Unamendable state characteristics

Certain characteristics of the Tunisian state are placed outside the power of amendment by Articles 1 and 2 in the constitution. It will not be surprising that they, and especially Article 1, were among the most controversial during drafting given that they purport to delineate the state’s identity. Among the elements declared unamendable, the assertion of the state’s ‘free, independent, sovereign’ nature appears straightforward, as does the fact that it is ‘based on citizenship, the will of the people, and the supremacy of law’. They are akin to declarations of sovereignty and independence as being unamendable incorporated in several post-colonial or post-Soviet constitutions, such as in Article 292 of the constitution of Mozambique or in Article 114 of that of Armenia. Less clear is whether such declarations carry any more weight than they would were they incorporated in preambles. After all, the preservation of a country’s sovereignty and independence, just like of its territorial integrity (another principle occasionally listed as unamendable in the basic laws of newly independent states) will depend at least in part on external forces beyond the control of internal state organs.^{Footnote 50}

Also seemingly uncontroversial is the declaration of the system of government as republican. A similar provision had been included in Tunisia’s former constitution, the 1959 post-independence text, under Article 76. It had entrenched the departure from the previous monarchical system and had been likely influenced by Tunisia’s colonial power, France, whose constitution states in Article 89 that: ‘The republican form of government shall not be the object of any amendment.’ The unamendable commitment to republicanism is also among the most widespread eternity clauses, with one study counting more than 100 constitutions having such a clause.^{Footnote 51} The origin of such clauses seems to be the fear of a return of the monarchy in the immediate aftermath of the transition to republicanism.^{Footnote 52} For all its influence, both as a colonial power and as a widely imitated constitutional model, France’s experience with ‘eternal’ republicanism does not tell us very much about how such a clause might work in practice, including in Tunisia. This is because the Conseil Constitutionnel has consistently refused to engage in the review of constitutional amendments.^{Footnote 53} However, while virtually eradicated in France, monarchism has not fully disappeared from other republics. For example, calls for monarchical restoration exist in Libya, where a constitutional monarchy has been advocated as the solution to the country’s turmoil.^{Footnote 54} Thus, while republicanism may seem a particularly uncontested unamendable constitutional commitment, and raised little debate among Tunisian drafters, one cannot assume it is without consequence simply because a return to monarchy appears impossible at a given time. Moreover, whether the republicanism principle will have been trespassed will also depend on how broadly the constitutional court interprets such transgression. It could also be that curtailing rights of political participation or altering the separation of powers to such an extent as to de facto extinguish popular sovereignty, or even the open-ended delegation of governmental authority,^{Footnote 55} would be deemed violations of the commitment to republicanism.

Unamendable declarations of an official language such as Tunisia’s are to be found in a number of constitutions, including post-authoritarian ones.^{Footnote 56} When commenting on the Tunisian draft, the Venice Commission thought ‘this provision requires no particular comment’,^{Footnote 57} presumably because it deemed it a statement of fact in the same vein as that on an official religion (see below). Indeed, given the linguistic homogeneity of the country, Arabic may have been a unifying element of identity rather than a divisive one. Turkey, however, exemplifies how such a clause can result in discriminatory enforcement against minorities.^{Footnote 58} The Turkish Constitutional Court has invoked the language element of the eternity clause to deem calls for the use of the Kurdish language as ‘a display of separatism’ and direct affronts to the unity of the nation.^{Footnote 59} Insofar as Tunisia’s eternity clause will not be similarly interpreted to discriminate against the language rights of minorities, its inclusion in the 2014 constitution will not pose immediate concern.

