University South Carolina 16-3-2017
Ladies and gentlemen
In the night of 26 -27 January 2014, I was like millions of Tunisians taken by the (ANC) that is the National Constituent Assembly’s debates, which were broadcasted live on television.
We were at the final stage, the last struggle between the political forces represented in the assembly. The tension was at its height. Then it’s the miracle. Towards 1:00 am, finally the last agreement is achieved and the text adopted by an overwhelming majority.
I jumped of joy like a football fan when the goal of the victory of his team is finally housed in the net. The Islamist deputies and extreme left, fighting fiercely a few minutes ago, throw themselves in each others arms. What a relief! I knew that this night my sleep would be deep and sound, and that I would soon take with my wife the three days of vacation that I promised her for three years.
The next day, the assembly is convened in an extraordinary session; I signed the promulgation of the first true constitution of a people finally master of itself. The president of the ANC Mustapha Ben Jaafar and the former head of government Ali Laridh signed as well, signaling by this gesture that this constitution is no longer the gift of a man or a ruling Political party, but the work of all.
It is in this sort of rare and precious circumstances that one feels with incredible force all the joy, pride, and sense of accomplishment, which explains the passion that humans have had always for power. It is also in this kind of circumstances that one understands why politicians bear all the torments, frustrations and dangers that go with it.
The moment was most historic. The objectives of the revolution were finally inscribed in the marble. Tunisians will nokonger live under the control of a state enslaving them but as masters of a state in their service, respectful of their rights and guarantors of their freedoms.
During the three millennia of its history, the men and women of this country have always been subjected to the law of the strongest, enacted by the masters of the moment and imposed by the worst forms of violence.
In the last two centuries there have been two attempts to establish the rule of law. In 1861 arbitrariness was tempered by the first constitution of the country and the Arab world. But it was a constitution granted by a king to his subjects, and it was under the pressure of foreignerswho where to become the country’s masters in 1881 when Tunisia lost its independence becominga French ”protectorate”, in fact an occupied colony behind local rulers .
This basic law of 11 articles stipulated that all inhabitants of the country, irrespective of religion, nationality or race,were guaranteed physical security equality before taxes, and the right of foreigners to own land and to exercise their professions.
It was a step forward yet a very small one.
The Tunisian people will have to wait until 1959 to have a second constitution. But the latter was also granted by Bourguiba and his followers excluding from the debate all other political parties, which were marginalized, and decimated by repression or simply forced to exile.
This constitution asserted that Tunisia was an Arab and Muslim country but made no allusion to Sharia as a source of law. This was a huge difference from other Arab and Muslim countries. The constitution promised two things that had never been realized: Democracy and the Republic. Tunisia has known until the revolution only a fake democracy, with fake elections and massive human rights violations including the use of torture. Tunisia was also a fake republic. The first president, Bourguiba wanted to be a president for life and was dismissed by a coup in 1987. The second president Ben Ali never accepted free elections and fled the country after the 2011 revolution.
The “quantum leap” with the 2014 Constitution was due to the fact that it was no longer granted by anyone. It was the people represented by their deputies of all political and civilian ranks who had freely and collectively given themselves their fundamental law.
It must be remembered here that the ANC was elected following a revolution that left hundreds dead and thousands injured and forcibly eliminated a dictatorship. The latter was able to survive for 23 years only by manipulating the law and its submission to the violence of the State.
More than the text itself, it was the process of its writing that was atotally new phenomenon.
Hundreds of meetings, including in the most remote regions of the country, hearings and debates of rare intellectual quality, negotiations sometimes surrealist about a single word, had made the constitution a collective work.
It is obvious that in this kind of situation, one will face many problems and that many conflicts would arise.
All the members of the ANC, whatever their camp, were in agreement on the necessity of a constitution which would at last make the principle of right prevail over force. We were also inhabited by this constant desire in all human societies to find at last the right formula of government where power would be the servant of the law not its master and where law would serve only to say and impose the rights and freedoms for all.
One cannot conceive of a greater project … or of a more difficult one.
It nearly aborted even before it started. First, what law are we talking about? The Islamists wanted a reference to Sharia as a source of laws. For the secular parties, it was out of the question that the word itself appears in the text.
Suddenly we were facing not only political issues but also philosophical problems.
How should we place sharia, a law spoken by God himself, in a text negotiated by humans? Can we put both words on an equal footing? To whom should we give primacy?
Beyond the question of precedence was the real problem.
Are men great children who need their father in heaven telling them what to do or have they grown to be adultsand able to take care of themselves? Have they acquired enough confidence in themselves and in others to no longer need to establish their agreement on the guarantee of a divine intermediary and to seek together and freely the rules of common life?
