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Sharia and the Constitution in Post-Revolution Tunisia

JURIST Columnist Edsel Tupaz and Guest Columnist Joan Martinez, both of Tupaz & Associates, argue that given the sentiments in Tunisia and the statements of leading members of its newly-elected constituent assembly, the constitution will likely follow the Turkish model of secular constitutional governance, despite language in the draft constitution indicating otherwise...

In the country's first free election, millions of Tunisians cast votes last October for a 217-member assembly with a one-year mandate to draft a constitution, appointed a transitional government, and organized subsequent presidential and legislative elections. As the birthplace of the Arab Spring and the first country in the Middle East and North Africa to oust its multi-decade dictator, Tunisia has taken the regional lead in reconstituting its government. The October elections were significant because of the nearly unfettered constitutional and policy-making powers of what legal scholars would refer to as a "Constituent Assembly." The Ennahda (Renaissance) Party — a moderately Islamist political party that had a long-standing opposition to the strictly secular regime of Zine El Abidine Ben Ali — acquired 90 of the 217 seats in the Assembly.

With the Assembly starting its gears, the crucial question today is what kind of constitutional-political model the people of Tunisia would like to entrench in their legal order. The conservative parties — Ennahda, in coalition with the Congress for the Republic (CPR), and the Ettakatol (FDTL) — are no doubt inclined for a more conservative approach: a dual discourse espousing traditional Islamic values vis-à-vis the "gains of modernism." Meanwhile, the more progressive parties — the Progressive Democratic Party (PDP), Democratic Modernist Pole (PDM), the Tunisian Workers' Communist Party (POCT) and Afek Tounes, while recognizing and respecting the wishes of religious beliefs, relegate Islamic norms to declarative or hortatory principles and policies and elevate religiously neutral secularist notions of personal freedoms to constitutional status. After Ennahda's sweep of the elections, secular circles in Tunisia and the West expressed some misgivings over how the Assembly might choose to fashion the Tunisian constitution. In a country predominantly of Muslim culture and religion, and with an Assembly led by conservatives, will Islamist fundamentalism overwhelm secular interests during the constitutional process?

In Libya, the Islamist-led National Transitional Council passed a draft constitution [PDF] that declares in its very first article that "Islam is the Religion of the State and the principle source of legislation is Islamic Jurisprudence (Sharia)." Although the rest of the document tries to incorporate secular interests with a standardized catalog of basic guarantees — such as respect for the rights of non-Muslims, freedom of religious practice, a "democratic" multi-party system, equality before the law including women's rights, basic rights to one's property, education and social security — the question still remains whether Libya will succeed in harmonizing an ostensible tension between Sharia and republican rules and principles, with the former occupying a higher constitutional plane. Meanwhile, Iran's "hybrid" constitution, in force since 1979, combines authoritarian, theocratic and democratic elements, and seems to be the track Libya is taking, at least in form. Under this amalgam of political theory, Iran's constitution permits basic constitutive questions of life and liberty to be resolved by Sharia rules and principles, which essentially subordinates all questions, state action and individual alike, to the Guardian Council (composed of six faqihs, or experts on Islamic law) and the Supreme Leader (the highest religious and political figure in Iran).

Tunisia, however, does not seem to be heading in this direction. Citing the strictly enforced secularist Turkish model, Ennahda spokesmen are clear in their hope of establishing a durable, pluralistic constitutional democracy protective of minority rights. Ennahda party leaders insist that the Assembly will not introduce overriding Sharia or other Islamic concepts to alter what they avow to be a forthcoming secular constitutional order. The Turkish example is a prime model for Tunisia because of its perceived success in reconciling secularism and Islamic majoritarian beliefs.

From its very preamble, the Turkish Constitution provides that it is "in line with ... the reforms and principles introduced by the founder of the Republic of Turkey, Atatürk," which are said to be centered on the principle of democracy and secularism. The document acknowledges the supremacy of the constitution and the law, and that sovereignty belongs to the Turkish nation — not to God, like it did in the Ottoman Empire. Meanwhile, parties in Tunisia have reportedly agreed to keep the first article of the current constitution, which states that Tunisia's language is Arabic and its religion is Islam. This prompts the question of whether the texture or substance of the forthcoming draft constitution will turn out differently than Turkey's strictly secularist vernacular. However, for the time being, at least to the public pulse this poses no real concern. The statement in the first article, as it is believed, will serve merely as descriptive of time and place and will carry the same hortatory force in the way preambles of other constitutions invoke "Almighty God." Public sentiment seems to be accepting of the current version of the first article owing to an avowed desire to keep an Arab identity in harmony with secular values and Muslim culture.

