Virtues of a Constitution Written from Behind the Veil of Ignorance

by Ahmed E. Souaiaia*

Tunisian governing partners are engaged in a sterile debate over the form of government for the post authoritarian regime era. During its ninth congress, Ennahda threw its support behind a parliamentary system whereas leaders of other political parties prefer a modified presidential model. Subsequently, the interim government threatened to hold a public referendum to settle this matter. While this issue might be significant, it is not crucial. Tunisia’s political leaders seem to take lightly their responsibility to lay down a solid foundation for a governing model that will inspire the rest of the Arab world given Tunisia’s historic place as the precursor to the Arab Awakening.

Given that many of Tunisia’s new leaders are former political prisoners and/or exiles, they ought to be asking instead about institutional and constitutional structures that could have prevented the old regime from torturing political prisoners, arbitrarily arresting activists, and forcing some of the brightest talents into exile. They should be asking which governing institutions are necessary to protect citizens’ dignity, guard against authoritarianism and tyranny, eradicate corruption, and exterminate the disease of perpetual single man (and/or single party) rule. After all, victims of tyranny don’t care if abuse takes place under a president, a prime minister, a king, or a sultan. They care that it does not happen in the first place.

True, a presidential system may have some virtues over a parliamentary system and vice versa. But neither will guarantee virtuous governance. The limitations of the two systems are obvious even in Western democracies. Even in emerging Islamic models, we can see that the problems persist. In Turkey, a country whose model Ennahda would like to emulate, the so-called Islamist rulers are tinkering with the constitution in order to shore up the presidency so that their ambitious politician, Recep Tayyip Erdoğan, can take over in that post once his last term as prime minister expires. In Iran, the religious leader there hinted to modifying the constitution to eliminate the post of the president to avoid the crisis of the 2009 disputed presidential elections.

Tunisians, as pioneers of civil, non-violent social change in the modern Arab world, ought to think beyond the confines of forms of governance. They ought to think in terms of institutions and constitutional guarantees that would allow them to overcome the limitations of the western models. Tunisians enjoy the advantage of hindsight to learn from the experiences of other democracies. Therefore, they ought to build a system free of the shortcomings of existing political systems. They can start by asking the right questions and providing answers from behind the veil of ignorance. That is to imagine themselves as political prisoners, poor farmers, innovative artists, innovative scientists and artists, honest entrepreneurs, hardworking laborers, aspiring students, or struggling unemployed or underemployed citizens and then ask the question, what institutions they should put in place to protect the rights and dignity the most vulnerable citizens.

Drafting the constitution from behind the veil of ignorance will help establish a just government; a constitution that enshrines responsive governance and protects civil society institutions.  Minimally, such a constitution must enshrine the separation of governing powers, protect the press as the fourth branch of government and guarantee it access to public records, impose term limits on all elected officials, and provide strict guidelines for receiving and disclosing campaign financing money. The new constitution should protect the rights of the poor before the rich, shield the aggrieved against the oppressors, defend the weak before the powerful, care for sick and the elders, remedy victims of government abuse, champion human dignity, and secure the lives and property of all citizens.

The drafters of the new constitution should focus on innovation not imitation. Indeed, many western democracies struggle with defects in outdated constitutions, corrupted partisan systems, entrenched special interest groups, and out of reach cost for political participation. The drafters of the new Tunisian constitution should avoid those pitfalls to produce a constitution that matches the sacrifices and aspirations of all Tunisians.

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* Prof. SOUAIAIA teaches at the University of Iowa. Opinions expressed herein are the author’s, speaking as a citizen on matters of public interest; not speaking for the university or any other organization with which he is affiliated.