The constitution-making process and civil society: from negation to acceptance?

The constitution-making process and civil society: from negation to acceptance? Jawher BEN MBAREK Interview with UNDP Let us begin with an important preliminary remark: there is no such thing as "Tunisian civil society". There are several civil societies, built around three dividing lines: first, an independent civil society, which stands opposed to a partisan civil society; second, a secular, liberal civil society which is opposed by a conservative civil society similar to political Islam; and finally, a civil society whose sole aim is to form front organisations that fund terrorism. The last of these categories is not really part of civil society, and it is crucial to distinguish the organisations close to the Islamist parties from those that finance terrorism. They are not at all of the same nature and they do not operate in the same way. Thus, my account concerns only a portion of civil society: the independent, liberal part. Other people will, undoubtedly, present things in a different light. We experienced exactly the same events, but our perceptions of them are wildly different. An example of this is the fact that some parts of civil society now refer to the Bardo sit-in as a rescue operation, while others consider it an attempted coup d'état. There's quite a big difference between an act of rescue and an act of treachery. So I am going to set out my partial view of the way in which a fraction of civil society experienced the democratic transition and the subsequent constitution-making process. To this end, I will look back at civil society's efforts to come up with proposals, the initiatives that allowed civil society to contribute to the content of the Constitutional proposals, and, most importantly, at the responsiveness of the National Constituent Assembly to civil society associations. The relationship between civil society and the Assembly has evolved enormously, moving from negation to incremental acceptance. Three phases of this evolution can be identified. The first was a phase of negation: elected representatives and political parties denied civil society a role in the democratic transition under the political pretexts of electoral legitimacy and governmental representation. The second was a phase of mutual resistance: both the Assembly and civil society were opposed to one another. The third phase occurred at the end of the crisis: it was the last year of the National Constituent Assembly's work, and it was at that point that the contributions of civil society were finally accepted and incorporated in the parliamentary work being done at the Bardo palace. Why civil society was excluded In order to understand the process that excluded civil society from the Constitution-making process, we need to go back to the period before the elections and the establishment of the National Constituent Assembly. The process of excluding civil society began when the Higher Authority for the Realization of the Objectives of the Revolution, Political Reform, and Democratic Transition was expanded. The seventy-five initial members of that body, which was the legislative authority at the time and the only power with a semblance of legitimacy, came mainly from civil society, with political parties accounting for only a small minority. The political parties had not taken part in the revolution. Most Tunisians were unfamiliar with them even the Ennahdha, which, like the other parties, had been absent from the political scene for over fifteen years. It was only once they were awoken by the shock of the revolution that 1

they realised they were not represented by the interim institutions. The Higher Authority then made a decision (one that I considered to be a kind of coup d'état within the revolution): to open up to political parties. Then Prime Minister Béji Caïd Essebsi and the leaders of the main political parties and leaders of the Higher Authority reached an agreement to expand the interim body to include the political parties, thus doubling the number of members. The balance totally shifted. As a result, it was the political parties holding the reins of the democratic transition. They couldn t bear the few months wherein civil society had held the power. As a result, leaving the transition in the hands of civil society was inconceivable for them. Clearly, in normal times, it is up to politicians to govern, and not civil society, but the situation in Tunisia in 2011 was extraordinary. Giving political parties reign over everything completely changed the situation. That change could clearly be seen during the adoption of the electoral law which, we realised afterwards, was the only reason political parties had elected to join the Higher Authority en masse. Two or three major parties withdrew straight after voting for the electoral law - a law that was largely disadvantageous to civil society. The law worked to limit civil society's access to the election. It offered the Constituent Assembly to the political parties on a silver platter when they were not represented by the interim institutions. It was impossible for representative political parties to be formed in the space of seven or eight months. That lack of representativeness was a congenital weakness of the Constituent Assembly and limited its legitimacy something that needed to be changed. When the electorate voted for the political parties in October 2011, it was essentially by default: they were still unfamiliar with the parties. That lack of representation is still important today. People still do not vote for political reasons. The parties are still suffering a crisis of legitimacy, and that crisis will take years to be resolved. The electoral law combined with the superiority given to political parties caused a problem that is still jeopardising Tunisia s democratic transition today: the gap between the social and political maps of Tunisia. The map based on economic and human development indicators unemployment, poverty, exclusion is clear; it is divided into two: east and west. In the west, it is bright red, and in the east, it is nearly white. The electoral map should have matched, or at least reflected, that split, but politically, the country is divided into north and south. People do not vote on a political and social basis, but on an ideological basis, with Islamist supporters in the south and liberal supporters in the north. I think that the only way we will begin to emerge from this crisis is when Tunisians start voting on the basis of economic and social divisions rather than on the basis of ideology. Political parties were rather abruptly imposed on a society that was not ready for them, and that society was encouraged to choose a camp based on ideological considerations. That is how the political and electoral scene was structured after the revolution, and that decision has had considerable consequences for the country at large. Why Associations with plenty of ideas were kept out of the constitution-making process Civil society associations tried to get involved in the constitution-making process. Doustourna, the association that I co-founded, produced a draft, but we were not the only ones to do so. There were, at least, four serious drafts ours, the draft by the General Union of Tunisian Workers (UGTT), the draft written by experts for the Higher Authority, and the draft written by Sadok Belaïd, a law professor. The Doustourna draft was unique in two respects. First, it was a direct product of citizens, and, second, it was a secular draft. The draft came from civil society, but was the only draft produced as part of a participatory, citizen-driven initiative. The first stage was to draw up a forty-five-point manifesto, which was the fruit of a discussion between friends on the broad lines of constitutional reform, and the basis upon which such reform should be built. We used that text to launch a debate 2

