No Victor, No Vanquished…or Delaying the Inevitable?

By Ian M. Hartshorn

*This memo was prepared for the “Evolving Methodologies in the Study of Islamist Politics” 

Researchers in this collection have usefully questioned the notion of Islamism as an analytic category. What constitutes “religious” politics is too often taken as an a priori category coloring our locus of study. Groups, parties, and movements may be overemphasized or reified while subtler and more dynamic elements are lost. This paper suggests the constitutional process and constitutional texts as potential alternative object of study that yields at least three benefits.

First, constitutions, with their long historical shadows, help color “normal” and “extraordinary” politics. They answer questions central to the supposed Islamist-Secular divide including source of legislation, role of the state in religious life, and the limits of religious speech and action.

Second, by looking at the constitutional process as one that is ongoing either through interpretation or actual revision, this approach moves from structures to processes and gives us leverage over understanding what is a religious versus a political issue.

Third, while at first blush research on constitutional design and constitutional text may seem to be throwbacks to another century, they are increasingly relevant in the modern Middle East. Once barely worth the paper they were written on, constitutions in North Africa have been used to justify democratic elections or military coups, the rights of workers and space for free enterprise, and how a state will engage in international relations. Constitutional design and constitutional text are a worthy subject of our attention in part because they are seen as worthy by the people taking up the mission of drafting and interpreting them.

Tunisia After the Revolution

Five years after the uprisings that rocked the Middle East, Tunisia has been hailed as a success story. It has seen a (fairly) peaceful change of government following elections. Despite the persistent threat of terrorism, political bargains struck by new parties with help from civil society actors have worked, even earning the Nobel Peace Prize. The crowning achievement in this transition is the new Tunisian constitution passed in early 2014. The constitution, in the words of its first article, was designed to support a “free, independent, sovereign state, its religion Islam, its language Arabic, and its system [is] Republican.” Despite this, the fundamental issue between “religious” and “secular” politics in the state has not been solved. The major decisions regarding this seeming paradox have been delayed, and the institutions that are supposed to handle it do not exist.

Tunisia under dictatorship had both a strong (if underground) Islamist current and a rich secular tradition bequeathed by both French colonialism and a post-independence rule. These contradictions were on display in the first post-revolutionary elections for the constitutional assembly. Islamists from the Ennahda party won a plurality of seats with leftists, social democrats, and conservatives scattered among smaller parties. The constitution would help set the course for balancing these secular and religious forces.

Text and Context

The constitution was ratified with four explicit references to Islam: two in the preamble, one in the first article, and one restricting presidential eligibility to a Muslim. The real form of religion and secularism in the state, however, is shaped by Article 6, which reads that the state is the “guardian of religion” and that it guarantees “freedom of conscience and belief, the free exercise of religious practices and the neutrality of mosques and places of worship from all partisan instrumentalization.” It goes on to “prohibit and fight against calls for Takfir and the incitement of violence and hatred.” The phrasing was hailed as a great success, with cheers and celebration from members of the constituent assembly. Parliamentarians from self-described “modern” (the preferred term to secular) and Islamist (increasingly self-described as “conservative” by members) parties embraced on the floor of the People’s Assembly upon its ratification.

In the months preceding it, however, violence and acrimony gripped the process. Two leftist leaders were assassinated in 2012, stoking fear of an assault on those accused of apostasy. In the final days of debate, one member of the Assembly, Habib Ellouze, publicly questioned the religiosity of a leftist politician, Mongi Rahoui. Ellouze’s accusation could be interpreted as an act of “takfir” or excommunication, opening Rahoui to violent threats. The ratification process ground to a halt as secular forces demanded the reopening of debate on issues of religion and the state. Imed Deimi, a politician involved in mediating secular and Islamist demands describes the scene as leaders sought to salvage the negotiation as seeking to strike a “golden balance.” Mediators wrote all the terminology demanded of the two sides on a sheet of paper and found a way to shoehorn the majority into one massive article.

The article, however, commits the state to conflicting goals of freedom of conscience and guarding religion, as well as preventing threatening religious speech but protecting the free exercise of religious practice. It also invokes the possibility of direct intervention in mosques to prevent their “partisan instrumentalization.” During a series of interviews earlier this month, leaders close to the issues presented by the constitution gave their views, two years post-ratification.

