Less is more: Constitution building in Tunisia

(photo: JJ Emru)

Over the weekend, almost four million Tunisians came out to elect members to the Constituent Assembly that will create Tunisia’s new constitution. There is already plenty riding on these elections. As the first free elections in Tunisia’s history, they should go a long way in reassuring Tunisians that their transformation is really moving forward, even if it has been messy and troubling at times.

Just the fact that elections happened at all is inspiration for many countries in the region. They provide a practical model for Libya and Egypt. They up the ante for leaders in Jordan and Morocco, who have launched tentative reforms, but many so far only on paper. And in places where real change seems far on the horizon, these elections may give hope to activists that their struggles will achieve the freedom they seek.

Even more now rides on the future constitution itself. All Tunisians, including the country’s diverse private sector, must be involved in the process. It is a one-shot, historic opportunity to pave the way for freedom, growth and prosperity.

Simple is best with documents that determine the course of nations. The art of developing a good constitution lies in the details, and in keeping most of them out of it. Good constitutions are broad enough to have lasting relevance, and flexible enough for the future. They should enshrine the basic principles, relationships and structures that will underpin all laws and institutions to follow.

The specifics should be left for later, for policymaking processes designed to adapt relatively quickly to the will of the people and their changing needs. Otherwise, a country will have to address its political questions through a continual process of national referendums. This is inefficient and costly to say the least, and likely to cause civic fatigue among even the most ardent citizens.

To be lasting and useful, the Tunisian constitution should define openings and avenues for all citizens. What is should not do is guarantee outcomes – constitutions that have, for example, promised every citizen a job, have rarely held up very well. Tunisians who own businesses will want to look for many of the same constitutional principles as everybody else. With an eye towards the future, the private sector should ensure the new constitution provides a framework that allows all citizens to have a voice in lawmaking, exercise their rights, build their businesses, hold decision-makers accountable and have access to impartial adjudication of disputes.

That means they should be looking at, among other aspects: the policymaking process, who can initiate the process and who has input when; the independence of the judiciary to decide cases and sanction wrongdoers; the balance of powers between the executive and the legislative branches; citizens’ freedoms and rights; and particularly the right to own and dispose of property.

Laws can be changed over time, and there will be many opportunities to advocate for their improvement if they do not come out right the first time. The constitution, on the other hand, is for forever – ideally anyway. Business associations should join forces with other civil society groups to gather and channel the input of citizens, monitor the Constituent Assembly’s activities, and provide support and information that will lead to a constitution that works.

One Response to Less is more: Constitution building in Tunisia

  1. Martin Friedl

    Great Post. 100% agree that more is less when it comes to the process of drafting constitutions. Take the US Constitution, one if not the oldest Constitution in use in the world. Sure, the US has been able to keep its Constitution because it has the mechanism of amendments, which other constitutions lack. One only needs to look to South America to lean the way NOT to go in the process of drafting a constitution. For example, both new constitutions of Bolivia and Ecuador guarantee a massive amount of outcomes such as: well being, happiness, quality education and health care, and all sorts of other things. Obviously, developing countries will not be able to meet all these demands (probably no country in the world would be). In addition both of these constitutions include a number of contradictions and competing demands. The result is therefore a lot of discretionarily for the executive. Presidents are now armed with constitutions that allow them to justify whatever action they want to take as opposed to serve as instruments/institutions that set basic principles for a democratic state, such as freedom of speech, separation of powers, etc.