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)
|
Shari`ah:
|
|
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:
|
|
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).
|
Military:
|
|
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.
|
Judiciary:
|
|
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.
|
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* 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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