Reconstituting Tunisia: Participation,Deliberation,and the Content of Constitution

Abstract

The Tunisian constitutional reform experience in the wake of the Arab Spring—through which citizens were able to meet with their representatives, participate in public deliberation over the constitution, and offer their own proposals for the constitution—offers a unique opportunity to evaluate the debate on the optimal modality of constitutional processes by revisiting both deliberative and representative theories of democracy and their predictions on how the process can improve constitutional outcomes. The statistical analysis of a dataset of more than 2,500 citizen proposals and the content of three constitutional drafts shows that 43 percent of public proposals were included in the final draft of the constitution. The results also demonstrate that public input related to rights and freedoms is more likely to be reflected in the constitution compared to other public proposals. This article suggests that more inclusive processes can lead to more democratic constitutional outcomes, although this impact is contingent upon the incorporation of particular consensus-building institutions.

Keywords

public participation democratic transition theory of democracy constitution-making the Arab Spring Tunisian constitution

Introduction

In January 2014, Tunisia ratified the most progressive constitution in the Arab world, receiving global praise including a Nobel Peace Prize. The constitution itself was the result of months of negotiations and a remarkably inclusive process that included several national dialogues with citizens, the civil society, and different political groups, as well as several constitutional workshops and conferences, and online crowdsourcing for constitutional proposals. Between December 2012 and February 2013, Tunisian citizens received a unique opportunity to meet with the constitution drafters and make constitutional proposals and demands. Throughout this process, more than 2,500 citizen proposals for the constitution were collected.

The Tunisian experience showcases a broader international trend in participatory constitutional reform processes, which emphasizes the importance of citizen participation and deliberation for creating more inclusive and democratic constitutions. Despite the spread of these extensive public consultations, studies showing that such initiatives are successful in translating public input into constitutional provisions are scant (see, for example, Hudson 2018) and remain mostly descriptive. The Tunisian case provides a unique opportunity to empirically evaluate the debate on optimal modality of constitutional processes by studying the extent to which citizen proposals were translated into constitutional provisions and contributed to a more democratic outcome.

Using a mixed-methods research design comprising of statistical analysis of the content of public proposals and constitutional drafts as well as interviews with Tunisian constitution drafters, leaders of different political parties, civil society organizations, and constitutional law experts, this study examines the impact of public input on the content of constitution. The statistical analysis of a dataset of more than two thousand five hundred citizen proposals solicited by the Tunisian National Constituent Assembly (NCA) and the content of the constitution shows that an impressive 43 percent of public proposals were included in the final draft of the constitution. However, the analysis shows that the subject of public proposals matters. More specifically, the results demonstrate that public input related to rights and freedoms is more likely to be reflected in the constitution compared to other public proposals. The analysis also shows that there is a strong and positive relationship between the popularity of a citizen proposal and its likelihood of becoming a constitutional provision, indicating that the content of the Tunisian constitution reflects public concerns. These empirical findings suggest that public deliberation in the Tunisian constitutional process had a significant impact on the constitution. Regardless of the number and political affiliations of participants, public participation and deliberation as an illustrative form of “direct democracy” in constitution-making processes, or what Chambers (2004, 153) labels “the democratization of popular sovereignty,” not only legitimizes the process but also yields more democratic outcomes (Pateman 1970).

This article, however, contends that the effectiveness of public participation in constitution-making is contingent upon a few conditions. Most importantly, to avoid the potentially negative impact of increased number of veto players, anti-gridlock institutions should be deployed. This article suggests that two institutional designs, both utilized in the Tunisian constitutional process, could prevent gridlock and facilitate consensus building in constitutional reform processes. First, if a majority threshold is not achieved, which is very common in transitioning states, a supermajority vote on the constitution is more likely to yield consensus than the more common combination of simple majority vote and public referendum (which was the case in Egypt). Another anti-gridlock institution utilized in Tunisia was the Consensus Commission, an ad hoc constitutional committee representing all political parties and social groups which had the final vote on controversial issues in the NCA. These consensus-building institutions ensured that different societal interests were present in the Tunisian constitutional reform process and were translated into constitutional provisions. Ultimately, a constitutional design that emphasizes inclusiveness and consensus and attempts to engage various interests would be more durable and fairer to all (Brown 2008). The Tunisian constitutional process was, as such, a successful experience as it incorporated various voices but limited the impact of extreme interests and demands, resulting in an inclusive and democratic constitution (Hartshorn 2017).

This article proceeds as follow. After a review of the recent developments in deliberative and representative theories of democracy, a brief discussion of the context of citizen participation and the constitution-making process in Tunisia is presented. The next section formulates the two main hypotheses and discusses the methodology and data collection procedures. The first hypothesis posits that public proposals with higher popularity are more likely to become constitutional provisions, and the second hypothesis suggests that proposals related to certain topics including rights are more likely to become constitutional provisions. Finally, a discussion of the results and their implications for participatory constitutional processes is presented.

Constitution-Making Processes and Content of Constitutions

Much of the established wisdom suggests that public interests are better served when deliberation over political processes and institutions is limited to a select group of highly trained and well-informed representatives.¹ Historically, the debate on political representation has focused on whether representatives should act as independent agents—what Edmund Burke ([1790] 1999) calls trustees—or as delegates of their constituencies. James Madison ([1787] 1961), one of the leading figures in developing the delegate conception of representation, argued in Federalist No. 10 that “the public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves, convened for the purpose.” In her seminal work, Pitkin (1967) departs from these traditional conceptions and identifies four different views of representation.² Much of the debate on political representation during the Cold War was shaped by Pitkin’s emphasis on formal procedures of authorization and accountability, or what she calls formalistic representation (Plotke 1997). The literature on representation has evolved in several directions since the Cold War, and the formalistic conception of representation is no more satisfactory, partly due to several transformations in domestic and international context of political representation. Increasingly interest groups, nongovernmental actors, and international advocacy groups have taken steps in standing, speaking, and acting for “underrepresented” people within a country, which has resulted in innovative ways of conceptualizing representation (Warren and Castiglione 2004).