in the regions: we started with Greater Tunis, and held around sixty debates with citizens in practically every region. Those debates enabled us to embark upon a second phase, which involved correcting the text we d written in light of the remarks made in the debates. That was when we realised that we could go further and draft constitutional text that included concrete proposals. On 26 July 2011, the original election date, four hundred of us found ourselves in Mahdia to debate a draft constitution. That was the civil society convention. The event was attended by citizens from all horizons: the young and the not so young, civil servants, unemployed people, workers, and more. We worked for four days in small groups through various themed workshops, and produced a text we called "Doustourna", or "our Constitution". The text was the product of a citizen debate. Even though experts took part in the discussions, they did so as citizens. As such, they did not dominate the debates any more than anyone else, and they did not impose their choices. It was a terrific experience. Everyone took part. The draft was also unique because of its secular content. We were the only group to propose a revision of Article 1 of the Constitution to distinguish between the religion of the people and the religion of the State. We felt that Article 1 confused the two, and that there was a need to distinguish between Islam as the religion of the people and the neutrality of the State. It was important to stress that the State should have no religion even if the people did. Furthermore, with regard to the restructuring of the State, we were the first to raise the question of decentralisation. We proposed a total reform of the State's organisational structure. The idea was largely reproduced in Chapter VII of the Constitution, which established the general principles of decentralisation. It is a good chapter, which could lead to genuine reform of the State, but for the moment, it remains theoretical. It is vital that it be compared to actual legislation. We were also the first to talk about a constitutional court, when the others wanted to form a constitutional council. The constitutional court that we were proposing did not resemble the one outlined in the constitutional text: we wanted it to be possible for citizens to refer matters to the court, which is not the case. The Assembly members kept the name "constitutional court", but not the content, because of the creation of a constitutional council, to which matters can be referred only by the authorities, along the same model as the French Constitutional Council. It was during the closing plenary sitting of the convention in Mahdia, once the text had been drafted, that we decided to defend our ideas in the elections. In principle, there was nothing to stop independent candidates from taking up our project, which is why we created the Doustourna or "Our Constitution" movement. We stood in eleven constituencies and used the political campaign to communicate our project ideals on a larger scale. The campaign allowed us to gain visibility and champion our project. We didn't win any seats, but that wasn't the point. We knew that we had no chance against the other established political parties. Effectively, we wanted to use the campaign to give our draft more authority. That enabled us to put our draft on the table of the Constituent Assembly, which accepted it as a starting point along with the three other drafts. We firmly believe that the constitutional question is not solely a challenge for political parties to take on, but an important challenge for civil society too. The lack of representation on the part of civil society was a weakness of the Constituent Assembly. Even the activists who had risen up against Ben Ali were there as representatives of their political parties, and did not behave or act like civil society players. Having won no seats in the election, in January 2012, we decided to transform our movement into an association with a dual aim. Our first aim was to support the National Constituent Assembly in the writing of the Constitution. Our second aim was to support the legislature in the implementation of the text. We started with an official act: once the National Constituent Assembly had been elected, we submitted our official draft Constitution to the Assembly so that it could serve as a starting point and a basis for discussion between the elected representatives. At the same time, the three other Constitutional drafts submitted were serving as starting drafts. 3

