The Tunisian case: A model for a path towards democracy
Will the Arab Springs be able to debunk the narrative that democracy exists only in the West? To answer this question, which can be extended to all societies across the Arab world, we can look at the constituent process in Tunisia, the place where the spark was lit that kindled the flame of the Arab Springs.
The event that sparked those uprisings happened on 17 December 2010, when a young street vendor named Muhammad al-Bû'azîzî set himself on fire in front of a government building in the town of Sïdi Bu Zid, Tunisia, in response to an incident in which his wares were confiscated. The youth in the streets demanded that the 1959 constitution be suspended and a constituent assembly be formed. In response, the government suspended the constitution and dissolved the chambers of parliament. Under Article 57 of the 1959 constitution, the president of the chamber of deputies became president of the republic and decreed a provisional scheme for exercising the powers of the state. This was done under Decree Law No. 14 of 23 March 2011, conferring law-making powers on the president. Article 57 of the 1959 constitution contained the following provision:
Should the office of President of the Republic become vacant because of death, resignation, or absolute disability, the Constitutional Council meets immediately and certifies the definitive vacancy by an absolute majority of its members. It addresses a declaration to that effect to the President of the Chamber of Advisors and to the President of the Chamber of Deputies who shall immediately be vested with the functions of interim president of the Republic for a period ranging from 45 to 60 days. If the definitive vacancy coincides with the dissolution of the Chamber of Deputies, the President of the Chamber of Advisors is vested with the functions of interim president of the Republic for the same period.
The only organ empowered to declare a “definitive vacancy” was the Conseil Constitutionnel, which needs to be credited with having mustered the political will to make this decision, playing a “role as an unexpected liberator and saviour” (Ben Mrad 2012, 12; my translation). The conseil found that when a president of the republic is facing a crisis beyond his control (a state of exception), and yet is unwilling to hand over power or to step down, he can be deemed unfit for office. What appears to carry the weight of the argument, for the conseil, is the crisis it points to in combination with the fact that President Ben Ali fled the country: even if he did flee feeling compelled to do so under mounting pressure from the civil unrest in the streets, these protests had a legitimate basis in a “right of resistance to oppression,” which Ben Mrad considers a natural and inalienable human right (ibid., 13).
On 15 March 2011, a revolutionary body was formed called the Haute Instance pour la Realisation des Objectifs de la Revolution, de la Réforme Politique et de la Transition Démocratique, merging the Conseil de Défense de la Révolution with the Commission Supérieure de la Réforme Politique. Appointed to the helm of the Haute Instance was the jurist and intellectual Yadh Ben Achour. Making up the body were 155 members representing twelve political parties and nine trade unions, as well as nongovernmental organizations, the Tunisian Human Rights League, civil society organizations, and trade associations. These representatives had not been elected but had been selected by the government by negotiation. On June 27 the Islamist movement al-Nahda (Renaissance Party) announced it would withdraw from the Haute Instance, declaring that the body had fashioned itself into a parliament while lacking any electoral mandate.
The Haute Instance further proceeded to form the Instance Supérieure Indépendante pour les Elections (ISIE), which was entrusted with overseeing the electoral process. On 11 April 2011, the Haute Instance began work on rules for electing a constituent assembly, a process that lasted until October 3, ten days before the elections. These rules contained a principle of equality between men and women and a principle of proportionality designed to enable a full spectrum of political groups to participate in the democratic process. The electoral decree law of 2011 barred anyone from running for office who had served as minister under the previous Ben Ali regime, and the same prohibition also extended to anyone who had held a position of authority within the Rassemblement Constitutionnel Démocratique (RCD).
The elections held on October 23 gave a relative majority to the al-Nahda party.
On November 22, the National Constituent Assembly met to draft a new constitution. The assembly’s first act, on December 16, was to adopt a
Décret-loi 2011-35 du 10 mai relatif à l’élection d’une assemblée nationale constituante, Chapitre II (Candidature), Section 1 (Conditions d’éligibilité), Art. 15, in Journal Officiel de la République Tunisienne (JORT) no. 33 of 10 May 2011,651-61.
provisional constitution, or petite constitution,1 issued by the president of the republic, Mohamed Moncef Marzouki. Yet Article 1 of the 2011 constitution stated that “the public powers of the Tunisian Republic are provisionally established pursuant to the provisions of the present law,” and this meant that in assuming the task of drafting a constitution, the constituent assembly also conferred other powers on itself, which it proceeded to list in Article 2: the power to (1) legislate (exercice du pouvoir législatif)', (2) elect the president of the constituent assembly itself (élection du président de ¡’Assemblée nationale constituante)', (3) elect the president of the republic (élection du Président de la République)', and (4) control government action (contrôle de Paction du gouvernement).