In the context of constitutional reform processes, formalistic representation implies that a group of representatives, preferably authorized by people via an upstream election and accountable to their constituency via a downstream referendum, should be tasked with constitution making. This emphasis on representative processes with public authorization or accountability is in line with Elster’s (2012) “hourglass” model which prescribes broad upstream and downstream consultation but a deliberation and drafting process that is limited to a select group of drafters. For Elster, if a constituent assembly is legitimate (authorized by popular election) and citizens are allowed to approve the document (and as such hold their representatives accountable), then public consultation during the drafting process is not necessary. In this view if representatives of people are, to use John Adams’ ([1776] 2000) words, “an exact portrait of the people at large” or a mirror-image of the society, the process and the constitution will be legitimate.

Moreover, several studies have warned against the dangers of direct public participation in constitutional processes. “Participatory distortion” can result in self-selected groups with extremist views to dominate the public deliberation domain (Verba, Schlozman, and Brady 1995). Participation in constitutional reform processes can also run the danger of populism and manipulation of the people by interest groups and elites (Ghai 2012). Moreover, participation increases the number of veto players, which can make reaching consensus more difficult (Tsebelis 2002). Despite the potential dangers of popular deliberation and reservations about the effectiveness of participatory processes, public participation has increasingly become important, at least for legitimizing the constitutional process.

A growing body of literature suggests that participation has profound implications for successful constitutions by making constitutions durable (Elkins, Ginsburg, and Melton 2009) and legitimate (Wing 2008) and improving the post-implementation levels of democracy (Eisenstadt, LeVan, and Maboudi 2015). Participation in the form of inclusive, deliberative assemblies can even affect the democratic content of constitutions (Bannon 2007) and yield “smart and morally superior outcomes” (Landemore 2013). Several case studies suggest that participatory processes resulted in the inclusion of various provisions on social and economic justice and corruption in Kenya (Cottrell and Ghai 2007), civil rights such as right of the disabled people in Colombia (Brett and Delgado 2005), and rights of indigenous people in Guatemala (Marulanda 2004). Maboudi and Nadi (2016) also show that crowdsourced public feedback in the 2012 Egyptian constitutional reform process had a significant impact on the text of the constitution. In a recent study of the impact of public participation on the content of the 2011 failed Icelandic constitutional draft, Hudson (2018) finds that almost 10 percent of public proposals generated change in the constitutional text. Both Maboudi and Nadi (2016) and Hudson (2018) find a specific impact of public proposals in the area of rights.

With recent developments in the concept of political representation and the increasing involvement of nontraditional actors as defenders of people’s rights, a large number of states have found it imperative to have inclusive and deliberative assemblies to draft their new constitutions. Of 195 national constitutions adopted since the Third Wave, over 70 percent have incorporated some form of public participation, 20 percent of which utilized extensive public deliberation (Eisenstadt, LeVan, and Maboudi 2017). These inclusive and deliberative processes yielded thousands of public suggestions for their constitutions. The Constitution of Kenya Review Commission (CKRC), for example, received thirty-seven thousand public suggestions for the constitution (Cottrell and Ghai 2007).³ The Brazilian legislature in 1988 collected about sixty-one thousand proposals (Ginsburg, Elkins, and Melton 2009), and the Egyptian Constituent Assembly received more than thirty-five thousand constitutional suggestions in 2012.⁴

Despite the increasing popularity of such extensive public deliberation processes, the empirical evidence on the impact of public participation on the content of constitutions remains either descriptive (e.g., Suteu 2015; Wallis 2016) or limited to online crowdsourcing (Hudson 2018; Maboudi and Nadi 2016). Furthermore, the conditions that might make participation more effective remain understudied. Maboudi and Nadi (2016, 717), for example, suggest that conditions yielding effective participatory constitution-making include consensus among citizens over salient issues and ex ante elite agreement over constitutional design. However, they do not specify how this ex ante elite agreement can be achieved. Given the inefficiencies and potential dangers of participation on one hand, and the often-romanticized conjectures in participatory and deliberative literature on merits of participatory constitution making on the other, the Tunisian case provides a unique opportunity to empirically evaluate the debate on the optimal modality of constitutional processes. The main questions of interest here are: How did public suggestions impact the content of the Tunisian constitution? and How did an inclusive and deliberative process avoid the problems and dangers often associated with such processes?

The Tunisian Constitution-Making Process

In the wake of the Arab Spring and the 2010–2011 revolution in Tunisia that led to the ouster of the authoritarian president, Ben Ali, Tunisia held an election for the NCA on October 23, 2011.⁵ The NCA was responsible for legislative tasks, installing the interim government, and writing a new constitution. The Assembly started the process of drafting the constitution by first electing 131 members assigned to draft the constitution (on February 1, 2012), and then appointing the elected members to six constitutional committees.⁶ Each of the six committees consisted of twenty-two members, and each was responsible for drafting one or more chapters of the constitution.⁷ On August 14, 2012, the NCA published the first constitution draft, and one month later it invited the representatives of the civil society for an open debate and brainstorming on this rough draft. More than three hundred civil society representatives participated in this two-day deliberation (September 14–15). Taking the civil society suggestions into consideration, the constitutional committees revised the constitution and published the second draft on December 14 that year. Immediately after the second draft’s publication, the Ennahda-led majority in the NCA decided to expand Rule 59 of the Assembly’s by-laws, which allowed it to “seek advice,” by opening up the process to the general public.

