Since the end of the Tunisian revolution in January 2011, Tunisian society has been going through a phase of renegotiation of what the new Tunisia should look like. This phase is characterised by antagonism on ideological and identitarian questions. One of the most antagonistic issues is the role of religion in Tunisian society. On 25 April 2013, the Constitutional Assembly adopted the third revised draft of the new Constitution. Article 1 states that “Islam is Tunisia’s religion” and is an exact copy of Article 1 of the previous Constitution (1959), which was abolished at the time of the revolution. Some consider the decision to copy this article a victory for those who wish to keep religion out of the public sphere, as it was under the previous authoritarian regime. Others, however, emphasise that the phrase is vague and open to new, more religious interpretations, which may even open the doors to a theocracy.⁽²⁾ This CAI paper examines the extent to which the role of religion, and the factual application of Article 1, has indeed changed, compared to its place under the authoritarian regime.⁽³⁾

Islam is Tunisia’s religion: An authoritarian interpretation

The Constitution of 1959 referred to religion in a number of ways. Apart from Article 1, the Preamble pronounced the wish “to remain truthful to Islam.”⁽⁴⁾ The president was to be a Muslim man and every future president was to swear an oath on the Quran.⁽⁵⁾ At the same time, however, Article 5 protected the freedom of religion, and Article 6 the equality of all Tunisian citizens before the law. Unlike other constitutions in North Africa, the Tunisian Constitution did not refer to Islamic law. This feature, together with the fact that international conventions had a superior status to national law and that Tunisia’s reservations to human rights conventions did not refer to Islam, resulted in a rather unique situation where international conventions had a crucial role in the internal legal order, while Islam did not.

The 1959 Constitution was in place during the rule of presidents Bourguiba (1956-1987) and Ben Ali (1987-2011). While Article 1 was vague (it was not clear whether “Islam is Tunisia’s religion” meant that Tunisians are Muslims, or that the state is Muslim), in practice it meant that Islam belongedto the state, in the sense that it was controlled by the state.⁽⁶⁾ Indeed, Bourguiba took numerous measures to eliminate the power of the ulama (religious scholars),⁽⁷⁾ such as abolishing the waqfs (religious endowments) and thus the main source of income for mosques,and neutralising the most important religious institution, the Zeituna Mosque and University.⁽⁸⁾ This made clear that the only relevant power in both world and religious affairs was the state. Since the 1980s, state control took a different form, as the Tunisian state was confronted with another religious force: people who adhered to political Islam.⁽⁹⁾ At this point, the Tunisian state took control over religious institutions – such as the Quran schools and mosques – leading to a situation in which wearing the headscarf became forbidden for civil servants and students, ‘sectarian outfits’ were forbidden for everyone, and the post-9/11 Anti-Terrorism Law of 2003 enabled the arrest of thousands of Islamists.⁽¹⁰⁾ The repression of political Islam was accepted by large parts of society, who had seen, in the example of their Western neighbour Algeria, what violent Islam can lead to – a fear that was exploited by the Tunisian Government.⁽¹¹⁾

Islam is Tunisia’s religion: A post-authoritarian interpretation

When Ben-Ali was ousted on 14 January 2011, the 1959 Constitution was suspended. On 23 October 2011, Tunisia’s first free elections were held, and the previously prohibited Islamist movement, Ennahda, obtained 40% of the votes. On the basis of these elections, a Constitutional Assembly (majlis ta’sisi) and an interim government were formed. The government consists of a coalition of Ennahda, together with the centre-nationalist parties Conseil Pour la République (CPR) and Ettakattol. The Assembly’s main task is to draft a new Constitution.

The new Constitution was the subject of many debates, one of which focussed on the position of Islam.⁽¹²⁾ The debates reflect the atmosphere in present-day Tunisia: after the revolution, a schism – defined as a split between secularists and Islamists, or people with “competing ways of life” – was created.⁽¹³⁾ While it was expected that the Constitutional Assembly would propose to increase the role of Islam in the new Constitution, doing so would probably divide Tunisia even more. This is why the Assembly opted for a strategy of perpetuation as opposed to transformation.⁽¹⁴⁾ This strategy is a pragmatic choice, even more so as the vagueness of Article 1 allows for a variety of subjective interpretations.

Article 136 of the Constitution’s current draft states that the Article 1 provision that ‘Islam is the state religion’, cannot be amended. This emphasises the continued weight of the principle and clarifies that being Tunisia’s religion does not mean the religion of Tunisians but of the Tunisian state.⁽¹⁵⁾ Article 5 states that “The state is the guarantor of religion, responsible for the freedom of belief and practice,” evading the issue of freedom of conscience as opposed to religion. The Preamble states that the Constitution is based on “the fundamental principles of Islam and its objectives of openness and moderation, supreme human values and universal principles of human rights, in accordance with the cultural specificities of the Tunisian people.” This is a problematic addition, suggesting that cultural specificities may justify human rights violations. The Draft requires that the president is a Muslim, and that he or she inaugurates his or her presidency by swearing an oath on the Quran. Article 21, concerning international conventions, now provides that these are ratified except if they are contrary to the Constitution, meaning that the Constitution takes precedence over international law. The Constitution also mentions the installation of a Constitutional Court.⁽¹⁶⁾

