February 8, 2014

How different are the new constitutions of Tunisia and Egypt?

    Saturday, February 08, 2014   No comments

How different are the new constitutions of Tunisia and Egypt?

The two countries transformed first by the Arab Spring now have new constitutions. The two countries are similar in many ways. Yet, the processes of producing their respective constitutions and the substance of each document point to the forces that made these legal documents similar in some areas and different in others. In both cases, it took more than two years to reach this point, underscoring the difficulty the drafters of the two documents have faced.

Notably, the Tunisian constitution was drafted by an elected body (Constitutional Assembly), whereas the current version of the Egyptian constitution was “edited” by an appointed committee after the deposition of the post-revolution (elected) president Mohamed Morsi. The Egyptian constitution, however, was endorsed by Egyptian voters, while the Tunisian constitution was adopted once it was endorsed by the majority of the members of the Constitutional Assembly.

Another distinction is the substantive organization of the two documents. The Egyptian constitution is organized conceptually, dealing with matters of the state, society, economy, culture, rights and responsibilities, rule of law, and then governing institutions. The Tunisian constitution’s organization is rooted in institutional functions. That is, the framers of the constitution first defined the foundational principles (al-mabadi’ al-`ammah) that ought to guide the work of state institutions and the rights and freedoms (al-huquq wa-‘l-hurriyyat) that must be protected and managed by the state.  The Tunisian 39-page document is decided by this conceptualization of the function of governing institutions, while the 64-page document produced by the 50-member constitutional committee is a statement about the critical areas of public interest (muqawwimat al-mujtama`) and then a declaration about the role of power and authority institutions (al-sulutat) in managing these areas.

The organizational difference resulted in different areas of emphasis and state functions. The public interest focus adopted by the framers of the Egyptian constitution led to a strengthened role of the state and a diminished space devoted to civil society institutions. The drafters of the Tunisian constitution seemed more interested in limiting the power of the state and the separation of its branches.

Below, a brief summary of key statements about controversial areas as addressed in the Constitution of Tunisia and the Constitution of Egypt.

Constitution of Tunisia
Constitution of Egypt
System of Governance:

Islamic, Arab, Republic (1 & 2)
Islamic, Arab, Democratic Republic (1)

No explicit statement about Shari`ah.
The principles of the Shari`ah are the main source of legislation (1, 2 & 3).
State and Religion:

State is civil institution; state is the overseer of religious affairs, protector of religious freedom and thought; state ensures that places of worship are not used for partisan purposes. State shall prohibit and prevent takfīr and enticing hate (2 &6).
No explicit mention of the “civil” nature of the state; the state shall fund al-Azhar, which is said to be an independent institution tasked with Islamic religious affairs; Christians and Jews rely on their respective traditions to manage personal status laws and choose their spiritual leaders (2, 3, &7).

Citizenship, which is acquired through birth or affiliation laws and redefined by the legislature; citizenship cannot be revoked.
Anyone born to an Egyptian father or mother is entitled to citizenship (6).
Women rights:

State guarantees the rights of women to equality in all areas, including their being represented in election-based positions (21, 40, & 46).
State guarantees the rights of women to equality in all areas (11).

The President is the Commander in Chief of the armed forces. Members of the armed forces are politically neutral, barred from all partisan and political activities.
The President is the Supreme Commander in Chief of the armed forces. The Defense Minister is the Commander in Chief of the armed forces.
Human dignity

Dignity is protected; torture is prohibited.
Dignity is protected; torture is prohibited.
Branches of Government:

Parliament whose members are elected directly by the people
Parliament whose members are elected directly by the people.
President elected for five years; can run for only one more term (75).
President elected for four years; can run for only one more term (140).
Head of government is from the party or coalition that wins the majority of the seats in the parliament.
The president names the head of government, if the government is not endorsed by the parliament, then the party or coalition that won the majority of the seats in the parliament will name the head of the government; if not endorsed again, the president shall dissolve the parliament.

The judiciary is independent authority; the institution is managed by the Supreme Council on Judicial Affairs, consisting of four committees, which are staffed mostly by elected judges.
The legislature is independent authority; most judges are appointed by the president.
* Prof. SOUAIAIA teaches at the University of Iowa. His most recent book, Anatomy of Dissent in Islamic Societies, provides a historical and theoretical treatment of rebellious movements and ideas since the rise of Islam. Opinions are the author’s, speaking on matters of public interest; not speaking for the university or any other organization with which he is affiliated.


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