By far the most disputed of all the elements of state identity rendered unamendable in the constitution has been the reference to religion in Article 1. Three aspects of Tunisia’s unamendable commitment to Islam are noteworthy. The first is that it was the result of much negotiation between opposing parties. Ennahda initially pursued the constitutionalisation of sharia but faced fierce opposition from civil society as well as from secularist parties. Ben Jafaar, the president of the constituent assembly, threatened to leave the coalition if the clause concerning sharia was not withdrawn; he referred to the provision on Tunisia being a civil state (Article 2) as a ‘red line not to be trespassed’.^{Footnote 60} It may be true, as some have argued, that the main fault line during negotiations was not so much around religious issues, but around entrenching gains against the old elite.^{Footnote 61} To Ennahda members and supporters, entrenching Islam may have amounted to a guarantee against persecution on religious grounds as the Ben Ali regime had engaged in. As such, its entrenchment may have been less about ideology and more about adopting ‘political “fencing” measures that would preserve the gains of the revolution and … keep the country from sliding back into an authoritarianism that targets religiously minded individuals’.^{Footnote 62} The bargain between these two seemingly incompatible positions was reached in March 2012, when the Shura Council of the Ennahda party renounced the constitutionalisation of sharia in exchange for secularists renouncing the constitutionalisation of the Universal Declaration of Human Rights and agreeing to language in the preamble that watered down the scope of rights protection (more on this shortly).^{Footnote 63}

The second important aspect to note, then, is how Article 1’s mention of religion sits within the larger constitutional apparatus. Optimists view it as being tempered by the declaration of the state’s civil nature, although whether all sides mean the same thing when interpreting the principle of civil state is doubtful.^{Footnote 64} The Venice Commission has attempted to reconcile official endorsements of religion with principles of non-discrimination. It found the declaration of an official religion in the Tunisian constitution of 2014 to be a mere statement of fact to the extent that it only recognises that Islam is the religion of the majority of citizens.^{Footnote 65} However, the inclusion of this declaration as an unamendable principle, coupled with the unamendable civil nature of the state and with other provisions on religion in the constitution – notably Article 6, which stipulates that ‘The state is the guardian of religion.’ – may become problematic.^{Footnote 66} Tunisian authorities have explained the intent behind Article 6 to be for the state to be responsible for the maintenance of religious infrastructure and the remuneration of religious ministers, in line with similar provisions in other national constitutions.^{Footnote 67} Nevertheless, the ambiguous language of the Tunisian text, coupled with potential incongruities between the various provisions on religion, may lead to discriminatory interpretation. This ambiguity has led one commentator to observe that: ‘The response of the Tunisian draft constitution to the fundamental question of the polity – a community of believers or citizens? – remains ambivalent.’^{Footnote 68}

A third and final aspect worthy of mention here is the relationship between Article 1 in the constitution of 2014 and Article 1 in the 1959 constitution. Their language is identical, save for the inclusion of unamendability in the new constitution. However, there is more than meets the eye behind this resemblance. The mere fact of being able to discuss such core issues related to religion and identity was novel, with the chair of the Rights and Liberties Committee in the constituent assembly observing that ‘[in the past] we couldn’t have a real conversation, let alone determine the boundaries of these issues’.^{Footnote 69} As stated, the language of the current Article 1 was chosen very carefully, however, so as to leave open whose religion Islam actually is: Tunisia’s (as a statement of fact) or the state’s (carrying with it the endorsement of state power). This has been deemed evidence of ‘strategic positioning’ of the drafters, resulting in normative flexibility.^{Footnote 70} It clearly leaves the resolution of this ambiguity in concrete cases to the future constitutional court, whose role becomes that much more important.^{Footnote 71} The new language may also be read as a correction, by way of constitutional law, of past constitutional jurisprudence. Under the old constitution, the previous Article 1 had been interpreted as altering Tunisia’s Personal Status Law (which had instituted significant departures from Islamic family law) to limit inheritance, property, and various parental rights according to Islamic law.^{Footnote 72} The identity in language between these two constitutions is therefore misleading if not analysed in the wider jurisprudential context.

