Shari’a Rises in Tunisia’s Constitution-Drafting Process

By Patrick Goodenough | March 2, 2012 | 4:44 AM EST

Tunisia’s new constituent assembly meets in Tunis. (Photo: Ennahda party/Flickr)

( – As Tunisian lawmakers wrestle over the drafting of a new constitution, the place of Islamic law is causing contention, but with Islamists dominating the process the new constitution looks set to describe shari’a as “the principal source of legislation.”

Tunisia, the country that launched last year’s political upheavals in many parts of the Arab world, is being closely watched, as observers across the region and in the West ponder the future of the so-called “Arab spring” amid the rise of Islamist parties.

Secretary of State Hillary Clinton has been optimistic about Tunisia, saying during a visit to North Africa last week that she was encouraged by what she saw and heard. Testifying in the U.S. Senate on Tuesday, she described Tunisia as “a country that I think deserves a lot of attention and support from the United States.”

Last October, the Islamist Ennahda (Renaissance) party won a plurality of the seats when Tunisians elected an assembly mandated to draft a new national constitution.

Article One of Tunisia’s current constitution, promulgated in 1959, declares that “Tunisia is a free, independent and sovereign state. Its religion is Islam, its language is Arabic and its type of government is the Republic.”

Ennahda, which holds 89 of the assembly’s 217 seats, wants the new document to go further, and explicitly assert the importance of shari’a.

On Tuesday, a plenary session of the assembly witnessed lively debate over the issue.

Tunisia Live, an independent English-language news service, quoted Ennahda delegate Ali Fares as saying shari’a “must be a principal point of reference in our constitution” and calling for the document to be “responsive to the demands of the revolution.”

But Nadia Chaabane, a member of a small modernist group that advocates for gender equality and separation of religion and politics – and holds five seats – disagreed.

“While we need to be in harmony with our identity, we cannot use the shari’a as a source of legislation because it can disrupt the balance of Tunisian society,” she was quoted as saying. “Even if we did use it – whose version will we follow? Shari’a is so vague and unclear – it needs a lot of interpretation. Moroccan interpretation, for instance, is not the same as Iranian.”

Rabii Abdi of the centrist Congress for the Republic (CPR) – with 29 seats, the second-biggest in the assembly – suggested the constitution make reference to “principles of modernity embodied in documents such as the U.N. Declaration on Human Rights.”

The constitutional drafting process is expected to take about 18 months, a timeframe that would allow its adoption to coincide with presidential elections.

Rachid Ghannouchi, founder and leader of Tunisia’s Islamist Ennahda party. (AP Photo)

Ennahda founder and leader Rachid Ghannouchi, who returned to Tunisia after more than 20 years in exile following the ousting of President Zine El Abidine Ben Ali, indicated late last year that the party would not push for shari’a references in the constitution.

He said in a wire service interview that apart from retaining the wording of Article One from the current constitution, “there will be no other references to religion in the constitution. We want to provide freedom for the whole country.”

Now his party appears to be moving away from that stance.


The draft constitution under consideration says, “Using Islamic shari’a as a principal source of legislation will guarantee freedom, justice, social equality, consultation, human rights and the dignity of all its people, men and women.”

On Thursday Barnabas Fund, a religious freedom charity working mostly with Christian minorities in Islamic countries, challenged that assertion, saying the tenets of shari’a were “incompatible with Western understanding of many of these concepts, as evidenced in other countries, such as Iran, Saudi Arabia and Afghanistan, that are based on Islamic principles.”

Under shari’a, any Muslim who abandons his faith is guilty of “apostasy.” In some Islamic countries, the offense is punishable by death, as is “blasphemy.” Other punishments associated with shari’a include stoning for adultery and limb amputation for theft.

Shari’a provisions also give less legal weight to a woman’s testimony in court than to a man’s. In countries like Saudi Arabia, Iran and Pakistan, for example, a rape victim is required to present four male witnesses to back her claim, failing which she can herself be charged with adultery.

The Obama administration has been cautious in responding to the shari’a question in “Arab spring” countries.

Last October, State Department spokeswoman Victoria Nuland responded to a question about the issue by saying the term shari’a “has a broad application and is understood differently in different places and by different commentators.”

“We’ve seen various Islamic-based democracies wrestle with the issue of establishing rule of law within an appropriate cultural context,” she continued. “But the number one thing is that universal human rights, rights for women, rights for minorities, right to due process, right to transparency be fully respected.”

Clinton visited Tunisia last week, and during a town hall with young Tunisians on Saturday raised both the constitution-drafting process and the question of Islamists in power.

“The job of writing a constitution and governing requires cooperation across society,” she said. “No one person, no one party, has all the answers. Every country is stronger by listening with respect to those with whom we differ. So to write a constitution, the governing party now then will have to work with other parties, including secular parties, and persuade voters across the political spectrum to respect fundamental principles.”

“Now, I know that there are those here in Tunisia and elsewhere who question whether Islamist politics can really be compatible with democracy,” Clinton told her audience. “Well, Tunisia has a chance to answer that question affirmatively, and to demonstrate there is no contradiction. And that means not just talking about tolerance and pluralism, but living it. And it is up to you to hold all political parties to the same values.”

The following day, during a visit to Morocco, Clinton was cautiously optimistic, saying she was “encouraged in many regards by what I’ve seen in Tunisia.”

“Certainly in Tunisia, they are saying all the rights things,” she said in an interview with NPR. “They are saying that they will protect women’s rights, that – they are saying that they will protect human rights. And now we want to see that actually take place.”

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Patrick Goodenough
Patrick Goodenough
Spencer Journalism Fellow