Despite some flaws, Tunisia’s constitution shows promise

Here is the good news: Tunisians appear to have been able, for now at least, to thrash out the differences between Islamists and secularists over their new constitution in a relatively peaceable, if contentious and almost entirely political, manner. The bad news? The document the constituent assembly has crafted and passed, article by article, is significantly flawed.

However, the fact that the Tunisian mainstream groups are not battling it out in the streets in one form or another, but rather in a political setting, is, in and of itself, something to be praised in the current Arab environment.

Predictably, the biggest issues revolve around the role of religion and the state. Tunisians have either ended up with a grand compromise, or at least a model of compromise, for the rest of the Arab world. Or they have ended up with a terrible muddle of incoherence and self-contradiction in their basic governing document, which sets the stage for future confrontations that may not be so pleasant. Or both.

Article 1 declares Islam to be the religion of Tunisia, which, in an overwhelmingly Muslim-majority country is somewhat superfluous. Article 2 then declares Tunisia to be “a civil state based on citizenship, the will of the people and the rule of law”.

Such contradictions become even more severe in the highly contentious Article 6, which both “protects sanctities” and, simultaneously, “guarantees freedom of belief and conscience”.

The guarantee of freedom of conscience can only be interpreted as allowing people not to have any religion at all and to be atheists or agnostics or follow whatever religion they please. There is a distinction to be made in the contemporary Arab world between “freedom of religion”, which is often understood as the freedom to be any sort of traditional monotheist one likes, versus a real freedom of conscience, which opens the door to a far greater range of belief systems, including skepticism, agnosticism and atheism.

In the West and elsewhere, it has already been demonstrated that religions can be protected in certain civic senses – exempt from taxation, protected from government intrusion, and so forth – without reducing people’s rights to choose between religions or not have any religion at all.

Despite strong free speech provisions, the “protecting sanctities” clause could set the stage for anti-blasphemy legislation in Tunisia that restricts freedom of speech, such as led to the 2012 sentencing of Jabeur Mejri to seven years in prison for questioning Islam.

It will be hard to reconcile “freedom of conscience” with the “protection of sanctities”. The new Tunisian constitution appears to have it both ways: freedom of thought and expression combined with protection for religious sensibilities. It’s possible, but difficult, to achieve that balance.

Article 6 was amended following a particularly histrionic moment in the frequently contentious debates. On January 5, an Islamist member of the assembly, Habib Ellouz, called a secularist colleague, Monji Rahoui, “an enemy of Islam”.

A ban was then inserted against charges of apostasy (takfir) and incitement to violence. This, too, could be seen as a serious violation of freedom of expression on the one hand, or a necessary protection against the incitement that led to the assassinations of secularists Chokri Belaid and Mohamed Brahmi.

The brouhaha concluded on an absurdist note with assembly member Ibrahim Kassas shouting “Allahu Akbar” at the top of his lungs until he fainted.

The confusion over religion and the state is also reflected in Article 73, which holds that anyone running for president must be a person “whose religion is Islam”. In an overwhelmingly Muslim country, this is not only insulting to small religious minorities, it’s entirely gratuitous.

Most of this constitution will provide the basis for future, more specific, legislation. And it seems to contain within it both the basis for a genuinely open, pluralistic society that protects both religious belief and freedom of expression. Or could set the stage for laws significantly repressing non-or-anti-religious opinion and expression, and the championing of one religion (Islam) by the state.

Grading on a curve, the new draft Tunisian constitution probably gets a B. But this grading has to be on a curve. It’s excellent both in substance and how it was crafted compared to, for example, the new Egyptian constitution. Many other states are not changing at all.

But the document itself has several glaring flaws and contradictions to worry about, and they reflect simmering, lingering political disputes that have not been resolved but merely postponed by these compromises.

But the gruelling passage of the document by the Assembly included a crucial grace note: the body spontaneously rose and sang the Tunisian national anthem after passing an article ensuring gender equality. This suggests that even on some contentious and unresolved issues, Tunisia has been able to preserve a sense of national unity that, so far, as has eluded several other post-dictatorship Arab states, including its immediate neighbours Libya and, especially, Egypt.

Egypt appears to have lost a common, consensus understanding of what Egypt is and what it means to be an Egyptian. For all of the contention, confusion and contradiction surrounding the new constitution – and despite the announcement by interim prime minister-designate Mehdi Jomaa that he has still been unable to form a new consensus cabinet – Tunisians appear to have, at least thus far, retained a sense of common national identity. Judging from the countries bordering it to the east and west, that is no mean feat.