BEIRUT

Commentary

A tangled road lies ahead in Tunisia’s constitutional process

Following the Oct. 23 elections to Tunisia’s 217-member Constituent Assembly, all eyes are on the assembly’s mandate to draft a new Constitution: Will the assembly successfully deliver an approved document? Will it reform the economy? Will it tackle the security sector and revamp the judiciary? In short: Will it pave a smooth road to the next stages of institutional reform?

The first sign of how this process will unfold was revealed in the formation of the government. Following its winning of 90 of the 217 seats of the assembly, Ennahda chose to form a “unity government” and extended offers to other parties proportional to their gains in the elections. Two major parties accepted: the Congress for the Republic (CPR) and Ettakatol party (FDTL). The centrist Ettakatol claims to have accepted the offer for the sake of the “national interest,” where a unity government might have a better chance of handling the difficult challenges of the transition (the greatest of which is actually forming a functional government).

A number of progressive political parties which differ ideologically with Ennahda – for example the Progressive Democratic Party (PDP), the Democratic Modernist Pole (PDM), Afek Tounes, the Tunisian Workers’ Communist Party (PCOT), among others – have turned down the offer, preferring to remain the opposition. Interestingly, no offer was made to the Popular Petition Party (Aridha Chaabia) of wealthy Tunisian businessman Mohamed Hechim Hamdi (which performed surprisingly well in the elections) – likely due to lingering perceptions of its links to remnants of the old regime.

The three-party coalition, which now holds a comfortable majority of 139 seats, has reached an agreement whereby Ennahda’s deputy leader Hamadi Jebeli is expected to become prime minister, while the Congress for the Republic’s veteran human rights activist Moncef Marzouki will occupy the post of president. Ettakatol’s leader, Mustapha Ben Jaafar, heads the Constituent Assembly. The alliances and counter-alliances of the early post-election phase foreshadow the dynamics to come once discussion of the Constitution gets fully under way. The fate of many laws will rest on a compromise among the members of this three-party coalition. This will highlight the difficulty of dissociating political parties’ short-term agendas with the assembly’s mission of drafting a Constitution.

On Saturday, the assembly approved what the Tunisian press has dubbed a “mini-Constitution”: legislation on institutional procedures and powers that will be in effect until a new, permanent Constitution is drafted and approved. Among the contentious issues that have been decided so far are the new prerogatives of the president and prime minister and the balance of power between them.

Initial proposals led by Ennahda deprived the presidency of any real power, but following strong opposition from other parties (including those in the coalition) to a “weak presidency,” the president will regain several prerogatives although not as many as the prime minister. The president will outline Tunisia’s foreign policy, in consultation with the prime minister; he or she will also designate the head of government, sign and promulgate laws passed by the Constituent Assembly, and command the armed forces.

Article 7 (which passed amid heated debate on Dec. 8) also allows the president, the prime minister and the head of the assembly to assume additional powers in “exceptional circumstances” that would prevent the Constituent Assembly from undertaking its normal activity. Several parliamentarians requested that the head of the assembly provide greater clarification about what “exceptional circumstances” entail. Iyed Dahmani of the PDP opposition party noted much of the opposition came from fear that the clause might provide grounds for a new dictatorship.

Another important feature of the assembly’s work is defining its actual goals. Beyond the task of drafting the constitution, these goals are vague. Given the legislative vacuum pending the general elections, the assembly will see its mission expand – allowing it to act as a regular parliament. That means discussing and approving the budget of 2012, revising past laws and passing new ones, as well as calling past and present members of the government to account for themselves.

Members seem more than willing to take up this new role, which would transform parliament into an all-powerful legislative body. But these new prerogatives may at best create a diversion away from the drafting of the Constitution; at worst, they will lead to ideological divergences which will leak into different coalitions as factional interests when they return to the primary business of the Constitution. This might undermine the assembly’s aim to meet the deadline of one year to deliver a new Constitution and to organize the subsequent presidential and legislative elections.

Opposition parties, supported by public opinion, are holding the leading coalition accountable to this commitment, which was agreed (in the “Declaration of the Transitional Process”) before the elections. Recently, 153 members voted against a proposal to extend the mandate beyond one year (39 voted for, and the rest abstained).

The procedural bylaws of the assembly will also affect its ability to deliver on its promises. The drafting process of the permanent Constitution is still under debate: Should it involve only the members of the Constituent Assembly in plenary sessions or drafting committees, or should it be supported by a team of legal experts entrusted with translating assembly discussions into legal provisions?

The members of the assembly have decided, however, that constitutional articles will be approved by 50 percent plus 1 for all decisions. The alternative was 50 percent plus 1 for affairs of state and 2/3 plus 1 for constitutional articles. While both options would allow a majority party or coalition to impose its views, it is important to remember that Ettakatol and the Congress for the Republic have debated (and opposed) Ennahda regarding the formulation of the assembly’s bylaws. As both can be expected to oppose Ennahda on other issues, the definition of “the majority” was paramount.

One question that has been settled is how to finally approve a Constitution: It will be passed by a 2/3 majority and if it is not passed after two readings, it will be submitted to a popular referendum. But outside the assembly, popular opinion may still be galvanized over the coming year to impose a popular referendum on the final draft regardless of the internal assembly vote. This would increase the Constitution’s legitimacy and the feeling of its “ownership” by all Tunisians.

In terms of the constitution’s substance, different coalitions will be facing the crucial question of what model of Tunisia will be embodied in the Constitution. The conservatives – Ennahda in coalition with CPR and FDTL – and the confederation of progressives (rather, the “less conservative,” namely, PDP, PDM, POCT and Afek Tunes) have different visions for the future of the country. While the first are advocates for a more conservative approach in a double discourse espousing traditional Islamic values coupled with (but over) “the gains of modernism,” the latter are trying to anchor the country into a future built on the values of openness and personal freedoms.

These antagonistic approaches will be the core of the debate when attempting to draft the Constitution, especially chapters on individual liberties (conservative versus progressive), the separation of powers (concentrating powers versus distribution of powers among three branches), and the role of the state (state intervention in the private and moral sphere versus state guarantor of liberties).

Shall the logic of majority-minority be the sole determinant? To do so would risk alienating certain segments of society – namely, those affiliated with progressives (who lost the elections). Or rather, should each side of the spectrum seek to accommodate the other and reach a workable consensus shared by everyone? This would involve the majority seeking to accommodate the minority and involve it at each level: passing laws at qualified majority or sharing presidencies at the different assembly committees. Majority members should remember they are drafting a Constitution for all Tunisians – and not implementing a legislative program of four or five years.

Finally, other actors – media, civil society and political parties not represented in the assembly – are due to play a role in this process. The participatory nature of the first nine months of the transition – in which in which a progression of new laws were drafted governing political parties, the media and civil associations – should be institutionalized in this phase.

Opening the process to some form of consultation from stakeholders with expertise and participation of a larger public outside the assembly (both throughout the drafting process and at the constitution’s final approval) should be key approaches in improving the population’s feeling of acquisition toward this important document – which will steer the political life of Tunisians for the next few decades. The current protests outside the assembly building are reflective of the eagerness of the public to participate in this process.

Amine Ghali is a program director at the Tunis-based Al-Kawakibi Democracy Transition Center, and works on democracy, reform and transition issues in the Arab world. He is a member of Tunisia’s National Commission to Investigate Corruption. This commentary first appeared at Sada, an online journal published by the Carnegie Endowment for International Peace.

 
A version of this article appeared in the print edition of The Daily Star on December 13, 2011, on page 7.

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