Emily Parker

Emily Parker

Civil Society, Constitutions, Featured, Tunisia

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Hailed by many analysts as the catalyst of the Arab Spring, Tunisia has followed a less tumultuous post-revolutionary reconstruction process than that of the country’s neighbors, Egypt and Libya. The success of Tunisia’s watershed October 2011 elections set the bar high for the country’s newly formed National Constituent Assembly (NCA), heightening expectations for the body’s primary task – drafting the country’s new constitution.

For many impatient Tunisians, the painfully slow pace of constitution writing has raised doubts as to whether a preliminary version of the document will be ready by October 23 – the original deadline for the draft (the vote on the final draft has now been postponed to April 2013). Although a text of the draft document was released to the public on August 8, the preliminary version leaves many issues unsettled, as it includes multiple versions of the most controversial articles.

In addition to the constitution’s lengthiness, other aspects of the drafting process have received criticism, both locally and internationally. With questions concerning the credentials of the members drafting the document and the extent of citizen participation and transparency throughout the process, few issues have been spared controversy.

At the same time, there are those who have claimed that these issues are the inevitable result of decades of dictatorial rule. Such individuals congratulate the drafters for lengthy deliberation amongst themselves and with civilians, and for ensuring that the constitution produced is representative of the full spectrum of Tunisian society. What remains clear is that the high expectations accompanying a hard-fought revolution are reflected in challenging decisions ahead concerning the future identity and laws of Tunisia.

The Constitutional Players

In a meeting organized by the Tunisian Association of Constitutional Law and the International Institute for Democracy on August 22, Tunisian lawyer and former Dean of the Faculty of Law and Political Science Iyadh Ben Achour alleged that the preliminary draft of the new constitution is neither realistic nor accurate. He asserted that a lack of legal experience and constitutional knowledge amongst National Constituent Assembly members has led to phrasing within the document that “…opens doors for dangerous anti-freedom interpretations.”

Ben Achour’s allegations raise an important question: What qualities should drafters of a constitution exhibit, and how much legal experience should they possess? According to Kais Said, a constitutional expert and professor at the Sorbonne, NCA members derive their legitimacy from being elected directly by the public during Tunisia’s elections last October. In Said’s eyes, these individuals are the most appropriate drafters of the constitution because they were chosen as representatives of the people. Prior education and legal experience hold little significance to him.

Law Professor Tom Ginsburg agrees that more important than possessing a legal background is that “…those drafting the constitution are representative of all groups in the society. The constitution will fail otherwise.” For Ginsburg, the fact that 28 parties are represented in the NCA indicates that such is the case, and that the range of opinions among Tunisia’s various constituent groups will be reflected in the new constitution.

Yet, others argue that the 89 seats (41%) held by the moderate Islamist Ennahdha party in the NCA inhibit less-represented parties from having their interests included in the constitution. As the largest bloc within the NCA, Ennahdha holds the most weight in each constitutional drafting commission, since the number of seats each party is allocated in subcommittees is proportional to the party’s presence within the NCA. Due to this ratio, critics argue that Ennahdha will leave a more distinct stamp on the constitution than will any other party.

The NCA’s multi-party structure and power-sharing agreement raises another issue. The body’s composition of 28 parties, each possessing their own interests, means that reaching an internal consensus often proves difficult – a condition which has stymied the already drawn-out composition process.

The drafting process begins in the NCA’s six constitutional subcommittees, each tasked with constructing articles addressing a particular topic. The subcommittees attempt to reach a consensus among their 22 members when crafting the articles. However, if a consensus is not reached within the subcommittee, members can submit multiple versions of their proposition to the NCA general assembly to be discussed during a plenary session. To date, there remain over twenty proposed articles containing multiple versions that must be discussed during a public session now that the NCA has reconvened. Most notably, NCA members have been unable to reach an agreement concerning the form of the country’s next government: parliamentary or semi-presidential.

While political jockeying within the NCA has undoubtedly contributed to the slowness of the drafting process, there are those who see such discussions as necessary for the constitution to truly embody the full spectrum of Tunisian society. Moreover, they view the prolonged debates as a healthy sign that the country is successfully applying democratic principles.

However, Amira Yahyaoui, co-founder of pro-democracy group Al Bawsala, questions the need to draft an entirely new document. “They [NCA members] also lose lots of time debating stupid things. They wanted to start from scratch…Do they think that they will reinvent freedom of expression, or democracy? These concepts have existed for a long time, and there are lots of precedents they can use from across the world. We aren’t reinventing the wheel here,” she said.

