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Tunisia’s promising new constitution

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The emerging Tunisian constitution is profoundly encouraging on multiple fronts, especially equal rights

Hussein Ibish

Hussein Ibish

By Hussein Ibish, Now.

Tunisia has problems: a floundering economy, a simmering political feud between secular and Islamist parties and violent Salafi extremists. But none of that should detract from the achievement that is currently unfolding in Tunis. Rival parties, although they remain at loggerheads on so many issues, are coming up with what is without doubt the most promising constitution in the post-dictatorship Arab world.

The new Tunisian constitution is still incomplete, with most articles yet to be voted on. They have to receive a two-thirds majority in the Constituent Assembly in order for the 145 articles to be approved. But what has been passed so far is deeply encouraging. The process is supposed to be finished by 14 January, and that seems optimistic. It may well take longer, and that’s fine. The point is to have a good document, not a prompt one.

The new Egyptian draft constitution, by contrast, contains far too many religious concessions to the Salafist Al-Nour party, and too many unchecked privileges for the military. Its problems run deeper than that, but those are, at least, significant indicators of a flawed document.

Moreover, it’s been a consistent mistake of post-dictatorship Arab politics to form governments that don’t feel or act like interim authorities before having solid constitutions in place to protect the rights of individuals, minorities and women, and to ensure orderly transitions of power.

Tunisia itself experienced the same phenomenon, until the Ennahda-led troika coalition was forced to resign in favour of a “technocratic” interim government led by acting Prime Minister-designate Mehdi Jomaa, who will take over as soon as the constitution is completed and oversee new elections.

Again, this is supposed to be on 14 January, but may take slightly longer. And, again, any additional slight delay shouldn’t bother anyone. After all, the National Assembly that was elected in October 2011 was supposed to come up with a constitution within a year. So, a few more weeks here or there are hardly an issue.

Many of the articles are not controversial. And most of them have yet to be voted on. But what has been produced so far is profoundly encouraging. True, Article 1 gratuitously designates Islam as the religion of the state, but this is purely symbolic as Article 6 “guarantees freedom of belief and conscience and religious practices”. The inclusion of conscience in this phrase can and should be understood as including the right to be a member of any or no religion.

Typically, when contemporary Arab Islamists acknowledge religious freedom, at best, they are talking about the right to follow whatever kind of Abrahamic monotheist (“heavenly religion”) one chooses. This reference to “freedom of… conscience” moves, or at least should move, religious freedom into the territory of real freedom of belief, including freedom to have no religion at all.

Similarly, all efforts to include an article in the constitution to base lawmaking on Islamic Sharia have been rebuffed. Contrast this to concessions on that point made to both Islamists and the lowest common denominator of public opinion in all the different Egyptian constitutions, including the pending one.

Indeed, Article 2 explicitly declares Tunisia to be “a civil state based on citizenship, the will of the people, and the supremacy of law.” No reference here to God, religious law, or anything of the kind. And several articles, including Article 2, “cannot be amended”.

Article 3 declares that “sovereignty belongs to the people”. Again, the temptation to bring religion into the picture was completely rejected in favour of an equitable, civil state, at least in theory.

Article 20, moreover, holds that: “All citizens, male and female alike, have equal rights and duties, and are equal before the law without any discrimination.” The still-pending Article 45, which also deals with women’s rights, has yet to be debated or approved, and still may contain some pitfalls. But Article 20 is an excellent first step.

Human rights groups have voiced significant concerns about remaining articles. Tunisia will probably retain the death penalty. These groups want treaties Tunisia has joined to be explicitly superior to national law. They were not satisfied with the phrase “all citizens” in Article 20 because it did not include a longer list of protected categories beyond gender, including foreign nationals. And they want more guarantees about the independence of the judiciary.

All of these are good ideas that would certainly strengthen the document. But, to be fair, what the Tunisian political scene – including Ennahda – is in the process of adopting is easily the most serious, fair, intelligent, and workable basis for an Arab constitutional democracy in living memory. The process is not complete, and we will have to see how it is all implemented by a political system that remains profoundly divided. But what has so far been agreed for the new Tunisian constitution merits significant praise.

Hussein Ibish is a Senior Fellow at the American Task Force on Palestine.

This article was originally published on Now.


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