Very quickly, we moved into what I would consider a negation phase: the Assembly didn't want to recognise the work done by civil society. This negation had its roots in the "blank page" theory, whereby it was decided that the deputies should start with a blank page when drafting the new Constitution, and should not base their draft on those proposed by civil society. The direct consequence of that decision was that our draft was not distributed to the elected representatives. We had not submitted just one copy, but had printed 217 bound copies, one for each member of parliament. But the President of the Assembly sidelined the drafts, which remained in the office of the Vice-President, Meherzia Labidi. For the Assembly, excluding civil society was above all a matter of legitimacy: it was about asserting the idea that, "we are elected, we do not need civil society, we do not need experts". The constitution-making process then slowed down, and for a year, no progress was made in the drafting of the Constitution. Confrontation between the Assembly and civil society The second phase was one in which civil society opposed the Assembly through a series of confrontations. This gradually led to the emergence of a new balance of power, one where the opposition established itself even before work began on the constitution drafting. The first moment of tension took place during the vote on the law regarding the provisional organization of public powers (OPPP). We felt that the bill was hegemonic and particularly unbalanced. There was a protest movement which led to the first sit-in in front of the Bardo palace, organised by civil society, and then joined by a number of Assembly members. On that occasion, civil society said 'no'. That strong stance enabled us, in the space of a few days, to rectify the text and finalize an acceptable, more balanced bill. It was all the more important to mobilise given that other experiences of transition have shown that provisional texts have a massive influence on the final texts. For us, the drafting of the law on the provisional organization of public powers (OPPP) was the start of the battle on the constitution. We knew that it was going to influence the final text, and that is what happened: the choice of a hybrid solution between a parliamentary and a presidential regime was a choice made at the beginning, and the structure of the adopted Constitution is largely based on the provisional organization of public powers. That was an important fight, one we had to react to from the start. The second moment of tension concerned identity issues, and took the form of a series of clashes throughout 2012, mainly regarding the status of women. It focused on 'complementarity, 'equality,' and the protection of improvements that had already been made. That question shook up civil society, as did the reference to Sharia as a possible source of law. That completely overturned the established source of legitimacy and sovereignty. On those two points, civil society engaged, and did not emerge defeated. It didn't win, but it didn't lose either. Civil society then organised joint actions, the highlights of which were the civil society conventions in Monastir and Djerba in December 2012 and 2013. During the Monastir convention in 2012, we tried to guide the discussion towards the kind of society we wanted to help build. The project brought together more than 200 associations with the aim of defining a societal project for civil society. We tried to produce a document that set out civil society s vision for Tunisian society. The document was called "Tunisia in the eyes of civil society. It concerned all aspects of society, dealing with economic, social, and cultural matters. Once again, several proposals and chapters of this document were submitted as constitutional proposals to the Assembly. The Djerba convention took place just after the vote on the Constitution. The aim was to prepare for the elections, and we laid the first stone of the electoral bill that was then discussed in the Constituent Assembly. The event was called "Let's mobilise for the elections." It was at that point that the idea emerged to write an entire bill and submit it to the Assembly. The meetings were huge. More than 400 associations took part, with around 1400 people preparing the main ideas. The ideas were not only regarding the 4

electoral law, but also regarding the coordination of civil society members and organizations to observe the election campaigns. Those two conventions were the highlights of the associations' joint efforts. They were extraordinary experiences. Finally, the confrontation between the Assembly and civil society led to a major mobilisation: the second Bardo sit-in. The call initially came from civil society, with deputies then joining in, suspending their activities in the Assembly. It was not a sit-in about the constitution; it was a sit-in about the very legitimacy of the Assembly. We were not at the Bardo to change a text, as we had done before, or to impose a vision. We were there to say that things could not go on in this manner. There was a challenge to the legitimacy of the existing power structures not only the Assembly on two grounds: First, the deterioration of the political and security situation, and, second, the question of respect for deadlines and legitimacy. A large part of Tunisian society had the impression that those who were in power wanted to prolong their power indefinitely, whereas they had been elected for a period of one year with a specific mandate: to write the new constitution. In 2013, two years after the elections, the deadline had passed, and the mission was failing: the Constitution had not been written, and the deadline had been missed by two years. There was an urgent need to put an end to all that, and civil society reacted by mobilising supporters and organising the sit-in. Following that series of clashes between the Assembly and civil society, the Assembly members understood that they did not have free reign, and reconsidered their original "blank page" principle. Slowly, it became clear that Ennahdha could not continue in the same vein, that the constitution-making process had to be accelerated, and that the confrontational approach to civil society had to end. That was made even more important by the fact that civil society was going to organise the national dialogue under the aegis of the Quartet. The balance of power began to shift, and this shift is what paved the way for a new phase in the relationship between civil society and the Assembly. The opening-up had to do with the change of government: in 2013, the Troika was in power, but had been politically weakened by social, economic, and security problems. The assassinations of Chokri Belaid on 6 February 2013 and Mohamed Brahmi on 25 July 2013 provided the coup de grâce. The Troïka were looking for a way out of the crisis, even if it meant backtracking on a number of subjects and forging new relationships with civil society. Therefore, they made the decision to accelerate the constitutional process while simultaneously making preparations to leave power. The two were intimately linked: the task of the Constituent Assembly and the elected majority was to complete the constitution-making process and to then make preparations for their own exit from power by holding elections. The turnaround was also linked to the geopolitical context, which prompted the Ennahdha to position itself differently on the political chessboard, and to ask itself questions about the future. All the clues suggested that the Ennahdha decided to leave power in order to avoid an Egyptian-style scenario: to do that, it would have to come to terms not only with civil society, but also with other political forces who had, thus far, been seen as toxic because of their links with the old regime and the dictatorship. That reconciliation between the Islamists and the old regime was the historic moment that the European Union and the United States wanted to see, and was applauded by Algeria. The Ennahdha read the situation correctly by choosing to not go all the way. The Assembly accepts civil society From that moment onwards, civil society became fully involved in the constitution-making process and negotiated certain contentious points in the text. Its proposals were listened to, recognised, and sometimes adopted. That is when the writing of the Constitution truly began. 5