The Constitutional Process

Perhaps, the harshest criticism concerning the drafting process thus far is the allegation that the procedure has not been participatory and transparent enough. After enduring a revolution aimed at taking power out of the hands of a dictator and returning it to the streets, ensuring that all citizens have a say in the document defining their country’s future is of the utmost importance to many Tunisians.

“The lack of transparency during a transitional period is completely equal to censorship during a dictatorship. It has the same face as dictatorship,” Yahyaoui claims.

In order to increase citizen participation during the constitutional drafting process, once a month, during a so-called “outreach week,” NCA members are supposed to meet with local citizens of the governorates from which they were elected.

Yahyaoui believes that such efforts are the exception rather than the norm, however. “A few of the NCA members conduct outreach, but not all of them. A huge part of them don’t even show up to the plenary sessions. Imagine what they do in their regions!” she accused.

As part of an attempt to raise citizen awareness of what takes place behind the closed doors of the NCA, Yahyaoui’s parliamentary monitoring organization, Al Bawsala, has attempted to publish commission meeting minutes on the organization’s website Al Marsad. Several appointments with Head of the NCA Mustapha Ben Jaafer in order to receive his approval to obtain the commission minutes, however, have proven fruitless.

As a result of such complaints, Yahyaoui’s organization has filed a suit against the NCA for violating the body’s own internal regulations ensuring transparency: articles 54 and 62.

Yahyaoui did concede, however, that some individual members of the NCA have remained committed to promoting transparency. “There are a few real transparent MPs. That’s how we have our meeting minutes. These MPs send them to us via email,” Yahyaoui explained. She named Mabrouka Mbarek - who was responsible for sharing the first draft of the constitution with the public - as one such individual.

Yet, such attempts come from the personal initiative of particular NCA members – not from the body itself. Whether due to fear of Tunisians’ overreaction to elements of the draft language, or due to personal party interests, the NCA as a whole has not officially released drafts of the constitution’s contents to the public.

The Constitutional Contents

In the excitement of drafting a new legal foundation for their country, Tunisians are reexamining the legality of all aspects of society, and the magnitude of ideas and interests swirling in the void left behind by Zine el-Abidine Ben Ali is overwhelming.

Yahyaoui and others have argued that attempts to reexamine and to regulate all aspects of Tunisian society have bordered on the excessive. “People in Tunisia now think that if a law isn’t in the constitution, it doesn’t have value. I’m wondering when the day will come when the people will ask for an article respecting a red light to be included in the constitution... It is a constitution, so it should be about morals and values – not about specific problems,” she stated.

Both Yahyaoui and Ginsburg agree that attempting to include broad interests more easily addressed outside of the constitution could weaken the document’s weight. Moreover, efforts to appease all parties in Tunisian society could result in a confusing and self-contradictory document. While many constitutional issues have received more attention than perhaps is necessary, Katherine Maher, Fellow at the Truman National Security Project and an international affairs consultant, believes that other topics deserve more exposure – especially issues surrounding personal freedoms, such as freedom of the press and media.

Maher also stresses the necessity of precise language within the constitution. “My concern for the constitution as it stands now is that there is a lack of precision in the language…Adaptations may not be in line with the ideas of the original drafters,” she cautioned.

The Constitutional Prognosis

Within Tunisia’s fledgling democratic system, high expectations mean that there is bound to be criticism coming from all sides, and Ginsburg added that NCA members appear to be receiving sometimes contradictory demands from all sides. “There’s a tension between criticism that they [NCA members] aren’t being transparent enough, and that they are taking too long. If they were to be more transparent, it would take longer. This is natural,” he explained.

Moreover, Ginsburg highlighted that constitutions are living documents, and that the version constructed by the current NCA members is by no means final – there is still the possibility for amendments and changes. “The fact is that in every constitution, you make mistakes and there are unanticipated consequences. Plus, the political-social environment is always changing…It is inevitable that there are things that will need to be changed.”

Thus, perhaps the hype and harsh critiques surrounding the very preliminary draft of Tunisia’s constitution may, in fact, be premature. Out of all of the countries experiencing the reverberations of the Arab Spring, Tunisia is the furthest along in the formulation of its new constitution, and hopes remain high. “If they [the Tunisians] can’t do it, no one can,” Ginsburg asserted.

Emily Parker

About Emily Parker

Emily Parker recently graduated summa cum laude from Tufts University with a BA in Middle Eastern Studies and Arabic. Prior to graduating, she worked as a Middle East research intern for a human rights research organization in Boston. Post-graduation, she arrived in Tunisia to begin an intensive Arabic program and remained in the country to work as an editor and journalist for an online Tunisian news agency, Tunisia Live.