By Monica Marks

The release of Tunisia’s draft constitution on Aug. 8 re-energized an important debate concerning the future of rights and liberties in this post-revolutionary state. The Constituent Assembly, the democratically elected body that drew up the draft, will reconvene in September to begin the process of revising the existing articles into one cohesive Constitution, expected to be finalized and voted on by February 2013. An absolute majority – 109 out of 217 Assembly members – must vote in favor of the document, article by article, before the final draft becomes law. Four articles in particular have elicited varying degrees of criticism: Article 5, which regulates the media; Article 28, which defines the status of women; Article 45, which seeks to determine whether the president should be elected by popular vote or parliamentary vote; and Article 3, which calls for the criminalization of religious offenses, stating that “The state guarantees freedom of religious belief and practice and criminalizes all attacks on that which is sacred.”
 
While every country sets ultimate limits on its citizens’ rights and liberties, Tunisia’s broadly defined efforts to ban criticism of religion in Article 3 are worrisome. The article in its current, murkily worded formulation will likely restrict the range of expression in Tunisia, and may be used as a convenient vehicle for political and social repression.
 
Heated debates have swirled around matters of media freedom and the question of whether Tunisia’s political system will end up favoring a presidential or parliamentary model. Feminist activists have also objected to Article 28, which describes women as men’s “partners” and asserts that “their [men’s and women’s] roles fulfill one another within the family.”
 
Considering the pitched nature of these controversies, however, civil society has remained puzzlingly mute concerning Article 3, which may well present the most problematic portion of the draft Constitution. Although 7,000 women and men marched through downtown Tunis to protest against women’s perceived complementarity in Article 28, no such protests against Article 3 have taken place.
 
Groups that would typically be expected to oppose Article 3, such as the Tunisian League of Human Rights, journalists’ associations, and secularly oriented political parties, have kept silent – likely for fear of losing legitimacy with Tunisian society, which tends to view offenses against Abrahamic faiths in general, and Islam in particular, as unacceptable. Few civil society groups protested this March, for instance, when two Tunisian atheists in the coastal town of Mahdia were sentenced to seven and a half years of prison for publishing documents that derided Islam on the internet. If secular groups had vocally defended such men’s right to insult Islam, they would have likely found themselves trapped in a decidedly unpopular position, arguing that civil liberties take precedence over deeply cherished cultural and religious traditions that render attacks against religion distasteful, if not reprehensible, to most Tunisians.
 
The governing Islamist party Ennahda, which controls 89 out of 217 seats in Tunisia’s Constituent Assembly, proposed Article 3 in June, shortly after an art exhibit in Tunis’ upscale La Marsa district sparked riots. Privately, senior members of Ennahda confide that they were initially reluctant to introduce this law, but felt compelled to do so after a series of “irresponsible,” secularist-driven “provocations” which, they believe, incited public disorder and offended the dominant values of the majority.
 
Ennahda lists a string of such “provocations,” including last summer’s controversial film by Tunisian director Nadia al-Fani originally titled “No God, No Master”; the airing of Marjane Satrapi’s “Persepolis”; and the La Marsa art exhibit in June, which featured an exhibit that many Tunisians deemed offensive to Islam.
 
Blasphemy laws are common throughout much of the Middle East and North Africa, and still exist in countries such as Greece, Poland and Ireland. For many if not most Tunisians, the notion of “free speech” does not include defamation of God or insults to Islam. Nevertheless, certain international free speech campaigners and secular Tunisian activists had hoped that the Constituent Assembly might embrace a more state-neutral path regarding religious expression. Agnes Callamard, Executive Director of the London-based free speech advocacy group Article 19, called the blasphemy law a “missed opportunity” for Tunisians to adopt international standards for freedom of expression.
 
Ennahda’s motivations for introducing Article 3 are diverse. Senior figures within the party, including Human Rights Minister Samir Dilou, have argued that anti-blasphemy laws will protect public order and security. Some party members have referenced the United States’ restrictions on yelling “fire!” in a crowded theater to bolster their claim that democracies often limit expression in the service of public safety.
 
