Jeremy Farrell August 14, 2012 Tags: Tunisia, Draft Constitution, TNAC, women’s rights, Islam Quotes: - “The completion
if this Draft Constitution [...] is a landmark in Tunisia’s post-Ben Ali political landscape.” - “Attempts to implement sharīʿa through the Constitution in sweeping terms, then, enjoyed little explicit public support amongst Tunisians despite outsized media coverage” - “It may be, rather, that secular feminists overstate their case by claiming that proposed Article 28 is a step backwards for women’s equality efforts in comparison with the Personal Status Code.”
Wednesday, August 8, al-Chourouq newspaper published an advance copy of The Tunisian National Constituent Assembly’s newly released Draft Constitution to the public and to the Board for Constitutional Coordination, Composition, and Amendment. The completion of this draft, which will replace the former Tunisian Constitution originally written in 1959 (PDF), is a landmark in Tunisia’s post-Ben Ali political landscape, although the extensive political maneuvering over many of the proposed Constitution’s contents have contributed to a growing sense of dissatisfaction with with the Constituent Assembly’s performance and toward government, in general. The draft Constitution is expected to undergo debate in the Constituent Assembly during a general session and then passed on for a ratiﬁcation in February 2013 with wider elections envisioned for June 2013. This article explains some of the social and historical currents that have informed the writing of the Constitution, along with providing an English translation of the text.
The issuing of this draft marks six months since work on writing the Constitution commenced February 13, 2012 in the National Constituent Assembly. Since that time, government actions have often run afoul of public conﬁdence. One long-standing Nawaat poll ﬁnds that 70% of of participants describe the performance of the interim government as “mediocre” or “disappointing”. This ﬁts with the overall outlook Tunisians have of the country, as reﬂected in recent Pew polling (PDF), wherein 78% of Tunisians “are dissatisﬁed with the direction of their country” and 83% “say current economic conditions are bad.” Public conﬁdence has further eroded following the government’s decision to extradite former Libyan PM al-Baghdadi Ali al-Mahmoudi and its controversial removal of Mustafa Kamel Nabli as Governor of the Tunisian Central Bank. Popular disenchantment has manifested in the wake of government ineffectiveness in ensuring the availability of basic foodstuffs for Ramadan, as mounting inﬂation - and perhaps some degree of proﬁteering - have driven up costs and led to wide-scale protests in the country’s more economically depressed regions, including the symbolic Sidi Bouzid.
However, individual political luminaries enjoy redoubtable approval ratings with major ﬁgures such as head of the Ennahda Party Rached al-Ghannouchi, President of the Government and Ghannouchi acolyte Hamadi Jebali, and President of the Constituent Assembly Moustapha ben Jafar enjoying favorability ratings well-above 50%. Only Ennahda - frequently, and erroneously, described as the “ruling” party in Tunisia - enjoys a favorability rating of above 50%; the other two members of the beleaguered ruling “Troika” - the Congress Party for the
Republic (CPR) and Ettakatol - lag behind at 48% and 44%, respectively, with others back further still. The discrepancy between public opinion of national and, by extension, governmental performance post-Ben Ali and that of individual personalities and parties has yet to be explained, although we submit that public support from al-Nahdha’s extensive ranks has remained strong while public conﬁdence in the government, as expressed across the political spectrum, has dwindled precipitously. Widespread distrust between liberals, Islamists, and remaining Ben Ali supporters - established long before the election of the Constituent Assembly has manifested itself along various social fault-lines which, in turn, were addressed during the National Constituent Assembly’s writing of the Draft Constitution. The most serious of these issues remain the role of Islam in public life and the women’s access to rights. Islam in Public Life