Rather than describing a battle two-years buried, leaders describe a struggle that is yet to come. Rahoui, the leftist politician who now sits in the Tunisian parliament stated “the battle continues against the forces of the religious state…because the constitution was not decisive.” The sentiment holds among his ideological rivals. Nadhir Ben Ammou, former minister of Justice who now holds a parliamentary seat on the Ennahda list stated that Article 6 is a “balm over cancer…a momentary solution to the roots of the problem.” So what aspects of the religion/secular divide are still open to debate, and where will those debates take place?

Future Battle Lines

It is worth noting that the crisis that spawned the article itself, together with the instances of violence experienced during the transition, have settled the issue of “takfir.” In over a dozen interviews with activists and politicians, none felt that banning excommunication or accusations of apostasy was “free speech” instead interpreting it as “terrorism” or “threats.” Even Ennahda representatives take this line.

The clause on partisan instrumentalization and political speech in mosques, however, is not as simple. The religious affairs ministry recently sacked more than two dozen imams and closed several mosques for incitement to violence. While Ennahda supported the decision, others were more critical. Ben Ammou, the former justice minister, argued in an interview that the Ministry of Religious Affairs itself is “not a solution.” Those who take a hard line against inciting rhetoric like professor and frequent media commentator Alaya Allani call on the government to “control mosques to stop terrorism.”

How the state will fulfill its mandate as “guardian of religion” is also up for grabs. Historically, former dictator Ben Ali controlled religion stringently, and used the ancient Zeitouna University to disseminate a specific message, largely for foreign consumption. Some indications suggest that the ruling Nidaa Tounes party has similar aspirations, with President Beji Caid Essebsi writing in The Washington Post, of his desire to “return our mosques to their spiritual function and barring entry to foreign preachers.” Only new laws for mosques and religious education will show where the state intends to exercise these powers.

Mechanisms and Fora

These “delayed” or “deferred” decisions on religion and the state, which both secular and Islamist politicians hope to revisit in the future, could play out in a number of venues. First and most obvious is the Tunisian parliament. A coalition government between the big-tent secular Nidaa Tounes and moderate Islamist Ennahda has kept decision-making slow and incremental. Few laws outside of economics and security have passed. The most critical fields, including those regarding religion and the state, have been delayed. Any future movement will likely be hampered by the recent near-collapse of Nidaa Tounes. Conceived as more of a secular front than a coherent party, a revolt by more than 30 parliamentarians has fractured the organization entirely. Ongoing unrest and economic insecurity threaten to strain the governing parties even more.

The constitutional issues may end up in the Constitutional Court, the members of which have not yet been nominated. Even if the parliament can pass laws dealing with the tricky issues of state and religion, no constitutional court is yet in place to review and interpret the exact meaning of these laws. The constitution leaves open many questions about the actual operation of the constitutional court, meaning its early work is likely to be delayed and controversial.

Finally, the mechanism by which consensus was reached on the original constitutional articles is no longer available. The National Dialogue, which won the Nobel Prize for its efforts during the transition, was effectively disbanded in an effort to move the country into more conventional and institutionalized political practices. Politicians are, for better or worse, on their own to decide how secularism and religion will operate in the new Tunisian republic.

The Future of Constitutionalism

The unfinished nature of the constitutional process, the belief held by both nominally “secular” and nominally “Islamist” forces within the country that they can “do better” is both heartening and disturbing. Playing a long game is a hallmark of democracy and as discussed in other essays in this symposium it militates against the “one man, one vote, one time” trope that has plagued Islamists. On the other hand, Constitutions are engineered to be long-lasting and hard to change. The deep desire to change a constitution so soon after its adoption and in ways that will fundamentally shape the relationship between religion and state could be destabilizing. For scholars however, the long constitutional process sheds light on the ways in which religion and politics interplay in a consolidating democracy. What becomes “normal politics” in Tunisia will help decide what constitutes a “secular” or “Islamist” claim, reminding us that these too-often used terms are malleable analytic categories in many contexts.

Ian M. Hartshorn is an assistant professor of political science at the University of Nevada, Reno.


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