References to official religion as unamendable such as in Tunisia’s Article 1 are not unprecedented and parallels come in two guises: the entrenchment of an official religion^{Footnote 73} and the unamendable protection of secularism or of the separation of church and state.^{Footnote 74} More problematic than Tunisia’s ambiguous reference to religion as unamendable are eternity clauses which entrench religious sources of law. For example, in Afghanistan’s 2004 post-conflict constitution, Article 149 reads, in part: ‘The principles of adherence to the tenets of the Holy religion of Islam as well as Islamic Republicanism shall not be amended.’ The problem with such a clause is that it raises the difficulty of delineating the boundaries of religious principles and their infringement. This difficulty is even more complex in the Afghan constitution, which combines Islam and international law as sources of law (Articles 3 and 7, respectively), without guidance as to how they are to be reconciled if in conflict.^{Footnote 75}

Scholars have listed both official religion and secularism amidst the elements of preservative eternity clauses, seeing them as ‘an expression of the importance of religion or non-religion in that constitutional regime, either as a reflection only of the views of the constitutional drafters or of the views of citizens as well’.^{Footnote 76} This argument is reminiscent of those who view religion as expressive of constitutional identity, whether by achieving official status or by its banishment from public life in the form of a commitment to secularism.^{Footnote 77} Either way, the decision is viewed as fundamental to the nature of the state. The full significance of Tunisia’s unamendable commitment to Islam will only become apparent once interpreted in practice. Only once a challenge is brought and the constitutional court delineates the boundaries of this provision will we know whether the political agreement behind its current formulation in Article 1 will hold. Only then will it be clearer whether it builds in eternal conflict or whether it enables the transformation of relationships or a more modest achievement of stable government.

Unamendable human rights and freedoms

Article 49 in the Tunisian constitution, the rights limitations clause, also precludes amendments that would ‘undermine the human rights and freedoms guaranteed in this Constitution’. As noted above, individual rights protections were a battleground during constitutional negotiations, with secularists having to give ground in order for Islamists to back away from calls for the constitutionalisation of sharia. This tussle occurred not just over the eternity clause, but was also evident in compromises over the preamble, the freedom of conscience and belief, and the constitutional requirement to criminalise blasphemy. The preamble of the third draft, for example, referred to ‘[b]uilding on the fundamentals and the open and moderate objectives of Islam, on sublime human values, and on universal human rights that are in harmony with the Tunisian people’s cultural specificity’. This qualification of rights protections according to cultural specificities was opposed by lawyers and civil society members, as well as by international human rights organisations fearing that such language afforded authorities great discretion to limit human rights.^{Footnote 78} The current preamble maintains a reference to ‘the teachings of Islam’ but removes references to cultural specificities as qualifiers of rights protections. The right to freedom of conscience and belief also only appeared in the final draft, after sustained pressure from domestic and international actors.^{Footnote 79} Renouncing the criminalisation of blasphemy, however, may have been an even more difficult hurdle for Islamists to overcome. This constitutional commitment has been said to have amounted to a defensive stance of Ennahda members after years of abuses by the old regime.^{Footnote 80} In the end, however, they compromised and accepted that the constitution was not the appropriate locus for such prohibitory language.^{Footnote 81} Whether the balance between this issue and protections of freedom of expression and conscience has been struck coherently has been contested^{Footnote 82} and will become clearer once constitutional jurisprudence builds on this matter.

Eternity clauses entrenching human rights commitments are numerous, in particular in post-conflict and post-authoritarian constitutions.^{Footnote 83} The language used in these provisions differs considerably, however, ranging from provisions precluding any amendment to, more frequently, requirements that amendments not lessen human rights protection. A different, and arguably more rigid, type of such clause is Article X.2 of the constitution of Bosnia and Herzegovina, which stipulates that no amendment is possible to the provision enshrining the supremacy and direct applicability of the European Convention of Human Rights and its Protocols in the Bosnian constitutional system.

The preponderance of new democracies amidst countries on this list has led some scholars to interpret unamendable commitments to human rights as serving a transformative function: ‘These examples suggest how formal unamendability may be used to help transform a state’s default posture from rights infringement to rights enforcement.’^{Footnote 84} However, Tunisia’s provision, and others’, speaks not of outright unamendability of human rights, but of a ban on amendments that would ‘undermine’ existing rights guarantees. This is not an unprecedented drafting choice and may also be found in other post-conflict constitutions, such as in Article 149(2) of Afghanistan’s basic law, which declares that: ‘The amendment of the fundamental rights of the people are permitted only in order to make them more effective.’ It is thus best understood as a ‘non-regression’ or ‘standstill’ clause.^{Footnote 85} In other words, as instituting a minimum standard of rights protection rather than as rendering human rights and freedoms untouchable. Such an interpretation also seems to have been developed in the case of Germany’s Article 79(3), with the German Constitutional Court having declared it to prohibit ‘a fundamental abandonment of the principles mentioned therein’.^{Footnote 86}