Fear of the intrusion of Islamist social and political inﬂuence was a prime factor in Ben Ali’s transition from well-liked reformer to hard-handed autocrat during the 1990s. Since his ouster, conservative Islamists or those acting under their name have distinguished themselves as powerful actors on the social scene, frequently employing violent censure of artistic expression. During a ﬁlm festival to “support of Tunisians who have been assaulted, threatened, and denounced by persons who consider their artistic creations offensive to Islam” in June 2011, attendees of the controversial ﬁlm Ni Allah Ni Maître, directed by Nadia al-Fani and originally titled Laïcite, in cha Allah (“Secularism, God Willing”), were attacked with teargas and physical violence by protestors carrying banners of Hizb al-Tahrir, a prominent pan-national Salaﬁst organization. In October of that year, the most polarizing case of establishing the boundaries between empowering creative expression and establishing protected religious boundaries occurred when Nessma TV broadcast of the Franco-Iranian animated ﬁlm Persepolis, in which God is portrayed ﬁguratively. The ﬁlm, which Nessma had dubbed into the Tunisian Arabic dialect, aroused large scale anger from conservative circles and the station’s headquarters near downtown Tunis were attacked by hundreds of protestors. The owner of the station, Nabil Karaoui was initially bought to court, along with several associates, on charges of blasphemy, but was convicted early in 2012 of a reduced charge of “spreading information that can disturb the public order” and ﬁned 2400 Tunisian Dinars (DT) ($1500 US). The case gained international attention and was used as a rallying cry by Islamist groups as far aﬁeld as Iraq, who claimed that the ﬁlm’s dissemination was “planned to provoke the feelings of Muslims and mar the name of Islam”. This June, an installation of “Printemps d’Art” exposition in the tony suburb of La Marsa, with many of the works displaying confrontational attitudes towards religious conservatism, was also subject to attack. Pictures of the installation surfaced on Facebook, (mis) identifying some of the artists. The photographer and instigator of the attacks, Mohammad-Ali Bouaziz, was later tried and sentenced to two months in prison or payment of a 1000 DT ﬁne ($617 US) for inciting the confrontations, in which one person was killed and a police station was burned and looted. A similar event, though unmotivated by any particular art exhibition occurred in Sousse, the country’s third-largest city, a few days thereafter.
The inability of police and security forces to defend themselves and respond to spontaneous situations like the one in La Marsa contrasts markedly with their response to more coordinated protest efforts, such as the those which occurred on Martyr’s Day in April. Government response to the La Marsa attacks was tepid, with the Ministry of the Interior offering condemnations for “all attacks against that which is Sacred, which is the case for some of the works on exhibition.” The liberal parties of the Troika - the aforementioned CPR and
Ettakattol - maintained a low proﬁle while Ennahda went on the offensive against the art installment. Claims that the attacks were not carried out by religiously motivated individuals but, rather, merely “thugs” cannot be discounted, though Ghannouchi’s call for protests denouncing the La Marsa art exposition later that same week clearly drew many Muslims who support Ennahda but not necessarily violence into a position which supports the logic of legitimizing violent attacks in response to the State’s failure to protect the Sacred.
The importance of “provocation” within this logic, as identiﬁed by Tunisia commentator Eric Churchill who writes under the name Kefteji, is undoubtedly a main ingredient for Section 1.4 of the Draft Constitution’s Preamble, which states:
“The State shall be a Defender of Religion, tasked with the custody of Freedom of Conscience, the Practice of Religious Creed, Protection of the Sacred, and Guaranteeing Impartiality for the role of Worship in circulating Speech.”
This wording allows for a robust area of religious expression under explicit government protection while simultaneously providing cause for restraining speech deemed to violate the protection afforded to the Sacred. One example of such robust freedom permitted to the Sacred would be Ghannouchi’s recent claim that those who oppose Ennahda are “enemies of Islam”. President of the Republic Moncef al-Marzouki, a renowned human rights defender during the Ben Ali era, has previously urged government leaders to end such instances of takfīr, or accusations attacking individuals’ personal religious positions. Whether speech such as takfīr constitutes “Worship” will surely be a question for courts to decide, but it is clear that Statestructured “impartiality” toward particular modes of worship and their discourse is already suspect. Likewise, the legal proceedings against Nessma TV executive Karaoui and the supposedly “blasphemous” content of his network’s broadcast of Persepolis and the comparatively weak prosecution of both Mohammed-Ali Bouaziz and those who attacked the screening of Ni Allah ni Maître because of the “provocative” nature of the offending artworks show a pronounced tentativeness toward guaranteeing speech without prior restraint, as provided for by Section 2.26 of the Draft Constitution.
