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Home > fundamentalism / shrinking secular space > Role of Islamic Law in Tunisian Constitution Provokes Debate

Role of Islamic Law in Tunisian Constitution Provokes Debate

Thursday 13 February 2014, by siawi3


22 March 2012 6:32 pm

Asma Ghribi

Tunisia’s National Constituent Assembly (NCA) has begun the process of drafting the country’s new constitution, and consequently different political movements have lobbied tirelessly to influence the composition of the new constitution.
Inevitably, the question of how Tunisia’s Arab Muslim identity should be expressed has been central to the debate surrounding the formation of the country’s new constitution.

Adel Almi is the president and founder of the Moderate Association for Awareness and Reform, a civil society organization that advocates for the implementation of Islamic law.
Almi was among the organizers of a demonstration held last Friday in front of the NCA, during which a number of associations and thousands of demonstrators gathered together to urge the members of the NCA to use shariaa – Islamic law – as the fundamental source of legislation for Tunisia’s constitution.
“This is not a new demand…This is an extension of our ancestors’ struggle against the attempts of former Tunisian presidents Bourguiba and Ben Ali to erase the Tunisian Islamic identity,†Almi declared.
Almi asserted that founding a new, purely Islamic state goes hand in hand with Tunisia’s civil character. Almi said that Tunisia will be a pioneer in establishing a civil Islamic state, abiding by teachings of the Quran instead of “Western†laws. Almi argued that Tunisian laws that contradict Islamic teachings should be amended so as to conform to standards suitable of a “Muslim country†and “Muslim people.â€

Among those Tunisian laws that conflict with some interpretations of shariaa, are those that allow individuals who adopt a child, or single mothers, to give it their surname. This practice is considered haram -meaning forbidden in Arabic – as it may result in jumbled origins and even in incestuous relationships.
Tunisian law also punishes men who marry more than one wife. According to Almi, this law challenges the teachings of Allah and the Prophet Mohamed, as Islam allows for men to engage in polygamy.

Additionally, Almi has proposed legislation that would criminalize eating in public during the Islamic, holy month of Ramadan – during which Muslims are supposed to fast from sunrise to sunset – and drinking alcohol.
However, Almi’s plan is not only limited to Tunisian domestic law. Almi suggested that international treaties that contradict Islamic teachings should be disregarded. “We don’t need these treaties…protecting human rights is a part of Islam…We should withdraw from these international treaties that advocate gay rights, which I’d rather call animal rights,†he stated.

Photo: A sign that reads “No for Implying Al Chariaa in the constitution” during last Tuesday demonstration on Habib Bourguiba Avenue

However, convictions such as these have raised concerns that the implementation of some interpretations of shariaa could compromise civic integrity of the nation’s future constitution.
On March 20th, thousands of Tunisians flooded Avenue Habib Bourguiba, the main thoroughfare running through downtown Tunis. The protesters celebrated Tunisia’s Independence Day, and expressed their commitment to the civil character of the Tunisian republic. Some of the demonstrators brandished signs, asserting that Tunisia is a Muslim country without needing to resort the implementation of shariaa within the constitution.

Abd Sattar Ben Moussa, president of Tunisian League of Human Rights, described attempts to use shariaa law as a source of legislation as, “a nightmare.â€
“We are part of an international community. We cannot live in an ivory tower and forget about universal values,†he argued, highlighting the importance of international treaties in protecting domestic civil rights.
Mustapha Ben Jaafar, the former secretary general of the center-left

Ettakatol party and current president of the NCA, announced in an televised interview last Sunday that there is no way for including shariaa in the text of the Tunisian constitution.
“Shariaa is open to several interpretations, because it is not a Quran - agreed upon by the different Islamic interpretations and groups. Referring to it [shariaa] in the constitution may cause a deep rift within the Tunisian society, and spur unwanted social discord,†he added.
Ben Jaafar stated that though shariaa law was never explicitly mentioned in the previous Tunisian constitution, Tunisia succeeded in remaining a moderate Muslim society, open to universal values. “In our land, Islam is not jeopardized,†he added.
“This new constitution will be the constitution of Tunisia and not the constitution of Ettakatol, Ennahda, or CPR [the parties that constitute Tunisia’s ruling, tripartite coalition],†he concluded.

While some chose to protest and celebrate in the street on March 20th, others opted to attend a conference held by a number of Islamic civil society organizations to discuss the role shariaa law in Tunisia’s new constitution. NCA members affiliated with Ennahda, Tunisia’s moderate Islamist movement and the dominant party in the country’s ruling coalition, participated in the debate.

Oussama Ben Amor Sghaier, an NCA member representing Ennahda, stated that there are different opinions within his party, ranging from using shariaa to define the constitution to using it as one source of legislation – among others. Nevertheless, Sghaier asserted Ennahda’s commitment to a civil state. “Islam only recognizes a civil state,†he added.

Some Tunisians consider the mere existence of this debate as futile and redundant. Tunisia’s first constitution, founded in 1959, explicitly states in its first article that Tunisia is a free, sovereign, and independent state, whose religion is Islam, language is Arabic, and regime is republic. This reference to Islam as the religion of the state serves as evidence for some that the country’s constitution has always been founded on the basis of shariaa.

Abd Fatteh Mourou, a Tunisian Islamist politician and head of an independent list that didn’t win any seats during last October‘s elections, conveyed that having this debate in Tunisia now is premature. Mourou also stated that this issue cannot be settled through a vote, and stressed the need for a national debate to decide on such a delicate controversy.
“Whether to use shariaa should be determined by national dialogue and consensus, not by the vote of the majority. The majority is not eternal and things can drastically change overnight,†he said.
For Mourou, the first article of the Tunisian constitution is sufficient to protect the Arab-Muslim identity. He also stressed that the leading party should not take advantage of its electoral hegemony to try to pass an ill-timed social initiative. “We have other priorities and other freedoms that need to be protected by the new constitution,†he asserted.