The New 2014 Tunisian Constitution
Prof. Dr. Rainer Grote, LL.M. (Edinburgh)
Senior Research Fellow at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg
Adjunct Professor of Public Law at the University of Göttingen
A preliminary analytical report on key constitutional changes to the Constitution of the Tunisian Republic introduced by the new 2014 Constitution, ahead of a full country report to be published soon, including an English-translated text of the 2014 Constitution.
On January 26, 2014 the Tunisian constituent assembly finally adopted a new constitution which was signed into law by President Marzouki in a special session the next day. The breakthrough followed a compromise brokered by the Tunisian trade unions that had ended the political deadlock between the country’s Islamists and secularists after the dominant force in the assembly, the Islamist Ennahda party, agreed to relinquish control of government to a non-partisan caretaker government. Ennahda was also willing to compromise on some of the most contested provisions of the draft constitution, especially those concerning the role of religion and women’s rights. As a result, the constitution was approved by an overwhelming majority, with 200 against 12 votes (and four abstentions), exceeding the required two-thirds majority for adoption without popular referendum by a wide margin. Being the country in which the “Arab spring” was born, Tunisia is also the first country to emerge from the ensuing difficult transition process with a new constitutional settlement reflecting a broad consensus, which bodes well for the future stability of the country.
According to Article 2 of the Tunisian constitution “Tunisia is a state of a civil character based on citizenship, the will of the people and the rule of law.” In line with the civil character of the state the new Tunisian constitution strictly limits the role of the military. Unlike the Egyptian military, the Tunisian armed forces have traditionally adopted a low public profile and kept their distance from political infighting. They stuck to this traditional role during the country’s difficult constitutional transition following the ouster of President Ben Ali although it is widely presumed that the refusal of the military to fire on civilians during the 2011 protests played a crucial rule in his exit. Article 18 of the new constitution provides that they have a duty of complete neutrality with regard to domestic politics and must support the civil authorities in the conditions defined by law. The political role of the security forces is defined in similar restrictive terms. Article 19 commits them to discharge their functions – maintenance of public order, protection of the safety of individuals, institutions and property, law enforcement—within the limits established by the fundamental rights in complete neutrality.
While the new constitution, like its Egyptian counterpart, proclaims Islam to be the religion of the state (Article 1), it does not include a reference to Sharia as “a” or even “the” source of legislation. Instead it bestows upon the Tunisian state the roles of “guardian” of religion and “protector” of holy sites and objects. Freedom of belief and worship is guaranteed for all, and the state has a duty to protect the neutrality of mosques and places of worship against their use for partisan purposes (Article 6). A new paragraph which was introduced in the final deliberations obliges the state to disseminate the values of moderation and tolerance, to prohibit the accusation of apostasy and the incitement to hatred and violence and to oppose them. However, only Muslims are allowed to stand for the presidency of the Republic (Article 74).
The 2014 Tunisian constitution contains an extended bill of rights, protecting inter alia the right to life, dignity, liberty, freedom of opinion and the press, and the right to establish political parties and trade unions. Special attention is given to the rights of women, children, and handicapped people. The principle of equal rights and duties for male and female citizens is affirmed without any qualification (Article 21). The state shall guarantee equal opportunities for men and women in the exercise of different responsibilities in all sectors. In particular, the state shall strive to achieve parity of men and women in all elected assemblies (Article 46). The rights and liberties guaranteed by the Constitution are safeguarded by the courts, and may only be interfered with in order to protect the rights of others, public security, national safety, public health and public moral, to the extent that the interference is necessary and proportionate in a civil democratic society (Article 49).
The new constitution establishes a hybrid system of government, with the President of the Republic and the government headed by the Prime minister sharing the exercise of executive power (Article 71). The head of government determines the general policies on domestic matters (Article 91) while the President of the Republic, who is elected by direct universal suffrage for a maximum of two five-year terms (Article 75), has the same power with regard to all issues concerning defense, foreign policy and national security (Article 77). The competent ministers can only be chosen with his approval (Article 89). If foreign policy or defense issues are discussed in the Council of Ministers, the President must chair the meeting. But the President may also take part in meetings discussing domestic policy issues. If he does, he chairs the meeting (Article 93). The new Tunisian constitution thus establishes a rather complicated system of power-sharing at the heart of the executive power. This could spell trouble in times of political rivalry or personal animosity between the two heads of the executive branch.
The 2014 constitution strengthens the independence of the judiciary and creates a more powerful constitutional jurisdiction. Under the previous constitution, the function of the Constitutional Council was limited to checking the consistency of legislation with the constitution by referral of the President of the Republic prior to its promulgation. Neither the political opposition nor individual citizens could petition the Council in order to defend their constitutional rights which was thus more of a weapon in the hands of the President to keep Parliament at bay than an effective institution of constitutional review. The new constitution replaces the Constitutional Council with a constitutional court that exercises broad review powers. It extends the right to submit legislation for prior control of its constitutionality to 30 members of Parliament. Perhaps even more importantly, it gives the court the power to review laws which have already entered into force upon the initiative of one of the parties to a court case whose outcome depends on the controversial provisions (Article 120), thus creating the space for the new constitutional review body which it needs to transform itself into a true guardian of the constitutional rights of the individual.