“The practice of Prior Restraint over these Freedoms shall not be allowed in any form.”
The formal criminalization of “insulting or mocking the Sacredness of religion” has recently been advanced by Ennahda in the National Constituent Assembly; punishments provided for include a prison sentence of two years or a 2000 DT ($1236 US) ﬁne, slightly less than that assessed to Karaoui. Examples of the Sacred under the law include “God, His prophets, sacred books, the sunna [example] of his ﬁnal prophet Muhammad, the Kaʿba, mosques, churches, and synagogues.” Prior to both this law being advanced and the completion of of the Draft Constitution, a sentence were handed down in a case involving the “mocking” of the Prophet Muhammad in the case of Jabeur Mejri. The advancement of this law, especially in the wake of the Mejri case, clearly shows both the societal and legal tension over the place of religion in the Tunisian public sphere and the extent to which one may voice their opinion of Sacred “objects”. While the State is tasked with defense of religion and the Sacred, such strict deﬁnition of their constituent parts may infringe upon Constitutional rights to unimpeded freedom of expression.
In the political realm, Islamist involvement in government draws on strong support from a variety of ideological standpoints. Ennahda is repeatedly invoked as the face of “moderate political Islam” in the American and British media but party members have at times taken to championing more immoderate policies. Ennahda leadership - which has been subjected to extended time in prison and, in Ghannouchi’s case, exile - has stressed the import of “national reconciliation”, though only after various hardline party talking points ﬂopped. Those talking points included: Ennahda spokeswoman Souad Ibrahim’s contention that single mothers are a “disgrace” to the country; a failed attempt to establish a Saudi-style Ministry of Propagation of Virtue and Prevention of Vice; and an infamous ad-lib delivered by Jebali himself about the implementation of a “Sixth Caliphate”.
Outside the Ennahda’s purview, Salaﬁ-inﬂuenced groups have become particularly active. Although their numbers are estimated around 10,000 in a country of more than 10 million, reports of their extra-legal activity become very prominent. The most shocking of these was the case of the establishment in late 2011 of a so-called “caliphate” of Sejnane, a sleepy town in the country’s politically and economically marginalized northwest. The movement to implement shariʿa within the town was led by Hichem Merchegui, an al-Qaeda linked interloper who had been sentenced to a 104 year prison term under Ben Ali’s strident anti-Islamist measures and released under the general amnesty announced after the latter’s ouster. The revelation of conditions in Sejnane were startling, and Tunisia’s liberals coined the phrase “Sejnanistan” to refer to particular areas where attempts to impose conservative Islamic interpretations of dress and comportment are especially strong. While this appropriation reﬂects current events it also raises questions about Tunisia’s social and economic classes, reinforcing the biases of those from coastal regions toward the interior, who are seen as less educated and socially polished. The northern regions, especially the Governorate of Jendouba, are the theater of large amounts of Salaﬁ activity, some of it violent attacks on institutions such as bars and, worryingly, weapons caches, but much of it charitable in the wake of heavy snows that blanketed the region in the winter of 2011.
Not all Salaﬁ groups have attempted to circumvent legal channels, and some have actively embraced the opportunity to advance their goals through legislation. Various conservative religious groups have rallied in large numbers in major municipal centers to express their support for the increased Islamization of the State throughout Tunisia by means of implementation of sharīʿa. In a large rally in May in the holy city of Kairouan, the ﬁrst Arab founded city in what is now Tunisia and the country’s ﬁfth largest city by population, members of the group Anṣār al-Sharīʿa and its leader Seif Allah Ben Hassine, better known as Abu Yiadh, convened their second congress to “advocate for the application of God’s sharīʿa in [their] country.” The choice of Kairouan is particularly signiﬁcant given the city’s religious standing and its historical opposition to State-imposed secularism; the town famously refused to inaugurate a Habib Bourguiba Avenue long after it had become de rigeur in Tunisia to do so because of the aggressively secular President’s antagonism toward Islamists, including his political opponent Saleh Ben Youssef. Abu Yiadh’s commitment to working within legal frameworks has since weakened, as evidenced by his calling for a jihād against the Tunisian government. Major rallies calling for the implementation of sharīʿa have also been held in the capital outside the National Constituent Assembly’s chambers and in Sfax, Tunisia’s second largest city, although the explicitness of Salaﬁst demonstrators’ calls for implementing sharīʿa is unusually vague in reports from other cities. In late March, a conference was convened in which
Islamic scholars from the Tunisian Board for Sharīʿa Sciences called for the Constituent Assembly to approve of sharīʿa as “a primary source” of legislation, but stopped short of calling for it to be the “sole source”. In fact, the most famous example of an Islamist calling for implementation of sharīʿa in Tunisia came not from a Tunisian, but from the Egyptian Ayman alZawahari (PDF), head of al-Qāʿida.