Ennahda’s decision to pursue public participation, however, was not sudden or random. It was a calculated move, albeit with some unintended consequences for the party. One of the outcomes of the deliberation sessions with the civil society in September 2012 was that several provisions proposed by Ennahda were changed in the December 2012 draft.⁸ Fearing that the majority of civil society organizations have liberal tendencies, Ennahda decided to counterbalance proposals by civil society with the general public opinion which they assumed would be more sympathetic to their ideology. A prominent Ennahda member justified the move to open up the process by arguing that “civil society is not representative of all the people, therefore, for constitutional issues, general public engagement is necessary because the majority of people do not find themselves represented in associations and organizations.”⁹

Initially, the opposition parties were reluctant and skeptical about public inclusion in the writing of the constitution, even accusing Ennahda of populism.¹⁰ Lack of public outreach and insufficient communication and publicization of the national dialogue by political parties and civil society organizations resulted in a low public turnout in the first few sessions. Very soon, however, as the opposition parties became aware that the mobilization of the electorate and solicitation of public comments would directly impact the constitutional process, they began to encourage their supporters to attend these meetings (The Carter Center 2014, 70). This political mobilization yielded higher public participation from supporters of different groups in the later sessions. The opposition parties specifically recognized the merits of public participation for balancing the power of Ennahda, despite their initial skepticism. According to a prominent opposition leader, Ennahda wanted to impose its views on the constitution but as they faced increasing opposition from citizens, they realized they were going to lose their electoral support; hence, they revised their position on several controversial issues.¹¹

The National Dialogue consisted of forty-four meetings in Tunisia and abroad where people could meet with representatives from the six constitutional committees. There were no criteria for participation, but attendants were required to register in advance. Overall, about five thousand people participated, providing more than two thousand five hundred suggestions for the constitution. Of the forty-four meetings, twenty six were held in Tunisia (twenty-four meetings in twenty-four governorates and two regional symposia with Tunisian students in Tunis and Sfax) and eighteen were held in different parts of Italy and France where three-fourths of all Tunisian diaspora live.

Although participants were representative of different political ideologies and interests in the society, women and youth were particularly underrepresented (The Carter Center 2014; United Nations Development Programme [UNDP] 2013b). For example, only 10 to 30 percent of the participants in different meetings were women (The Carter Center 2014, 70). Most participants were informed and concerned citizens, and the suggestions they provided reflected different political and ideological interests across the society. While members of different civil society organizations participated in these public fora, these organizations did not strategically send their members to steer the discussion.^12,13 Rather they tried to shape the constitutional discussion through other platforms including roundtables and conferences where they invited experts, NCA members, and citizens to debate issues in the constitution (The Carter Center 2014, 72–74).

During the national dialogue meetings, the majority of public suggestions were offered orally with the NCA staff members recording them; albeit in many occasions, participants delivered written proposals to the staff. The average number of citizens who participated in these meetings was 113, with some meetings hosting more than three hundred citizens, while others had fewer than fifteen citizens in attendance. Notwithstanding the low number of participants, the meetings helped inform the Assembly of public’s concerns about the constitution. In general, public attendance was stronger in Tunisia than in Italy and France.¹⁴

Following the National Dialogue meetings, the Assistant to the President of the Assembly for Relations with the Citizens and the Civil Society drafted a report on the collected public suggestions. Next, the General Rapporteur of the NCA’s Constitution Drafting Committee tasked the six constitutional committees with taking those comments and suggestions into consideration to write the third draft constitution (April 2013). Deputies of each constitutional committee only reviewed public suggestions related to their specific topic of interest through four separate documents. Three of these documents listed all the “raw” suggestions submitted in separate meetings with the Tunisian public, diaspora, and civil society representatives, and the fourth document reported the “most recurring” public suggestions related to that specific committee in all various meetings. The purpose of this last document was to ensure deputies would reasonably act on popularity of public suggestions. In all four documents, the identity of individuals making suggestions was anonymous and the documents did not specify from which meeting the proposal originated. Deputies, as such, could not act on subnational level interests by weighting public proposals from their own strongholds.

In general, while Tunisians living in the country and abroad had a consensus over issues such as gender equality, role of religion, human rights, and liberties, there were several other issues that divided them. For example, while political asylum, rights of the Tunisian diaspora, global warming, and protection of national heritage were of primary concern for Tunisians in Italy and France, those living in Tunisia were more concerned about education, health care, clean water, and other related issues. These public proposals to some extent reflected the heated political debates and divisions in the Tunisian society. Some of the most fiercely debated issues in the Assembly including sharia-based legislation, religion of the state, civility of the state, criminalization of blasphemy, and rejection of Zionism, were also among the prominent issues raised in the public proposals. However, the issue of parliamentary or presidential system, which was fiercely fought over by most political parties including Ennahda (Marks 2014, 26), was not a prominent subject for the participants, which further indicates that political parties did not systematically influence public suggestions. As Figure 1 shows, almost 40 percent of the citizen proposals were submitted to the first constitutional committee, which was responsible for writing the preamble, General Principles chapter, and Constitutional Amendment and Transitional Laws chapter. Also, the second constitutional committee that was responsible for writing Rights and Liberties chapter received considerable public feedback.

Figure 1.

Tunisian public suggestions for each of the NCA constitutional committees.

The question remains, however, whether these public suggestions had any impact on the content of constitution. Are particular public proposals more likely to be incorporated in the constitution than other proposals?

Hypotheses of Citizen Input and Content of Constitution

The normative assumption is that more popular citizen proposals have a higher probability of inclusion in the constitution. Just as the median voter theorem predicts that radical candidates or parties rarely get elected, radical public proposals rarely get into the constitution. More often than not, policy preferences of office-seeking elites (here, NCA representatives) tend to reflect those of the majority in the society. Furthermore, when a large segment of society makes a constitutional demand in a transparent process, public pressure can positively affect the probability of its inclusion in the parchment. Thus, I hypothesize:

Hypothesis 1: Public proposals with higher popularity are more likely to become constitutional provisions than those with lower popularity.

