Virtually every constitution in the world today, irrespective of its inspirations, includes references to the issue of religion. However, the approach to religion differs from one constitution to another.
Regarding the Tunisian constitutional experience, the enshrinement of freedom of belief and, subsequently, non-discrimination among citizens on this basis, has roots extending to the 1861 Constitution. The latter stipulated that every one of the kingdom’s subjects, irrespective of his religion, has the right to security for himself, his honor, and his property. As for the Constitution of June 1, 1959, it enshrined freedom of belief and the freedom to practice religious rites so long as they do not breach public order. At the same time, Article 1 made Islam one of the cornerstones of the Tunisian identity.
The question of identity was not among the demands that sparked the popular uprising in Tunisia. During the drafting of the 2014 Constitution, however, identity became the main issue stalling the National Constituent Assembly (NCA). It provoked much contention among the various intellectual and political currents represented in and even outside the NCA.
Regarding the provisions that the 2014 Constitution eventually contained, the NCA enshrined the principle of religious freedom in line with the various liberal constitutions. However, this did not prevent it from assigning Islam a privileged status.
Religious Freedom: A Broad Definition and Restrictions
Unlike Article 5 of the 1959 Constitution, which merely stipulated that freedom of belief is guaranteed and that the freedom to practice religious rituals is protected unless they breach public order, Article 6 of the new Constitution took a broad approach by enshrining freedom of conscience alongside freedom of belief. In a ruling issued recently, the Court of First Instance in El Kef cited the freedom of conscience enshrined in Article 6 of the Constitution to dismiss a case aimed at revoking child custody from a mother who had married a non-Muslim foreigner. This ruling runs contrary to numerous decisions in which Tunisia’s Court of Cassation has persistently refused to endorse foreign rulings granting custody to a foreign mother living abroad by arguing that public order dictates that the child of a Tunisian Muslim father live with him in a Muslim environment to ensure that this child does not become disconnected from its religion. In an innovative and bold approach, the aforementioned Court of First Instance deemed that the freedom of conscience enshrined in the Constitution guarantees the freedom to choose one’s religious convictions and conflicts with directing a child toward one particular religion.
It is perhaps important to mention the situation that led to the incorporation of the state’s obligation to ban and counteract excommunication [takfir] and incitement to hatred and violence into Article 6 of the Constitution. A heated argument arose between two representatives in the NCA when one accused the other of being anti-Islam. Consequently, the opposition representatives imposed a revision of Article 6 banning takfir.
Besides the Constitution’s stipulation (Article 49) that displaying religiosity or faith may be subjected to legislative constraints, we can deduce another restriction on religious freedom from Article 6 itself, specifically from the state’s obligation to protect the sacred and prevent violation thereof. Note that the willingness of the religious faction inside the NCA to include freedom of conscience in Article 6 was contingent on the secular faction’s agreement to include the state’s aforementioned obligation. This article was applied to an urgent affairs case that the Imams’ Union filed to remove two exercises from an Arabic schoolbook that used Quranic verses to practice inflection. The court cited Article 6 of the Constitution to accept the request. The ruling stated,
Whereas the exercises … used some Quranic verses for the purpose of inflecting some Quranic expressions using the dual and plural forms; Whereas completing the aforementioned exercises will doubtlessly and necessarily involve distorting these Quranic verses, even if they are being used for educational purposes and the intent does not appear to be to distort the Quran by changing its wording; Whereas Article 6 of the Constitution requires that the state be the guardian of religion and protect the sacred and prevent violation thereof; Whereas even if the language book did not quote certain Quranic verses to ridicule, scorn, or distort their meanings, completing the exercises included therein and the subsequent alteration of wording constitutes a use of the Quran beyond the purpose for which God revealed it and, therefore, a distortion of it and an infringement on it as a sacred [text].
Assigning Islam a Privileged Status
The privileged status that the NCA recognized for Islam appears, in particular, in the requirement that presidential candidates be Muslims and in Article 1’s stipulation that the Tunisian state’s religion is Islam.