Attempts to implement sharīʿa through the Constitution in sweeping terms, then, enjoyed little explicit public support amongst Tunisians despite outsized media coverage. Within the framework of writing the Constitution, the Salaﬁ-inﬂuenced Reform Front - Tunisia’s only Salaﬁst political party - was the sole legislative voice pushing to designate sharīʿa as “the sole source of legislation”. Much of the conversation was built upon the ﬁrst Article of the 1959 Constitution, wherein it was stated that “Islam is the Religion of State”, but kept silent on the role of sharīʿa in drafting legislation. These circumstances are analogous to the case in Egypt, where the Salaﬁ Nour Party pushed for a wording that made sharīʿa, and not just its principles, the ultimate measure in drafting legislation. The push to more narrowly deﬁne State legislative processes through implementation of sharīʿa is fraught with difﬁculty, due especially to the variegated nature of sharīʿa itself, and consensus even amongst religious conservatives in the National Constituent Assembly proved elusive. Ennahda eventually declined to pursue the desired wording, leaving Section 1.1 largely unchanged from its 1959 composition and potentially causing a rift between Ennahda and more conservative political actors. The text in the proposed Article 1.1 of Draft Constitution is as follows:
“Tunisia is a Free State, Independent, Possessing Sovereignty. Islam is Its Religion, Arabic Its Language, and the Republic its System of Government.”
Absent the explicit mention of shariʿa in Article 1.1, numerous references to the Muslim and Arab loyalties of Tunisia, as favored by conservative groups, were inserted into the Preamble of the Draft Constitution:
“Based upon the essentials of its Arabic-Muslim Identity...” “Afﬁrming our Cultural and Civilizational Belonging to the Community of Muslims...” “Standing Victorious [...] for Liberation and Justice Movements - at their Head, the Palestinian Liberation Movement.”
According to Section 9.3 these characterizations are not subject to Constitutional amendment:
“It shall not be possible through Constitutional Amendment to deviate from Islam in considering it the Religion of State.”
The characterization of the Tunisian State in such stark terms has angered some in Amazigh circles for the exclusivity granted to the Arabic character of the country. A case could be made that such a characterization conﬂicts with the text of proposed Article 1.32:
- The State shall guarantee Cultural Rights to Every Citizen.
A comprehensive treatment of the history of women’s rights in Tunisia - dating back to the Roman era - has been given by scholars Jane Tchaïcha and Khedija Arfaoui. Tunisia has long been hailed as a relative bastion of Women’s Rights in the Arab World, due mainly to the implementation of the Personal Status Code (JSTOR) by President Habib Bourguiba in 1957. The Personal Status code, according to the translation by George Sfeir:
...applies to Muslim Tunisians only, the personal status of Christians being regulated by French law, while Jewish citizens of Tunisia have their own code [...] Polygamy is abolished; divorces may only take place in courts and full consent of both parties is a pre-requisite to marriage. On the other hand, the Islamic law of inheritance is preserved.
