Drafting Tunisia’s constitution : tensions between constituent power and constituted power in the transition process.

After a series of votes on each of the 149 articles of the constitution, the Tunisian National Constituent Assembly (ANC) adopted a new constitution on 26 January 2014 which was signed into law by President Mouncef Marzouki the following day. It marked the end of a period of political tension that rocked the country since the summer of 2013, when on 1 June the assembly, dominated by the Islamist Ennahda Movement, presented an Islamo-conservative constitution. This proposal was followed by the assassination of the ANC member and opposition politician Mohamed Brahmi on 26 July and Egypt’s military coup on 3 July 2013. This paper will analyse the tensions surrounding the two and a half year constitution-making process from the two core legal concepts of constituent power and constituted power. Drawing on the theoretical work of Thornhill, I will argue that key to the success of Tunisia in tempering tensions was the role of the judiciary in pre-revolutionary Tunisia as well as the appearance of other extra-judicial actors in the constitution-making process. This was complemented by significant references to international law and rights. During the process of drafting the constitution, the judiciary refrained from attempting to establish its autonomy or supremacy in deciding the correct application of law. Due to this, the elected assembly was charged with the unique task of establishing a legal-rational framework without the constraints imposed by common laws or an autonomous and semi-emancipated judiciary. While it is not possible to assert that this unique situation made the transition to institutionalised liberal-democratic rule possible, this paper will argue that Tunisia’s relative stability was at the very least facilitated by the fact that the judiciary remained in the background, denying antagonistic actors access to this institution in order to express their opposition to developing constitutional rule and practice