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Tunisia's Constitutional Challenge

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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. Last October, Tunisians elected a 217-member assembly with a one-year mandate to draft a constitution, appointed a transitional government, and agreed on subsequent presidential and legislative elections. The October elections were hugely significant because of the nearly unfettered constitutional and policy-making powers of what legal scholars would refer to as a Constituent Assembly. But given the stakes involved for the country and by implication, the region, it is particularly important that Tunisia gets it right.

A Constituent Assembly would typically wield both ordinary and extraordinary lawmaking powers in times of transitional governance. Aside from its mandate to draft a constitution, it can essentially act as an ordinary parliamentary body which may choose to define its own goals for its first year of operations. While Tunisia has been a great case study to foreign observers both from the West and from neighboring Arab states with democratic ambitions of their own, there appears to be little foreign participation in the constitution drafting process. Tunisia would undoubtedly benefit from having foreign constitutional and policy experts available as consultants to the sundry alliances and coalitions comprising the Assembly, as well as to secure the long-term participation of international monitoring and security groups.

Following its acquisition of 90 of the 217 seats in the Assembly, the Ennahda party chose to form a "unity government" by sharing the spoils of its political gains with other political parties. The Congress for the Republic (CPR) and the Ettakattol Party (FDTL) joined Ennahda to form a governing coalition. Citing the secularist Turkish model, Ennahda spokesmen have clearly stated the party's intention of establishing a durable, pluralistic constitutional democracy protective of minority rights -- regardless of who may be in power. Early in December, the Assembly met to debate and begin voting on what the Tunisian press has dubbed a "mini-constitution" -- a transitional document modeled after South Africa's interim constitutional processes from 1993 to 1997, to lay the groundwork for a more permanent charter. Interestingly, a proposal to extend the Assembly's constituent mandate beyond one year lost by a vote of 153 to 39 (with the remainder abstaining), so the pressure in on the Assembly to work quickly to complete its mandate.

Among the contentious issues that have been agreed upon thus far are the new prerogatives of the president and prime minister, and the balance of power between them. Much of the opposition has focused on the fear that certain clauses might provide grounds for a new form of dictatorship. Here Tunisia's constitutional drafters may have been influenced by Russian-style executive dynamics between concurrently sitting presidents and prime ministers -- an outgrowth of compromises between Mikhail Gorbachev and Boris Yeltsin more than 20 years ago. Beyond Russia, Tunisia may turn to the French model of "cohabitation", where a president and a prime minister from opposing parties can and do hold office. On December 23rd, Tunisia's Assembly approved a cabinet proposed by the new Prime Minister (Hamadi Jebali) by a vote of 154 to 38 (again, with the remainder abstaining). Key ministerial posts in the 41-member Cabinet have been given to Ennahda officials, which is perhaps the reason there were so many abstentions.

Beyond defining executive dynamics, the Assembly must also define its goals and mandate beyond the task of drafting the constitution. Given the legislative vacuum until the next general elections, the Assembly may expand its mission and act as a regular parliament -- discussing and approving the budget of 2012, revising past laws and passing new laws, much in the way Israel's first Knesset conducted itself in administering both original and amendatory legislation of residual laws during the British Mandatory period. This double-burden of ordinary and special lawmaking may create a diversion from good constitution-making, and at worst could lead to factional self-interest and ideological divergence when the parties return to the primary business of drafting the constitution.

Tunisia's constitutional-legal vacuum may also tempt the Ennahda-led coalition to constitutionally entrench what might seem like ordinary politics into constitutional norms. To preempt this, it may be well advised for Tunisia to turn to Libya today for guidance; Among the safeguards of the draft of the new Libyan constitution is a prohibition or disqualification of members of the National Transitional Council from holding office following the interim period. It remains to be seen how well this prohibition can be effectively carried out by the emerging Libyan order, given the likelihood of loopholes in any legal system, but the Libyan approach certainly appears to be a good start on that subject.

