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Tunisia’s Constitutional Process: Hurdles and Prospects

Tunisia’s Constitutional Process: Hurdles and Prospects

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This policy brief examines the current state of democracy in Tunisia.
This policy brief examines the current state of democracy in Tunisia.

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Published by: German Marshall Fund of the United States on Dec 18, 2013
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About this Series
Op-Med is an ongoing series o opinion pieces on topical issues in Mediterranean politics rom a transatlantic perspective. Te series brings together European, North American, and southern Mediterranean experts through the German Marshall Fund–Istituto Affari Internazionali strategic partnership. Te series examines key questions surrounding the political, societal, and economic evolution o specific Mediterranean countries as well as the broader regional and international dynamics at play in the Mediterranean region as a whole.
 Tunisia’s Constitutional Process: Hurdles and Prospects
by Duncan Pickard
1744 R Street NW Washington, DC 20009 1 202 683 2650 F 1 202 265 1662 E ino@gmus.org
December 2013
Despite its current political impasse, unisia still represents the best chance or a successul homegrown democ-racy in the Arab world. unisian polit-ical leaders have already accomplished a number o “irsts” or Arab govern-ments: credible elections won by an Islamic party that ruled in coalition with two secular partners; a represen-tative constitution-making process that has not been co-opted by authoritarian orces; and a pledge by Ennahda, the leading party, to resign peaceully in avor o a non-partisan (read: secular) government. he current political crisis, characterized by mistrust and partisanship, is critical, but the momentum that has been built over the past two years leaves ample cause or optimism. unisia appears to be working to achieve the region’s most elusive political goal yet: constraint o the executive without resorting to religious or military domination.unisia is close to a inal deal that will embed that principle in a new political order, setting the stage or presidential and parliamentary elections under a new constitution sometime next year. But three unsettled and related issues — the completion o the constitution, the legal ramework or elections, and the replacement o the current government — jeopardize the progress that has been made so ar. he chie political parties o Ennahda, currently in power, and Nidaa unis, a leading secular party led by long-time politi-cian and ormer prime minister Beji Caid Essebsi, are currently negotiating the terms o a deal that would cover these three contentious issues. he undamental socio-political tension in unisia can be boiled down, i some-what crudely, into these two camps: or Nidaa unis and a return to the progressive, French-style secularism o ormer president Habib Bourguiba, and or Ennahda and the rebirth o a unisian political identity rooted in Islam. his divide is the theme o the current crisis and likely will remain even in the new constitutional order. he negotiations took a step in the right direction with the nomination o Mehdi Jomaa as unisia’s new prime minister, an agreement that might break the political deadlock over the uture o the transition.Agreement on the passage o the constitution, the electoral law, and a new government is elusive, but the architecture is in place. he constitu-tion is nearly inished; it has been
Opinions on the Mediterranean
Opinions on the Mediterranean
adopted by the joint committee coordinating the drating, and it is ready or plenary debate. It represents major concessions rom Ennahda, especially in the area o execu-tive powers. Ennahda avored a parliamentary system, largely based on calculations o its own electoral success in winning a plurality o seats in the next ew elections. Secular parties, which are much more ragmented, avored a stronger president in the style o Bourguiba to counter an Ennahda plurality in parliament. he result is a semi-presidential system that gives important powers to both a prime minister, elected by parliament, and a directly elected president. he prime minister orms a cabinet and sets general domestic policy; the president controls oreign and national-security policy, including the appointment o the deense and oreign ministers, and can veto legislation, among other powers.he rights and reedoms chapter o the constitution was controversial during drating, especially or a largely misin-terpreted article that said that men and women enjoyed equal rights given women’s status as man’s “complement” in society. he phrase was poorly translated rom Arabic into both French and English. Nevertheless, the article was poorly drated and amended to guarantee equality in more absolute terms. Ennahda also did not pursue a “repugnancy clause” that would have banned certain types o speech that is “oensive to Islam.” he rights and reedoms section as it stands is quite comprehensive. More structural criticisms emerge, however, when looking at the text as a whole. In particular, there are some potential contradictions between the chapter on general principles, the chapter on rights and reedoms, and the preamble (which Article 138 declares to be an “integral part” o the constitution). he constitution is also weak on lawul limitations to rights, and on judicial enorcement o rights.
 he proportional system used or the parliamentary elec-tions will likely remain similar to the system used in 2011 or the Constituent Assembly elections. hat system avored small parties, like the ractured secular party landscape, and discouraged large ones, like Ennahda. For one thing, there were a large number o seats per district; small parties tend to are better with more seats per district because more
1 Jörg Fedtke, “Tunisian Constitutional Reform and Fundamental Rights: Reactions to the Draft Constitution of the Republic of Tunisia,”