However, the popularity of citizen proposals alone does not determine whether they have a higher probability of inclusion in the constitution. The subject of proposals also matters for several reasons. As Figure 1 shows, more than two thirds of public proposals in Tunisia were related to the preamble and the General Principles chapter and Rights and Freedoms chapter. This is because the majority of people’s concerns are related to the issues that affect their daily lives, such as those related to rights and freedoms and basic principles of the state covered in these chapters of the constitution. In addition, these are the least technical chapters, compared to other chapters which are mostly related to division of power, bureaucracy of state institutions, and other legal issues which are not easily comprehensible for many people. Thus, the following hypotheses are raised:

Hypothesis 2a: Public proposals related to the General Principles are more likely to become constitutional provisions compared to other public suggestions.

Hypothesis 2b: Public proposals related to Rights & Liberties are more likely to become constitutional provisions compared to other public suggestions.

Citizens, in general, are less motivated to become informed on most complicated political issues and choose “rational ignorance” to become informed only on matters that are of profound importance to them (Downs 1957). As citizens are not well informed on certain issues, I expect that their representatives at the NCA rely more on experts for those issues. Several interviews with NCA representatives also confirm this. While members of the Rights & Freedoms Committee were enthusiastic about their experience in the National Dialogue meetings, those from other committees (particularly the Judicial Committee) were more critical of the value and validity of public suggestions. These hypotheses also reflect several studies that show the impact of participatory processes on rights and freedom provisions in constitutions (Ginsburg, Elkins, and Melton 2009; Hudson 2018; Landemore 2017; Maboudi and Nadi 2016).

Data and Empirical Analysis

To test these hypotheses, I use a mixed-methods research design comprising of statistical analysis of all public suggestions and the text of the constitution drafts as well as more than a dozen interviews with NCA members from different constitutional committees representing different political parties, members of the civil society organizations who participated in the NCA meetings, and Tunisian constitutional law experts.

The outcome of interest in this study is whether public suggestions were included as provisions in the constitution. Three draft constitutions were written following the National Dialogue with Citizens, including the final constitution. The three dependent variables correspond to these three different versions of the constitution. Given that these three drafts are sequential in time, it is imperative to estimate the durability of public proposal admission into the constitution by measuring whether a proposal was inserted into the third draft (April 2013), which immediately followed the National Dialogue, continued into the fourth draft (June 2013), and eventually became a provision in the final draft (January 2014) of the constitution. As such, I created three dependent variables, each of which is coded 0 if the suggestion is not included in that draft of the constitution and 1 if it is incorporated into the draft.

In total, Tunisian citizens provided more than two thousand five hundred suggestions for the constitution, of which 217 were collected online, another two hundred proposals were collected from representatives of civil society organizations in a two-day Open Dialogue with the Civil Society, and 2,148 were provided in the forty-four National Dialogue meetings with the general public. From these public suggestions, I dropped 213 proposals as invalid for several reasons. As discussed above, the National Dialogue meetings were held after the second draft of the constitution was published; however, some of the collected suggestions were related to the first draft, where citizens requested addition of a provision that was already added in the second draft or deletion of a provision that was already dropped from the second draft. Other suggestions discarded as invalid included vague requests and questions, unclear suggestions, or nonconstitutional complaints. However, if a question or even a complaint had a clear implication, I included it in the data. For example, one suggestion read, “This is a theocratic constitution aiming to create an Islamic state.” While this is not precisely a suggestion, as its implication clearly is that the constitution should be more secular and that Islamic provisions in the constitution should be removed, I coded it as a valid proposal.

Next, I clustered all valid suggestions into 337 general categories, each of which is nested within one of the six constitutional topics. For example, as the coding table in the online appendix shows, one citizen proposed to “Change ‘We the Representatives’ to ‘We the People’ in the preamble.” Another citizen wrote that “ownership should return to the Tunisian people,” and the Constitution should start with “We the People.” As we cannot identify the impact of each of these two proposals on the constitution independently, we should aggregate them under one category. To create these categories, I began with the reports on the “most recurring” public suggestions submitted to each of the six constitutional committees and listed each of these “most recurring” proposals as a general category. Then, I reviewed all the “raw” public suggestions to identify and create additional categories that were not listed in the “most recurring” report in order to account for all public proposals even the least popular ones. Finally, I measured the popularity of each of the 337 general categories by counting the number of citizens who proposed them.¹⁵

The main predictors are the popularity of each cluster of suggestions as well as the subject of suggestions based on their relevant constitutional committees. The Popularity variable measures how many people made a specific suggestion, and it ranges from 1 to 93. To reduce the effect of outliers, logged Popularity is used in the estimated model. I also created six binary variables for constitutional topics based on the six constitutional committees including “General Principles,” “Rights & Liberties,” “Executive & Legislative,” “Judiciary & Independent Bodies,” “Constitutional Bodies,” and “Local Authority.” This paper is specifically interested in examining whether public proposals related to General Principles (Hypotheses 2a) and Rights & Liberties (Hypotheses 2b) are more likely to be included in the constitution compared to proposals on other issues. As such, all other remaining topics are collectively taken as the base group. I also created binary variables to control for the origin of suggestions, that is, whether they were suggested by citizens living in Tunisia, Abroad, or both (base group in the estimated model). As deputies reviewed two public feedback documents marked by their origin (from Tunisia or abroad), it is imperative to know if proposals suggested by only one of the two groups (compared to proposals suggested by both Tunisians and diaspora) have a higher likelihood of inclusion in constitutional drafts. The logit model also controls for whether the suggestion was made by the General Public, Civil Society groups, or both (base group in the estimated model). Similar to the previous variable, deputies reviewed public feedback documents marked by whether they were submitted by a civil society group or the general public. Thus, I also estimate the probability of inclusion of proposals specifically suggested by one of these two groups compared to those demanded by both the general public and civil society.¹⁶

One specific concern regarding the robustness of the findings is that proposals related to rights that made it into the constitution can be very generic constitutional features that are found in almost every constitution written today. In a study of the evolution of constitutional rights over six decades, Law and Versteeg (2011, 1164), for example, find a global trend of “generic rights constitutionalism,” wherein an increasingly large number of constitutions possess a number of common rights. It can be argued that the “genericness” of these rights explain both why citizens proposed them and why they were included in the Tunisian constitution. To account for this, I created a control variable which counts the number of constitutions in the world that include the provision suggested by the Tunisian public. The Generic Feature variable is created using the Comparative Constitutions Project (CCP) database, which records the characteristics of national constitutions since 1789 (Elkins, Ginsburg, and Melton 2014).¹⁷ This variable ranges from 0 where no constitution in the world has the suggested proposal to 192 where all constitutions have that constitutional feature. Table 1 shows the descriptive statistics of all variables used in this study.