For the secular State, such policies were seen as a priority and resulted in rapid development of society and opportunity. From Tchaïcha and Arfaoui:
From 1956 to the mid 1970s, Tunisian girls and women increasingly took advantage of their new role (Arfaoui 2007). They pursued their education and they entered the workforce in record numbers, birth rates declined and a growing middle class emerged. If hardly less than 5% of children were enrolled in primary school in 1956, by 2003, this ﬁgure increased to 98% for both boys and girls; moreover, adult education rose from 16% in 1960 to 74% in 2004. Presently, the number of female students exceeds that of male students in higher education, representing 59% of total tertiary education enrolment in Tunisia in 2008. (p. 218)
Fears that not enough had been done to promote the preservation of women’s gains in the wake of Ben Ali’s ouster quickly attached themselves to the specter of Islamist attempts to defeat the Personal Status Code. One Gallup poll, “After the Arab Uprisings: Women on Rights, Religion, and Rebuilding”, ominously declared, “the rise of Islamist political parties in Tunisia and Egypt has many secular Arab women’s rights activists and Western observers worried that the change women helped ignite has betrayed them.” In Tunisia, though, women remained on the forefront of ﬁghting for rights to religious expression. Ofﬁcial prohibitions on women wearing Islamic clothing such as the niqāb in universities implemented in 1981 under Decree 108 (PDF) which Ben Ali tried to extend in 2006 to include most forms of veiling - were challenged by groups of young female students demanding the right to veil early in 2012. At the Université de Manouba, the intransigence of the dispute closed down the university for more than a month. Tchaïcha and Arfaoui rightly point out the multiplicity of feminisms in Tunisia after the fall of Ben Ali and discuss the role of “Islamist feminism” in shaping new discourse about what feminism actually meant in its Tunisian context, quoting one interview subject as saying, “[Traditional f]eminism has been associated with the foreign, with the western thought, with a certain attitude about women, and it is not welcomed.” (p. 224) A dichotomy had developed wherein the bulwark of secular feminism in Tunisia began to lose ground to a type of feminism often espoused by men and women alike - emphasizing religious freedoms and rights.
Even as doubts about the efﬁcacy of secular models of feminism arose, government attempts to ensure women’s access to public life remained visible. The transitional Tunisian government passed a law in May 2011 mandating that party voting lists alternate between women and men, effectively guaranteeing women half the ticket. Four thousand women declared
for candidacy and won approximately one-quarter of the seats in the National Constituent Assembly with Meherzia Laâbidi - an Ennahda candidate perhaps most famous for her salary installed as its Vice-President. Other women have maintained prominent roles within the government or party structures, as well: Nadia Chaabane, head of the Pole party and a passionate feminist in the secular model; Mabrouka M’Barek, head of the Congress for the Republic list and member of the Constitutional Committee; and Lobna Jribi, deputy in Ettakattol and staunch proponent of the Open Government initiative all represent the secular Tunisian feminist model. According to this Nawaat infographic, women hold three of the 42 positions available within the governmental structure of ministries, with CPR deputy Sihem Badi running the the Ministry of Women’s Affairs and Ennahda member Mamia Elbanna heading the Ministry of the Environment.
Within this political sphere Islamists began to circulate new models for a woman’s access to religious symbols and her role within society. The one most susceptible to debate was the proposed Article 27, which characterized women as “man’s associate” and emphasized her “complementarity” (takāmul) with man. Reaction from secular feminists and the Western Press was swift and damning, as it has since been in more liberal circles of the Arab world. Salma Hajri, of the Tunisian Association of Democratic Women as quoted in a TunisiaLive piece, said “I am distraught and worried. Women are not given rights as individuals, only in reference to men.” The public debate spurred massive demonstrations throughout the country on August 13th, Tunisian “Women’s Day”, to support women’s equality with men - a subject of that still divides much of Tunisian society.
