find in the commitment to the convention a step blocking the road before reviving the restrictions stated by the 1959 constitution that resulted in classifying Tunisia under Ben Ali’s rule as one the most aggressive states against the freedom of media and expression. 

A vague regime

It is not hard for those closely examining the draft constitution to conclude that the expected political constitution is neither an amended presidential regime nor an amended parliamentary one, but rather an assembly system that is the most threatening to societies, as it puts the government under the control of the parliament and cannot be dissolved unless it fails to form the government. 

Political oppositions in and out the NCA object to the nature of the regime stated by the draft constitution and deem it a sharing process of assignment and a power quota system that will eventually result in creating an executive matrix that lacks harmony, due to that fact that it is actually not only developed to the measures of parties, but strangely enough to those of persons’ also.

Even if Chapter 4 adds new honorable powers to the president, the draft constitution is still considered a project intended to strengthen the parliamentary state under the name of the amended presidential regime.

Opponents of the final draft constitution consider adding some new executive powers to those of the president comes within the context of a political tactic and seeks the satisfaction of Ennahda’s current and future allies.

The draft is marked by a declared inconsistency in terms of distributing the executive authority powers between the president and the prime minister, enhancing current conflict between these two poles of power (the government and the presidency) which resulted in paralyzing the executive authority and incited conflicts and ‘partisan’ declaration wars.

Transitional provisions and the judiciary branch

Ayyad Ben Ashor, constitutional law expert, believes that Transitional Provisions are constitutional principles in themselves that could be adopted for an undefined period of time.

In this regard, he called on the NCA not to pass the chapter of the transitional provisions as it provides the opportunity for a new transitional period and for suspending the work of the Constitutional Court, as courts and parties may not appeal against the constitutionality of laws issued by the NCA before three years of law enactment.

As for the constitutional court, allocating a third of its members for unspecialized religious figures and politicians raised a huge controversy for lacking the required law experience and restricting their role to serving political partisan interests which does not meet the exigencies of the state of Law and institutions.

The judiciary chapter is regarded as containing some contradictions like affirming the autonomous nature of the authority while the Judiciary Supreme Council has an unelected majority.

The fact that the draft constitution has all these political and law contradictions cripples the transition to the coherent institutional state.

When a constitution that is expected to respond to the aspirations of a people for a successful and solid democracy is drafted according to the political tensions and interests, Professor of Constitutional law Kais Said’s statement “Tunisia’s real constitution was written by the young people on walls” is true.