Post-revolution changes in Tunisia

In the current Draft Constitution, it is made clear that Islam belongs to the Tunisian state. Yet, in practice, the treatment of religion by the state has undergone significant change. The revolution’s ideology of civil and political rights, together with the break-down of the security apparatus, involved the development of a new and more inclusive interpretation of Islam in Article 1. Ennahda was allowed to participate in the elections, organisations based on religious values were authorised, and a law on headscarves was revoked.⁽¹⁷⁾ There was a huge boost of salafi dress (beards and white dresses for men, the face veil for women) in the public sphere, mosques have opened between prayer hours, the state-imams of 400 mosques were sent away by people who wished to have a different imam, religious education started to flourish,⁽¹⁸⁾ book stores in downtown Tunis started to sell jihadi literature in the vitrines, including books by Osama Bin Laden which call for violent jihad, and some stores sell posters of Bin Laden with the Twin Towers in the background.⁽¹⁹⁾ This suggests acceptance, accommodation and inclusion of various forms of religiosity, a larger toleration of the Tunisian Government towards religion, or even an emancipation of religion from the state.⁽²⁰⁾

But this did not happen without difficulties. Some factions are trying to keep religion out of the public sphere, while others are pushing for a larger transformation. The aim of achieving greater  transformation is evidenced by a series of violent attacks on artists, artistic expressions and the tombs of saints, and recently, an increase in jihadi violence from movements that are said to be related to Al-Qaeda. The government was vehemently criticised for not controlling the situation, especially with regards to Tunisia’s handling of a group of violent jihadists on the Algerian border.⁽²¹⁾

Concluding remarks

By copying Article 1 from the previous Constitution, the Tunisian Constitutional Assembly has taken a safe decision in the current polarised context. At the same time, however, some people fear that the phrase is too vague, leaving too much space for interpretation in a context where politics is (partly) dominated by a party that is suspected of wanting to install an Islamic state. Recent developments, detailed above, indicate that the Tunisian Government is bound by a number of factors which curtail its powers and which prevent it from installing as much Islam in the Tunisian sphere as they might want. The government is facing a crisis of legitimacy. In order to retain legitimacy, the current government is trying to strike a balance between the demands from both sides and, therefore, the limits on freedom of religion continue to be negotiated. This factor, added to the security crisis, leads to an explosive context in which the government is required to listen carefully to society.

Written by Maaike Voorhoeve ⁽¹⁾

NOTES:

(1) Maaike Voorhoeve is an External Consultant for Consultancy Africa Intelligence's Rights in Focus Unit (rights.focus@consultancyafrica.com). This paper was developed with the assistance of Laura Clarke and edited by Kate Morgan.
(2) For example, Tunisian constitutionalist Saied Kadri: Brésillon, T., ‘Tunisie: L’avant-projet de constitution prépare les conditions d’un blocage’, Tunisie Libre, 22 January 2013, http://blogs.rue89.com.
(3) This article is based on research carried out within the Islamic Legal Studies Programme at Harvard University on the reference to Islamic law in the new Tunisian constitution.
(4) ‘The Tunisian Constitution’, 1 June 1959, Tunisia: Government of Tunisia, http://www.wipo.int.
(5) Ibid.
(6) Zeghal, M., 1999. Etat et marché des biens religieux: Les voies égyptienne et tunisienne. Critique international, 5, pp. 83-84.
(7) Ibid.
(8) Zeghal, M., ­‘Teaching again at the Zaytuna Mosque in Tunisia’, On Islam and Politics, 17 May 2012, http://onislamandpolitics.wordpress.com.
(9) Zeghal, M., 1999. Etat et marché des biens religieux: Les voies égyptienne et tunisienne. Critique international, 5, pp. 83-84.
(10) Bras, J., 2005-2006. Le Maghreb dans la guerre contre le terrorisme: Enjeux juridiques et politiques des legislations antir-terroristes. L’Année du Maghreb, 2.
(11) Ayad, C., ‘Ben Ali: Le règne de la répression’, Libération, 15 January 2011, http://www.liberation.fr.
(12) For example, a number of demonstrations were organised in March 2012 with the goal to increase or decrease the role of religion in the new Constitution.
(13) Zeghal, M., 2013. Competing ways of life: Islamism, secularism, and public order in the Tunisian transition. Constellations, 20(2), pp. 254-274.
(14) Wodak, R., et al., 2009. The discursive construction of national identity. Edinburgh University Press: UK.
(15) Meddeb, A., ‘Pourquoi le projet  de constitution tunisienne est inacceptable’, Le Monde,30 April 2013, http://www.lemonde.fr. 
(16) ‘Tunisia full report’, The Carter Centre, 12 June 2013, http://www.cartercenter.org.
(17) Decree 717-1993 of 13 April 1993 providing that women cannot wear a headscarf on the picture on their ID card was revoked. See Voorhoeve, M., ‘Legacy of an authoritarian regime: The future of Tunisia’s state feminism’, Consultancy Africa Intelligence, 16 January 2013, http://www.consultancyafrica.com.
(18) Donker, T.H., 2013. Forthcoming: Reemerging Islamism in Tunisia. Mediterranean Politics.
(19) Observed during field trips between September 2011 and July 2012, total of 8 months.
(20) Stepan, A., 2012. Tunisia’s transition and the twin tolerations. Journal of Democracy, 23(2), pp. 89-103.
(21) Khalfaoui, M., ‘Chaambi: This is your bidding Mr Ghannouchi, and your goods have been returned to you!’, Nawaat,10 May 2013, http://nawaat.org.