By Nadia Marzouki*
Tunisia has often been too quickly branded as the poster child of the Arab Spring, without consideration of the real challenges and uncertainties faced by this fragile democracy. However, the creation of its 2014 constitution offers a crucial lesson in governmental protection of religious freedom, especially in a state with a clear Muslim majority. The creation of Tunisia’s 2014 Constitution shows that legal and political successes regarding civil rights and religious freedom are possible by the democratic opening of a pluralistic public sphere and by the inclusion, rather than exclusion, of Islamists in the political debate.
Tunisia’s Constitution Challenges an Islamist First Interpretation
Tunisia’s adoption of its 2014 constitution on January 27, 2014 represented a milestone in the country’s tumultuous path. This route can be said to start from the self-immolation of Mohamed Bouazizi in December 2010 and the escape of former President Ben Ali on January 14, 2011. Contrary to what has sometimes been assumed, the numerous debates and crises that have agitated the Tunisian public since then are not solely focused on Islam and religious freedom. They instead revolve around a variety of topics: the struggle against corruption (fasad), despotism (istibdad), torture, dignity (karama) and freedom (hurriya).
The 2014 constitution arose from two years of political disputes and turmoil. These years saw the tragic assassination of two politicians, deputy Chokri Belaid and party leader Mohamed Brahmi, suspension of the assembly’s work during several weeks in the summer 2013, and two government reshufflings. To say the document resulted out of conflict, however, would be misleading. The 2014 constitution is also the result of a passionate citizenry that led an uninterrupted deliberative process outside and within the assembly, via the media, through grassroots associations, on streets, in universities, with cultural organizations, and around cafés during its countless strikes and demonstrations. Most importantly, the constitution challenges the widely accepted assumption that Islamist parties are fated to establish theocracies. The Tunisian constitution of January 2014 was passed by an assembly with a majority of Islamist deputies, and yet is one of the constitutions that is most protective of religious freedom in the Arab world.
The 2014 Constitution: Religious Freedom and Ambiguities
Taken as a whole, the 2014 constitution was a significant advancement from past and existing legislation concerning the topics of religious freedom and individual rights. Despite this progress, ambiguities related to these same subjects persisted in the new document. Some salient points to consider are the following.
- Article 1 remains unchanged from the 1959 constitution. It states that “Tunisia is a free, independent and sovereign state” and that “Islam is its religion.”
- Article 2 introduces an important change, as it defines Tunisia as a “civil state” (dawla madaniyya), “based on citizenship, the will of the people, and the supremacy of the law.”
- Article 6 protects freedom of belief (mu’taqid) and freedom of conscience (dhamir) and bans the act of calling someone an apostate (takfeer). The codification within the constitution of the protection of freedom of conscience, which implies the right to unbelief, and the ban on accusations of apostasy represents a groundbreaking change in the Arab world.
- The constitution also acknowledges women’s rights and gender equality. Article 45 stipulates that the protections granted to women by the Personal Status Code cannot be revisited and should instead be increased. Gender parity in future assemblies is also defined as an objective of the constitution.
There remains, however, some degree of ambiguity. Indeed, the state remains the protector of the sacred, and is to shoulder the defense of the Arab and Muslim identity of Tunisia.
- Article 6 stipulates that the state forbids offense to the sacred (muqaddasat), which could be seen as a potential limitation of individual freedoms. Some have argued, along the same line that carrying over Article 1 from the 1959 constitution, which defines Islam as the religion of Tunisia, introduces the theoretical possibility of discrimination against non-Muslims.
- Article 74 conditions the right for Tunisian citizens to run for presidential elections on their religious status as Muslims.
- Article 39 on education expresses a similar ambiguity saying that the state has a responsibility “to consolidate the Arab-Muslim identity and national [sic] belonging in the young generations, and to strengthen, promote and generalize the use of the Arabic language and to openness to foreign languages, human civilizations and diffusion of the culture of human rights.”
