This article is taken from webpage OpenDemocracy.net and is promoted here. It discusses the difficulties in drafting the new Tunisia’s constitution without undermining the rights of different strata in the society. The new constitution is highly regarded as the pinnacle of Arab democracy even with its minor flaws and quirks.
In spite of a number of serious challenges, the Tunisian Constituent Assembly – under the people’s ever watchful eye – successfully negotiated a new and modern constitution. In 2011, the political class was far from prepared for the changes that had been forced upon them by the people. Important cleavages between conservative Islamist politicians on the one hand and liberal and secular politicians on the other complicated negotiations and grew worse over time.
For a time, it was far from certain that the negotiating parties would be able to reach a final agreement. This was particularly true after the changes that took place in Egypt during June 2013, coupled with the assassination of three opposition politicians, as well as attacks against the country’s military (that were often attributed to a lax attitude by the ruling coalition against Islamist militants). During the fall of 2013, leading members of the opposition were calling for the government to be toppled and for the Constituent Assembly to be dissolved.
In the end, a series of negotiations took place to defuse the political crisis without any additional violence. The country’s main political forces participated in discussions that were brokered by the country’s largest trade unions, the lawyers association, and one of the country’s largest human rights associations (who were together referred to as the ‘Quartet’). Meanwhile, negotiations on the finalization of the constitution continued in a separate forum (see below).
By successfully negotiating a final agreement, the Tunisians have led the way in proving that ideological differences need not lead to conflict or stalemate and that they can survive in the context of a modern Arab state and society. The pragmatic and result-based approach that the Tunisian negotiators adopted will serve as a positive example of successful constitution-making and conflict resolution not just for the Arab region, but for much of the rest of the world as well.
The early stages
Many of the difficulties that emerged were linked to the context in which the constitutional process took place, and also to the manner in which the Constituent Assembly organized its work at the very early stages. In Tunisia, as in all countries that were affected by the Arab uprisings of 2011, ruling elites and members of the opposition were caught completely by surprise and unprepared by the changes that were forced onto them by the people. Before the constituent assembly elections that took place in October 2011, senior state officials repeatedly argued that the new constitution was a purely technical document that could be drafted in a matter of months, reflecting their lack of understanding of how complex the process was likely to be, particularly given that Tunisia was just emerging from a harsh dictatorial environment in which basic freedoms, including free expression, were denied for decades.
That lack of preparedness and of understanding also impacted on the manner in which the drafting process itself was organized. After the constituent assembly was elected, its members made the mistake of debating and drafting detailed provisions on the system of government and human rights without first having agreed upon the type of state that should be established, or the type of relationship that should exist between the state and the individual. South Africa, India and most recently Yemen are only some of the countries where the politicians took the time to negotiate what has been referred to as ‘fundamental principles’ before actually starting the process of drafting the constitution. Proceeding in that fashion makes sense for countries that start their transition to democracy without a good idea of what their state will look like in the future. In Tunisia, an early attempt was made to discuss the future state’s fundamental principles by a commission that was headed by Yadh Ben Achour in 2011. The text was considered to be disappointing to many, and did not play an important role during the drafting of the constitution that started in 2012.
Details were discussed before fundamentals and for that reason, much time was lost. Drafters argued over how parliamentary procedure should be worded in the constitution more than a year before knowing whether the new state would be presidential, parliamentary or somewhere in between. When eventually a final decision was made, much of the initial drafting work had to be redone.
The dominating political parties also made the mistake of assuming that constitutional drafting should be organized along similar lines to the ordinary political process and that therefore electoral results were the only or at least the main factor that should determine the negotiations’ dynamics (the same approach was taken in Iraq in 2005 and in Egypt in 2012).
In the October 2011 elections, Ennahda (the main Islamist party) obtained the best result by far with 37% of the vote. Ennahda believed, as did its Islamist counterparts in other Arab countries who had also performed well in elections since 2011, that their recent electoral success should entitle them to determine the permanent constitution’s makeup regardless of whether they could maintain their level of popularity in the future. Ennahda’s position was more moderate than their Egyptian counterparts (possibly because, despite their success, they were nevertheless in a clear minority within the Assembly) and very quickly into the process conceded on a number of issues (most famously, Ennahda’s leadership dropped its insistence that the new constitution should refer to Sharia as a source of legislation). Despite that important move, the issue did not die as Islamist members continued to try to pepper the text with religious references.
Thus, when the CA formed drafting committees to work on various parts of the constitution right at the start of the process, their makeup (and therefore the weight that was given to various positions) was determined solely by each party’s respective weight in the Assembly itself. Most importantly perhaps, the Assembly established a Joint Committee for Cooperation and Drafting which was theoretically responsible for coordinating the work of all the other drafting committees and for preparing the constitution’s final draft. However, as a result of the fact that Ennahda dominated the Joint Committee, its remaining members consistently complained that their views were being ignored, preventing the Joint Committee from making any progress on a number of fundamental issues.
Eventually, in June 2013, more than 1.5 years into the process, as the country’s political divide deepened, it became apparent that the Joint Committee was unable to resolve most if not all of the points of disagreement that had already been outstanding for some time. In addition, a crisis broke out after it was discovered that the Joint Commission’s president made a number of important changes to the draft constitution without consulting the relevant drafting commissions. A decision was therefore taken to form a new body, known as the Consensus Committee, in which each political group was given equal weight to all others. Continue reading