Summary of Day 2: Saturday 4th January 2014

Day 2: Saturday 4^th January 2014

The plenary debate around the constitution resumed on Saturday morning at 10:25 with the commencement of discussions of the first chapter on “General Principles”. After the procedural confusion that had accompanied some of the discussions on Friday, Saturday’s discussion was characterized by more orderliness, with 15 articles being discussed and passed by the close of the session at 22.40.

The liveliest discussions took place around the nature of the state – whether its religion is Islam – freedom of conscience, the role of the state in protecting the family, the neutrality of mosques, and the duty of the state to promote balanced development between all regions.

Article 1, in particular, served as a focal point for discussions around the nature of the state and the role of Islam in the state and in the legislative process. A compromise on the issue was reached several months ago in discussions within the Consensus Committee, where the biggest party Ennahdha Party had agreed to retain the original wording contained in the 1959 constitution and accept the insertion of an article protecting the civic nature of the state in exchange for inserting wording to protect the articles from amendment in the future.

Although the first chapter has not yet been adopted in its entirety, 15 articles were adopted today – close to 10% of the total number of articles. If deputies continue to adopt articles at the same rate, voting on the constitution will be finished by the 14th of January.

The number of proposed amendments per chapter is not uniform – the first chapter contains one of the highest numbers of proposed amendments (the second after the chapter on Rights and Liberties). 38 amendments were discussed today in relation to articles 1-15 – that is 14.8% of the total number of proposed amendments. This is again a level of progress that would allow for the adoption of the constitution by the 14^th of January as planned.

However, the coming chapters could prove more controversial, particularly in relation to the powers of the President versus the powers of the legislature, judicial powers, rights and liberties and transitional rules for the period between the adoption of the constitution and the elections.

 

Title: General Principles

The title of the chapter was passed with 165 votes for, 2 against and 1 abstention.

Article 1

Draft: “Tunisia is a free, independent and sovereign state. Its religion is Islam, its language is Arabic, and its form of government is a republic.”

The draft text is identical to the first article of the old 1959 constitution and had been drafted as a compromise after controversy surrounding proposals to include the term “sharia”. Sadok Chourou of Ennahdha Party spoke in favour of the article on the basis that the Arab-Islamic dimension is central to Tunisian identity.

There were a number of proposed amendments to the draft article:

a) A proposed amendment by Mohamed Ben Youssef Hamdi of the Tayyar Mahabba Bloc sought to add in – after “Islam is its religion” – “and its principal source of legislation”.

This amendment was rejected with 74 against 40 for and 57 abstentions.

b) Another proposed amendment, by deputy Mouldi Zidi (formerly of the Aridha Party, then Nidaa Tounes, currently independent), sought to add “and the Quran and the Sunnah are its source of legislation”.

This amendment was rejected with 70 against, 47 for and 57 abstentions.

c) Another proposed amendment sought to amend “Islam is its religion” to “Islam is the religion of its people, the republic its system and it is a civil state that belongs to the Arab nation” proposed by Rafik Tlili (Wafa Bloc).

This amendment was rejected with 131 against, 18 for and 27 abstentions.

d) A proposed amendment, which was put forward by the Consensus Committee, proposed adding the following text “this article cannot be amended”. The amendment was passed with 158 for, 7 against and 4 abstentions.
This amendment was the result of a compromise between political parties, according to which article 1 would be protected against amendment, in exchange for removing a proposed article 141 which listed a number of articles which would be protected from amendment, including regarding the civic nature of the state and the “state religion” – it explicitly used the expression “Islam is the religion of the state” which a number of secular deputies saw as more explicit than, and an interpretation of, the more general draft article 1.

The amended article was passed with 146 for, 1 against and 2 abstentions.

 

Article 2

Draft: “Tunisia is a civil state that is based on citizenship, the will of the people, and the supremacy of law. This article cannot be amended.”

A proposed amendment to add “this article cannot be amended” was passed with 169 for, 9 against and 9 abstentions.

A proposed amendment by Rim Mahjoub (Democratic Bloc) sought to amend “supremacy of law” to “supremacy of the constitution and sovereignty of the law”.

Ennahdha deputy, Neji Jmall, argued against this proposed amendment, arguing that the civil state is based on citizenship, popular will and the supremacy of the law. “Law” in this context includes all legal texts, from the constitution down to regulations. He argued that the original text makes clear and sufficiently protects the civic nature of the state.

Amendment rejected: 111 against, 68 for, 11 abstentions.