Table 1.

Descriptive Statistics of Variables.

Variable name	M	SD	n	Minimum–maximum
April 2013 draft	0.29	0.45	330	0–1
June 2013 draft	0.35	0.48	330	0–1
January 2014 constitution	0.41	0.49	330	0–1
Popularity (raw)	5.93	9.20	337	1–93
General Principles	0.40	0.49	337	0–1
Rights & Liberties	0.22	0.41	337	0–1
Tunisia	0.64	0.48	337	0–1
Abroad	0.04	0.21	337	0–1
General Public	0.75	0.43	337	0–1
Civil Society	0.13	0.34	337	0–1
Generic Feature	33.01	48.65	210	0–183

The first three variables listed above are the dependent variables. As the table shows, on average, 29 percent of the general categories were included in the April 2013 draft, 35 percent of the categories were included in the June 2013 draft, and 41 percent of them were included in the final draft.¹⁸ This indicates that as deputies were negotiating and drafting different iterations of the constitutions, they included more public proposals in the constitution.

Results: Public Suggestions and Their Impact on the Constitution

To examine the impact of public proposals on the content of the constitution, a logit model is used. Table 2 shows the results for the specified model.¹⁹ As the table shows, popular suggestions are more likely to be included in the third (April 2013) and final (January 2014) drafts of the constitution. The result for Popularity variable, however, is not significant for the fourth draft (June 2013). We can see a similar trend for Rights & Liberties variable, indicating that rights proposals are more likely to be included in the third and final drafts of the constitution, but not in the June 2013 draft. In all models, however, the coefficient for General Principles is positive and significant, indicating that proposals related to this category are more likely to be included in all constitution drafts. While other coefficients are not statistically significant, it is important to note that most coefficients have positive signs in all three models, except for the Abroad variable which has a negative sign in all models and is statistically significant for the June 2013 outcome. This indicates that proposals suggested only by Tunisian diaspora are less likely to be included in the constitution. Also, the coefficient for Civil Society is positive overall and significant for the June 2013 draft indicating that if a proposal is suggested only by civil society organizations, it is more likely to be included in that constitutional draft.

Table 2.

Probability of Incorporation of Public Suggestions in the Constitution.

Variables	April 2013 draft	June 2013 draft	January 2014 constitution
${Popularity}_{\ln}$	0.86*** (0.25)	0.27 (0.22)	0.49** (0.21)
General Principles	1.42*** (0.43)	1.22*** (0.36)	0.91*** (0.35)
Rights & Liberties	1.22** (0.49)	0.47 (0.44)	0.81** (0.41)
Tunisia	0.22 (0.46)	−0.31 (0.43)	0.19 (0.42)
Abroad	−0.54 (0.88)	−2.21** (1.11)	−0.81 (0.75)
General Public	−0.06 (0.50)	0.67 (0.47)	0.05 (0.44)
Civil Society	1.16 (0.73)	1.25* (0.66)	0.49 (0.61)
Generic Feature	−0.00 (0.00)	0.00 (0.00)	0.00 (0.00)
Constant	−3.20*** (0.84)	−1.94*** (0.74)	−1.71** (0.69)
Observations	210	210	210

Standard errors in parentheses.

p < .1. **p < .05. ***p < .01.

Overall, the results confirm all three hypotheses, indicating that suggestions related to General Principles and Rights & Liberties and those with higher popularity are more likely to be included in the constitution, compared to other suggestions. The magnitude of these correlations is also significant. Table A4 in the appendix estimates the marginal effects at the means (MEMS) for the covariates in all three models. As this table shows, one unit increase in the popularity count of a public proposal increases the likelihood of inclusion in the final draft by 12 percent. The table also shows that if a proposal is related to General Principles, it has a 22 percent probability of inclusion in the final draft. Being in the Rights & Liberties category also increases the probability of public proposal inclusion by 20 percent.

It is, however, reasonable to argue that these results might be driven by extremely popular public proposals which were included in each draft constitution. Using Cox’s extremes, I identified five observations with extreme popularity in the dataset of public proposals, shown in Table 3. Some of these outlier proposals seem to have varying effects on the content of the constitution which requires a closer examination. First, only two suggestions out of five were included in the final draft of the constitution (“reference to universal human rights” and “equal opportunities for regional development”). Both of these proposals were very neutral in terms of ideology and were supported by almost all groups in the NCA. The third suggestion, “constitutionalizing the Supreme Islamic Council,” was supported only by Ennahda and faced serious opposition in the NCA. The fourth suggestion, “criminalization of normalization of relations with Israel” was initially supported by Ennahda and other Islamist parties as well as the leftist Arab nationalist parties and even had the support of the Union Générale Tunisienne du Travail (UGTT) (Petrucci and Fois 2016, 400–401). The last suggestion, that is, “removing the judicial immunity of the President and the NCA representatives from the constitution,” was opposed by almost every group in the NCA, and consequently it was not considered by the Assembly.

Table 3.

Outlier Public Proposals.