1. Islam: A Condition for Presidential Candidacy
Article 74 of the 2014 Constitution stipulates that running for presidency is a right for every male or female voter who has been a Tunisian citizen since birth and whose religion is Islam. The religious condition is rooted in Islamic jurisprudence, which requires that the ruler of Muslims [wali amr al-Muslimin] share their religion. Note that while Article 74 adopted one of the conditions of leadership [wilayat al-amr] in Islam, it discarded another, namely that the leader be male. Moreover, the article’s gender-inclusive phrasing – phrasing found in only some of the Constitution’s articles – can only be read as a firm rejection of the gender condition.
The requirement that presidential candidates be Muslims could be considered superfluous because in a society consisting mainly of Muslims, voters will most likely not choose a candidate who does not share the same creed. In this regard, jurist Pierre Rondot says,
In a country whose population is mainly Muslim, the stipulation that the president be Muslim is, in practice, absolutely superfluous because the interplay of political and sentimental forces will inevitably lead to the same result. However, such a provision is found to be necessary because it attests to the superiority of the Muslim community and constitutes a principled homage to Islam.
2. Interpreting “Tunisia is a State … Whose Religion is Islam”
The phrase “whose religion is Islam” is open to two contrasting readings. The first accepts the phrase’s fixed legal value, while the second restricts it to the symbolic dimension. Jurisprudential stances and perspectives on its semantics and legal implications have varied.
The first current deems that the concept that Islam is the state’s religion necessitates that positive laws do not contradict Islamic law. While some interpretations [belonging to this current] are more flexible, they continue to posit that the phrase must have some practical dimension, demanding that Islam be one of several sources from which legislators derive objective laws. A second jurisprudential current argues that the aforementioned phrase lacks any legal weight as it neither commands nor prohibits anything. It is merely a description of the social reality that most Tunisians are Muslims. In other words, it merely expresses the cultural and sociological character of the Tunisian people.
The ambiguous phrasing that spawned these conflicting jurisprudential interpretations originally appeared in Article 1 of Tunisia’s 1959 Constitution. During the drafting of the new Constitution, the sharp division in visions and stances on Islam’s status therein was only overcome via a compromise dictating that the article’s phrasing in the previous Constitution be preserved verbatim. Consequently, the existing debate was not settled.
Pending the Constitutional Court’s intervention, we can provide our own opinion on Article 1’s interpretation by stating that numerous arguments give preponderance to the reading that restricts the phrase’s meaning to its symbolic dimension.
A. The Argument Based on the 2014 Constitution’s Inclusion of the Concept of the Civil State:
The concept of the civil state is one of the main additions that distinguish the new Constitution. Although the civil state may not be a secular state based on separation of religion and state and of religious norm and legal norm, deriving positive law from religious provisions remains just one option for legislators, and it can by no means be said that the positive legal system must conform with a higher system, namely Islamic law. In this regard, note that when the Temporary Body for Monitoring the Constitutionality of Draft Laws examined a challenge alleging that Article 54 of the Banks and Financial Institutions Bill infringes on the state’s civil character by enshrining Islamic banking, it stated that “the Constitution’s provisions are based on the principle of harmony. This negates any contradiction between the Constitution’s first and second articles because the stipulation that Tunisia is a state whose religion is Islam does not necessarily mean that Tunisia is not a civil state”. The body held that “even though the practice is derived from Sharia law, legally enshrining Islamic banking does not undermine the state’s civil character because there is no contradiction between the two issues so long as the matter concerns a banking product subject to special principles, whether their source be positive or otherwise”.
The aforementioned body also adopts the perspective that the state’s civil character does not conflict with the legislators’ incorporation of principles derived from Sharia law into the positive legal system. The same ruling states,
Whereas adopting Sharia principles in the manner argued by the challengers under this specific, restricted framework does not pave the way for a religious state as the matter is governed and ordained by positive texts that set their conditions. And whereas Islamic banking processes do not conflict or run counter to the state’s civil character as long as they are incorporated into the legal system for banks and public institutions and have become an integral part of the system of positive law.
