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Constitution of Tunisia

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Tunisia
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Politics and government of
Tunisia

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First page of 1857 Fundamental Pact

The Constitution of Tunisia is the supreme law of the Tunisian Republic. The constitution is the framework for the organization of the Tunisian government and for the relationship of the federal government with the governorates, citizens, and all people within Tunisia. Tunisia's first modern constitution was the Fundamental Pact of 1857. This was followed by the Constitution of 1861, which wasn't replaced, until after the departure of French administrators in 1956, by the constitution of 1959. It was adopted on 1 June 1959 and amended in 1988 and 2002, after the Tunisian constitutional referendum of 2002. As of 2012, a new constitution was being drafted.[1]

Contents

Fundamental Pact of 1857

Beginning in 1839 the Ottoman Empire introduced a number of reforms in government starting with the Hatt-ı Şerif of the Gülhane, but these were not applied in Tunisia due to the independence of the Husainid Dynasty and the conservatism of the ruling Bey, Ahmad I ibn Mustafa. It was the death of Ahmad I and the Sfez case and its aftermath that allowed France and England to pressure the Bey into granting reforms.

Samuel "Batto" Sfez was a Jewish teamster who worked for Jewish political boss Nasim Shamama. Following a traffic accident, Sfez was involved in an altercation with a Muslim. His opponent subsequently brought charges against Sfez, charging him with insulting Islam, a capital offense under Maliki law.[2] There were plenty of witnesses who had heard Sfez curse his opponent and his religion. A notary investigated and took sworn statements. The court considered the matter for some time, while Shamama tried to muster support from the British and French legations. Unfortunately, Nasim Shamama had previously upset the Bey, Muhammad II ibn al-Husayn, by forcing him to deal with a case of a Muslim who had murdered a Jew, where the unpopular conclusion was the execution of the Muslim. As a result, Muhammad II issued the execution order the same day that the court came down with its decision of guilty, and Sfez was summarily beheaded.[2][3]

This upset not only the local Jewish community but also the local European businessmen and hence the legates from France, Leon Roches, and Britain, Richard Wood, who had already been pressuring the Bey for greater religious tolerance and equal treatment before the law, primarily in support of European commercial interests.[2][4] European warships steamed into Tunisian harbors including an entire French squadron into the port of Tunis (Halq al-Wadi).[5] Under this pressure and given the support of the liberal former general and Marine Minister Hayreddin Pasha,[6] Muhammad II agreed to what became known as the Fundamental Pact of 1857. That document, which had many similarities to the 1839 Ottoman Hatt-ı Şerif, abolished slavery, guaranteed people to be secure in their lives and property, granted equality of taxation (thus implicitly abolishing the jizya), granted religious freedom, granted equality before the law, granted foreigner the right to own land and participate in all types of businesses and set up separate commercial courts, among other things.[7][8]

Although adopted under foreign pressure, to open the country to international trade, these ideas of equality from the Age of Enlightenment found fertile ground in the Tunisian reform movement, contributed to the ideas advocated by Mahmud Qabadu and Ahmad ibn Abi Diyaf and gained the support of Hayreddin Pasha and his followers, especially generals Rustum and Hussein, despite concerns about the broadening wedge of European commerce.[9] These ideas later inspired the national movement in its claims against the French protectorate, especially within the Constitutional Party (Destour Party).

Constitution of 1861

Following the Fundamental Pact, a commission was set up to draft a real constitution; it was submitted on 17 September 1860 to Muhammad III as-Sadiq, the new Bey after Muhammad II. The constitution came into effect on 26 April 1861. It was the first written constitution in Arab lands.[10]

The text of 114 articles established a constitutional monarchy with a sharing of power between an executive branch consisting of the Bey and a prime minister, with important legislative prerogatives to a Grand Council, creating a type of oligarchy. It established an independent judiciary; however the guardian of the constitution was the legislature which had sovereign authority to review unconstitutional acts by the executive. In addition, the sovereign was not free to dispose of the resources of the state and must maintain a budget, while he and the princes of his family were to receive stipends. Issues of national representation and elections were omitted. In fact in actual practice the members of the Grand Council were appointed more through cronyism and favor swapping than national interest. Many of the old Mamluk class were appointed, keeping the bureaucracy firmly in Mamluk hands. For this reason, and others such as the provision for general military conscription and retaining the provisions granting rights to foreign nationals, many did not approve of the Bey's actions. Universal application of the mejba (head tax), under the equal taxation clause, incurred the wrath of those who had formerly been exempt: the military, scholars/teachers and government officials. Matters came to a head in 1864 when traditionalist Ali Ben Ghedhahem led a revolt against the Bey. The constitution was suspended as an emergency measure and the revolt was eventually suppressed. Ali Ben Ghedhahem was killed in 1867.[11][12]