In an October op-ed in The Guardian, Rachid Ghannouchi, co-founder of the Ennahda Party, confirmed this popular opinion by calling the Tunisian elections "an opportunity to bury once and for all theories of the so-called 'Arab exception' and prove that democracy can emerge and flourish" in a predominantly Muslim country, something that the people of Tunisia ought to deserve following decades of widespread political and social repression under Ben Ali's regime:

We have long advocated democracy within the mainstream trend of political Islam, which we feel is the best system that protects against injustice and authoritarianism. In addition, it provides institutions and mechanisms to guarantee personal and public liberties, most importantly the peaceful transfer of power through the mechanism of elections, respect of the popular will, protection of the rights of women, separation of powers, independence of the judiciary, press and media freedom and protection of minority rights. All these are in no way contradictory with Islam, but reflect the Islamic principles of consultation, justice and accountability as we understand them.
One ought to be mindful of the fact that constitutions are shaped in no small part by the social and political circumstances of time and place. Given current political dynamics, even with a formal first statement along the lines of Libya's draft constitution or even Iran's present constitution, Tunisia's constitutionalism is likelier to follow Turkey. It is here where the distinctions between constitutionalism as an ongoing process on one hand, and a constitutional charter on the other, ought to be made.

Despite the conservative leanings of Tunisia's Constituent Assembly, Tunisian Muslims are characteristically "European," many of whom are fluent in French, and avow secular versions of republican democratic values. The growing Islamic political influence in the country may simply be seen as an inevitable counteracting force against the residue of Ben Ali's strictly secular but oppressive regime.

Ghannouchi has stated — presumably echoing the sentiments of his Ennahda Party — that he sees Sharia as a set of moral norms for individuals and societies, rather than a strict "code" to be applied to a country's legal system. Nevertheless, the dual discourse of Islamic values and secular modernism will continue to shape the terms of the constitutional debate, particularly in the formulation of a catalogue of entrenched civil and political liberties, the structure and powers of government and intergovernmental relations, and the greater meaning and role of "the State." Ennahda's success so far in forming a stable transitional government provides an example of the ability of newly formed Islamic majoritarian states with very little history of democratic constitutionalism to govern effectively in the twenty-first century. Meanwhile, the Turkish model, which perhaps is the leading example of governance where tensions between Islamic and secular principles can be thoughtfully reconciled, provides Tunisia with a blueprint for both constitution-making and constitutional practice.

In the coming months, Tunisia might become the regional prototype for the "new" Middle East emerging from the Arab Spring. Of course, much will depend on the ongoing social dynamics and circumstances peculiar to each country — Iraq, Afghanistan, Libya, Egypt, and now, Yemen. The oscillation between the Iranian model on one hand and Turkey's constitutionalism on the other will no doubt preoccupy the framers of their respective constitutions in making key constitutional choices.

Edsel Tupaz is the founder and managing partner of Tupaz & Associates. Tupaz & Associates is a public interest law firm whose specialties lie in comparative constitutional law and policy. Tupaz is also a professor of international and comparative law, teaching at law schools in the US and the Philippines. He was senior counsel and senior executive assistant of the Philippine Truth Commission created by President Benigno Aquino III, which was later declared unconstitutional by a Court majority chaired by Chief Justice Renato Corona.

Joan Martinez is a Research Associate for Tupaz & Associates. She graduated from the University of Virginia in 2011 with a double major in History and Foreign Affairs. She has previously interned with The Rutherford Institute in Charlottesville, Virginia.

Suggested citation: Edsel Tupaz & Joan Martinez, Sharia and the Constitution in Post-Revolution Tunisia, JURIST - Sidebar, Jan. 10, 2012, http://jurist.org/sidebar/2012/01/tupaz-martinez-tunisia.php.

This article was prepared for publication by JURIST's professional commentary editorial staff. Please direct any questions or comments to them at professionalcommentary@jurist.org

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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