Last update: 2018-12-18 10:01:21
Like every Basic Law drafted in a context of transition and democratic confrontation between rival projects, the new Tunisian Constitution reflects the power relations presiding at its difficult drafting: it guarantees the secularists freedom of conscience and the free exercise of religious practice, whilst it accords the Islamists protection of both religion and the sacred.
Three years after the revolution that put an end to Zine El-Abidine Ben Ali’s regime and the system set up immediately after independence, defenders of democracy and human rights around the world welcomed the new Tunisian Constitution (adopted on 26 January 2014) with enthusiasm. The Secretary General of the United Nations saw it as a “historic milestone” and Tunisia as a “model for other peoples aspiring to reform.” The Franco-Lebanese theologian Antoine Fleyfel has, for his part, emphasised that “recognising freedom of conscience in the Constitution, as Tunisia has just done, is a step towards democracy, which is not only government by the majority but also respect for a whole series of values contained in the Universal Declaration of Human Rights. It is important to note that everyone, and not just the Christians, will benefit from this freedom of conscience, since it fosters the emergence of a pluralist society that respects all human beings.” And he added, “What Tunisia has done gives cause for hope that progress will be made in the rest of the Muslim world. Please God that it may be contagious.” Some attribute this progress to the Tunisian Islamists, by far the largest group within the Constituent Assembly that voted in the new Basic Law. They forget, however, the draft Constitutions that the same Islamists had tried to impose before supporting (at the eleventh hour) the version painstakingly negotiated within the national dialogue framework.
We do well, therefore, to remember the conditions in which this Constitution was secured and the impact of the power relations between the various transition protagonists, as these have influenced the document’s contributions and shortcomings regarding the subject of freedom of conscience and, beyond the level of the new constitutional text, also the laws and practices still in force after, and in spite of, this principle’s adoption.
A Transition Dominated by Fear for the Fundamental Freedoms
The revolution has liberated everything that the dictatorship had suffocated, both good and bad: the voices that aspired to greater freedom and those that sought to impose a theocracy, thereby jeopardising all society’s achievements. The abrogation of the 1959 Constitution – which recognised, inter alia, freedom of belief and freedom of expression and did not refer legislation to any religious rules – has re-launched the debate about the status of Islamic normativity in relation to the state, legislation, customs and both individual and collective forms of behaviour. Is it a normativity that only binds those who adhere to it? Or must it be established as a constitutional principle to which everything – the state, the law and both individual and collective forms of behaviour in every context – must be subjected, as the followers of the most fundamentalist readings and most rigorist traditions have loudly called for? Those who peacefully cherished the idea of a “Tunisian exception” under the banner of “modernity,” secularization, “tolerance,” an opening up to the century and the world, recognition of women’s rights and so forth were caught off-guard by the irruption of Salafi movements that sought “the caliphate’s restoration,” “the application of sharia,” the abrogation of “impious laws” and the “re-Islamization” of the state and society by any means, violence included.
Panicking at the unexpected irruption of this other Tunisia, the secularists revised their demands and asked for Article 1 of the abrogated Constitution to be preserved (“Tunisia is a free, independent and sovereign state. Its religion is Islam, its language is Arabic, and its type of government is the Republic”.) Thus, they gave the Islamists an unhoped-for gift. Indeed, contrary to the reading favoured by the founding father and first president, Habib Bourguiba, and the secularists (who maintained that Islam was Tunisia’s religion but not the Tunisian state religion), the Islamists have always argued that the article in question referred to Islam’s establishment as the state religion and that the necessary implications should be drawn at all levels, both legislatively and culturally. Facing the timorous approach of their secularist adversaries, all they had to do was negotiate a compromise between the 1959 Constitution’s achievements and the excesses of the most arrogant and most Salafi of the Islamists.
The campaign for election to the National Constituent Assembly (NCA) and the debates during the transition period (between the fall of the old regime, the suspension of the NCA’s proceedings following the assassination of the left-wing politician Mohamed Brahmi, and General al-Sisi’s coup in Egypt) were marked by the power relations between two groups. On the one hand, there were the supporters of a timid secularist project who were inhibited by the fear of seeing modern Tunisia’s achievements disappear. On the other, there were the advocates of an Islamist project, who were sure they could get the best deal by exploiting the fear provoked by an intensification of the Salafi violence (the Salafi movements were protected by the Troika government dominated by Ennahda’s Islamists).
The first versions of the Constitution were made public in July 2012. They referred to sharia as the source of legislation and to Islam as the state religion and they said nothing about freedom of conscience. The same goes for subsequent versions including, in particular, the one that the Constituent Assembly, pressurized by the multiplication of terrorist attacks, the effects of Brahmi’s assassination and the dramatic turn the transition in Egypt was taking, was about to approve on the eve of the summer of the great danger.
