National Dialogue on Constitution Drafting

July 6th-7th 2012

Africa Hotel (Tunis)

First Day: Friday 6th July 2012

Panel one: Why Do We Draft a New Constitution and How Do We Build Consensus?

Badreddine Abdel- Kefi: Aid to the National Constituent Assembly's (NCA) President, Responsible for the Relations with Citizens and Civil Society.

It is impossible to question the existence of a general will within the NCA to broaden the scope of participation, but the problem remains in the manner in which the NCA relates to lay citizens. It is precisely for this reason that we must insure greater civil society participation and input in the constitution-drafting process. The NCA will also insure that the deadline set for the completion of this task (October 23rd, 2012) is met.

Abu Ya'rab al-Marzouqi: NCA Member and Prime Minister's Advisor

This is not our first experience in constitution-drafting; this is however, the first time that the people are involved in the process. The new Tunisian constitution should not be underpinned by a particular constellation of powers, but rather a consensus that would save us the discord between the two new cultures in Tunisia.

Abel Razzaq al-Hammami: Founding Committee's President (National Workers Party)

The constitution is an expression of the people's free will, a dedication of the right to citizenship, and the manifestation of the peoples move from subject-hood to citizenship. The new constitution ought to be one that governs the country for generations to come, and thus must reflect the aspirations of all Tunisians. In order for the revolution's goals to be achieved, we must reach consensus about a civil, democratic and republican state. In addition to reaching consensus over the overarching national interest, we must break loose from such practices as double talk, cosmetic compromises, and finding excuses.

Zied Kreeshan: Editor in Chief (Al Maghrib Newspaper)

There exists a cleavage in Tunisian public opinion, and the locus of its essence is the disagreement over the societal vision for Tunisia. We must build our vision on the individual and involve all components of society in the process of drafting this new constitution in a manner that avoids unnecessary politicking and meets to all expectations.

Panel two: Exploring the problematic issues facing the course of drafting the constitution in Tunisia 

Mouldi Raahi:the head of the Ettakatol bloc in the NCA

Since the beginning ofthe dialogue we agreed on a set of things which are installed today in the drafts of the constituent committees and in the draft text of the preamble, for instance the most important thing is that we have a civil state emerging from the power of the people on the basis of peaceful transfer, administrative neutrality, good governance and the protection of human rights and equality in rights and duties are all embedded in the first draft of the constitution.  

Sharia: Tunisians continued this controversy and debates on this subject, but we are committed to the first article of the Constitution.  

Identity: Do not want our community to have any kind of Schizophrenia, like the Zeitouna, blessed its roots in the ground and leaves in the sky. But despite all our different visions, we will write a constitution that responds to the expectations of the people.

Salah al-Din Jourchi: independant journalist and Human Rights activist

Writing the new constitution is not only the simple process of drafting or writing, but it is a reflection of the concepts and the visions of the state we want to build, and society we want to construct. Therefore the constitution acquires importance from the composition of terms of styles, ideas and values that must be included and what is required of the Constitution is to protect national unity and continuity of the State and to achieve a balance between the rights and freedoms on the one hand and strategic interests on the other.

Mokhtar Yahyaoui: President of the Tunisian Center for the Independence of the Judiciary branch

The first problematic in the writing ofthe constitution is the problematic of the text,because we must find the means by which we grant mechanisms and institutions that protect our society. There is also problem of justice: "have we really comprehended justice in its absolute form?" We were surprised in the post-revolutionary regime that recognizes the authority of two branches only and excludes the judicial authority, ignoring the 22nd Chapter of the regulation of public authorities.

The Constitution is an ensemble of mechanisms, texts and institutions that must be devoted to the provision of justice and dignity to every citizen. This cannot be achieved without exposing corruption and fighting it.

Mohammed Goumani: Head of Development and Reform Party

We are approaching the final draft of the constitution, and I do not see any movements by the media or civil society to discuss it. We also hope to build state in which the rule of law and human rights prevail. Consensus Building requires a deep dialogue on the part of the intellectual community involved in it.

One of the most crucial problems is that: would the legislature be the absolute sovereign? Or is it going to say there is legislation and there are religious requirements? This is particularly in the relationship of religion to politics and the state. Other problems are the political system and the balance between powers, Conditions of candidacy for the presidency, how do we establish an independent electoral commission, a constitutional court and/or council.

Leila Bahria: judge and president of the Association Jurists without Borders

The process of drafting the constitution is extremely important as the constitution determines in principle of the future of the country.

First, we have a problem of anchoring. Before thinking aboutdrafting the various chapters of the constitution, the paradigm underwriting its source of inspiration should be specified and agreed upon. There are those whoargue for Shari'a to play that anchoring role, while others hold that the constitution should be underpinned by democratic principles (whatever those are).