Are Tunisian women at risk of losing their rights, or of having their rights made contingent to those of men? Is the wording of the proposed Article 1.27 in fact a step back from previous iterations of Women’s Rights statutes in Tunisia? Article 23 of the original Personal Status Code from 1957, taken again from Sfeir’s translation reads:
The husband shall treat his wife with benevolence, live with her on good terms, refrain from causing her harm and, in all those matters envisaged by true maintenance, support her and his children from her in accordance with his circumstances and hers. The wife shall, if she possess any property, contribute to the support of the family. She shall respect her husband in his capacity as head of the family, and, within these prerogatives, obey him in whatever he orders her, and perform her marital duties in conformity with usage and custom
This wording stood until a 1993 amendment (PDF) of this Article to the following:
It is incumbent upon each one of the spouses to treat the other with kindness and improve his or her wellbeing (ʿashira), and avoid inﬂicting harm upon him or her. The two spouses shall undertake married responsibilities according to what custom (al-ʿurf) and common practice (al-ʿāda) require, and help improve
family’s affairs (shuʾūn). They shall raise children and provide for them (taṣrīf shuʾūnihim), the including: education, travel, and ﬁnancial transactions. It is incumbent upon the husband, in his capacity as the head (raʾīs) of the family, to provide for his wife and children to the extent that his conditions and theirs allow within the scope of the content of payments. It is incumbent upon the wife to contribute to the family’s
expenditures if she has means (māl).
The wording of the proposed Article 1.27 in the new Draft Constitution reads:
The State shall guarantee the Protection of Women’s Rights and support for their gains, in considering her a true Partner with Man in building the Nation; the role of these two is complimentary within the Family. The state shall guarantee the parity (takāfuʾ) of opportunity between the Woman and the Man while accepting different Responsibilities. The State shall guarantee Prosecution of every form of Violence against Women.
The content of these statutes does not differ signiﬁcantly. All ascribe a type of “complementarity” between men and women within the space of the family, with both forms of the Personal Status Code making women explicitly subservient to the man, who is “head of the household.” Only the proposed Article 1.27 explicitly assigns women a role in building the Nation based upon “parity”. Perhaps the most objectionable wording of proposed Article 27 is its emphasis on accepting “different Responsibilities”, but this does not noticeably depart from the Personal Status Code in classifying a woman’s responsibilities; in each case, these responsibilities are vaguely deﬁned through “custom”, and speciﬁcally tied to her responsibility to contribute funds to familial expenditures if she is capable. The Draft Constitution more fully deﬁnes the State’s relationship with the family in Article 1.21:
The State Guarantees the Family’s Rights the by recognizing Them as Potentialized, Natural, and Fundamental for Society.The State shall work toward protecting the Family, Its Stability, and allowing It to perform Its role in safeguarding Equality between the spouses. The State shall seek to ease the appropriate conditions for marriage; to guarantee a suitable home for every family; and to provide a Minimum Wage sufﬁcient to support the Dignity of Its Members.
In this Article, the government explicitly uses the word “equality” (musāwāh) to deﬁne the role of spouses. Further guarantees to equality are provided for all Citizens in Article 1.22:
form. All Citizens are Equal in Rights and Responsibilities, and They are Equal under the Law
This wording is echoed n Article 2.22:
Citizens are Equal in the Right and Responsibilities under the Law, without discrimination (tamyīz) in any
Given this application of “equality” in other Articles of the Draft Constitution, it is strange that Article 28 received approval - 9 of 12 votes, with eight of those votes coming from Ennahda members - in using the word “complementarity”. The word is used one other time in the Preamble to the Draft Constitution:
Working toward the establishment of Maghrebian Unity as a step toward the realization
of Arab Unity, and toward a Complementarity with Islamic Peoples and African Peoples, and Cooperation with the People of the World [...]
Juxtaposing familial relations to state level commitments because of the word “complementarity” is surely as academic an exercise as one could imagine, but the choice of words here does not seem indicative of any attempt to weaken the sphere of Tunisia’s sovereignty or its assertion of rights in bilateral and international interactions. It may be, rather, that secular feminists overstate their case by claiming that proposed Article 28 is a step
backwards for women’s equality efforts in comparison with the Personal Status Code. Even with the semantic vagaries of proposed Article 28, the additional references to equality within the Draft Constitution should provide ample room to appeal for women’s access to rights and equality under in Tunisia . This is not to say that Tunisian women should cease to defend their rights and freedoms against infringement, but rather, that steps should be taken to highlight areas of the Constitution that do assert their equality under the Law and pursue bringing proposed Article 28 in line with these sentiments. Efforts could be made, for example, to publicize motions to strip Olympic silver medalist Habiba Ghribi of her citizenship for running in immodest shorts. This is a potential Constitutional violation that speciﬁcally targets women’s equality in access to athletic activities as set forth in Article 1.33:
The State shall seeks to offer the necessary opportunities to practice athletic and physical
activities and and to offer means for improvement of living and leisure.
