The Arab Uprisings and the Constituent Processes in Tunisia and Morocco
The Arab uprisings, known also as the Arab Spring, began when the Tunisian people started an anti-authoritarian revolt against Zine al-Abidine Ben Ali and the corrupted regime he had built (December 2010).
Since then, the main requests of the people, who had been demonstrating on squares and streets for several months, were democracy, social justice, and constitutional reforms. In Morocco, by contrast, reforms had been passed continuously since King Mohamed VI ascended to the throne (1999). Therefore, when the demonstrations began in February 2011, he was able to immediately introduce a constitutional amendment and thus bring peace to the country.The constitution-making moments of these countries seem particularly interesting to the eyes of a European scholar because, in both cases, framers frequently debated on the reliance of the texts they were drafting with global constitutionalism, and asked for the consultative support of the Venice Commission[1553] (although Morocco did not ask for a specific Opinion on the Constitution as Tunisia did). The
Venice Commission broadly recognized the democratizing efforts of framers of both countries, generally underlining how even the unamendable clauses provided in the new Charters were roughly consistent with the European Common Constitutional Heritage. The Commission particularly welcomed the provisions aiming at controlling the “superpower” of one institution—the President of the Republic in Tunisia and the King in Morocco—and the will to introduce stronger means to protect people’s rights. At the same time, however, the Commission highlighted the relevancy judges—particularly constitutional ones—were going to have in the future developments of democracy. The Commission underlined how their interpretations of the unamendable clauses should be as narrow as possible, in order to safeguard the will of the framers as well as the will of the people.
Furthermore, the Venice Commission warned the framers about the procedures for constitutional amendment, particularly focusing on the risk that the compulsory approval of constitutional amendments through a popular referendum could transform an instrument of democracy into a tool to legitimize authoritarian deviations. The Commission urged for measures stating that the King or the President should submit the constitutional amendment to the Assembly before holding the referendum.5.1 A New Tunisia: Which Values Need to Be Protected by Unamendable Clauses?
Having achieved its independence from France in 1956, Tunisia adopted its first Constitution in 1959. This text was formally based on the French model of the 1958 Constitution, even though it strongly empowered the President of the Republic. According to the vision of the main power of the State, the procedures for amending the Constitution gave the President a very important role, providing that
the initiative of revision of the Constitution belongs to the President of the Republic or to one-third at least of the members of the Chamber of Deputies, under reserve that it does not infringe on the Republican form of the State. The President of the Republic can submit the bill of revision of the Constitution to referendum (Article 76).
In the absence of a rule safeguarding some unamendable elements, the whole text was theoretically subject to the President’s will to amend it.
When in 2011 the revolts caused the end of the authoritarian regime of Ben Ali,[1554] a transitional government was established and a new constitution-making process started.
On October 23, 2011, Tunisians elected the 217 members of the Constituent Assembly, assigning the majority (89 seats) to the representatives of the Islam-inspired party Ennahda. The constitution-making process started on February 13, 2012. After a period of bargaining between political forces, and thanks to the mediation of the main labor union and to the strong participation of the civil society, the Constitution was finally approved on January 26, 2014.
As for the provisions on amendability, Article 143 of the Constitution confirmed that the President shares the power of initiative with one-third of the Legislative Assembly and that the amendments initiated by the President shall take precedence. In contrast with the former text, however, the 2014 Constitution provides some clauses on unamendability in Articles 1 and 2. They state that “Tunisia is a free, independent, sovereign State; its religion is Islam, its language is Arabic and its system is republican. This Article might not be amended” (Article 1) and that “Tunisia is a civil State based on citizenship, the will of the people, and the supremacy of law. This Article might not be amended” (Article 2).
Some reflections should be made on the drafting process of these provisions. First, the introduction of an unamendable clause regarding the role of Islam is more than the simple affirmation of a State religion in the Constitution; it shows the significant influence Ennahda has had in the constitution-making process. Furthermore, the content of Article 1 makes difficult for the Constitutional Court to interpret it consistently with (a) the guarantees to the State impartiality as provided in Articles 14 and 15; (b) the principle of civil State affirmed in Article 2; and (c) the provision of Article 146, which states that “the Constitution’s provisions shall be understood and interpreted in harmony, as an indissoluble whole”. Also, the Venice Commission warned Tunisian framers about the risks this unamendable clause may cause to the legal system in the Opinion delivered in 2013 in connection with the constitutional draft.[1555] Although Tunisian authorities informed the Commission of their will to erase this clause from the list of unamendable elements (then provided by Article 141) at the time of the Opinion, the list disappeared from the final version of the Constitution; the unamendable clauses were instead “spread” throughout different articles, but the constitutional role of Islam continued to be unamendable.