Public suggestion	Popularity	Constitution
Criminalization of normalization of relations with Israel	93	No
Equal opportunities for regional development	81	Yes
Constitutionalizing the Supreme Islamic Council	70	No
Reference to universal human rights	40	Yes
Removing the judicial immunity of the President and Representatives	35	No

In addition, unlike all other public proposals, the first three suggestions shown in Table 3 were suggested by “a group of citizens” rather than individual citizens. During the National Dialogue meetings, most people spoke while the NCA staff recorded their suggestions. In two meetings, however, three petitions were written by the attendees and signed by some of them. In one meeting two petitions were signed by seventy-four attendees requesting a constitutional provision on equal opportunities for regional development and the criminalization of normalization of relations with Israel. In another meeting, fifty-four attendees signed a petition to constitutionalize the Supreme Islamic Council. It is reasonable to assume that the first and the third proposals in the list of outliers (criminalization of relation with Israel and the Supreme Islamic Council) were suggested by an Islamist group or individual.

Finally, the decision whether to include some of these proposals was affected by exogenous factors. Perhaps the most sensitive and controversial public suggestion was the criminalization of the normalization of relations with Israel which appeared for the first time in the first draft of the constitution (August 14, 2012) as Article 27 in the General Principles chapter. The opposition parties accused Ennahda of populism, arguing that since the general feeling in the country was against Israel, Ennahda proposed this article to attract more popular support.²⁰ After consulting international constitutional experts from Germany, the United States, and Morocco, the Ennahda representatives were convinced that legalizing or illegalizing the normalization of relations with any foreign country is a legislative issue and not a constitutional matter, and as such agreed to remove this article in the second draft. Among the public suggestions received later was to “bring back” this article to the constitution.²¹ Backed by popular demand to reintroduce this provision, Ennahda was able to include the same provision in the third draft (April 2013) as part of the preamble and not as an article. Faced with another round of opposition in the NCA, Ennahda and some of the leftist parties insisted to keep this “popular demand” in the constitution. An NCA member who spoke to me on the condition of anonymity mentioned that it was the U.S. ambassador’s pressure that eventually forced Ennahda to drop this provision from the final draft of the Constitution.

To control for these exogenous factors and to test the sensitivity of the results to the outliers, I also ran the full model on a sample that excludes the five public proposals that had the highest popularity. As Table 4 shows, the results are not significantly different for the model excluding the aforementioned outliers. In both Tables 2 and 4, Popularity, General Principles, and Rights & Liberties have a positive and statistically significant relationship with the third and final drafts of the constitution. Also, in both estimates, popular proposals and those related to rights and freedoms are not significantly correlated with the content of June 2013 draft.

Table 4.

Probability of Incorporation of Public Suggestions in the Constitution (Excluding Outliers).

Variables	April 2013 draft	June 2013 draft	January 2014 constitution
${Popularity}_{\ln}$	0.95*** (0.28)	0.36 (0.24)	0.69*** (0.24)
General Principles	1.25*** (0.43)	1.14*** (0.37)	0.83** (0.36)
Rights & Liberties	1.07** (0.49)	0.39 (0.44)	0.70* (0.42)
Tunisia	0.24 (0.46)	−0.25 (0.43)	0.29 (0.43)
Abroad	−0.55 (0.88)	−2.18** (1.10)	−0.75 (0.76)
General Public	−0.04 (0.52)	0.65 (0.49)	−0.12 (0.47)
Civil Society	1.25* (0.74)	1.32** (0.67)	0.54 (0.62)
Generic Feature	−0.00 (0.00)	0.00 (0.00)	0.00 (0.00)
Constant	−3.21***	−2.00***	−1.79**
	(0.85)	(0.75)	(0.71)
Observations	205	205	205

Standard errors in parentheses.

p < .1. **p < .05. ***p < .01.

Overall, the statistical analysis shows that there is strong evidence that public deliberation in Tunisia was effective as a large number of citizen proposals became constitutional provisions. In general, suggestions with higher public support were more likely to be included in the constitution. Most of these suggestions were related to Rights & Liberties and General Principles, confirming Hypotheses 2a and 2b. These findings suggest that (a) increased public participation in the constitution-making processes has a significant impact on the content of constitutions and (b) deliberative processes are more likely to result in constitutions with more provisions on individual and collective rights and freedoms.

Participation, Deliberation, and the Content of Constitution

The empirical evidence offered above suggests that public deliberation in the Tunisian constitutional reform process had a significant impact on the content of constitution. Besides the robust statistical results, there is ample evidence supporting a causal link between public suggestions and constitutional change in Tunisia. First, we should note that the Rules of Procedure was amended in March 2013 to give the NCA the responsibility to study and incorporate public suggestions in the constitution. The amended Article 104 of the Rules of Procedure required that “Constitutional commissions shall review the comments and propositions from the general debate and the national consultations on the constitution in a period not exceeding ten working days starting from the date of receipt of the reports.”

Several interviews also indicate that the committee members actively studied, debated, and considered those public suggestions. An Ennahda representative who participated in all these meetings spoke of the influence of these fora on the NCA debates and asserted that “while we all agreed on some of people’s suggestions, we often spent hours debating others.”²² In an interview with UNDP, Jamel Touir—chair of the “Constitutional Bodies” committee and a member of Ettakatol—also describes how members of the constitutional committees used public suggestions in the constitution.²³ An independent observer of the NCA general assembly meetings from Al-Bawsala initiative also noted, “those deputies who were present in meetings with the public, often repeated what they heard from people in the [NCA] meetings and referred to public demands in their arguments.”²⁴

More importantly, several reports and qualitative studies offer concrete evidence on how public suggestions generated change in the constitution. In an elaborate study of Article 39 of the Tunisian constitution on education, Fliegelman (2016, 17) reports that the Rights and Freedoms committee “met in twelve sessions from March 4 to April 2, 2013 to discuss the [public] suggestions, ultimately choosing to make three significant changes to the education article [based on these suggestions]” including adding “a new line guaranteeing the ‘necessary resources’ to provide ‘high quality’ education” as well as “a guarantee to ‘strengthen and promote the Arabic language.’” Furthermore, in June 2013, the UNDP which sponsored the participatory initiative in Tunisia issued a report on the impact of citizen dialogues on the content of the draft constitution which it shared with the NCA. This and other reports highlight the influence of public proposals on the Tunisian constitution. For example, a March 2013 UNDP report on the participatory process suggests that attendees in public fora in Monastir, Bizerte, and Sidi Bouzid raised the issue of the inclusion of the rights of the opposition in the constitution, which was ultimately guaranteed in Article 60 of the constitution (UNDP 2013a, 35). Participants in Tozeur, in southern Tunisia where people grapple with a very dry climate, demanded the right to water for the first time, which was later guaranteed in Article 44 of the constitution (The Carter Center 2014, 70).