A proposed amendment by Samia Abbou to replace “supremacy of law” with “supremacy of the constitution”. The amendment was rejected with 76 for, 86 against, 21 abstentions.

The original text of the article was passed with 162 for, 13 against and 11 abstentions.

Article 3

Draft: “The people possess sovereignty and are the source of all powers that shall be exercised through its freely elected representatives or by referendum.”

The original draft of the article was passed with 171 for, 1 against and 1 abstention.

Article 4

 

Draft: “The flag of the Tunisian Republic is red and bears in its centre a white circle in which is inscribed a five-pointed star surrounded by a red crescent, as provided for by law. The national anthem of the Tunisian Republic is “Defenders of the Homeland”, in accordance with the provisions defined by law. The motto of the Tunisian Republic is: freedom, dignity, justice and order.”

 

The original draft of the article was passed with 150 for, 22 against, 14 abstentions.

Article 5

Draft: “The Republic of Tunisia is part of the Arab Maghreb region and works to achieve its unity and takes all measures to ensure its realisation.”

The original draft of the article was passed with 176 votes for, 7 against and 5 abstentions.

Article 6

Draft: “The state protects religion, guarantees freedom of belief and conscience and religious practices, protects sanctities, and ensures the impartiality of Mosques and places of worship away from partisan use.”

This article received the highest number of proposed amendments out of all adopted articles so far: 6 proposed amendments, the highest after Article 1 with 5 proposed amendments.

Sonia Ben Toumia (Ennahdha) spoke in favour of the original article, while Mouna Ben Nasr (formerly of al-Moubarada, now independent) spoke against it, in particular against the “freedom of conscience” clause.

Two proposed amendments seeking to remove “freedom of conscience” (by deputy Azed Badi, Wafa Bloc) and “freedom of conscience and religious practices” (by deputy Wissem Yassine, independent) were both rejected.

A proposed amendment to add “and bans all forms of ex-communication (takfeer) and promotion of hate and violence” by deputy Souhir Dardouri (Wafa Bloc) was rejected.

The original draft of the article was passed with 149 for, 23 against and 13 abstentions.

Article 7

Draft: “The family is the basic structure of society and the State shall protect it.”

A proposed amendment to add, after “family”, “based on marriage between a man and a woman” was proposed by Habib Herguem from Ettakattol Party (centre-left secular party) but was rejected.

A proposed amendment by Lobna Jeribi of Ettakattol Party to amend the state “shall protect” the family to the state “strives to protect it” was also rejected.

The original draft of the article was passed with 143 for, 35 against and 5 abstentions. This was the highest number of “against” votes for any article so far.

Article 8

Draft: “Youth are an active force in building the homeland. The state shall provide the necessary conditions to develop the capacities of youth and realise their potential and strives to give them responsibility and expand their contribution to social, economic, cultural and political development.”

 

A proposed amendment to add at end of art 8: “with the provision of legal guarantees and an increase in opportunities for representation of youth in political and decision-making bodies” was rejected.

The original draft of the article was passed with 168 for, 11 against and 3 abstentions.

Article 9

Draft: “Protecting the unity of the homeland and defending its sanctity is a sacred duty for all citizens. Conscription shall be a duty to be regulated by regulations and conditions established by the law.”

Proposed amendments to add “and its independence and security of its territory” after “sanctity” and to remove “sacred” from “is a sacred duty for every citizen” were rejected.

The original draft of the article was passed with 177 for, 1 against and 3 abstentions.

Article 10

Draft: “Paying taxes and public contributions is an obligation, in accordance with a fair and equitable system. The state shall put in place the mechanisms necessary to ensure the collection of taxes, and contribution to public expenditures, the proper use of public funds, prevention of corruption and combatting of tax evasion and fiscal fraud.”

 

An amendment proposed by Mabrouka Mbarek to add “The state strives to optimise public funds and take the necessary measures to use public funds according to the priorities of the national economy” was successfully added. This is the only amendment passed that was not proposed by the Consensus Committee.

 

Another amendment to amend “and contribution to public expenditures” to “sound management of public funds” was also passed, making the new amended version as follows:

 

“Paying taxes and public contributions is an obligation, in accordance with a fair and equitable system. The state shall put in place the mechanisms necessary to ensure the collection of taxes, sound management of public funds, prevention of corruption, and combatting of tax evasion and fiscal fraud. The state strives to optimise public funds and take the necessary measures to use public funds according to the priorities of the national economy.”