Second, an important step forward in the implementation of the protection of human rights has been taken by declaring the unamendability of the content of the catalogue of rights.
According to Article 49the limitation that can be imposed on the exercise of the rights and freedoms guaranteed in this Constitution will be established by law, without compromising their essence. Any such limitation can only be put in place for reasons necessary to a civil and democratic state and with the aim of protecting the rights of others or based on the requirements of public order, national defense, public health or public morals, and provided there is proportionality between these restrictions and the objective sought. Judicial authorities ensure that rights and freedoms are protected from all violations. There can be no amendment to the Constitution that undermines the human rights and freedoms guaranteed in this Constitution.
The content of this provision is very relevant in understanding how the European Common Constitutional Heritage has influenced the new Tunisian legal system. The establishment of core rights the State could not limit or infringe, indeed, is in line with several other European countries. Article 49 contains interesting references to the ECHR, such as the proportionality that must exist between limits and rights and the need for this proportionality in a democratic State. Nevertheless, the aforementioned Opinion of the Venice Commission underlined how such a provision is “a fairly widespread unamendability clause”, warning the Constitutional Court that its interpretation should take into account the debate in Tunisian society.[1556]
Third, Article 75 states that “the Constitution may not be amended to increase the number or the length of presidential terms”. This provision is strictly linked to the history of the country during its authoritarian era, when elections were transformed in a sort of plebiscite and the dictator continued to be among the candidates— oftentimes the favorite—because he was able to amend the Charter in order to extend his ability to run for another mandate. The Venice Commission welcomed this provision, considering it a good tool to help democratic consolidation in a country “whose democratic structures and their cultural foundations have not yet been consolidated”.[1557]
5.2 A Reformist King and the Uprising: The 2011 Moroccan Constitution and Its Unamendable Provisions
After gaining independence from the French Protectorate in 1956, Morocco has always had a monarchic form of government tempered with some forms of constitutionalism.
The Constitution approved after independence (1962) tried to frame the role of the King, but it effectively resulted in an excessive and extremist reference to the 1958 French semi-presidential model, which made the King the cornerstone of the institutional system. The amendment introduced in 1970 further strengthened the control of the Crown over the other powers and upon the people, which survived the approval of the new Charters in 1972[1558] and in 1992,[1559] and the constitutional reform passed in 1996.[1560] On the contrary, the ascendance to the throne of Mohamed VI represented a turning point, as he started new reforms at the legislative level and was ready to confront the population on the introduction of a deep constitutional amendment when the people began demonstrating on February 20, 2011 and the Arab Spring drew Morocco’s interest.In fact, on March 10, 2011, the King appointed a Consultative Commission for Constitutional Reform, comprised of representatives from the whole spectrum of political parties and civil society, which drafted a constitutional amendment that effectively and completely replaced the Constitution—even auditioning political movements and labor unions, academics, and civil society organizations. Thus, the Council of Ministers approved the draft of the Constitution on June 17 before the presence of the King, who, on the same day, announced that the referendum would be held on July 1, 2011. Although some groups tried to boycott the process, such as the 20 February Movement, the population approved the constitutional amendment with a large majority (98.5% of the voters were in favor) and the King finally promulgated it with the royal decree (dahir) n. 1-111-91 of July 29, 2011.
Notwithstanding this constitutional reform, the content of the provisions on unamendability remained unchanged, their main aim being the protection of the monarchy and the role of Islam,[1561] which is also the source of legitimacy of the Crown itself.
Still, the Constitution put the King at the center of the amending process, as he is its main initiator and fundamental actor[1562] (Article 172).Nevertheless, the current Constitution contains an interesting extension of the unamendable elements, which somehow demonstrates the influence of the European Common Constitutional Heritage. Article 174 states that
No revision may infringe the provision relative to the Muslim religion, on the monarchic form of the State, on the democratic choice of the nation or on [those] acquired in matters of [the] fundamental rights inscribed in this Constitution. [emphasis added]
Obviously, a single sentence is not enough to affirm a clear permeation of the European Heritage in Morocco and the opinion of those scholars which still consider it as a hybrid regime[1563] have to be taken into account.[1564] However, a path has been paved for democratizing the country, given that the constitutional provisions, even those on unamendability, include references to the pillars of global constitutionalism. Thus, it will be in the hands of the ordinary legislators to implement such provisions and of judges to interpret them according to the contemporary understanding of constitutionalism.
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