Finally, a comparison between proposals that went into the constitution and the text of the constitution shows a strong similarity of language between them. For example, several participants proposed to add “universal” before “human rights” in the preamble as a reference to the universal human rights, and the preamble of the constitution changed exactly as those participants suggested. Or, many participants from the interior regions (as opposed to coastal region which are historically more privileged) suggested to include a provision on social justice between regions and equal regional opportunities for development. Article 12 of the constitution not only guarantees that but also uses some of the exact wordings suggested by those citizens. The UNDP’s report highlights some of this lexicon that was included in the draft constitution (UNDP 2013b).

Arguably, we cannot deny the role of elites, interest groups, media, and civil society organizations in the process of constitutional bargaining and negotiations (Hartshorn 2017; Zemni 2015). However, this does not undercut the effectiveness of public participation. On the contrary, evidence demonstrates that public participation in Tunisia had a significant impact on the content of the constitution and that we can be reasonably confident that the relationship between public proposals and change in the constitution is causal and not spurious.

Weathering a Constitutional Turmoil

Another important mechanism that needs careful examination is the interaction between political parties and the general public, and whether or not elites attempted to influence the public feedback. And how much of public feedback was rendered ineffective by the process of elite negotiations. It is specifically important to understand why public proposals were less effective in the June 2013 draft.

The June draft constitution faced strong criticism by several opposition parties which demanded modifying the draft. The opposition to this draft was in part because it did not reflect either the public proposals previously received by the NCA or the proposals made by the opposition, particularly seculars and leftists.²⁵ Following the publication of the June draft, a wave of withdrawals from the NCA and public protests on the streets ensued. In response to this crisis, a month later, Mustafa Ben Ja’far, the President of the NCA, announced the creation of a new ad hoc committee, “the Consensus Commission.” This committee was presided by Ben Ja’far himself, had 22 members representing different political parties in the Assembly, and had the final vote on controversial issues that were referred to it.

Ennahda’s concession to this consensus-building initiative was in part due to the criticism it received for the political assassination of opposition leaders. In fact, the constitutional turmoil peaked with the assassination of Mohamed Brahimi, an opposition political leader and founder of the left-wing People’s Movement, on July 25.²⁶ The July 2013 military coup in Egypt against the Muslim Brotherhood government also fed the fear of a counterrevolution against Ennahda which influenced their decision (Netterstrøm 2015, 118). As Tunisia’s transition was in jeopardy and Ennahda was to blame for the crisis, the opposition parties pressured the Ennahda-dominated assembly to revise the June 2013 draft. However, we should note that Ennahda’s major constitutional concessions including withdrawing their pursuit of including sharia as a source of legislation, accepting a semi-presidential system, and replacing a “complementary” role for women with “equality” had already been made by mid-2013 (Marks 2014). Still, there were several issues in the June 2013 draft which the opposition sought to change.

The opposition parties also used public pressure to sway Ennahda’s position on several controversial articles. For example, the subject of gender equality addressed in Article 46 of the constitution divided the deputies within the Consensus Commission. At that point in the process, Ennahda’s position on gender issues had already shifted significantly. The Ennahda-drafted Article 28 of the first constitution draft (August 2012) that stipulated a “complementary role” for women in the society led to a public outcry against Ennahda. Even prominent female representatives from Ennahda, including Souad Abderrahim, opposed the clause. The NCA removed the “complementary role” clause in the second draft (December 2012) and subsequently wrote more moderate articles on gender issues. After criticisms of the June 2013 draft mounted, the now-empowered opposition parties proposed that per the country’s fifty-year-old Personal Status Code and popular demand, equal rights for women should be guaranteed. To achieve their goal, opposition parties mobilized tens of thousands of women and men to protests against Ennahda’s stance on gender equality. Due to public pressure on the streets, Ennahda soon acceded to the proposed changes.²⁷ Hence, unlike the June draft which eliminated various public proposals, the final draft of the constitution reflected more proposals from the public on issues such as gender equality.

The tensions within the Tunisian constitutional assembly and the evolution of the impact of popular feedback on the constitution demonstrate the important role that representatives play in voicing citizen’s demands and ensuring their insertion in the actual parchment beyond populist propaganda. While these elite negotiations undercut some public proposals (e.g., the anti-Zionism article or sharia-based legislation), in general, they ensured the most moderate and progressive public suggestions (such as the “universality” of human rights, right to water, social justice among regions, and the right of the opposition) find their way into the constitution. The analysis shows that almost 43 percent of public proposals were included in the constitution. Furthermore, while these proposals represent different political ideologies, the majority of them were not partisan in nature. Political parties were in fact criticized for lack of public outreach during the constitutional reform process (Marks 2014). For example, the system of government was perhaps the most important issue for Ennahda for which they resisted compromise (Marks 2014, 26; Pickard 2012, 3). Yet, only a few participants had an opinion on the subject, indicating that elites and political parties had no or minimal impact on steering the discussion during the public fora.

Conclusion

This study suggests that public deliberation in the Tunisian constitutional reform process had a significant impact on the content of constitution. Public deliberation contributed to mounting pressure on representatives of different parties to engage in a national dialogue for revising the constitution, so it would reflect the will of the majority of Tunisians. This national reconciliation resulted in the January 2014 constitution which was overwhelmingly approved by the NCA with a 200-12 vote. This consensual document was as much an outcome of Tunisia’s “extraordinary politics” as it was of citizen participation and public deliberation (Zemni 2015).

