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The Politics of Tunisia’s Final Draft Constitution

–Duncan Pickard, Democracy Reporting International and Rafik Hariri Center for the Middle East at the Atlantic Council [cross-posted from MENASource, a project of the Rafik Hariri Center]

Tunisia’s constitution-drafting process has reached another milestone: the committee coordinating the drafting of the country’s post-authoritarian constitution presented its third and final draft to the National Constituent Assembly on April 22. The draft strikes important compromises that political parties made on the most vexing issues of the process, including the balance of executive powers, the protection of human rights, and the role of religion in state and society. Although the draft garners the support of a large and diverse group of Constituent Assembly members—no small feat in the face of intense partisanship—its ability to stand up to the criticism of a plenary session is in question. The final constitution will need to pass with a two-thirds majority in the Assembly (the preference of most blocs) or failing that, a public referendum. There are many roadblocks to completion that yet make consensus elusive.

The distribution of executive powers and the role of religion in state and society have been the most divisive issues. Ennahda, the moderate Islamic party with 40 percent of seats in the Assembly, prefers a parliamentary system: a strong prime minister and a weak, indirectly elected president. Opposition parties support a presidential system whereby the president would be directly elected and have significant powers. Ennahda considers its leadership more sustainable in a parliamentary system given the fissures in the alliance of secular parties, while secular leaders think that they could overcome their differences to elect a president who could balance an Ennahda majority in parliament. The debate around executive powers evaded consensus in the committee responsible for addressing the issue. The first two constitutional drafts had two competing versions of the relevant articles.

The latest draft is the first that presents a single proposal for the distribution of executive powers. Assembly members have classified the draft constitution as semipresidential, or mixed. The president is directly elected and is the head of the state and armed forces. The president is solely responsible for foreign policy and national security, appoints the governor of the central bank, and can declare a state of emergency (with the consent of the parliament). The president also has significant authority over lawmaking, with the power to introduce bills, veto draft legislation, and call referenda. The legislature can override a veto by an absolute majority for ordinary laws and by a three-fifths majority for organic laws; the president cannot veto a budget bill.

According to the draft, the prime minister would also have significant powers. The prime minister is elected from within the legislature, independently of the president. The draft also empowers the president to act as an arbiter among parties in government formation, but the president does not appoint the prime minister. The prime minister appoints all government ministers except those of defense and foreign affairs, which are appointed by the president. Article 96 of the draft constitution stipulates that the constitutional court would resolve conflicts over jurisdiction between the president and prime minister.

The deal was struck in the twenty-two-member committee responsible for executive and legislative relations and later endorsed by the coordinating committee. It does not, however, reflect any consensus beyond that and will likely face significant scrutiny and criticism from other members during the plenary session. Whether the compromise will hold is the biggest question facing the plenary debate, and represents the greatest possibility for the wheels to come off the constitution-making process.

The political parties view the question of executive powers within the short-term context of gaining the most power and seats in the next election, and recent political developments have raised the stakes on the distribution of executive powers in the constitution. Ennahda’s Shura Council compromised in late April by coming out in favor of a mixed system in an attempt to achieve multi-partisan support for the draft constitution in plenary. It is unclear whether they will be successful. Ennahda is confident that it can mobilize enough support through its robust network of field offices to pass the constitution by referendum should it fall short of the required two-thirds majority in the Assembly. Ennahda members are in a strong negotiating position but have yet to use the threat of referendum to their advantage.

Despite Ennahda’s compromise, secular parties have not met them in the middle. Several days after the Shura Council announcement, Beji Caid Essebsi, the octogenarian politician from the era of Habib Bourguiba who is gaining credence as the vanguard of the secular opposition, announced his candidacy for president (even though the draft places an age limit of seventy-five on presidential candidates). Around the same time, he stated his preference for a strong president, calling the American presidency too weak for his taste. The clash between Ennahda and Essebsi is teeing up an intense plenary debate in the Assembly.

The role of religion is another point of contention between Ennahda and secular parties. The draft’s language on the role of Islam is moderate, but has drawn criticism from secular parties. Previous drafts included a so-called repugnancy clause that would have outlawed speech that violated ill-defined “principles of Islam.” The latest draft removes the repugnancy clause and replaces it with an affirmation that the state “sponsors religion,” as well as positive obligations on the state to protect the freedom of belief and the sanctity of religious places. Although secular groups consider this an improvement, they are still concerned about the future implementation of these principles, such as changes to Tunisia’s progressive family law and dress requirements in public institutions. Other secularists have objected to Article 136, which prohibits amendments to the constitution that would prejudice Islam as the religion of the state, although the same article also entrenches the state’s civil nature. True to Ennahda’s word, the constitution makes no reference to Islamic sharia. Again, Ennahda members have not demonstrated prowess as negotiators by not sufficiently highlighting the compromises that they have made; they have only rarely secured reciprocal compromises.

There are several other controversial articles in the new draft constitution. Two include latitude for the legislature to limit labor strikes and free speech for specific reasons, such as national security or public safety. (These limitations are consistent with international human-rights obligations found in articles 19, 21, and 22 of the International Covenant on Civil and Political Rights.) The latest version also stipulates the creation of a new constitutional court. The relationship between new and existing courts is not defined in the draft, so it would need to be worked out by law; this could be particularly thorny given an ongoing rivalry between judges’ unions.

These and other constitutional questions will be debated during the plenary sessions with all Assembly members, scheduled to begin at the end of May. (The Assembly, also Tunisia’s interim legislature, will work through legislative priorities until then.) The draft will be open to amendments proposed by at least five Assembly members for the first twenty-four to forty-eight hours, after which point the Assembly will vote on the constitution one article at a time, each requiring a simple majority to pass. The Assembly will then vote on all approved articles as the full constitution. The final text requires a two-thirds majority; if it fails two consecutive two-thirds votes, it will be submitted for a public referendum.

Some Assembly members are concerned that the voting procedure will be rushed. Only a fraction of Assembly members sit on the constitutional committees, and the debate will be the first official opportunity for many of them to debate the draft as a whole. The two-thirds requirement gives political parties an incentive to work toward a broad consensus, but risks empowering holdouts in the later stages. There are no formal mechanisms for educating Assembly members or the public about these issues before the plenary begins. The third draft has been released publically, but beyond that Assembly members are preoccupied with a daunting legislative docket. The period for public comment, supported by the United Nations, has closed.

The constitution suggests little about electoral systems, which will be covered by a law that the Assembly will pass after the elections. The sequencing of elections, the electoral system, and the method of assigning votes could have an almost equal effect on executive and legislative powers as the constitution itself. The French constitution, for example, is often described as semipresidential, but the president’s party almost always enjoys a plurality in parliament by virtue of the fact that presidential and parliamentary elections are held on the same day. The French president is one of the strongest in the world. The interaction between the election law and the constitution, and the current party politics, will determine the post-constitution balance of powers in the Tunisian political scene.

The uneasy consensus on key questions and a potentially hurried timeline could be the makings of a convoluted approval process in plenary. Ennahda strongly prefers a consensus document achieving a two-thirds majority in the Assembly, but a fractured opposition making excessive demands could motivate Ennahda to push the draft through on their own.

Suggested Citation: Duncan Pickard, The Politics of Tunisia’s Final Draft Constitution, Int’l J. Const. L. Blog, May 16, 2013, available at: http://www.iconnectblog.com/2013/05/the-politics-of-tunisias-final-draft-constitution.

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Published on May 16, 2013
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