- The preamble of the constitution also presents an ambiguous definition of identity, culture, and the nation. It acknowledges the legacy of multiple heritages (Islam and world influences) but it does not indicate how these sources are supposed to relate to one another in circumstances of conflict or doubt. It also expresses the “commitment to the teachings of Islam, to their spirit of openness and tolerance, to human values and the highest principles of universal human rights.” It honors “our enlightened reformist movements that are based on the foundations of our Islamic-Arab identity and on the gains of human civilization”. (author’s emphasis).
Ambiguities Don’t Show Creeping Islamization, but Political Horsetrading
These ambiguities are not evidence of a so-called stealth Islamization of the constitution. Much to the contrary, they are a reflection of the complex and difficult equilibrium reached by all parties involved with the constitution formation process. They express the compromise that these parties, especially the moderate Islamist Ennahda Party, had to make by giving up on a number of their initial proposals. Some scholars argue that the text would have been more coherent had it been written by legal experts sheltered from political and public controversies. Arguably, a more accurate understanding is that it is precisely because the process of constitution writing symbiotically took place alongside public and political debates outside the assembly that the 2014 document now represents a democratically significant achievement. For example, the inclusion of the provision concerning the protection of the sacred in Article 6 embodies the compromise found among secular and Islamist parties, after Ennahda agreed to discard Article 3 of the first draft, which provided that the state forbids any type of offense to the sacred. Likewise, the preamble’s ambivalence actually embodies the compromise that was reached after the numerous discussions following the first draft that included no mention of the “principles of universal human right.”
Pluralistic Constitution Making: Compromise Not Domination
The political and legal equilibrium exemplified by the 2014 constitution is the outcome of a succession of compromises reached among political parties and between political parties and civil society. A wide range of threats, internal and external, repeatedly challenged and unsettled this negotiation process.
One of the first major achievements of the early post-revolutionary phase in 2011 was the election of a new Tunisian National Constituent Assembly (TNCA). This led to the establishment of a troika government between Ennahda and two secular parties, Congress for the Republic and Ettakatol. Ennahda’s victory in the October 2011 elections was limited. With only 89 seats out of 217, the Islamist party had no choice but to enter into a coalition with other parties in order to be able to rule. Yet, its victory alarmed secularist parties and organizations, serving as a wake-up call for most of them. Former prime minister Beji Caïd Essebsi’s creation in the fall of 2013 of a new party, Nida Tounes (roughly translated as the “Call of Tunisia” party), contributed to illuminating the increased polarization of the public and political debate. The party, composed of a heterogeneous coalition of ex-RCD members and leftist politicians, sought to present itself as the major alternative to the Islamist-led troika. It posed as the guardian of secular values and accused Ennahda and its allies of trying to turn Tunisia into an Islamic theocracy. The two secular parties of the coalition were also the targets of many criticisms, including accusations that they had betrayed secular principles by joining the troika government. Against the inflammatory backdrop of social unrest and protests arising from persistently high unemployment, strikes and bureaucratic blockage from various administrations, conflicts arose between Nida Tounes and the troika, within the troika itself, and within each party as well. Several terrorist attacks, a quickly degrading regional situation (with the spread of unrest in Mali and Libya, and the arrival of refugees from Libya at the Tunisian border), and two political assassinations did not diffuse the growing tension.
Despite these crises and increasing polarization, the troika coalition did not implode, and a compromise was reached among opposing players. A combination of several factors helped the collective commitment to compromise overcome divisions and crises, which included the history of the alliances between Islamists and secularists, built since the 1970’s in the resistance against authoritarianism, the balance of powerlessness among parties – such that no party, faction or institution had enough power to engage in a hegemonic strategy of power, and the ideological commitment of key political leaders to the values of democracy and pluralism. All of these factors help explain why negotiations and dialogue persisted, even during the tensest periods of the transition.
