The drafting of Tunisia’s new constitution began today with discussion of what will be perhaps one of the most divisive issues in Tunisian politics: the constitutional definition of the country’s national identity.
The first article of Tunisia’s current constitution currently names the language of the country as Arabic and its religion as Islam. With an Islamist party, Ennahda, in power, the question is whether this will be enough to define the religious orientation of Tunisia’s juridical future.
Sadok Bel Aid, Former Dean of the Faculty of Law at the Free University of Tunis, and a specialist in constitutional law, believes that Ennahda has moderated its position with regards to the religious content of the preamble. While previously, according to Bel Aid, members had wished for a reference to an Islamic source for Tunisian law, the party seems to have reached a consensus now that some version of the current first article would be sufficient.
However, from the onset of the meeting it was clear that reaching agreement concerning Tunisia’s national identity would be no small task. Hajer Azaiez, the commission’s vice-rapporteur and a member from Ennahda, casually mentioned, “We are already all in agreement with Islam being the official religion, and Arabic the official language. Why don’t we discuss the rest of preamble?”
This statement received a quick response from Taher Hmila, a representative from the centrist Congress for the Republic (CPR) party, who replied, “No – we are not. We cannot do that. We, as a republic and state, cannot have an official religion. We want to be consistent with the republican form of government.”
Issam Chebbi, a representative from the Progressive Democratic Party (PDP), later proposed including references to religion and language in the body of the constitution instead of the preamble or general principles. Maya Jeribi, secretary general of the PDP, agreed with Chebbi’s proposition.
The Congress for the Republic (CPR) party, which has formed an alliance with Ennahda and the center-left Ettakatol party, seemed to be in agreement that a reference to Islam within the opening clauses of the constitution was not a foregone conclusion.
Rafik Telili, a member of the CPR, argued that the preamble should affirm the state’s civic character. “We need to make it clear that minorities will be protected. We need to say that our relations with Jews, for example, are peaceful,” he said.
Another member from the CPR, Mabrouka Mbarek, suggested that the constitution use a declaration of human rights as the preamble’s point of reference instead of ‘Islamic values,’ since it would hold more collective weight. “The revolution was triggered because of socioeconomic constraints, not religious values. Freedom of religion is only one facet of their demands,” she said.
Bel Aid did not believe that foregoing any reference to religion in the preamble to Tunisia’s constitution was a plausible proposition in a country that is ninety-nine percent Sunni Muslim. However, he felt that the religious character of the definition could indeed be softened.
“I think we could have a reference that mentions religion in light of our history, a ‘light’ version of the formulation that wouldn’t erase it. You know, even in America, on the dollar bill you have ‘In God We Trust,” said Bel Aid.
While the preamble of a constitution has a largely symbolic value, it can set the tone and color of the document to follow. The preamble of France’s constitution, for example, makes reference to the 1789 “Declaration of the Rights of Man” and establishes the states as secular. In light of recent controversies in the country concerning secularism, such as the ban on the niqab (a full-body Islamic veil), that clause would seem significant.
“Preambles can have a certain ideological value, and a certain political value, but also a certain juridical value,” said Bel Aid. He explained that, if worded properly, preambles could be “creative” of principles to follow in the constitution and could act as a guide for future disputes concerning the document’s interpretation.
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