Second, we have a problem of choosing the political system. There is debate about what system should we go for, whether it should be a parliamentary, a presidential, semi-parliamentary, or semi-presidential. The disadvantages of each system and its advantages must be evaluated, and between this and that, it's a must to identify and create mechanisms to break with the past and to ensure the peaceful transfer of power.

- The need to establish a systemt which clearly ensures the separation of powers, to ensure a balance between them and to avoid that one dominates the other.

Mohammed Saleh al-Hadri: President of the Justice and Development party.

The basis of thinking in the Muslim state is the respect forIslam. So how can alcohol be sold, adoption and gambling can be legal in this state?Before drafting this constitution we must clarify these concepts.The Justice and Development Party has proposed a draft constitutionon 25thFebruary, and our partywants todraft a constitution in which Shari'a is the main source of legislation.

Amer Laarayedh: Head of the Political Department of the Nahdha Movement

We are now writing a new constitution for the State of Tunisia,and we have added many hearing sessions in the National Constituent Assembly and held lots of seminars in order to achieve a  participatory constitution that meets the aspirations ofthe Tunisian people. This constitution must guarantee the rights and freedoms in accordance with legal safeguards (these cannot be modified by less than the majority of two thirds).

We as Nahdha movement adopt a parliamentary system for the following reasons: First, it cuts off with the previous presidential system. Second, because the return of the individual to tyranny is easier than the return of a whole organization/group.

Evening Reception:

Muhammad Abdul Bari Qudsi:Assistant General-Directorof the Arab Organizationfor Education, Cultureand Science (ALECSO)

"... The march of Tunisia throughout history have always held to the rhythm of development of constitutions,elevate them always to an up-to-date level, and put it in the rank of the countries looking always for promoting freedom and pride. The grand national mission now which Tunisians are busywith is to write a new constitution that reflects all the aspirations ofthe Tunisian and reflects their common will to live in freedom, and to ensure their effective participation in carving the present and the future of their country... and by virtue of interdependence off ate and interests of other people within the home,It is everyone's responsibility to ensure that the conduct of the Tunisian ship within the vicinity of human society is sound depending on the compass of sound decay course always some ports ofsafety..

The Arab Organization for Education, Science and Culture in terms ofits Constitution and the Charter of the unity of Arab culture has been since its inception, which exceeded forty years, to work to serve the Arab countries by contributing to the advancement of education, education, scientific research, culture and heritageas it is one of the tributaries essential for human developmentof comprehensive and sustainable in the Arab world. "

Day Two: Saturday 7 July 2012

Panel Three: Establishing the values of citizenship and public participation in the new Constitution

Ghazi Algrairi:Secretary-General of the International Academy of Constitutional Law

The process of drafting the constitution has to be participatory and consensual by seeking the widest possible consensus within the National Constituent Assembly and outside, and the involvment of civil society in this process. Modern Constitutional-Science tends to be brief. The constitution is not an ordinary legislative text as it should have risen above, in terms of formulation and vision, what we see on a daily basis, and it is impossible to capture all the details implied in constitutions without falling into constitutional babble

.

I see that any talk about the constitution should only be technical, but what will our society look like in 2013? Our thinking needs to be in two modes: Constitutive and societal, they must protect the society and to establish citizenship and ensure their rights and freedoms.

Sana Ben Achour: Professor of Constitutional Law, Faculty of Legal Sciences

What is important in the text ofthe Constitution is that words need to be accurate and precise and not open to interpretation. Citizenship is based primarily on gender and we must deal with this issue. Also the President of the Republic must have Tunisian nationality,in the case of dual nationality; the candidate for the presidency must give upon one. Citizenship is what defines the rights and freedoms at the political level.

Alya Allani: Professor at the University of Manouba

The issue of citizenship is a central issue not only in countries that had revolutions, but also in democratic countries. Citizenship is that the person feels that he lives at home with a set of rights and duties. In order to achieve this, the following must take place: political parties must give up their double talk, speed up the process of including values of citizenship in our educational system, and set up the necessary mechanisms for public participation.

Hani Abdel Wahab: Al-Majd Party

State of citizens is the synonym of the civil state. There is no religious sanctity for the political power. The values of popular participation are as follows: participation is a fundamental right for every citizen, the need to ensure participatory democracy, addressing the predominance of the central authority and the distribution of authorities to avoid that.

Naila Charchour Hashisha: Association of citizenship and Communication

We want a new constitution to serve as a contract between the citizen and the State. Drafting a new constitution demonstrates the extent of our modernity and democracy.