How this provision will be interpreted in Tunisia’s context will therefore depend on how its constitutional court interprets the prohibition on ‘undermining’ rights. However, given that the very wording itself signifies a compromise between two competing constitutional identities, the Court’s role will inevitably be understood in political as well as legal terms, with reference to how it maintains or tilts the balance between secularist and Islamist interests. The Court is likely to take as its starting point a minimum standard of protection against which to evaluate new amendments, and if so, it might ground this standard in international law and comparative experience. Such transnational elements have come to permeate discussions of eternity clause enforcement in a number of different fora. These fora include: when a supranational human rights court has intervened in cases springing from the contestation of unamendable norms, such as the European Court of Human Rights in a case involving Turkey’s unamendable secularism;^{Footnote 87} when national courts themselves appeal to (and perhaps misrepresent) international human rights norms in order to justify changes to unamendable commitments, such as to executive term limits in Honduras (more on this below); and when international bodies evaluate the enforcement of unamendable provisions against a country’s international rule of law commitments, such as the Venice Commission with regard to Turkey.^{Footnote 88} Constitutional scholarship has started to take notice of these developments and to put forth defences of international interventions in this field^{Footnote 89} or theories which suggest the appropriate limits, rooted in transnational values, of doctrines of unconstitutional constitutional amendment.^{Footnote 90} In all these defences, eternity clauses have been interpreted as being in line with the country’s international commitments, and the appeal to the transnational as essentially positive. One can also imagine international interventions frustrating, or being perceived as frustrating, good faith attempts at constitutional change which touch upon unamendable human rights commitments.^{Footnote 91} The case of Sejdić and Finic, discussed more amply in Sapiano’s contribution to this issue, illustrates just how different national and international courts may reason when it comes to fundamental questions of a polity’s human rights commitments.^{Footnote 92} Such disagreement may be unavoidable when courts are called upon to decide ‘first-order’ questions of the constitutional system.^{Footnote 93} It also cautions against expecting the inclusion of an unamendable minimum human rights standard in the constitution to lead to predictable and stable constitutional development in any given polity.

Unamendable executive term limits

Article 75 in Tunisia’s constitution contains one of the clearest instances of eternity clauses adopted for the purpose of protecting the integrity of the political settlement: unamendable executive term limits. The previous regime has been described as ‘one of the most personalistic’ models of authoritarian governance in the region,^{Footnote 94} with president Ben Ali repeatedly amending the 1959 constitution to allow for his re-election.^{Footnote 95} In such a context, fears of the re-emergence of a strong-man regime dominated negotiations over limitations on executive powers, not just via Article 75, but also via the choice of semi-presidentialism as the form of government.^{Footnote 96} Similar considerations explain the adoption of clauses on unamendable executive terms in Latin American and African countries trying to overcome a history of executive overstay and coups.^{Footnote 97}

Significantly, regional human rights bodies have also embraced prohibitions on amendments to executive term limits. Article 23 of the African Charter on Democracy, Elections and Governance, for example, lists ‘Any amendment or revision of the constitution or legal instruments, which is an infringement on the principles of democratic change of government’ as illegal and a cause for sanctions from the Union. The Venice Commission has defended executive term limits as ‘an important guarantee against any authoritarian dysfunctioning in a country’ and welcomed Tunisia’s Article 75 given that the country’s ‘democratic structures and their cultural foundations have not yet been consolidated’.^{Footnote 98} Scholars have similarly interpreted such clauses as inherently linked to countries’ experience with coups and military rule and to their desire to create functioning democracies.^{Footnote 99} They may be viewed as an extreme version of bans on executive term extension, which are quite common in constitutions around the world, especially in presidential and semi-presidential systems.^{Footnote 100} The Twenty-second Amendment to the United States constitution, Article 6 of the French constitution and Article 52 of the German Basic Law are examples of such clauses in three of the most influential fundamental laws. Limitations on the number and length of term limits have been found to be on the rise,^{Footnote 101} and they have come to be called ‘one of the defining features of democracy’.^{Footnote 102}

