Beyond Tunisia's new Constitution: will its leaders meet expectations?
Constitutions, the French politician Adolphe Thiers once said, are ‘a source of happiness for people’. Looking at the public euphoria that greeted the adoption of Tunisia’s constitution on January 26, nothing could be closer to the truth. It was a historic day that saw Tunisia’s political class overcome their differences and unite around a document, which despite some internal contradictions, serves as the cornerstone for the rule of law and democracy.
The more than two thirds majority garnered—200 voted, 12 against and 14 abstentions—was a sign of broad consensus and support for the document, guaranteeing its legitimacy and acceptance by all stakeholders and amongst ordinary citizens. It will also serve to mollify political and social relationships as well as reunite the country.
Following the brief excitement generated by the adoption of the new constitution, however, Tunisians have quickly returned to the reality that adopting a new constitution alone may not be sufficient. The challenges ahead are numerous and enormous.
Firstly, there are contradictions and ambiguities within and between articles of the Constitution. Article one for instance, recognizes Islam as the religion of the state while Article two recognizes Tunisia as a civil state. Article 6 provides that the state protects religion. It also provides for freedom of worship and conscience, but at the same time prohibits anathemization. Such internal contradictions will certainly pose problems at the level of implementation as there was really no agreement amongst CA members on this, is their intention even discernible from the travaux preparatoires or working documents. These contradictions and ambiguities are symptomatic of the dualistic or—so to speak—schizophrenic nature of the Tunisian society, but also indicative of some of the difficult compromises that had to be reached. The compromises of this Constitution are, however, as fragile as they are unclear—and the danger here results from the fact that their interpretation will depend on constitutional judges who may be drawn overwhelmingly from one political tendency
Beyond these medium to long term implementation problems are also more immediate challenges. In fact, Tunisia has three major challenges that it must overcome in order to fully complete its democratic transition. These include the organization of elections, the stabilization of the economy and the issue, which is necessary for effectively addressing the past, of transitional justice.
Beyond adopting a constitution, the success of Tunisia democratic transition may only be complete once it has effectively createdthe permanent state institutions. The next elections are critical to this. Some analysts even argue that whether or not this transition can be judged as an irreversible success may depend on the degree to which there is a peaceful and democratic political alternation. One problem related to this which is already emerging relates to the electoral law- in particular the electoral system choices. This will be key in determining how the next elections go. Parliament which is currently debating the draft law seems to be already divided and temperatures are rising over the issue. On the one hand are the major parties who favor the proportional system with the highest average method and on the other hand are the smaller parties, who, in order to guarantee their representation in the future assembly are insist on a proportional system with the largest remainder method. Obviously, each side will advance arguments that most favor its interest. Defenders of the highest average method will argue that it prevents the election of fragmented legislature in favor of a legislative house of assembly from which a more stable and efficient government can be constituted. Defenders of the largest remainder method on their part will argue that legislative power should reflect the various components of the Tunisian political spectrum. They will argue that a parliamentary chamber is precisely made to absorb theses contradictions instead of excluding certain forces—with all the risks associated with it.
There are many other potentially problematic election-related issues such as the voter registration system (automatic or voluntary with their associated consequences); the diaspora vote and timing of the elections. The biggest controversy however is likely to come from calls by certain parties in parliament to include a provision in the election law excluding leaders of ex-President Ben Ali’s Constitutional Democratic Movement (CDM). Such a proposition, if adopted, will divide the country and damage the electoral process. More importantly, it defeats one of the cornerstones of this Constitution—human rights, in particular the political right to stand for election guaranteed by Article 34. It also violates the same right granted by Article 25 of the ICCPR which under Article 20 of this Constitution is to all municipal laws.
Article 148(7) of the Constitution authorizes the creation of an interim constitutional adjudication body within three months of its promulgation responsible for ensuring constitutional compliance of adopted bills. However since its jurisdiction is limited only to bills, preliminary control must therefore be exercised before the draft electoral law is promulgated. Failing that, the latter might be immunized against all forms of control—pending the creation of the constitutional court after the election – which will be too late. In addition, the recently created elections commission also faces the potential challenge, inter alia, of securing and safeguarding its independence from all the other political forces.
Rebuilding the economy
Following months of uncertainty, a Prime Minister was finally appointed to head a non-partisan and independent government for the remaining period of the transition. While he has highlighted elections as his biggest priority, other problems requiring immediate government action are pressing. The economy and the security situation are worth mentioning. There are positive signs of recovery, especially since the appointment of the new PM and the adoption of the new Constitution—foreign donors are more open to lending, the national currency is recovering. Effectively boosting the economy however requires overcoming other challenges which range from attracting foreign and domestic investment, building the purchasing power of Tunisians and creating jobs to absorb the unemployed who are in their thousands. On the security front, the government has scored a few successes with targeted attacks against domestic terrorist cells but it needs to show more willingness, engagement and efficiency in its approach to resolving the security issues facing the country.
For a country emerging from a long period of dictatorship and abuses, understanding and dealing with past atrocities in order to effectively reconcile the nation and prevent recurrence was always a critical need. Unfortunately, as the government of the day never prioritized this important aspect of the democratic transition, it took it two years to push for the adoption of a law relating to transitional justice. This law was adopted on last December, just a month before the adoption of the new Constitution.
Except for a few rare domains including transitional justice, Article 148 (1) of the Constitution limits the areas in which MPs can have legislative initiative. While this looks good on the surface, there is always risk that MPs may, for political reasons, abuse that power by introducing laws that defeat the transitional justice process. There are also other problems: firstly, the four year –renewable once—mandate provided for in a December 2013 law establishing a Truth and Dignity Commission is unrealistic. In fact, given the particularly sensitive and highly difficult issues that might arise in the context of administering such justice, one might wonder whether the unrealistic timeframe given is not a deliberate attempt to already derail its work right from the outset. Second, that Parliament alone is given the powers to elect its members is cause for concern as the risk of politicization is high. This might only result in a justice that is selective and vindictive, and ultimately discredit the institution the eyes of the public.
As the sun sets on the general euphoria that greeted this new Constitution, Tunisia faces and even greater challenge: that of giving it meaning. Will its leaders live up to this expectation? For now, the answer to this question can be anyone's speculation.
 Researcher in international and constitutional law; Lecture at the Faculty of legal political and social sciences of the University of Tunis