A Key to Success: An Involved Public with Access to Media
The constitutional process in Tunisia owes a large part of its success to the inclusion of the public and the participation of numerous civil society organizations. The strong public mobilization served as a barrier against the possible temptation that major parties (troika and opposition) may have had to block or hijack the political process. The number of TV or radio shows, academic and public conferences, internet chats and Facebook pages dedicated to the discussion of the constitution’s work increased over time. Further, all the plenary sessions were broadcast on public TV. These broadcasts gave Tunisians the possibility to hold deputies accountable for their statements inside the Assembly. The number of grassroots initiatives aimed at educating the broader public about the TNCA’s work also increased. Websites such as al-Marsad, associations such as al Bawsala, or new media such as Nawaat, contributed to spreading information and analysis about constitutional discussions. In the fall of 2012, deputies themselves initiated a wide process of national consultation through hearings and meetings with citizens in most areas of Tunisia. While the transparency of the discussions occurring within the TNCA commissions was not complete (to this day, Tunisians do not have access to the recordings of the commissions meetings), the strong mobilization and awareness of the public around the TNCA laid a foundation of a pluralistic and accountable political field.
Ennahda’s Islamic Pragmatism
Since its victory in the 2011 elections, Ennahda implemented a strategy defined more by risk avoidance, pragmatism, and the containment of attacks and threats, and less by a hegemonic ambition to capture state power or a theocratic project to Islamicize law. Even though the party included a multiplicity of voices, projects and viewpoints, some of which more ideologically radical, it was overall pragmatism and the desire to become an acceptable, mainstream political party that defined the Islamist party’s trajectory. The debate that took place within Ennahda about the inclusion of reference to sharīʿa in the 2014 constitution shows how the combination of two key aspects of the Tunisian transition the participation of Islamists in government and the opening up of a pluralist public sphere, worked in favor of a more inclusive and open constitution.
Popular Pressure Impacts Ennahda’s Political Platform
A heated debate broke out in February 2012 after the draft of a constitutional project attributed to Ennahda was leaked to social media. This document was more focused on implementing a political program than representing a society-wide set of political beliefs. The program contained many aspects of what has been commonly called an Islamization effort. According to Article 10 of this draft, sharīʿa should be established as the main source of legislation. The spread of this document triggered a heated debate within and outside the Assembly. Supporters of Ennahda and members of what is loosely labeled as the “Salafi nebula” argued for the inclusion of sharīʿa in the constitution as the main source of legislation. They argued that Tunisia, defined primarily as a Muslim country, should reinforce its Islamic identity after decades of authoritarian secularism.
Opposition to this effort was widespread. Traditional groups and individuals thought to be opposed to an increased role for religion in public life, such as the secularist left and members of the Francophone elite. However, the critical camp was more broad-based than only this small group. Included with the counter movement was a significant part of the pious, apolitical bourgeoisie (teachers, shopkeepers, businessmen). Together, members of this disparate group stood for maintaining Article 1 of the 1959 Constitution, “Tunisia is a free, independent and sovereign state: its religion is Islam, its language is Arabic and its regime the Republic.” For many, this article was arguably, in all its vagueness and ambiguity, the best way to deal with possible conflicts and disagreements concerning identity and religion. The public debate about sharīʿa was informed by numerous contemporary controversies over freedom of religion and expression. The trial of the head of the private channel Nessma TV, who was accused of offending sacred values by authorizing the broadcast of the film Persepolis, amplified the fears of the anti-sharī‘a side. The demonstrations at the Manouba University of Salafi groups, who claimed the right of female students to wear niqābs (a facial covering), also increased the general fear of the hegemony of strict Islamic norms in the public space.
