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January 28, 2014

Tunisia’s New Constitution Is a Reason for Optimism

Tunisia’s political transition continues to creep forward despite deep internal divisions and mistrust and periodic incidents of shocking political violence.  In fact, the National Constituent Assembly adopted the country’s new constitution by an overwhelming majority, a notable feat of compromise and political give and take for which Tunisians deserve much credit.  The constitution was signed by President Marzouki on January 27  and should be followed by new parliamentary and presidential elections in the months ahead.

The final days of negotiations featured an illuminating discussion about the role of religion in the state, centered on the wording of Article 6.  This article had initially been a standard iteration of the state’s obligation to protect freedom of belief, conscience and religious practice.  Last year, two leaders critical of political Islam, Chokri Belaid and Mohamed Brahmi, were killed in assassinations for which Islamic extremist groups claimed responsibility. The murders almost derailed the transition process, and led to critics of political Islam calling for the addition of language in the constitution prohibiting Takfir, the practice of labeling a person as godless, or even hostile to God.

Advocates for the prohibition were concerned that Takfir is direct incitement to violence, and that it is a deceptive tactic used by political Islamic movements, many of which claim to be committed to non-violence, to send messages to extremists who are willing to carry out punishments, including murder, against those said to have displayed enmity towards God.  In this way, in a heated political discussion, an Islamist might describe an opponent as an “enemy of Islam,” giving a signal, whether intentionally or not, to some more extreme third party to exact retribution.  Takfir is the power to effectively sentence non-violent critics or political opponents to death by using certain words that are not in themselves threatening.

This is not a hypothetical situation.  Critics and alleged-critics of political Islam have been the targets of violence from Islamic extremists, after being labeled unbelievers or enemies of Islam by more mainstream or supposedly non-violent Muslim leaders for decades, in many countries. The killings of Belaid and Brahmi only made the threat more tangible to Tunisians.

The call for adding a prohibition on Takfir to Article 6 had considerable support in the Assembly, but reopening the debate on the article permitted some Islamists to advocate for the inclusion of language on “protecting the sacred,” which had earlier been discussed and rejected on the grounds that such a broad formulation could result in restrictions to freedom of expression.  Such language could also open the door to prosecutions for blasphemy. In several countries, legal prohibitions on insulting or defaming religion have resulted in sharp restrictions on freedom of expression and religion and have been used as a tool to persecute religious minorities and stifle peaceful dissent. Such laws have strengthened extremists, providing them with a means to stir up public controversies to suit their political agendas, and has contributed to unrest and violence.

The protection of sacred language was put forward as a way of balancing the Takfir prohibition.  This is unfortunate since the two clauses are by no means equivalent:  Takfiri language can constitute a direct threat to the life of a person described as an enemy of Islam, but insulting religions or religious symbols is a subjective issue.  There is no right not to be offended, and religions or religious symbols cannot be harmed by words or images that believers can choose to ignore.  Targets of assassins’ bullets do not have such a choice.

Nevertheless, the approval process for Tunisia’s Constitution is an epic exercise in compromise, and necessarily so.  The fact that the Assembly has taken time to seek to accommodate the views of all the parties in a process geared towards building as broad a consensus as possible should be a foundation on which Tunisia can build a strong, democratic future.

Like all Constitutions, the text that has emerged from months of wrangling is inconsistent and at times imprecise.  Human rights advocates may point to the now expanded Article 6 with concern, but can take solace in the strong language of Article 30 that guarantees “freedom of opinion, thought, expression, media and publication,” and Article 48, which strictly limits the qualifications that may be placed on the rights and freedoms guaranteed in the Constitution.

The future of rights and freedoms in Tunisia will depend on how the text of Constitution is interpreted and implemented through legislation and judicial rulings.  The argument over Article 6 shows that disputes over the place of religion in the state are far from over, and may well lead to further conflict, but as long as all parties agree to settle their differences through negotiation, rejecting the use or threat of violence, and with respect for the rule of law, then Tunisia’s progress towards democracy will continue to move forward.