Relationship Between Islam and the State Debated in Drafting Process

Tunisia’s National Constituent Assembly

Article 148′s establishment of Islam as the religion of the state has led some to wonder whether or not the draft constitution safeguards the civil nature of the Tunisian state.

“No amendment to the Constitution may be prejudice to: Islam, being the religion of the state; the Arabic language, being the official language; the republican nature of the regime; the civil capacity of the state…” reads Article 148.

“[It] represents a threat to Tunisia as a civil state,” Amine Mahfoudh, professor of constitutional law at the University of Sousse, said to Tunisia Live in reaction to the concerned article.

Tunisia’s civil state risks turning into a religious one under Article 148, which opens the door for religion to become the reference point for legislation, said Mahfoudh.

For others, this is an improbable scenario.

“Article 148 states already that the civil nature of the state will not be amended,” Hajer Aziz, a National Constituent Assembly member affiliated with the ruling Ennahdha party and a specialist in common law, told Tunisia Live.

“There is no way to implement Sharia [law] as a source of legislation.”

The threat towards the civil state that Mahfoudh perceives is not his only grievance with the controversial article. Its establishment of Islam as the religion of the state contradicts the preamble and Article 1 of the draft constitution, which both refer to Islam as the religion of the country, he added.

Article 1 was forged under a national consensus between all political parties and civil society members when the constitutional drafting process was first under way last year.

“Those who included the last article [Article 148] have broken the national consensus, which is supposed to guarantee the civil nature of Tunisia,” explained Mahfoudh.

Yadh Ben Achour, an expert of public law and Islamic political theory, also attacked the article in an interview recently broadcast on Hannibal TV, pointing out its inconsistency with other parts of the constitution and its incompatibility with the will of the people.