All the draft constitutions presented up until that point had taken greater account of the Salafi movements’ demands than of those made by civil society and the democratic forces still stunned by the electoral defeat in 2011. Freedom of conscience was sacrificed in favour of the reference to sharia and the criminalization of violations of the sacred. In the hope of fostering a fragile balance between freedom of conscience and protection of religion, the criminalization point was abandoned by the majority of NCA members during a vote in April 2013. It was reintroduced by the Islamists during the final debates in January 2014, on the eve of the new Constitution’s adoption.
Civil Society Pressures
It was the mobilization of a civil society committed to defending and promoting human rights and fundamental freedoms – the feminist associations, the Tunisian Human Rights League (LTDH) and the Tunisian General Labour Union (UGTT), in particular – that, in the summer of 2013, overturned the power relations in favour of a transition finale more respectful of the democratic aspirations that the revolution against Ben Ali’s regime had been. Thanks to these mobilizations, the NCA (which had respected neither its mandate nor the one-year deadline established by law) ceased to be the frame of reference for the work of drafting the Constitution and completing the transition. A new entity took its place: the national dialogue proposed by four organizations, namely the UGTT, the Tunisian Union for Industry, Commerce and Handicrafts (UTICA), the LTDH and the Bar Association. These organisations were supported by the various organized expressions of civil society and by daily demonstrations against the NCA and the Troika in power. Earlier in 2012, the mobilization of women and democratic forces had already pushed the Islamists to renounce their project to substitute the new Constitution’s principle of gender equality with the concept of complementarity. Within the national dialogue framework (which the Islamists ended up agreeing to after having boycotted it for a long period), the various draft Constitutions presented up until then were put to one side. This was not a reason for the Islamists to completely renounce their programme, however.
Putting to good use a compromise deal struck in Paris between the “two great old men” (Ennahda’s leader, Rached Ghannouchi, and his rival Beji Caid Essebsi) – a deal struck outside the national dialogue framework and with the (implicit) backing of some European countries and the United States – they negotiated the conditions of their surrender to the bitter end, exploiting every opportunity to ensure that the price of defeat was not too high. On 4 January 2014, an Ennahda member of the NCA accused a member of the Popular Front of being an enemy of Islam. Opposition representatives took advantage of this incident to propose criminalizing accusations of unbelief (takfīr): such accusations can constitute an instigation to murder the person considered an apostate, as has occurred in the case of various artists and intellectuals in Algeria, Egypt and elsewhere. The proposal was adopted and immediately incited the fury of the imams. The latter launched a petition that was taken up by the Grand Mufti of the Republic and some of the Islamists from the NCA. It demanded revocation of the ban on accusations of apostasy, such ban being deemed a violation of “one of the pillars of Islam.” The Islamist members of the NCA and their most loyal allies took advantage of this general outcry to introduce a duty, on the part of the state, to prohibit not only accusations of apostasy but also violations of the sacred.
Freedom of Conscience and Protection of the Sacred
Like every Constitution drafted in a context of transition and democratic confrontation between rival projects, the new Tunisian Constitution reflects the power relations that presided over its drafting. This goes for the Constitution as a whole but, above all, for Article 6, which deals with freedom of conscience and reflects the viewpoints of both camps:
The state is the guardian of religion. It guarantees freedom of conscience and belief, the free exercise of religious practices and the neutrality of mosques and places of worship from all partisan instrumentalisation.
The state undertakes to disseminate the values of moderation and tolerance and the protection of the sacred, and the prohibition of all violations thereof. It undertakes equally to prohibit and fight against calls for takfīr and the incitement of violence and hatred.
According to some, the article guarantees freedom of conscience, the free exercise of religious practices, a ban on takfīr and the fight against it. According to others, it grants a protection of religion and the sacred by forbidding the latter’s violation. Mosques and places of worship are declared neutral and sheltered from all forms of “partisan instrumentalisation” but that does not mean that the imams cannot give political sermons, as the Islamists subsequently reminded everyone.
What does the state’s role of “guardian of religion” involve? Which religion is being referred to? Does this role extend equally, at a level on a par with Islam, to the minority religions and spiritual communities within Islam and to all the other religions and forms of spirituality, whether or not they are recognised? What does the vague and undefined concept of “violation of the sacred” actually encompass? How is the ban on violation of the sacred to be reconciled with freedom of expression and freedom of conscience? The Islamists have a tendency to subordinate freedom of conscience, freedom of expression and all the fundamental rights and freedoms to the priority of protecting religion and the sacred, the scope of which they extend to the maximum. They exploit the more conservative, identity-related reflexes in order to oppose the abrogation of anti-constitutional, liberty-killing laws, regulations and measures that they defend in the name of religion e.g. the homophobic laws and the laws and provisions that allow the police, the judiciary and the administration to prosecute and punish those who eat and drink in public during Ramadan, those who consume alcohol, those who take the liberty of producing artistic creations judged to be blasphemous and those who declare themselves atheists or “followers of satanic rites and practices” or of Shi‘ite, Baha’i or Kharijite “heresies;” to say nothing of the violations of the physical and moral integrity of Lgbt people.
