The fierce debate currently raging in Tunisia about those who openly do not fast during Ramadan reveals that the countryʹs constitution, which may have been drafted in accordance with the "political consensus" does not really reflect any "social consensus". The text guarantees freedom of conscience, but the nature of the guarantee has been left open and is full of contradictions.

While protecting many individual rights, the constitution – which was passed in 2014 – includes other aspects which contradict them in practice. For example, it guarantees "freedom of conscience", whilst also offering to preserve "all things holy" and to protect them from harm.

On Sunday 27 May 2018, Tunisians organised a demonstration in the capital that responded to calls on social networks asking people who werenʹt fasting to defend their right to eat and drink in public during Ramadan. This was in direct response to the archaic edict that the Interior Ministry has this year dusted off and re-implemented, which requires cafes and restaurants to close and penalises those who advocate ignoring the fast in public.

The debate over eating and drinking in public during Ramadan has seen little change since the December 17 uprising, which overthrew Ben Aliʹs dictatorship. It reveals how far Tunisians still have to go to achieve an appropriate balance between individual liberties – as adopted in the new constitution – and the requirements of the public domain, in a country in which conservative forces still exert extensive influence, both politically and socially.

Tunisians are divided into two camps. There are those who call for the phenomenon to be confronted, who claim that eating in public during Ramadan is a provocation. They expect the law against non-fasters to be enforced, arguing that Ramadan "is a time for worship and for observing the ritual of the fast". Then there is the second camp, made up of those who expect the state to protect individual freedoms and to guarantee their rights to practice their beliefs. Both sides cite the same chapters of the constitution to justify their positions!

Loosely formulated laws

This split appears to be an honest reflection of the loose formulations that characterise Tunisian law. The debate has been intensified by the Constitutional Courtʹs lack of focus, with jurists ever hopeful that it will dismantle the legacy of laws, which they call "mediaeval" and contrary to the spirit of the new constitution.

Article 6 of the 2014 Constitution declares that "The State is a custodian of religion, a guarantor of freedom of belief and conscience and of the exercise of religious rites and a guarantor of the neutrality of mosques and places of worship against partisan recruitment. The State is committed to promoting the values of moderation and tolerance and to preserving all things holy and protecting them, as it is committed to preventing calls for takfīr and protecting against incitement to hatred, violence and accusations of apostasy."

Non-fasting demonstrators in Tunis protest the daytime closure of cafes and restaurants during Ramadan, 27.05.2018 (photo: Ismail Dbara) — "Freedom of belief" versus "the preservation of all things holy": Tunisia does not have any explicit provisions that criminalise eating and drinking in public in Ramadan. That said, the authorities go to considerable lengths to punish those who do not fast by charging them with "violating public morality". This happened to a number of young people last year and resulted in broad condemnation by legal practitioners

Article 49 stipulates that "the law shall determine the regulations relating to the rights and freedoms guaranteed by the Constitution and shall exercise them in a way that does not compromise them. Such controls shall be established only to meet the needs of a democratic civil state and to protect the rights of others, as well as to safeguard public order, national defence, public health and public morals, whilst respecting the proportionality of such controls and their obligations. The judiciary shall protect the rights and freedoms from any violation".In its proceedings against the owners of cafes and restaurants, the Ministry of the Interior has based its actions on what is known as Mazaliʹs edict, after Habib Bourguibaʹs minister of the Interior, Mohamed Mazali, who issued it in 1981. Accordingly, most cafes and restaurants in Tunisia are closed during the day in Ramadan, with the exception of a number which are mostly categorised as "tourist" venues. The latter obtain a licence and cover their windows with newspaper, so that no-one can see in.

The Tunisian Ministry of the Interior published another edict in Ramadan 2018 to the effect that these cafes, which are allowed to open in the hours of daylight during the month of fasting, should only serve non-Muslim foreign tourists.

Charging those who ignore the fast in public with "violating public morality"

Amid this "legal turmoil", it should be emphasised that Tunisia does not have any explicit provisions that criminalise eating and drinking in public in Ramadan. That said, the authorities go to considerable lengths to punish those who do not fast by charging them with "violating public morality". This happened to a number of young people last year and resulted in broad condemnation by legal practitioners.

There have been unprecedented violations of individual and public rights since Lotfi Brahem became Interior Minister. When he was asked by MPs about these measures that curtail citizensʹ freedoms, the minister replied that "allowing the opening of cafes during the day in Ramadan can be an excuse for extremist groups to foment trouble against the state and to commit terrorist acts, especially given that we usually see a rise in the level of threats from takfiri organisations during this month.”

Brahem pointed out that his ministry "seeks to balance its responsibility to maintain public order and its duty to protect freedoms of belief and conscience and the exercise of religious rites. Its aim is to ensure respect for the religious feelings of citizens who observe the tenet of fasting, whilst at the same time safeguarding the right of others to exercise their individual freedoms, as guaranteed by law."

The minister offered additional arguments when he told a parliamentary hearing that the minority should respect the majority who do fast in Tunisia. This prompted many to accuse the minister of "dividing Tunisians" and "courting the Islamic Renaissance Movement” (al-Nahdha) because of his political ambitions for 2019.

Indeed, this argument clearly demonstrates that the Tunisian constitution, written to take into account the "political consensus", does not really reflect a "social consensus". In the sixth chapter, the text specifically affirmed freedom of conscience, but it did so in a way that is open to contradictory interpretations. The authors of the constitution committed the state to protect many rights, but then they tied them with practical contradictions, such as guaranteeing "freedom of belief" on the one hand and working to preserve “all things holy” and to protect them from harm, on the other. This would appear to be an invalidation of that right, both in content and meaning, since, in the eyes of many, changing religion or lack of religious observance, might in itself be considered deserving of punishment!

Non-fasting demonstrators in Tunis protest the daytime closure of cafes and restaurants during Ramadan, 27.05.2018 (photo: Ismail Dbara) — Article 49: "the law shall determine the regulations relating to the rights and freedoms guaranteed by the Constitution and shall exercise them in a way that does not compromise them. Such controls shall be established only to meet the needs of a democratic civil state and to protect the rights of others, as well as to safeguard public order, national defence, public health and public morals, whilst respecting the proportionality of such controls and their obligations. The judiciary shall protect the rights and freedoms from any violation"

In the chapters relating to public and personal freedoms, the Tunisian constitution, when it touches on issues of religion, is the result of a consensus between two powerful parties (Islamists and secularists), with each faction endeavouring to impose its own intellectual and philosophical baggage. This was one huge error. Constitutions are an expression of the consciousness and culture of the society and its aspirations, at a point in time. Either it canʹt be improved upon and is perfectly expressed, or it is a consensus document and utterly contrived.

If a consensus really had existed, legislators would not have had any difficulty in formulating the text. If, on the other hand, a consensus was effectively lacking, as it is in the wider Arab-Muslim world, it would be impossible to bridge the gap between the opposing camps by dropping a clause that is either redundant, or which blows away the laws that were intended to enshrine the chapters of the Constitution and not contradict it.

For all this, Tunisians regularly find themselves caught up in similar debates. Maybe itʹs a first step in an ongoing intellectual, political and collective process that will someday lead to a fundamental settlement of the profound issues raised by the struggle for freedom.

Ismail Dibara

© Qantara.de 2018

Translated from the Arabic by Chris Somes-Charlton

Ismail Dibara is a journalist and member of the governing body of the Tunis Centre for Press Freedom.

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