No Clear Consensus on Sharīʿa
The sharīʿa debate served as a catalyst for stimulating profound and long-standing tensions within the Islamist party movement. On March 26, 2012, Rached Ghannouchi put an end to the debate when he publicly expressed, during a press conference, Ennahda’s renunciation of any reference to sharīʿa. This term, he explained, is “a little blurred” and there is no need to add “ambiguous definitions” in the constitutional text that might “divide the people.” The same day, Ennahda issued an official statement declaring that the Executive Office had voted against the inclusion of sharīʿa.
The decision against sharīʿa and the consensus on Article 1 is essentially the result of two combined factors: a virulent public debate outside and within the Assembly, and Ennahda’s willingness to maintain the troika coalition and cultivate an international image of a moderate Islamist party. The sharīʿa affair demonstrated the pragmatism of Ennahda’s attitude both in government and in the Assembly. To a large extent, the party’s willingness to forgo a key element of most Islamist political platforms illustrated its interest in sustaining the compromise with the other parties of the troika, and in defending the image of a moderate and civil party. Prominent figures of Ennahda seized any opportunity to insist on the party’s commitment to notions of civil state, rule of law, and freedom of religion. Rached Ghannouchi published a significant number of articles, issued several statements, and participated in many public events in order to emphasize his belief in an open form of secularism.
Since 2014, Ennahda’s pragmatist turn has been confirmed several times. After the 2014 parliamentary and presidential elections, Ennahda chose to enter into a coalition with Nida Tounes, its former adversary that has run all its campaign on a violent anti-Islamist platform, out of concern for stability and normalization. In May 2016, during its 10th national congress, Ennhada announced that it would give up any reference to the tradition of political Islam, and relabeled itself as a Muslim Democrat party.
Constitutions Don’t Solve Everything
The Tunisian constitution does not exactly conform to the secular-liberal cannon. But, the same could be said of many constitutions, including the US Constitution. In it, the two religion clauses of the First Amendment are so ambiguous that they often have been used as vehicles to establish the hegemony of culturally dominant understandings of what counts as religion. A constitution cannot in and of itself resolve all the political, cultural, and social issues that may arise in the future. The likelihood of a constitution actually helping a people to solve their conflicts in the future is dependent on whether the constitution represents a real, long-fought-for compromise or an artificial freezing of political conflicts. Because the Tunisian constitution of 2014 falls in the first category, there are reasons to be hopeful.
The Tunisian constitution of 2014 has provided an example of how fundamental rights emerge in a document to serve a diverse society. The process to arriving at meaningful rights that requires a long, painful, and murky process of political dispute may be well known but not significantly appreciated. If Tunisian deputies finally agreed on the inclusion of important items such as Article 6 and Article 45, it was not because of the abstract and artificial talk on international religious freedom that some Western organizations seek to promote. Instead, it only came about because, after debating and fighting for more than two years, the involved parties came to consider that such rights were compatible with Tunisia’s own political trajectory and were not values parachuted in from abroad.
On Guard! Not Against Creeping Sharīʿa but Against Creeping Authoritarianism
Despite these significant achievements, Tunisia still has to address important challenges in a hostile regional and international. This arena continues to be marked by the spread of civil war and the worldwide rise of authoritarian and populist governments. The intensification of the terrorist threat since 2013 has contributed to the reinforcement of a nationalist discourse that emphasizes the need for unity and the postponement of political conflict. This stability oriented vision, materialized by the alliance between Ennahda and Nida Tounes, has a double edged effect. On the one hand, it contributes to both the short-term stabilization of the country, and on the other, it aids the stifling of political debates and disputes that are necessary for the regeneration of a healthy and democratic political landscape. The official focus on the war on terror, at a time when young Tunisians have massively joined the ranks of jihadists in Libya and Syria, has led to a securitization of religious expression. This advancement is most notably seen through the close monitoring of mosques and the outlawing of radical Islamist groups.
While this strategy of control and repression may be understandable given the present context, it should be paired with a more liberal approach that allows for a genuine opening of the religious market and the inclusion of non-violent Salafi groups. The Ben Ali era’s pitfalls amply show the damaging and counterproductive effects of policy that is defined solely by the criminalization of religious activity. To a large extent, the high number of young Tunisians joining jihadists in Syria or Libya today can be explained as a negative effect of the strict repression of the religious sphere during the dictatorship period.