Adopting the strategy of “different competing social pressures” (tadāfu‘ ijtimā‘ī), the Islamists have multiplied the declarations and attitudes tending to call freedom of conscience into question in the name of respect for the people’s religious sentiments and observance of the duty to protect religion and forbid violations of the sacred. For their part, those defending human rights, fundamental freedoms and freedom of conscience are aware of the dangers that lurk in the Constitution’s ambivalence: even as they denounce the Islamists’ duplicity and the violations of rights and freedoms by the state officials who ought to be guaranteeing them, they are also calling for the international rules on human rights to be observed. They rightly recall that the United Nations’ Human Rights Council has rejected the concept of derogatory references to religions, considering it a danger for human rights and freedom of expression. Furthermore, they refer to the Human Rights Council’s specifications regarding Article 19 of the International Covenant on Civil and Political Rights: “Prohibiting demonstrations deemed to lack respect for a religion or another faith system, including the laws on blasphemy, is incompatible with the Covenant.” The history and reality of various countries (the majority of the Muslim countries included) demonstrate that the crime of “blasphemy,” the ban on criticizing religion and a protection of the sacred in actual fact all constitute restrictions on freedom of thought, conscience and expression with the aim of imposing a moral order founded on inequality and blind submission to obsolete traditions and hierarchies.
The constitutionalisation of freedom of conscience in Tunisia is an important result insofar as it constitutes a strong card not only for fighting violations of this fundamental right but also for abrogating the laws and regulations that obstruct it, reporting and prosecuting those who infringe it and establishing full citizenship, without anyone suffering discrimination in the name of religion. The fact that the fight for gender equality in inheritance has recommenced is not unconnected. Nor is the repeal of the circular forbidding Tunisian Muslim women to marry non-Muslims (which occurred in September 2017). The new constitutional article has allowed people to have recourse to justice and the authorities, in defence of those who are unjustly and illegally prosecuted because they refuse to fast during the month of Ramadan. Furthermore, it has obliged the authorities to intervene in favour of a teacher threatened with suspension at the request of some fanatical parents. They had accused her of atheism because she had closed the classroom windows in order to continue her lesson without being disturbed by the noises coming from a nearby mosque’s loudspeaker.
The recognition of freedom of conscience gives the Tunisian Baha’i community the possibility of appealing to the President of the Republic in relation to the police summons received by some of its young members. They can ask him to exercise his power as guardian of the Constitution and put an end to the violations of their freedom of conscience. It offers human rights defenders, lawyers and citizens the possibility of applying to the judiciary, the country’s authorities and the appropriate international bodies to ask that the fundamental rights of all those suffering discrimination (such as Lgbt people, the victims of racist attacks and the recognised and unrecognised religious minorities) be respected and, equally, that freedom of artistic creation, of scientific research and of expression be protected and that people be able to think without incurring anathemas or accusations of heresy, apostasy or blasphemy… Nonetheless, the Constitution’s ambiguities allow (and one sees this on a daily basis) pressures to be brought to bear in the opposite direction, in the name both of the protection of religion and of violation of the sacred or what is argued to be such.
The fight for freedom of conscience, fundamental freedoms and human rights must continue in a steadfast, lucid and vigilant manner. It must be based on a dissemination of the democratic culture that constitutes its indispensable core. It is true that the Islamists have made concessions, taking account both of civil society’s demands for democracy and of the pressures supporting a Constitution that would include a reference to the international texts on human rights. But to credit them with the progress that the new Constitution reflects – as, for example, the political scientist François Burgat did when he praised Rached Ghannouchi as the “co-author of one of the most democratic and secular Constitutions in the Arab world” – is a gross lie. They only accepted those elements of progress because they were forced to and, in any event, in exchange for what will allow them to make a fresh attempt at beating a retreat and – when they have the chance – taking back with one hand what they have conceded with the other. The Islamists are miles away from having undergone that democratic conversion that some have been so quick to attribute to them. The constant U-turns they provide proof of, every time they are given any leeway, by appealing to the identity-related reflexes occurring in the most retrograde environments, are the demonstration of this. Likewise, the spectacular about-turn of the Turkish party in power, the AKP, and its leader, Erdoğan, shows, in that specific case, that it is too soon to talk about political Islam’s democratic U-turn. Such a U-turn will only occur when the culture of democracy, freedom and human rights will have triumphed definitively: something that still has not happened even amongst the ranks of political Islam’s opponents.
Without falling into an essentialist vision of culture (which currently dominates various sectors in Muslim societies), it will still take many hard battles to consolidate results like those in the new Tunisian Constitution and make them at least partially irreversible. If they are to be able to accept these results fully, the Islamists will have to definitively renounce both their project of an Islamic state and sharia as the basis of law and social order.