Emergence of the Tunisian Constitution: The Second Revolution

“Tunisia is a free, independent and sovereign state, Islam is her religion, Arabic her language and republic her regime. Tunisia is a state of civil character, based on citizenship, the will of the people and the primacy of law.” (Click here)

On January 26, 2014, the small North African country, Tunisia, approved the country’s new Constitution in what is called the revival of the revolution that took place during the Arab Spring uprising. The rising was a phenomenal revolutionary wave of demonstrations and protests that took place three years ago and led to the ouster of the autocratic leader of Tunisia, Zine el-Abidine Ben Ali (Click here).

The Constitution was expected to be finalized within a year after the formation of the Constituent Assembly but spirited debates and internal turmoil within political parties stalled the process and hence, it was only after 3 years on January 26, 2014 that the Constitution was put to vote and the drafted document was adopted as the Constitution of Tunis. While deliberating upon important aspects of the drafting process, debates regarding the following came often came up: role of religion in the government, presidential requirements and management of the transition phase after the passing of the document. Prompt progress took place in the finalizing of the Constitution when the ruling party, Ennahda, promised its exit as soon as the Constitution would come into force.

Tunisia has a decentralized and open government that is allowed to put some restrictions on free speech, especially in cases of attacks on religion and apostasy (click here). The Constitution provides for gender equality, environmental protection and measures to fight corruption. Other features include the executive power being divided between the President and the Prime Minister. The election date for these posts is not fixed but is tentatively going to be a held a year later from now. Islam has been recognized as the state religion, however, protection of freedom of belief is said to be guaranteed. This post will concentrate mainly on two aspects: the legal and constitutional rights of women as provided by the Constitution and the issue of apostasy under the flawed Article 6 of the Tunisian Constitution.

After the ouster of Ben Ali, many political groups had argued that the status of women in the constitutional provisions must be in consonance with the tenets of Islamic law. They contended that granting rights such as allowing women not to wear a veil, allowing men to have only one wife instead of multiple wives, registration of new-born children born out of wedlock under their mothers’ last names would lead to a tremendous rise in adultery. Their arguments were explicitly based on the premise that the status of men must undisputedly be higher than that of women. However, after strong opposition from activists and non-governmental organisations which weren’t satisfied with the provision of ‘equality before the law’ and claimed that women should have similar family and personal rights, the Islamic political parties did not insert the provision exemplifying the complementary relationship between men and women in the Constitution (click here). The Tunisian Constitution is addressed as being the most liberal in the Arab world, despite some laws that discriminate against women when it comes to domains like child custody and inheritance. Alongside giving rights and parity to women in elected bodies, it has succeeded in recognising universal human rights standards and conventions at large. Praised as being enhancive of freedom of expression, it is often hailed as being more progressive than the U.S. in terms of women and workers’ rights and health care provisions.

The foremost fallacy in the Tunisian Constitution doing the rounds is based on Article 6 of the Constitution which makes the grave mistake of attempting to amalgamate two starkly different visions of the society in one provision. As per Article 6, the government is portrayed as the watchdog and absolute guardian of religious righteousness while at the same time, every individual is superficially granted the right to freedom of religious choice, without any sort of intrusion or imposition. The secular opposition of Tunisia stressed that there should be prohibition of what is called takfir, meaning an act by which a Muslim declares himself to be apostate, a crime that is considered worthy of the punishment of death (click here). Using this provision can be an easy way out for a religious extremist to declare his enemy to be an apostate and rationalize assassinations. Another argument raised was that criminalizing apostasy in the Constitution was not necessary because provocation of violence was already banned by the Tunisian Penal Code and instead what must be stressed is the guarantee of rights, freedom and liberty (click here). Allowing individuals the freedom to choose their own paths is one of the only ways to circumvent someone from being an arbiter on the society and a custodian for its intentions. Finally, all the above factors led the opposition members to demand an amendment to ensure freedom of religion and freedom of conscience without any disruptions. The amended version now prohibits accusations of apostasy and incitement to violence, along with guaranteeing freedom of belief and conscience and religious practices. Neutrality of mosques is safeguarded and other places of worship are protected from partisan instrumentalization.

The Tunisian Constitution can be heralded as being a major breakthrough for a country in the Arab world, especially considering the fact that other countries like Libya and Egypt still remain inundated with uncertainty and turmoil with respect to their political status. There might remain some flaws in the provisions of the new Constitution, but it will be for the future governments to see how it can be interpreted and applied to lead Tunisia on the path of complete democracy. For now, Tunisia can bask in the glory of having created a Constitution that is praised for being balanced, liberal and progressive!

This post has been authored by Saasha Malpani & Shanshank Singh, second year students at the West Bengal National University of Juridical Sciences.


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