Tunisia’s struggle to agree on a constitution that satisfies both the conservative-liberal majority and the liberal opposition is giving way to consensus in many critical aspects of the new constitution. The Ennahda-led government made concessions concerning key demands of the opposition, such as the protection of women’s rights and freedom of expression and religion—key values for urban middle class Tunisians who see Islamists endangering their lifestyle and convictions. Although fearful of seeing Islam reduced to a mere cultural accessory (and of a return of the oppression they suffered previously), Ennahda nonetheless compromised on these key issues. But this compromise is turning the future constitution into a text full of contradictions, called schizophrenic by experts of constitutional law.

Article 6 of the new constitution illustrates the text’s internal contradictions. After contentious debates led to an amendment of the originally accepted text, it now reads: “The state protects religion. It guarantees freedom of conscience, of faith and of worship. It protects the sacred [. . .].” After an opposition deputy received death threats because he was referred to by a member of Ennahdha’s ultra-conservative wing as an apostate, the so called Democratic Fraction of the Assembly negotiated to add to the article: “The accusation of apostasy and the call for violence are forbidden.” Protection of the sacred and the freedom of conscience and faith do not go together—and neither do the interdiction against accusing somebody of apostasy and the freedom of expression (guaranteed in article 30), as noted by Amira Yahyaoui, president of the watchdog organization Al Bawsala (The Compass).

Issues of defining Tunisian identity, including the role of Islam and women’s rights, took up the bulk of the discussion about the constitution both inside the Constituent Assembly and in the public sphere. In an attempt to compromise on the role of religion, the preamble cites the “attachment of our people to the teachings of Islam,” while article 1 takes up the formula that has been part of the Tunisian constitution since its independence: “Tunisia is a free, independent, and sovereign state, Islam is its religion, Arabic its language, the republic its system.” While both articles mention religion, they avoid assigning it a specific place or defining it as a source of law.

Tunisian women had benefited from comparatively liberal laws since independence, when president Habib Bourguiba passed the Personal Status Law (CSP) of 1956, which among other things gave women the right to vote and to initiate divorce, while still keeping in place the Islamic inheritance law. The new Tunisian constitution goes even further. Article 20 explicitly declares male and female citizens to be “equal in rights and duties”—one of the main demands of many civil society groups. They had been fearful that the Islamist-led government would reverse the CSP, despite Ennahda’s reassurances. And much to the delight of most deputies, the constituent assembly passed article 45, which states that the government not only protects women’s rights, but supports their achievements and guarantees the equality of opportunities, meaning that the constitution won’t touch the CSP. The main change article 45 would bring is a concerted effort to ensure greater engagement of women in politics, particularly local politics. The article says that: “The state works to realize parity between women and men in elected councils,” which means parity on the election lists even for regional elections. Therefore, every second candidate on the election lists will have to be a woman. This could have significant implications in rural areas where women are still marginalized. Many members of the assembly are confident that the guarantee of equal opportunities and a stronger role in local politics could, in the long run, help change the situation of women, particularly in the countryside.

Parity among the candidates had already been applied for the 2011 election of the constituent assembly, which numbers 65 female deputies out of 217 total members, most of whom belong to the Ennahda party. Even though a consensus among the parliamentary groups had been established prior to the vote on article 45, not all Islamist deputies respected it and some voted against the article. Others, such as the assembly’s Vice President Mehrezia Laabidi from Ennahda, took a clear stance for more freedom and equality and repeatedly voted with members of the opposition.

Despite the reassurances of articles 40 and 45 as safeguards for women’s rights in Tunisia’s next constitution, women’s rights groups nonetheless still see much work to be done. They fear that article 7, which defines the family as “the nucleus of society” might be used later to limit women’s rights. For example, this could mean limiting women’s right to a divorce in the name of protecting the family. They also argue that article 21, which states that “the right to life is sacred” could be used to ban abortion, which is currently legal in the early stages of pregnancy. More likely, women’s rights groups could use articles 20 and 45 to push for a revision of the inheritance law, which is currently based in Islamic law.

To adopt the constitution, the deputies are currently voting on each single article and more than 250 amendments. Once every article of the draft constitution has been approved, the deputies will vote on the entirety. The document will need a two-thirds majority to pass, otherwise a popular referendum will be necessary. (Editor’s note: On January 26, the Tunisian national assembly approved the new constitution.)

Other major issues of contention included dissent over the way judges will be nominated, a crucial issue that blocked the work of the Assembly for three days, before a consensus was found at the end of last week. Article 103 states that the President nominates the judges based upon the recommendation of the High Council of Justice. A problem was found some articles later, in article 109, which defined the creation of this High Council. In the original version, which was refused, the majority of the Council members were to be nominated by a state institution—a procedure judged undemocratic by a majority of deputies. The consensus that the assembly finally adopted now states that a majority of the members of the Council will be elected, with a minority being nominated.

The deputies are currently re-voting on articles that were not adopted in the first place but are essential to the future constitution, such as article 64, which would define the minimum necessary vote for the future parliament to adopt laws, or article 73, which specifies requirements including the age and religion of the president. A very liberal interpretation of the internal working rules of the deputies allows them to re-vote and re-amend certain articles that have previously been rejected.

While Western observers praise the current text as the best and most modern constitution in the Arab world, many Tunisians say that they do not want to have the most modern one in the region, but would rather see a good, coherent constitution. As it stands, the text reflects well the antagonisms that shape Tunisian society itself—compared to the 1959 post-independence constitution, which was closer to the elite’s vision of society than to social reality. The new text also highlights Tunisia’s contradictions. It will be for the Constitutional Court, to be established for the first time in the country’s history, to find (for the roughly 150 articles of text) a coherent interpretation that aims to guarantee Tunisians a democratic future.

This article is reprinted with permission from Sada.  It can be accessed online at:
http://carnegieendowment.org/sada/2014/01/21/tunisia-s-compromise-constitution/gyzs

Sarah Mersch is a Tunis-based freelance journalist.