Similarly, this call violates Article 1.6 in its attempt to strip natural-born Tunisians of their citizenship:
The State guarantees to its Citizens Individual and General Freedoms, and presents to them Means for a Noble Living. Attempts to strip Nationality from Them, surrendering Them to International Authorities, Exiling Them, or Preventing Them from returning to their Homeland are expressly forbidden.
By acting swiftly to support Habib Ghriba, public ofﬁcials would be making a strong statement afﬁrming women’s right to make personal choices about clothing and livelihood, and promoting the ways in which the Draft Constitution protects all Tunisians under the Law in equal measure.
Other areas of the Draft Constitution might also proﬁt from further revision from the Coordination Committee. One of the difﬁculties in translating Arabic is its use of masculine forms to refer to abstractly referenced individuals or to groups, and several proposed Articles leave room for interpretations that do not in and of themselves provide for equality of men and women; particularly problematic is the use of the words “Citizen” (muwāṭin, pl. muwāṭinīn) and “Tunisian” (tūnisī):
It is incumbent upon Citizens maintain the Unity of the Nation and the Defense of Its Inviolability, abide by Its Laws, and pay taxes.
National Service is incumbent upon Citizens according to the Structures and Conditions regulated by Law.
A Livelihood is a Right of every Citizen, and the State shall make every effort to guarantee It through appropriate and just circumstances.
Compulsory National Service is incumbent upon every Citizen according to the Patterns and Forms which the Law deﬁnes.
The word “Tunisian” (tūnisī) also becomes legally problematic when applied to standing as a candidate for President, presented in section 4.46 of the Draft Constitution.
Article 4.46 (First Opinion)
It shall be stipulated for the male or female candidate (mutarashshiḥ wa mutarashshiḥa) standing for the Presidency of the Republic to: be a
voter; not carry a second nationality; be a Muslim born to a Tunisian mother and father; be at least forty (40) years of age.
Article 4.46 (Second Opinion)
Candidacy for the position of the President of the Republic is a Right of every man or woman who is Tunisian by birth and whose religion is Islam.
Article 4.46 (Third Opinion)
Candidacy for the position of the President of the Republic is a Right of every Tunisian.
Article 4.46 (Fourth Opinion)
- Candidacy for the position of the President of the Republic is a Right of every Citizen carrying Tunisian nationality to the exclusion of all others.
Article 4.46 (Fifth Option)
Candidacy for the position of President of the Republic is a Right of every Tunisian Muslim born to a Tunisian Father, Mother, and Paternal and Maternal Grandfathers, to the exclusion of any break in lineage.
Certainly, some of the vagaries will be resolved in later legislation, especially those relating to National Service in the armed forces and police in proposed Articles 1.13 and 1.24. However, but including the feminine muwāṭina in proposed Articles 1.12 and 1.14 and tūnisiya as rendered in the ﬁrst two opinions of proposed Article 4.46 would go a long way toward shoring up guarantees of explicit equality between men and women.
Many obstacles besides these stand between the National Constituent Assembly and the completion of a Constitution which takes into account secular, religious, and gender concerns. There has been much furor over the proposed Independent Press Authority as provided for by the Draft Constitution, and continued barriers to press freedom remain entrenched. Despite gains made by journalists after a truly abysmal press climate under Ben Ali, Tunisia still ranked only 134th in the world in press freedom in 2011, according to Reporters Without Borders, and attacks on reporters and activists because of their political views continue. The implementation of a new judiciary, also provided with an independent oversight body by the Draft Constitution, will test a system which renowned Tunisian jurist Yadh Ben Achour describes as long subject to the political whims of the Tunisian government under both Bourguiba and Ben Ali. Long hours await the Coordination Committee in the next months and Tunisians will anxiously hang on every change to a Draft Constitution that attempts to break free of the limitations imposed by previous regimes and, simultaneously, sets the paradigm for writing governing documents in Libya, Egypt and other states currently in transition in the MENA region.