The committees were opened up to associations, as hearing after hearing was held with civil society organisations. Associations were received at the Assembly every day. Once the basic framework of the Constitution was complete, most of the articles were not contentious, but around forty sensitive issues remained. That was when the Consensus Committee entered the equation. The consensus committee did not work in exactly the same way as the other committees: for example, it did not hold any hearings, but it did provide a forum in which to debate sensitive points. The committee was more a part of the framework of the national dialogue, in which the committee's members often took part, that these points of divergence were resolved. At that point, we left the legal work aside. What was at stake was the success or failure of the roadmap. Ennahdha and the CPR had established a condition for the government's resignation, which was the completion of the constitutional process. Settlements therefore had to be reached on constitutional issues in order to abide by the roadmap. The roadmap had been written by civil society under the aegis of the quartet. Civil society was able to bring together political parties and get them to sign the roadmap without giving them the possibility to negotiate. It was another world! A year earlier, the situation had been highly confrontational; now, the parties were signing an agreement without negotiating. There had been a radical change of position in relation to civil society as a whole, but not with regard to Doustourna. Our relationship with the Assembly did not improve for a number of reasons. Most importantly, this was due to the fact that we were the only organisation to declare ourselves as secular and in defence of a secular draft text. We were never invited or offered a hearing with the Assembly members, even when they were working on our draft. We did, however, manage to influence the elected representatives, to lobby for our cause and to defend our proposals. We didn't need to go to the Assembly to meet the deputies, we could get to them outside of parliament. We put pressure on the Assembly through the use of the media and through petitions. We couldn't have done it without the profile and reputation we had acquired back in 2011. We were known even before we set foot in the Assembly. In that period, I developed ties, friendships, acquaintances, and even battles with Assembly members. Some of those friendships were longstanding, and that is what allowed us to exert our influence. In an individual capacity, we would often meet each other socially, which enabled us to talk freely in another context. We also organised series of conferences outside the capital, to which we always invited Assembly members. We let them speak, and discussed things with them. We also developed our influence through a project with the UNDP which involved publishing a newspaper, El Majles, in order to build bridges between students at the university and the deputies in the Assembly. We told the students about the most important debates held at the Assembly through simple, clearly explained educational articles. The other dimension of the project entailed surveying the students on the Constitution-drafting process by giving them a questionnaire and reporting the results to the Assembly. We could say to the elected representatives, "this is what young people think of your debates." The newspaper project earned us a visit to the Assembly with a group of journalists and members of the association. It was a roundabout way of putting pressure on deputies to take action. Despite that, parliament was open to associations, and this reconciliation culminated in the work on the electoral law. Once the Constitution had been voted through, elections were imminent, but the Assembly had not yet drafted an electoral bill. Civil society prepared two bills, which they subsequently submitted to the Assembly. In a shocking turn of events, the Assembly announced that its work would be based on those two drafts. It was the end of the blank page theory. The bill adopted by the Assembly is a product of civil society. Civil society therefore made a huge contribution to the Assembly's work at the end of the constitution-making period and prior to the 2014 elections. Ultimately, though the Assembly's relationship with civil society had been turbulent, the story ended on a positive note. The voices of civil society were incorporated into the work of the National Constituent Assembly as a source of ideas. The situation today, however, is disappointing. 6

Since the October 2014 legislative elections, things have been moving backwards quickly. The way in which the new Assembly of the Representatives of the People excludes civil society is reminiscent of the early days of the Constituent Assembly. Our role is important and demands that we have a presence to monitor the work of the parliamentary committees in order to ensure that MPs are doing their jobs properly. However, we are forbidden to attend committees and sometimes even the plenary sittings, which is a complete violation of the rules of procedure. The political world is, once again, becoming wary of associations. The hard-won improvements and creation of a healthy relationship between the legislative power and civil society are no longer fully secure. The fight continues. 7