In Tunisia, the argument goes, sensibilities are such that pointed insults against religion may result in dangerous disorder and must be similarly circumscribed. Critics counter that the movement has been unduly soft on security, pandering to Salafists thought responsible for the recent art riots and protests against concerts in cities like Kairouan and Sfax as part of an effort to win their political support.
 
Though Ennahda stresses that their party seeks to “convince, not coerce” Tunisians into leading pious Muslim lives, there remains considerable confusion over the issue of majority versus minority rights. Ennahda members frequently employ a majoritarian line of reasoning, claiming that their views are legitimate because they reflect those of most Tunisians, who – unlike the country’s urbanized and secular elites – feel offended by insults to religion and public morality. Proving this claim is difficult, since reliable polls gauging public opinion on blasphemy do not exist in Tunisia.
 
Moreover, majoritarian reasoning – while particularly convenient for Ennahda, Tunisia’s most popular party – is by no means Islamist-specific. Many Tunisians – Islamists and secularists alike – frequently conflate the word “democracy” with majority rule. The concept of minority rights still strikes many Tunisians as novel and remains poorly understood in the context of a fledgling democracy.
 
Another explanation for Ennahda’s backing of Article 3 has to do with party members’ personal motivations – specifically their desire to see Tunisia permeated with more traditionally pious values. Some party members sincerely believe that it serves the interests of individual citizens. They tend to see the article as a necessary and morally justifiable legal deterrence that will dissuade Tunisians from sinning against God by defaming or insulting religion. Ennahda has pushed for Article 3 to criminalize offenses against all Abrahamic faiths – not just Islam – stressing that Tunisia’s heritage, although predominantly Sunni, also contains Judaic and Christian traditions.
 
Finally, past oppression of religious practice may also be spurring Ennahda to take action. Under the old secularist regime, more conservatively oriented Tunisians faced a host of religious and political pressures. Young men were commonly arrested for reasons as simple as attending dawn prayers, a practice that the Ben Ali regime associated with involvement in the Islamist opposition. Men who grew their beards were frequently harassed by security personnel, and women who wore the hijab were often prohibited from working in public institutions or attending university. Memories of this oppression run deep. Many Ennahda members fear that their newfound ability to practice Islam freely and openly may be curtailed unless they secure maximum legal protections for pious praxis.
 
Despite widespread public support for Article 3, there was reason to believe that the Constituent Assembly could have skirted the matter of blasphemy laws altogether. While Tunisia’s old press and penal codes contain statutes protecting public morality and order, the country lacked legal precedent that specifically criminalized insults against religion. According to Amna Guellali, a senior Tunisia researcher at Human Rights Watch, Article 3 adds “another repressive layer to the arsenal of oppression” that already existed under Tunisia’s penal code. This article goes a step further than the former codes by not only criminalizing religious offenses, but elevating that criminalization to the level of the country’s Constitution, which will shape all future legislation regarding freedom of expression.
 
Ennahda has outlined a clear definition of “criminalization” – suggesting that religious offenses be punished by a two-year term for first-time offenders and a four-year term for repeat offenders. However, precisely what will constitute an “attack on the sacred” remains uncertain. Police officers and local judges could conceivably interpret the article at will, potentially criminalizing everything from curses said in passing to musical performances. If passed in its current form, Article 3 will – at best – pressure artists and writers to self-censor, as has been the case with blasphemy laws in Greece and Poland. At worst, the article will lead to overt government censorship and lengthy jail sentences for artists and other so-called thought criminals, as frequently happens in Pakistan.
 
While negotiations over the following few months will likely smooth out differences of opinion regarding the issues of women’s status and media regulation, it will prove far more difficult for opposition parties and civil society groups to meaningfully challenge Ennahda on the matter of blasphemy law. Though international organizations such as Human Rights Watch and Article 19 have spoken out against the article in question, it will be up to Tunisians themselves – voters and lawmakers – to determine where precisely where Tunisia stands vis-à-vis freedom of religious expression, and whether this article belongs in the Constitution in the first place.
 
Monica Marks is a Rhodes Scholar and doctoral candidate in Middle Eastern studies at St. Antony’s College, Oxford. She is currently conducting field research in Tunisia. This commentary first appeared at Sada, an online journal published by the Carnegie Endowment for International Peace.