International IDEA & Constitutional Transitions Working Paper Series
seats mean more potential winners. Furthermore, the 2011 electoral ormula (the mathematical calculation used to translate votes into seats) avored smaller parties. Indeed, unisia’s ormula assigned 87 o 217 seats to Ennahda; another acceptable ormula used just as requently world-wide would have granted Ennahda 150 seats.
 he electoral law and constitution also include no threshold, whereby parties would have to win a minimum percentage o the national vote in order to be eligible or seats, which is typi-cally a barrier to small parties. his electoral system all but guarantees that no party will win a majority o seats, leading to either a coalition or a minority government.he electoral system and the constitution taken together show a potentially dangerous uture or unisian politics. he constitution creates two powerul positions in the president and prime minister, each elected through dierent means. he secular parties are banking on their calcula-tion that a secular presidential candidate will win against a candidate rom Ennahda, given that the party received only 40 percent o seats in the 2011 elections. Current polling data also suggest that a secular candidate would stand a good chance o winning in a head-to-head election, though the number o undecided voters is quite high. Furthermore, the electoral system or parliamentary elections eectively proscribes an outright majority or any party. he stage is set or what Cindy Skach has called a
divided minority  government 
: a semi-presidential system where the president and prime minister are rom dierent parties, and neither has a majority in parliament.
 Divided minority govern-
2 John M. Carey, “Electoral Formula and the Tunisian Constituent Assembly,” May 9,
May-2013-reduced.pdf .3 Cindy Skach,
Borrowing Constitutional Designs. Constitutional Law in Weimar Germany and the French Fifth Republic
, Princeton University Press, 2005, pp. 12-29.
The secular parties are banking on their calculation that a secular presidential candidate will win against a candidate from Ennahda.
Opinions on the Mediterranean
ments have been characterized by gridlock in transitional democracies throughout the 20
 century. Robert Elgie ound 16 “democratic ailures” (Armenia, Belarus, Niger, etc.) compared with 6 “democratic successes” (France, Poland, South Korea, etc.) among semi-presidential systems.
 he consequences o deadlock would be catastrophic considering the depth o challenges acing unisia, which make the constitution look like child’s play. he unisian economy has contracted since the revolution, despite the centrality o economic opportunity to the demands o the protestors. Furthermore, unemployment has continued to rise — 30 percent nationwide, and up to 60 percent among youth with a higher degree — even though jobs were a central demand o the revolution. unisia needs to quickly implement policies to promote oreign investment, bolster competitiveness, and make capital more available to entre-preneurs. he international community can help by spon-soring investor and trade delegations, and by donating to innovation and business-incubator unds.Political development is also important. he constitution calls or a new and poorly developed scheme o decentral-ization, which appears to empower municipal governments to take more responsibility over local aairs but provides them ew resources to do so. he relationship between the national and local governments will have to be urther clari-ied by law. Security-sector reorm is desperately needed in unisia to reorient the security services toward the public interest and not that o the political leadership. he consti-tution sets up provisions to ensure civilian control over the military, but it says little about the domestic police and intelligence services. he constitution calls or a new consti-tutional court but does not provide much guidance to other courts as to how they should interact with it. Add to that the rivalry between two judges’ unions ighting or key appoint-ments, and judicial reorm rises to the top o the list o priorities or reorm — a list that also includes transitional  justice, media oversight, and anti-corruption measures. Islamic and secular parties will have to work together on each o these issues no matter the results o the elections in order to avoid the wholesale exclusion o one group or another, as has happened in Egypt. o this end, unisia
4 Robert Elgie, “Varieties of Semi-Presidentialism and Their Impact on Nascent Democra-cies,”
Taiwan Journal of Democracy 
, Vol. 3, No. 2, December 2007, p. 67, http://doras.dcu.ie/4515.
should consider bolstering the rights o the parliamentary opposition through the constitution and parliamentary rules o procedure.he bottom line is that, while a inal deal on the constitu-tion and the electoral ramework will signal a major accom-plishment, the adoption o a constitution settles none o the most pressing policy challenges acing unisia today. Indeed, consensus on these and other issues could become more elusive given the possibility o a divided minority government.he good news is that the international community is in a better position to assist with unisia’s policy objectives ater the constitution is passed. here could be a role or the international community in breaking the current conlict, either by providing an impartial mediator or closely super- vising the next elections. he United Nations (UN) thus ar has had little direct impact on the political transition beyond support to the elections commission despite an ambitious agenda by the United Nations Development Programme; providing a mediator or taking a more central role in administering the elections could be a natural role
Tunisia needs to quickly implement policies to promote foreign investment, bolster competitiveness, and make capital more available to entrepreneurs. The international community can help by sponsoring investor and trade delegations, and by donating to innovation and business-incubator funds.

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