Panel Four:parallel sessions replicating the 6 constitutional committees within the National Constituent Assembly 

1-The Preface and Basic Principles Commission

 

The discussion was centered on the feasibility of a prologue in the constitution, and it has been agreedon:

- The need for a preface in the constitution as an integral part of it. It must be brief and only adjusts the orientations, principles and general concepts of the constitution and leaves the details to the rest of the chapters.

- Adopting the technical phrases and terms taking into account the clarity and simplicity in order to be understood by the average citizen without leaving room for interpretation.

- Review the preface to measure the compatibility between the various committees of the National Constituent Assembly after finishing the drafting of the chapters of the Constitution.

- The formation of a joint committee representing the various blocs with the aid of experts in Language and Law.  

- Calling the deputies for the adoption of a more precise and clear language as possible in their interventions concerning the phrases and terms used as a component of the spirit of the text adopted by the specialists.  

- Drafting a proposal for the adoption of the following principles in the preface: Civil State, Peaceful transfer of power, the principle of separation and balance between the powers, the right to development, justice and equality between classes and generations, and regions, devote personal freedoms in relation to identity, emphasis on the diversity of sources of inspiration of the Constitution.

Basic principles:

- To keep the first chapter of the Constitution in its current form without adding a reference to religion or the state or religion policy.

- Devoting the policy of the rule of law by the people through Representative Democracy (via the Electoral mechanism) or by submitting petitions signed by citizens objecting the decisions of public authorities (ie, direct participation) and to support the referendum mechanism.

- The people is sovereign and all provisions and laws are in its name,

- To emphasize the independence of the judiciary, the administration and media.

- Establishing the values of citizenship explicitly.

- Ensuring the fundamental rights, freedoms.

- Emphasising the decentralization of administrative and political organization,

Further Recommendation:

Establishing a constitutional court that holds the upper power and the to pof decisions are binding on all public authorities with the independence and dedication. Its members must be elected for a specified period and given automatic authority to pledge as collateralits functions citizen's right to present a petition before theConstitutional Court directly.

2- Commission on Public, Regional, and Local Groups  

The recommendations of this Committee were as follows:

- The language of Tunisia is Arabic, its religion is Islam and its system is Republican and its mode of governance is decentralization.

- The municipality is the core of the administrative and territorial organization that ensures the rights of the citizen in the conduct of public affairs and public enjoyment of the facilities.  

- Regional Council team is the group of regional public development, which means the decision has legal personality and administrative and financial.  

- The national territory is divided into states, which is in turn divided into Delegations and supervised by the governors. The accredited governors represent the state and belong to an upper wire and ensure the neutrality of the administration and the continuity of care for not belonging to any political or religious body or industrial... And the state headed by a governor appointed by the Minister or the Authority.  

- The national territory is organized into developmental regions that includes a number of states run by an elected council and enjoys legal personality and sees to the enforcement of the award of development and determine an annual budget act and the development needs of the region and enjoy a part of the general budget of the national and exercise groups, public authorities, local and regional.  

- The National Assembly consists of representatives of local and regional elected councils, and serves as the legislative Chamber of Deputies.

3- Legislative and Executive branches and the relationship between them 

- The possibility of the dissolution of the House of Representatives by the President of the Republic.  

- Agreed to go on a modified parliamentary system that makes a balance between the executive and legislative powers, but at the same time gives the authority more than the President of the Republic, provided that the President shall be elected by the people directly, not by the Parliament and in some cases assigned controversial issues to the President of the Republic to play the role of arbiter.  

- In the framework of insulation should be insulation under the terms of a narrow and specific such as treason Great or deficit total for the performance of his duties and cannot take this action only after displaying a written request from the House of Representatives more than three-quarters of it to the Constitutional Court to consider the availability of serious conditions or not.  

- With regard to the mandate and due to the seriousness of the situation and the importance of the legislation passed the group not to give authorization to the executive branch in order to preserve the independence of the authorities from each other.  

- In the framework of the draft laws presented to the House of Representatives bills by 15 members of the House of Representatives or by the President of the Republic or Mamadah initiative by the 30 thousand citizens.

4- Constitutional bodies Commission

Discussion within this workshop revolved mainly around 3 axes:

First, the definition of constitutional bodies as permanent bodies, independent administratively and financially focused on the areas set for them in the Constitution, and which do not fall within the jurisdiction of any authority of the three authorities. It works on supporting the role of civil society and ensuring its participation and control

.

Its members must be elected by the legislative authority within the legally defined terms of reference of each body including occupational and professional integrity and impartiality.

Second, reviewing the proposed bodies and changing the name of the following:

High Commission forHuman Rights and Public Freedoms 

High Commission for theRights ofSustainable Development

Recommendation:

Establish a High Commission for Religious Affairs, independent (to ensure the impartiality of the religious sphere).