 

The amended version of the article was adopted with 181 for, 0 against and 6 abstentions.

Article 11

Draft: “Those who occupy the posts of President of the Republic or Prime Minister, membership of the Government, membership of the National Assembly, membership of any independent constitutional body or any official higher function shall declare their earnings according to the regulations established by law.”

A proposed amendment to include declaration of earnings of their spouses or children was withdrawn on the basis that such detail can be added in later laws that set out the exact terms and conditions of such declarations

The original draft of the article was passed with 185 for, 0 against and 0 abstentions.

Articles 10 and 11 are so far the only articles adopted unanimously.

Article 12

Draft: “The state shall seek to achieve social justice, sustainable development, and balance between regions, and to make good use of national resources.”

Proposed amendments to add “based on national indicators and the principle of positive discrimination” was rejected, as was a proposed to replace “state shall seek to” with the “state shall” and to add “and to provide conditions for a dignified life” were rejected.

The original draft of the article was passed with 144 votes for, 33 against and 7 abstentions. This is the second-highest number of ‘against’ votes, after the article on the Family.

Article 13

Draft: “The state shall be obliged to support decentralization and to implement it throughout the country within the framework of the unity of the state.”

A proposed amendment to add “the state strives to guarantee just distribution of services among regions, sections and generations and takes all necessary measures to realise this” was rejected.

The original draft of the article was passed with 175 for, 6 against and 1 abstention.

Article 14

Draft: “The public administration shall serve citizens and the public interest, and shall be organized and operate in accordance with the principles of impartiality and equality and continuity of provision of public services, and the rules of transparency, integrity, efficiency and accountability.”

The original draft of the article was passed with 175 for, 6 against and 3 abstentions.

Article 15

Draft: “The state shall ensure the neutrality of educational institutions away from use by political parties.”

The original draft of the article was passed with 175 votes for, 3 against and 5 abstentions.

 

FINAL TEXT OF ARTICLES ADOPTED SO FAR

Chapter 1: General Principles

Article 1

Tunisia is a free, independent and sovereign state. Its religion is Islam, its language is Arabic, and its form of government is a republic. This article cannot be amended.

Article 2

Tunisia is a civil state that is based on citizenship, the will of the people, and the supremacy of law. This article cannot be amended.

Article 3

The people possess sovereignty and are the source of all powers that shall be exercised through its freely elected representatives or by referendum.

Article 4

The flag of the Tunisian Republic is red and bears in its centre a white circle in which is inscribed a five-pointed star surrounded by a red crescent, as provided for by law. The national anthem of the Tunisian Republic is “Defenders of the Homeland”, in accordance with the provisions defined by law. The motto of the Tunisian Republic is: freedom, dignity, justice and order.

Article 5

The Republic of Tunisia is part of the Arab Maghreb region and works to achieve its unity and takes all measures to ensure its realisation.

Article 6

The state protects religion, guarantees freedom of belief and conscience and religious practices, protects sanctities, and ensures the impartiality of Mosques and places of worship away from partisan use.

Article 7

The family is the basic structure of society and the State shall protect it.

Article 8

Youth are an active force in building the homeland. The state shall provide the necessary conditions to develop the capacities of youth and realise their potential and strives to give them responsibility and expand their contribution to social, economic, cultural and political development.

Article 9

Protecting the unity of the homeland and defending its sanctity is a sacred duty for all citizens. Conscription shall be a duty to be regulated by regulations and conditions established by the law.

Article 10

Paying taxes and public contributions is an obligation, in accordance with a fair and equitable system. The state shall put in place the mechanisms necessary to ensure the collection of taxes, sound management of public funds, prevention of corruption, and combatting of tax evasion and fiscal fraud. The state strives to optimise public funds and take the necessary measures to use public funds according to the priorities of the national economy.

Article 11

Those who occupy the posts of President of the Republic or Prime Minister, membership of the Government, membership of the National Assembly, membership of any independent constitutional body or any official higher function shall declare their earnings according to the regulations established by law.

Article 12

The state shall seek to achieve social justice, sustainable development, and balance between regions, and to make good use of national resources.

Article 13

The state shall be obliged to support decentralization and to implement it throughout the country within the framework of the unity of the state.

Article 14

The public administration shall serve citizens and the public interest, and shall be organized and operate in accordance with the principles of impartiality and equality and continuity of provision of public services, and the rules of transparency, integrity, efficiency and accountability.

Article 15

The state shall ensure the neutrality of educational institutions away from use by political parties.