In political life, most of the disputes take place in the public arena and most agreements are made behind closed doors.
Every Friday evening, I invited the main political leaders to dinner. I said to them: “You come as opponents and you go as opponents, I just want everyone to know what the other thinks instead of building our actions on gossip or misunderstandings.”
Those Friday dinners merely brought together men who were compassionate, suspicious, and too polite. Sometimes the miracle happened. It was during one of these moments of grace that the Islamists agreed to renounce imposing sharia in the text in gestation and that the secularists stopped the auction. All agreed to extend article 1 of the constitution promulgated by Bourguiba making Islam the state religion but without reference to Sharia.
In fact the secularist had won the fight without even realizing it. Through the broadcasting of ANC debates live on television, the human origin of the law was fully assumed and openly declared. It is indeed the representatives of the people and not those of God, the “Ulema” or theologians, who were drafting the text from which the laws will be spelled out.
The difficult road did not end there.
The other major issue of contention was the distribution of power within the executive.
Many elected officials, disgusted by the authoritarianism of Bourguiba and Ben Ali demanded a parliamentary regime. But the secular parties wanted a presidential regime in the name of efficiency and political stability.
Behind the theoretical debate in which the legal and moral arguments were cast, there were only the calculations of one and the other.
Each leader of a secular party saw himself with pleasure exercising the same powers as those enjoyed by Bourguiba and Ben Ali.
The Islamist party was fighting tooth and nail for a parliamentary regime because it knew that the Westernized bourgeoisie would never accept an Islamist presidentbut it could have the majority in the parliament.
In the end, it was a hybrid regime that did not satisfy anyone who was included in the basic text. The lame agreement on a semi-presidential, semi-parliamentarian regime reflected the balance of political forces within the assembly and nothing else. It was the same with the majority of the articles of the constitution; the bargaining between the various political forces continued until the last minute and on all subjects.
The most importantinnovation of the constitution was decentralization. For my party and me, the question was essential. The dictatorship is not only the personal power and the power of the single party. It is also the excessive centralization where all power is exercised by a bureaucracy that owes no account to the citizens but only to the hierarchical leaders.
We could not envisage a true democracy without decentralization giving a minimum of control to the citizens on the management of their cities and regions.
Article 131 recognizes to Tunisians this right for the first time in their history.The state has to cede some of its prerogatives to autonomous structures controlled by the citizens.
In the genesis of the text, I spoke about the role of civil society as a force of proposal and the role of the deputies in process of negotiation.
I must now speak of the role of lawyers in the capacity of formalization.
One day a well-known and respected constitutional law professor came to see me in my office, telling me that he had drafted with great care a good constitution. This meant that all the discussions in progress were a waste of time. I smiled, thanked him and put his text in a drawer and then forgot it.
Obviously the eminent jurist did not understand that a constitution is a harsh negotiation between social groups with different visions and diverse interests. The political regime adopted is not the ideal regime devised by theorists but a compromise between the political forces of the moment.
Ultimately, lawyers have no choice but to wait until the text is finalized to put it into legal language.
The anecdote is significant because it shows that some jurists are frustrated not to be the fathers of the law and to be the simple technicians and guardians. But it has to be so and not otherwise. It is the politicians who enact laws in the name of the people and the lawyers are there only to put them on paper and to ensure their application.
Between politicians and jurists the dispute is simply a struggle for power. Politicians consider lawyers as instruments and executors. Lawyers consider politicians to be potential delinquents who must always be monitored and obliged to submit to the laws they have enacted themselves.
The democratic dogma stipulates since Montesquieu that Power must be divided into executive, legislative and judicial powers. The more independent and mutually supportive these three powers are, the more “good” they are and the more sustainable the democratic systemis going as well as what we know today as good governance.
But although dogma enunciates the necessity of the separation of these three powers, political practice shows it’s impossible to do so. The three powers are not and cannot be independent from each other because they are by definition and by necessity interdependent. None of them can exist without the other two in a complex relationship of collaboration, and rivalry.
What I have learned from the whole process is that law has all the characteristics and limitations of the men who make it. It does not appear as Venus coming out of the wave. it is born after a long and painful delivery. It is not born perfect, finished and polished but rather resembles a gnome triturated by too many creative hands. It does not see the day to last. It is a consumable product that is used for a long time and is finally thrown away.
Law is a project forever unfinished.
Now our main objective is to implement this new constitution and this will be the last and most difficult battle.
Thank you for your attention