Article 4 defined the manner in which the constituent assembly was to exercise legislative power, providing that the government or ten members of the assembly had the power to introduce bills and that the assembly had the power to enact organic laws by an absolute majority of its members’ votes.
What we can see here, then, is a blurring of the line between the constituent function and the legislative function—a confusing overlap that no doubt significantly hindered the process of drafting a new constitution for the Tunisian republic. In addition, the assembly expended much effort drawing up a set of bylaws laying out its own internal procedures.
In fact the debate that unfolded during the preparatory work took on a particularly bitter tone, as when al-Nahda pushed for the shari'a to be used as a source of law. This happened in March 2012, when a draft document attributed to al-Nahda began to circulate containing an Article 10 provision under which the shari'a was to count as an essential source of legislation. In addition, this draft document provided for the establishment of an Haut Conseil Chara’ique (al-majlis al-a' la li-l-iftd’) entrusted with making sure that any proposed legislation was compliant with the shari'a.
It was in this context that on 20 March 2012 a protest with a hefty turnout of 25,000 people took place against these initiatives, viewed as militant expressions of religious zeal. The upshot of this outpouring of public opinion was that on March 25 Rashid al-Ghannüslïî, having met with the leadership of al-Nahda, announced that the shari'a plan would be scrapped, and in addition declared himself open to the possibility of rewriting Article 1 of the Tunisian
Tunisia and Egypt: Two constitutional models 147 constitution of 1959, given the statement of creed it contained: “Tunisia is a free, independent and sovereign state. Its religion is Islam, its language is Arabic and its type of government is the Republic.”
On 14 December 2012 an Ébauche de Projet de la Constitution was published that took out Chapters 3 and 4 of the 2011 constitution (on legislative and executive power, respectively). This draft came under criticism from the Observatoire pour les Droits de 1’Homme on account of the contradictions it contained when it came to freedom of expression, women’s rights, the nondiscrimination principle, and freedom of thought and conscience. Even more pointed was the criticism the observatoire levelled at Article 4: “The state protects religion; it guarantees freedom of conscience and the practice of religion; it protects the sacred; and it guarantees the neutrality of places of worship in relation to partisan propaganda.” For in providing these guarantees, the draft constitution did not specify what was meant by sacred, nor did it say who the sacred might come under threat from. Moreover, the freedom of conscience it guaranteed did not include the freedom to change one’s religion.
Also targeted as problematic was Article 37, providing that “the state guarantees the elimination of all forms of violence against women.” For it premised this guarantee by stating that men and women are assigned different roles: “The state guarantees equality of opportunity for men and women so as to enable them to carry out their different responsibilities,” thereby repurposing equality of opportunity as a tool not of gender equality but of gender discrimination.
Finally, Human Rights Watch took exception to Article 15, stating that “international treaties are binding only so long as they are not contrary to the provisions contained in the present Constitution.” This clause was seen as an escape hatch, enabling judges and lawmakers to ignore international treaties on the pretext that they contradict the Tunisian constitution.
But, as we will see, the constitution enacted in 2014 set the future of Tunisian democracy on a solid footing.
-  Loi constituante 2011-6 du 16 décembre 2011, relative à l’organisation des pouvoirs publics. Arabie original published in Journal Officiel de la République Tunisienne (]ORT) no. 97 of 20 and 23 December 2011, 3111-15. 2 Translated into French as follows: “Les pouvoirs publics de la République tunisienne sont organisés à titre provisoire conformément à la présente loi.” 3 Translated into French as follows: “Le Gouvernement ou dix membres au moins de l’As-semblée nationale constituante, ont le droit de proposer des projets de lois. L’Assemblée nationale constituante adopte les lois organiques à la majorité absolue de ses membres” (Art. 4,2nd clause).
-  See Ben Achour 2012, 7. On the resistance to introducing the shari'a as a source of legislation, see Longo 2013, 35. Strong pressures came from Salafi groups demanding that Article 1 of the constitution include the shari'a as a source of legislation. Al-Nahda instead took a middle-ground position, mediating between the secular front and the Salafi movements. See Houssi 2013, 64. 2 The French text: “L’État protège la religion; il est garant de la liberté de conscience et de l’exercice des cultes et le protecteur du sacré et le garant de la neutralité des lieux de cultes par rapport à la propagande partisane.” 3 The French text: “L’État garantit l’élimination de toutes les formes de violence à l’égard de la femme.” 4 The French text: “L’État garantit l’égalité des chances entre la femme et l’homme pour assumer les différentes responsabilités.” 5 The French text: “Le respect des traités internationaux est obligatoire, tant qu’ils ne sont pas contraires aux dispositions de la présente Constitution.”