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The Problem with Tunisia’s New Constitution

Published in: World Policy Journal

Tunisia’s revolution reached a milestone in late January when it passed a new constitution, setting a new course for the country’s future. The National Constituent Assembly has spent nearly two years of hard work on the document, with a month devoted solely to debating and scrutinizing each and every article. While the constitution has since been approved by the Assembly, one article in particular reveals some serious legal contradictions. The inconsistencies of Article 6 and other ambivalent constitutional clauses warrant scrutiny. As Tunisia builds its political and legal future, a constitution which such open interpretation could mean the legal undermining of human rights.

Article 6 attempts the impossible task of reconciling two radically different visions of society. On the one hand, it caters to a hyper-religious audience that sees the government as a watchdog and protector of all things sacred. At the same time, the article describes a society that leaves each person the freedom of religious choice, without intrusion or interference. The two irreconcilable visions are forced together in a complicated and wordy fashion.

The article, as adopted, reads:

"The State is the guardian of religion. It guarantees liberty of conscience and of belief, the free exercise of religious worship and the neutrality of the mosques and of the places of worship from all partisan instrumentalization.

The State commits itself to the dissemination of the values of moderation and tolerance and to the protection of the sacred and the prohibition of any offense thereto. It commits itself, equally, to the prohibition of, and the fight against, appeals to Takfir [charges of apostasy] and incitement to violence and hatred."

These paragraphs, overloaded with meaning and references, are filled with contradictions. More disturbing, however, is how vague they are. The clauses allow for the most repressive of interpretations in the name of offense against the sacred. Citing the constitution, lawyers, judges and politicians could interpret Article 6 however they see fit. This ambivalence could hold grave consequences for the country.

I remember only too well the 10-year battle in the international arena to avoid the criminalization of actions that could be considered "offense(s) to the sacred." The United Nations Human Rights Council Resolution 16/18, adopted by consensus in March 2011, eventually ruled out any idea that accusations of defamation of religion could be used to limit freedom of expression. The wording of Article 6 goes against this ruling, thus breaking with international human rights statutes.

Twists and Turns of Article 6
The events that accompanied the approval of this article in Tunisia show the extent to which the religious sphere, as it gives rise to passion and conflict, must be handled with extreme finesse. The original wording contained neither the criminalization of charges of apostasy nor the prohibition of offenses against the sacred. It simply stated that the State is the "guarantor of religion, of freedom of belief, of conscience and of worship. It protects the sacred."

That phrasing, from the final draft of the Constitution, issued previously on June 1, was the product of long months of debate. In Tunisia, freedom of conscience is considered a fundamental freedom. It implies the right to change religion or conviction, as well as the freedom to express one's religion or convictions individually or collectively, in public or in private.

But this fundamental idea was not incorporated in the first versions of the proposed constitution. The gap between this believed human right and the new constitution is at the very least, problematic and at most, dangerous.
The first versions of constitution contained an article that criminalized offense against the sacred, a very religiously conservative stance. Soon after, many in the assembly renounced this idea and instead introduced the idea of liberty of conscience. Many thought these differing views could lead to a compromise. The resulting June 2013 version delicately tried to balance the protection of religion on the one hand, and the freedom of conscience on the other.

As the assembly considered Article 6, things changed radically on January 5. The evening before, a governing member of the assembly from the Islamist party Ennahdha declared that another member of the assembly from the left coalition, the Popular Front, was an "enemy of Islam." This phrase gave rise to an uproar by opposition representatives, who took the opportunity to introduce an amendment criminalizing accusations of apostasy, contending that it would bar incitements to hatred that had recently proliferated. The article was adopted the same day.

The move angered religious leaders. Several Imams condemned the article, some circulated a petition within the National Constitutional Assembly to demand its withdrawal, and the Mufti of the Republic published a statement denouncing the prohibition, saying he considered the potential for charging people with apostasy to be one of the "pillars" of Islam.

In the end, the outcry and the revolt within the Ennahdha bloc and among other representatives close to the Islamists obliged the assembly to renegotiate the article. On January 23, the final version passed by a vote of 152 to 15, with 16 abstentions.

The Law’s Uncertain Application
Ambivalent clause like Article 6 often serve as convenient instruments for the authorities to muzzle critics, stifle non-orthodox interpretations of religion, or impose a moral order that destroys liberties. Allowing the criminality of offending the sacred is quite rightly considered to be a danger to human rights. The vast expanse of the sacred, which has neither definition nor contour, could be infinitely extended. Further, orthodox interpretations of sacred texts, containing immutable dogmas, undermine any possibility of critique and dispute.

The interpretation by the United Nations Human Rights Committee, which monitors the International Covenant on Civil and Political Rights, considers "prohibitions of demonstrations of lack of respect for a religion or other system of belief, including blasphemy laws, to be incompatible with the Pact."

Some reassuring safeguards against an abusive reading of this notion already exist in Tunisia’s constitution. Indeed, it permits the limitation of the liberties inscribed in the constitution only by a law "necessary in a civil and democratic society" and through a measure that is proportional to the interest that it seeks to protect.

However, the weight international law will carry in Tunisia’s legal sphere remains unclear. The constitution includes an article that says that international law prevails over Tunisia’s laws, but not over the constitution itself. The constitution also lacks a general clause that says that rights and responsibilities are to be interpreted in conformity with their universally accepted meanings. This could lead judges to interpret certain clauses in restrictive or obscure ways.

Tunisia’s judges must sort out the inconsistencies in the country’s constitution. We can only hope they will treat the constitution’s articles guaranteeing liberties as an important bulwark against dangerous interpretations of offense against the sacred. The new constitution should provide a foundation for the upholding of human rights, not allow for the exploitation of them.

Amna Guellali is director of the Human Rights Watch office for Tunisia and Algeria.

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