* A supreme body for Defense and Security consists of academics and military experts(retired) to consider the key policy and strategic issues in security and defense.

Recommendation:

Theword "independent" should either keptor deletedfrom all names ofthe various bodies.

Third, the Higher Independent Electoral Commission

Recommendation:

Proposals of mentioning in the Constitution the basic features of the Commission only and to determine the principles of neutrality and independence, integrity and transparency and professionalism, getting rid of quotes on composition and duration, because it does not exceed the possibilities and the role of the Constitution to the law regulating the body.

5- The Commision on rights and freedoms 

The recommendations of this workshop were as follows:

- Canceling the exceptions and restrictions of rights and freedoms in the articles.  

-Supporting dialogue and consultation strategy through setting a specific agenda through the following means:

*Activatingthe website of the Assembly and make it interactive, 

*Publicmedia: a weekly discussion of the work of the committees

*Movement of ANC members to remote regions to discuss the constitution with people.

- At the level of reduction, it should be shaped with no repetition and away from details, choosing the accurate general terms.

- At the level of content, we must specify the term "citizen" in the preface and mentioning that it's for all Tunisians without discrimination on the basis of sex, religion, disability, or the party, color or political affiliation or party, and hold accountable those responsible must stipulates in the Constitution. Also there is a need to mention in the preface the question of freedom and emphasize that the state must guarantee the neutrality of the administration and places of worship (use of the word instead of watches to ensure that it does not convey a sense of commitment).

6- Commission on administrative, constitutional, and fiscal justice   

The group in this workshop reached agreement on the following recommendations and general principles:

- The judiciary branch is independent with no parallel power.  

- Unified, subject only to the law and guarantees the rights of citizens.  

- Consensus on the principle of specialization of judicial constitutional and administrative financial law.  

- The composition of the Supreme Judicial Council comes in agreement on the overall team in terms of mixed composition (judges and non judges)  

- Constitutional Court: appointment of members bythe proposal ofthe President- Head ofgovernment -the Supreme Council for Judiciary branch. The President is given the first proposal for members but the owner of the final decision isthe House of Representatives for either of the parties has the right to resort to the constitutional court through two mechanisms: 

* Indirectly: for example, through the President and the Prime Minister and the House of Representatives, institutions and citizens in the framework of the case.

* Directly:through the Constitutional Court, without exception, knowing that it is feasiblebefore and after thepassage of the law.

- Financial Court is a court of justice headed by a judge or judges who are independent, aims for monitoring and accountability, accountability.  

- Administrative Court: the possibility of implementing the provisions of the State implementation mechanism.

Panel Five: Future Steps for Tunisia (with a focus on strengthening the process of collective decision-making)

Recommendations and decisions from all the commissions were integrated into one single document.

Final words

Mahrzah Labidi: First Vice President of the National Constituent Assembly

Mrs Laabidi interacted with many recommendations including the one related to the recommendations of the preface, and wondered whether the preamble will be a preface to understand the legal text of the Constitution? Who wanted it to be short that's certainly very important. She held that she saw "confusion between the prologue and the general principles of the constitution, and I was surprised by the expression" she also thought that other participants who called on the constitution drafter saying "do not leave room for interpretation", the text of constitutional must be a general and interpretation to respond to the changes and it would be a better adoption of the phrase "does not open the door to interpretation."   

Mrs Labidi assured participants that upon completion of the draft constitution, it will be presented to civil society, political parties to enrich the discussion and recommendations.

Abdul Razzaq al-Kilani: The Minister appointed by the Prime Minister in charge of relations with the National Constituent Assembly

"... The success in establishing a social project and a new political commitment is governed by four determinants:

1- Compatibility and participatory, there is no future to a Constitution that does not reflect the values and principlesthat Tunisians believe in.

2 - Identity: The consensus of what it means to respond to the requirements of diversity within the community, it must be away from the logic of the fragmentation of the articles into account of the wishes of every political or social spectrum. And the identity of the Tunisian Constitution is governed by two particularities:

* Links with the reform ideas that paved the way for the modern state of Tunisia since the mid-nineteenth century.

* Maintaining the gains of the State of modernist post-independence.

3- Effectiveness in the protection of fundamental rights, the new Constitution of Tunisia should be a mirror that reflects awareness of the importance of fundamental rights of Tunisians in its various dimensions of political, civil, economic and social. The new constitution must acknowledge that and develop mechanisms to ensure judicial protection to impose respect in reality.  

4- Efficiency in the work of institutions, since it does not matter the form of the political system as much as the guarantees provided to break with the tyranny and that it contains the ingredients to ensure the stability and permanence in the context of establishing a real balance between powers. Institutions and independent constitutional important bodies.

Written by: Rabaa Ghribi

Translated by: Aymen Abderrahmen