The advancement of civil rights and religious freedom granted by the 2014 constitution requires the implementation of important provisions, notably the appointment of a constitutional court, as defined by Articles 118, 120 and 121. Equally needed is a public debate around some outdated aspects of the Personal Status Code, often wrongly presented as the epitome of women’s rights in the Arab World. Provisions regarding inheritance law remain unchanged and discriminatory towards women. Finally, the alliance between Ennahda and Nida Tounes has normalized an official discourse that values a form of moralizing nationalism that is at odds with the demands of freedom, justice, work and dignity that were central to the 2011 revolution. Advocates of this conservative nationalism tend to criminalize the youth and social protest, and are reluctant to engage into a public debate about outdated aspects of the Penal code, notably Article 235, which criminalizes homosexuality and Article 52, which criminalizes the consumption of drugs.
The Tunisian experiment shows the value of Islamist parties’ inclusion in the constitutional process, the public sphere’s in political debate, as well as the successful effect of dialogue and negotiations among opposing parties during times of crises. This experiment, however, also warns against the pitfalls of compromise when it becomes the only acceptable political currency and serves as an excuse to foreclose nascent political pluralism, delegitimize social protest, and postpone much needed implementation of legal reform advancing civil, individual and gender rights.
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Sullivan Fallers Winnifred, 2007, The Impossibility of Religious Freedom, Princeton University Press.
Marzouki 2017. “Dancing by the Cliff. Constitution Writing in Post-Revolutionary Tunisia, 2011–2014” in Bali Asli and Hannah Lerner (eds.) , Constitution Writing, Religion and Democracy, Cambridge University Press, 2017.
Mandraud, Isabelle. 2012. “L’université de la Manouba, enjeu d’une lutte entre gauche et salafistes tunisiens,” Le Monde. January 6, 2012.
* Nadia Marzouki is an Andrew Carnegie Centennial Fellow, Ash Center for Democratic Governance and Innovation, and a research fellow at the Belfer Center’s Middle East Initiative. She holds a tenured Research Fellowship (Chargée de Recherche) at the CNRS (Centre National de la Recherche Scientifique) in Paris. She is the author of Islam, an American Religion (Columbia University Press, 2017). She co-edited with Olivier Roy, Religious conversions in the Mediterranean World, (Palgrave/Macmillan, 2013).
 Congress for the Republic (Congrès pour la République, CPR) is a political party of the secular left founded by human rights activist Moncef Marzouki in 2001 and that operated without legal recognition until the fall of Ben Ali. In the NCA elections, the Congress wins 29 seats out of 217 and comes second after Ennahda (89 seats). Ettakatol (shortname for « Democratic Forum for work and liberties », Ettakatol meaning Forum in Arabic) is a social democrat secular party founded in 1994 by human rights activist Mustapha Ben Jaafar. Even though the party partcipated in the legislative elections in 2009, it played a very minor role until 2011. In the NCA elections, it won 20 seats. Both CPR and Ettakatol entered into a coalition with Ennhda. The Islamist party did not win enough seats to be able to rule by itself. The 2011 coalition is to large extent a continuation of the alliance embodies by the Collective of October 18, 2005, a coalition between Human rights, Islamist and leftist activist made in exile, who agreed on a common platform of principles and values.
 On this basis, Hamadi Jebali (Ennahda) was appointed as the prime minister, in charge of heading the government; Moncef Marzouki (CPR) at the Presidency; and Mustapha Ben Jafar (Ettakatol) at the head of the TNCA. government, composed of 19 ministers from Nahda, 6 from Ettakatol, 6 from CPR.
 For a description of this political stand off and the concurrent economic and security problems, see Campbell, 2013.