But the most challenging issue may well be the formulation of the procedural bylaws of the Assembly and how swiftly its members can deliver its promises. The drafting process of the permanent constitution -- the ground rules of the debate, if you will -- is still under deliberation. Should constitution-making involve only the members of the Assembly in plenary session, or could the Assembly delegate this function to smaller drafting committees armed with teams of legal experts entrusted with translating assembly discussions into legal provisions? Some baselines have already been agreed upon. Members of the Assembly have decided that individual articles and provisions must be approved by 50% +1 for all decisions, and a two-thirds majority will be needed to approve the entire constitution.

If the draft constitution fails to pass after two readings, the draft will be submitted to a popular referendum. Ordinary citizens may likely insist on a popular referendum of the final draft regardless of the Assembly vote, to increase the constitution's legitimacy and sense of ownership by all Tunisians, but there seems to be no particular mechanism which will allow citizens to insist on a popular referendum, should they choose that route. The argument against a binding popular referendum that could override the Assembly's wishes is that the people of Tunisia have already vested power into the Assembly through free elections, and thus, a referendum may fail to concretely influence any constitutional choice the Assembly may have made. The Assembly may decide to approve a popular referendum, or it may dismiss such a petition. The referendum could act as a barometer to aid the individual Assembly members (and their respective parties -- most likely the same parties running in the next elections) in making their constitutional choices.

Perhaps the more crucial question today is what kind of constitutional political model the people of Tunisia would like to see embodied in their future permanent constitution. The conservative parties (Ennahda in coalition with the CPR and FDTL) advocate a more conservative approach: a dual discourse espousing traditional Islamic values coupled with (but over) "the gains of modernism." The confederation of progressives (or "less conservative" parties) -- the Progressive Democratic Party (or PDP), Democratic Modernist Pole (or PDM), the Tunisian Workers' Communist Party (or POCT), and Afek Tounes -- are trying to anchor the country into a future built on the values of "openness" and "personal freedoms." Whether Tunisia will oscillate towards Libya's draft constitutional model where Sharia law will tend to override secularist norms (as in Iran), or tilt towards Turkey where any religion's law cannot be the law of the land, remains to be seen.

Given current dynamics, Tunisia is likelier to choose Turkey's secularist model, even if Tunisia's Assembly is dominated by conservatives. Although Tunisia is largely Muslim, many observe that Tunisians are characteristically "European" and adhere to secular versions of republican democratic values, with Islamic political influence acting more as a counteracting force to Ben Ali's secular regime (similar to the relationship between Egypt's Muslim Brotherhood and Hosni Mubarak's toppled regime). All said, this polarity will 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. Given the current composition of the Assembly, the conservative Islamic parties are likely to wield considerable clout in the debates, although no doubt with a sprinkling of concessions taking into account the public pulse.

Ennahda party leaders have said that the Assembly will focus on democracy, human rights and a free-market economy -- and will not introduce Sharia law or other Islamic concepts to alter what they avow to be a secular constitutional text. In this constitutional continuum, the tension between secularist constitutional democracy (Turkey) and Islamist constitutionalism (Iran, Libya) will likely preoccupy the Assembly in its first year of transitional governance. We wonder whether in the long-term, Tunisia's example will serve as the regional prototype for the 'new' Middle East, or whether the emerging Egyptian and Libyan examples will prevail. Much will depend on how events unfold in the coming months. While it seems that Tunisia is at least off to a reasonable start, the emerging conservatism of the region's electorate may see the Egyptian model prevail in the end.

*Daniel Wagner is CEO of Country Risk Solutions, a cross-border risk management consultancy based in Connecticut (USA), Director of Global Strategy with the PRS Group, and author of the forthcoming book Managing Country Risk (March 2012). Edsel Tupaz is founder and managing partner of Tupaz and Associates, and a professor of international and comparative law, based in Manila. The authors thank Joan Martinez for her assistance and comments.