B. Arguments Based on the Absence of Certain Stipulations From the 2014 Constitution’s Final Version:
Perhaps what kindled the concerns of those opposed to mentioning Sharia law in the Constitution was that one of the draft constitutions – a draft ascribed to the Ennahda Party – included an article stipulating that Sharia law is the main basis of legislation. However, the debate on the issue was settled when Ennahda decided not to insist on including Sharia law in the Constitution. According to some of the party’s leaders, the decision stemmed from a desire to avoid dividing the community.
Additionally, in the final formulation of the 2014 Constitution, the NCA retreated from the phrasing pertaining to controversial prohibitions on amendment. The Constitution’s fourth draft, dated June 1, 2013, included an article defining a list of clauses that cannot be amended, including the stipulation that Islam is the state’s religion. While Ennahda’s representatives initially insisted on retaining the disputed article, believing that they could not make any more concessions, an agreement to omit it was reached in the final stages of the drafting process.
Also absent from the 2014 Constitution’s final text was the phrase “based on Islam’s constants [thawabit]”. The phrase had worried a number of the representatives in the NCA because of the obscurity of the concept of Islam’s “constants”, a broad interpretation of which could allow all texts of a religious nature a role in the Constitution’s interpretation. After an extensive debate, the majority decided to replace the expression with another, less ambiguous one – “expressing our people’s commitment to Islam’s teachings” – that reflects the Tunisian people’s Islamic identity without threatening the independence of the positive legal system.
Keywords: Tunisia, religious freedom, Islamica law
 Court of First Instance in El Kef, personal ruling on case no. 44801 dated December 12, 2017, available on www.pointjuridique.com.
 Court of First Instance in Tunis, urgent affairs ruling on case no. 76087/2017 dated April 3, 2017, unpublished.
 Bechir Tekkari, “Makanat al-Shari’a al-Islamiyya fi Dasatir al-Duwal al-‘Arabiyya”, al-Majalla al-Qanuniyya al-Tunisiyya, 1982, p. 27-28.
 M. Charfi, “Influence de la religion dans les pays musulmans”, RCADI, 1987, III, p. 346.
 Abdelfattah Amo, al-Wajiz fi al-Qanun al-Dusturiyy, Markaz al-Dirasat wa-l-Buhuth wa-l-Nashr, Tunis, 1987, p. 142.
 Temporary Body for Monitoring the Constitutionality of Draft Laws decision no. 05/2016, dated July 2, 2016, on the Banks and Financial Institutions Bill, Tunisia’s official gazette, July 15, 2016, is. 58, p. 2508.
 To examine some of the draft constitutions put forward by a number of parties, associations, and personalities, including Ennahda, see “Masar al-Intiqal al-Dimuqratiyy”, al-Majalla al-Qanuniyya al-Tunisiyya, 2012, p. 59-117.
 Monica Marks, “Ayy Uslub I’tamdahu al-Nahda Athna’ ‘Amaliyyat Siyaghat al-Dustur al-Tunisiyy: al-Iqna’, al-Ikrah, aw Taqdim al-Tanazulat?” (published in English as “Convince, Coerce, or Compromise? Ennahda’s Approach to Tunisia’s Constitution”), a study published by Brookings Doha Center, February 10, 2014, p. 18 onward.
Z. Krichen, “Le mouvement ENNAHDHA à l’épreuve du processus constitutionnel: de la Charia à la liberté de conscience”, in La Constitution de la Tunisie. Processus, principes et perspectives, PNUD, 2016, p. 185.
R. Ghannouchi, “Evolution de l’Islam politique durant la transition”, ibid, pp 177-178.
 Article 141 of the draft of June 1, 2013.
 H. Abdelkefi, “La Constitution: évolution d’un texte”, in La Constitution de la Tunisie. Processus, principes et perspectives, PNUD, p.161.