Constitution of 1959

Arab Spring 2011-2013 transition

During the Tunisian revolution, President Zine El Abidine Ben Ali left Tunisia on 14 January 2011[13][14] and Prime Minister Mohamed Ghannouchi stated that he became the acting President under Article 56 of the Constitution.[15][16] Al Jazeera claimed that lawyers disagreed with Ghannouchi's claim, since under Article 57 of the Constitution of Tunisia, the Constitutional Council should meet and the leader of one of the houses of the Tunisian parliament should become an interim President.[17] The Constitutional Council declared that "the post of president is definitely vacant" and declared that under Article 57, Fouad Mebazaa should become the interim President, with the obligation to call for elections within 45 to 60 days.[18] On 15 January 2011, Mebazaa was sworn in as interim President.[18]

Various decrees in early 2011 permitted the continuation of the interim government and the Legislative Decree of 23 March 2011[19] provided for initial elections. On 23 October 2011 a Constituent Assembly was elected to draft the text of a new constitution. On 16 December 2011 they issued a constitutive law Law on the provisional organization of public authorities, which superseded the Legislative Decree of 23 March 2011 and the 1959 constitution.[1] This law provided for three branches of government and guaranteed human rights during the time it takes for the new constitution to be written and ratified.[1]

References

  1. ^ a b c "Table des Matières" (pdf). Ministry of Justice, Republic of Tunisia.
  2. ^ a b c Abun-Nasr, Jamil (1971). A History of the Maghrib. Cambridge University. p. 263.
  3. ^ Broadley, Alexander Meyrick (1882). The last Punic war: Tunis, past and present 1. Edinburgh, Scotland: Blackwood. pp. 110–111.
  4. ^ Perkins, Kenneth (2004). A History of Modern Tunisia. Cambridge University Press. p. 18. ISBN 978-0-521-00972-0 [Amazon-US | Amazon-UK].
  5. ^ Abun-Nasr, Jamil (1987). A History of the Maghrib in the Islamic Period. Cambridge University Press. p. 277. ISBN 978-0-521-33767-0 [Amazon-US | Amazon-UK].
  6. ^ Cooley, John K. (1965). Baal, Christ, and Mohammed: Religion and revolution in North Africa. New York: Holt, Rinehart and Winston. p. 194.
  7. ^ Broadley 1882, p. 112
  8. ^ "Pacte fondamental de 1857" (in French). Ministry of Justice, Republic of Tunisia. Archived from the original on 1 October 2012.
  9. ^ In general, see volume one of Fitoussi, E. and Benazet, A. (1931). L'État tunisien et le protectorat français: histoire et organisation (1525 à 1881) (in French) 1. Paris: Rousseau & Cie. OCLC 5210943.
  10. ^ "coğrafyasında kendi türünün ilki sayılan Kânûnu’d-Devle adlı bir anayasayı ilanla sonuçlandı." ("the first of its kind in Muslim territories.") Ceylan, Ayhan (2008). "Osmanlı Coğrafyasında İktidarın Sınırlandırılması (Anayasacılık): Tunus Tecrübesi (The Restriction of Authority in the Ottoman Geography and Constitutionalism: the Tunisian Experience)". Dîvân: ilmı̂ araştırmalar (Divan: Journal of Interdisciplinary Studies) (in Turkish) (Istanbul: Bilim ve Sanat Vakfı (Science and Arts Foundation)) 13 (1 (24)): 129–156, 129.
  11. ^ "Ali Ben Ghedhahem" (in French). Fédération des Tunisiens pour une Citoyenneté des deux Rives. 20 September 2009. Archived from the original on 1 October 2012.
  12. ^ Vovelle, Michael (1990). L' image de la Révolution française. Pergamon Press. p. 1028.
  13. ^ "Tunisia: President Zine al-Abidine Ben Ali forced out". BBC News. 15 January 2011. Retrieved 26 October 2011.
  14. ^ Chrisafis, Angelique; Black, Ian (15 January 2011). "Zine al-Abidine Ben Ali forced to flee Tunisia as protesters claim victory". The Guardian. Retrieved 26 October 2011.
  15. ^ "Ben Ali quits after 23 yrs in power & leaves Tunisia". Al Arabiya. 14 January 2011. Retrieved 26 October 2011.
  16. ^ "PM replaces Tunisia president". Al Jazeera English. 15 January 2011. Retrieved 26 October 2011.
  17. ^ "Constitutional debate". Al Jazeera English. 14 January 2011. Archived from the original on 14 January 2011. Retrieved 26 October 2011.
  18. ^ a b "Tunisia swears in interim leader". Al Jazeera English. 16 January 2011. Archived from the original on 15 January 2011. Retrieved 26 October 2011.
  19. ^ Legislative Decree No. 2011-14 of 23 March 2011

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