The empirical findings presented in this article run against the established wisdom which suggests that public interests are better served when deliberation is limited to a select group of highly trained and well-informed representatives. It contrasts studies that suggest popular participation in constitutional reform processes does not improve the post-promulgation levels of democracy (Saati 2015), does not necessarily promote constitutional legitimacy (Moehler 2008), undermines elite bargaining and consensus-building efforts which require some secrecy (Elster 1995), and even sometimes can yield less liberal results (Partlett 2012). More generally, the findings contrast the elitist theories of democracy from the Burkean trustee model to the more recent formalistic representation model by Pitkin or Elster’s hourglass model. When citizens have a say in their constitution, the content of such document enshrines “popular sovereignty” and is deemed democratic as it is a form of self-governance by the people (Chambers 2004; Pateman 1970). Although in the case of Tunisia, youth and women were underrepresented in the public fora, participants represented different political ideologies. And, as Fishkin (2009, 43–44) argues, what matters is “equal consideration of political preferences” which guarantees the political equality of the participants.

Although there are some limitations to the effectiveness of citizen participation in constitution-making processes, this article suggests that they do not fundamentally undermine the merits of public participation. The difficulty stems from writing a legal document which reflects public demands while ensuring it has a cohesive and democratic content that satisfies all political and social groups. Participatory processes usually increase the number of demands which make reaching agreement more difficult. A solution to this problem is to implement an anti-deadlock mechanism. The Tunisian NCA’s supermajority vote requirement for approving the constitution which prevented unilateral decisions by the majority group and an ad hoc body which had the final vote on controversial provisions accomplished that goal. A supermajority approval requirement—compared to a simple majority and public referendum which is more common—can facilitate consensus building, especially in transitioning states where usually no single group or a coalition of parties can win a supermajority of the votes and therefore, they need the vote of opposition parties to approve the constitution. In Egypt, for example, the simple majority requirement for approving the constitution encouraged the Muslim Brotherhood (which had the majority in the Constituent Assembly) to unilaterally change several provisions and hasten to approve the constitution without reaching an agreement with the non-Islamist opposition (Maboudi and Nadi 2016).

Another anti-deadlock mechanism which was employed by the NCA later in the process (June 2013) was an ad hoc body tasked with solving controversial issues in the constitution. One of the controversial issues in the Tunisian constitution, for example, was the role of religion in politics. While the main Islamist party, Ennahda, wanted Islam to be the “religion of the state,” secular parties including the Popular Front opposed it. Another issue of discord concerned institutional design of the new political system. Experiencing years of repression from Tunisia’s former strongly presidential authoritarian system, Ennahda preferred a parliamentary system, but the secular and liberal opposition wanted to retain a presidential system. Facing these critical issues, the NCA representatives agreed to create a special body called “the Consensus Commission” within the NCA to which the six committees would refer such controversial issues.

These anti-gridlock institutions not only generated elite consensus but also guaranteed the effectiveness of public participation by ensuring that the most democratic and moderate public input was translated into constitutional provisions. The Tunisian experience, however, does not suggest that participatory constitutional reform processes are the optimal choice for all other cases. This article contends that both inclusive and participatory processes, when designed and executed properly, can improve the democratic content of constitutions. The Tunisian case might be unique in the Arab world, but the evidence it provides should be sufficient to at least call into question the elitist theories of democracy which prescribe a constitutional process without public input during the deliberation stage as the optimal choice. Participation is not necessarily dangerous (as in Egypt 2012) or ineffective in yielding a new constitution (as in Iceland 2010–2013 or Chile 2015–2017). On the contrary, as was the case in Tunisia, it can democratize the constitution and facilitate the democratic transition.

Supplemental Material

Online_Appendix_ – Supplemental material for Reconstituting Tunisia: Participation, Deliberation, and the Content of Constitution

Supplemental material, Online_Appendix_ for Reconstituting Tunisia: Participation, Deliberation, and the Content of Constitution by Tofigh Maboudi in Political Research Quarterly

Footnotes

Appendix

Table A4.

Marginal Effects of Probability of Incorporation of Public Suggestions in the Constitution.

Variables	April 2013 draft	June 2013 draft	January 2014 constitution
${Popularity}_{\ln}$	0.17*** (0.05)	0.06 (0.05)	0.12** (0.05)
General Principles	0.28*** (0.08)	0.29*** (0.08)	0.22*** (0.09)
Rights & Liberties	0.24** (0.09)	0.11 (0.10)	0.20** (0.10)
Tunisia	0.04 (0.09)	−0.07 (0.10)	0.05 (0.10)
Abroad	−0.09 (0.13)	−0.37*** (0.11)	−0.18 (0.15)
General Public	−0.01 (0.09)	0.14 (0.09)	0.01 (0.11)
Civil Society	0.26 (0.16)	0.28** (0.14)	0.12 (0.15)
Generic Feature	−0.00 (0.00)	0.00 (0.00)	0.00 (0.00)
Observations	210	210	210

Standard errors in parentheses.

p < .1. **p < .05. ***p < .01.

Acknowledgements

I am thankful to Nathan Brown, David Doherty, Todd A. Eisenstadt, Zachary Elkins, Donald Horowitz, A. Carl LeVan, Ryan T. Moore, Ghazal P. Nadi, Diane Singerman, the three anonymous reviewers and editors of Political Research Quarterly for their helpful comments. Special thanks to Radwan Masmoudi and the Center for the Study of Islam and Democracy (CSID) for facilitating my research in Tunisia.

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: This research was funded by an American University Doctoral Research Scholarship.

Notes

ORCID iD

Tofigh Maboudi

Supplemental Material

Supplemental materials for this article are available with the manuscript on the Political Research Quarterly (PRQ) website.

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