I wouldn’t believe it if I weren’t sitting here in Tunisia’s parliament building. But I just watched the nation’s constituent assembly adopt, 116-40 with 32 abstentions, an amendment to its draft constitution requiring the government to create parity for women in all legislative assemblies in the country, national as well as local. After the vote, the assembly and audience stood up spontaneously and sang the national anthem. There wasn’t a dry eye in the house — including mine.
This historic moment is embedded in another historic moment of still greater scope. For the first time in the history of an Arabic-speaking country, a freely elected assembly is publicly debating and finalizing a constitution without an occupying army, a king or a dictator anywhere. The Arab Spring has either struggled or failed everywhere else, but in Tunisia, a democratic constitutional victory is in view.
The process has been slow and not always steady. A draft text was painstakingly worked out in six committees, then released for comment in June 2013. Then there was a break for political crisis after the assassination of secularist assembly member Muhammad Brahmi. Gradually, politics returned, and a consensus committee — which never stopped meeting through the crisis — has been editing and proposing changes. The provision for gender parity came out of the consensus committee.
Now the full assembly is debating each of 180 propositions in order. The women’s rights provision is No. 45. It would have to be implemented by a later electoral law, and it might be interpreted to require parity in resources, candidates or even election results. It might still be reversed by the assembly, which voted to adopt the amendment but has not yet finally approved the whole provision. There are 135 more provisions to go before the assembly votes on ratification of the whole document, probably before the end of January.
And, as it turns out, public debate can be extraordinarily intense. Before the vote to adopt the parity provision, one woman, an assembly member from the Islamist Ennahda party, railed against the proposal, arguing that positive discrimination on behalf of women violated the constitutional guarantee of equality. The assembly’s presiding member — also an Ennahda woman in a head scarf — insisted that parity served equality rather than contradicted it. When she was challenged for expressing an opinion from the chair, she insisted that she was an elected member of the assembly, too, and entitled to express her opinion.
Ennahda representatives were split in their vote, the first time they had failed to maintain party discipline in favour of the consensus committee’s recommendations. When the vote was over and the national anthem had been sung, yelling broke out in the chamber, with the more extreme Islamists denouncing the result. The presiding member loudly demanded order and eventually got it. A lunch break came as a welcome respite from the heated tempers and raised voices. "This is democracy," one observer from a leading Tunisian transparency group said to me. And how.
Tunisia will continue to face serious problems even when (and if) the constitution is ratified. The system that the assembly negotiated is semi-presidential, meaning that (as in France) the directly elected president will control foreign affairs and national security, while a prime minister elected by the parliament will choose a cabinet and administer domestic affairs. This arrangement creates the risk of constant struggle between a president and a prime minister from different political parties, which would make it hard for democracy to take root. And this situation (the French inimitably call it "cohabitation") is especially likely in Tunisia. Ennahda is likely to win a plurality in parliament but much less likely to win the presidency, if it even chooses to field a candidate.
Yet it is precisely Tunisia’s divided political scene — and its political culture of consensus — that gives constitutional democracy a reasonable chance of success here. With only a plurality in the assembly, the Islamic democrats of Ennahda have had no choice but to compromise. They have governed in coalition, and Thursday Prime Minister Ali Larayedh stepped down in favour of a caretaker government that will supervise next year’s elections. Unlike any other Islamist party in the world, Ennahda has agreed to remove any reference to Sharia law from the constitution. Repeatedly, they have made concessions to an opposition that is primarily by suspicion of their intentions.
Such compromise is the stuff of which successful constitutions are made. A constitution, in its practical essence, is an agreement among political elites endorsed by the public. If the political leaders of a country don’t abide by the agreement after reaching it, the constitution will fall into disuse and disrepute, no matter how good it seems on paper.
The long, slow work of the consensus committee has had the effect of building a measure of trust and mutual confidence in the constitutional pact among the leading political actors. Having worked together, they know what they are agreeing to do later on. They are always negotiating against the backdrop of their expectations of how politics will work later — and that is a good thing, not a bad one. The veil of ignorance has no place in constitutional negotiations, which must reflect the likely political balance after ratification.
The greatest risk is that someone will come to power who is outside the constitutional bargain — and disregard the constitution to which he or she hasn’t been a party. That could still happen in Tunisia after presidential elections, with disastrous consequences for democracy.
And of course the assembly could still reject the gender-parity provision, or indeed the constitution as a whole. Nothing is yet written in stone. But for the moment — the historic moment — there is something profound for lovers of constitutional democracy to celebrate.
— Bloomberg News