How unamendable term limits such as Tunisia’s work in practice is less straightforward, however. On the one hand, these types of rules present obvious advantages, particularly in the long run: ideally, they ensure rotation of office, limit incumbent advantage in elections, and encourage political competition; conversely, they can be viewed as an illiberal constraint on citizens’ choice, discouraging experienced governance and underestimating the potential disruptive role of ex-leaders, and are potentially abused.^{Footnote 103} They are sometimes suspected of inducing constitutional predicaments rather than preventing them, because they may not reduce the likelihood of presidents overstaying – they merely transform presidential overstay into a more acute form of constitutional crisis.^{Footnote 104} Some empirical studies testing these assumptions have called term limits ‘surprisingly effective in constraining executives from extending their terms, at least in democracies’.^{Footnote 105} Moreover, the very bluntness, black and white nature of these rules may be linked to their successful enforcement.^{Footnote 106} The same empirical studies, however, indicate that, while not ‘associated with the death or disability of democracy’, term limits may in some circumstances trigger early constitutional replacement.^{Footnote 107}

Honduras’s 2009 constitutional crisis and deposition of President Manuel Zelaya may yield lessons for Tunisia’s emerging democracy. The Honduran crisis brought to the fore precisely how destabilising presidential term limits may be in a fragile democracy, especially when they are declared unamendable. Zelaya had attempted to organise a non-binding public consultation around the holding of a referendum on whether to set up a body tasked with changing the constitution’s term limit, but was opposed by the judiciary, parliament and the military. Despite his protestations to the contrary, many in the country saw this as Zelaya’s attempt to override the one-term limit. This included the Constitutional Chamber of the Honduran Supreme Court, which held that the proposed referendum could not go ahead as it was in breach of the constitutional term limit. The constitutional crisis resulted in the president’s forceful removal from office by the military and exile.^{Footnote 108} A Supreme Court judge would justify this as nothing more than the military carrying out a lawful arrest warrant^{Footnote 109} and many agreed that, while the methods employed were unfortunate, there was also a very real threat to democracy had plans to override the executive term ban gone ahead.^{Footnote 110} Others, however – including eventually the United States – understood the arrest and removal of Zelaya as a form of coup or unconstitutional regime change.

The role played in the crisis by the Honduran constitution’s eternity clause on executive term limits (Article 374) is therefore complicated.^{Footnote 111} Some commentators saw the term limit provision and its double entrenchment as the immediate cause for the 2009 crisis precisely because it made for indeterminacy.^{Footnote 112} Others were careful to distinguish between the substantive prohibition on term limit extension and the ‘second-order proscriptions on debate or proposal of amendments’.^{Footnote 113} The latter opined that, while some core issues may best be protected by taking them off the table, term limits ‘do not seem so contentious as to prohibit all discussion of [such limits]’.^{Footnote 114} Others still, placing Honduras in a wider Latin American context, saw Zelaya’s bid as an effort at ‘constitutional subterfuge’: using the cover of legality to break down constitutional barriers to their re-election.^{Footnote 115} Perhaps a more nuanced interpretation would be that the conflicting claims of legitimacy – Zelaya’s on the basis of his popularity in office and that of his opposition on the grounds of clear constitutional language – were not and could not be reconciled on the basis of the constitution’s eternity clause. The Supreme Court intervened in a context of deep political divisions within the country, attempting to halt the capture of the state by one side, and was thus accused of enabling its capture by the other. Whether the eternity clause, or any constitutional mechanism for that matter, could be relied on to resolve this type of fundamental dispute is doubtful.

This reading may have been borne out by subsequent developments in Honduras. In a 2015 decision, the Constitutional Chamber of the Honduran Supreme Court (with a different composition to 2009) declared the ban on presidential re-election unconstitutional and effectively repealed Article 239.^{Footnote 116} It found the article to be in conflict with the freedoms of speech and thought; to unduly limit political participation and debates; to be contrary to international human rights obligations; and to have been relevant at an earlier time, but no longer because Honduras had stabilized its democracy. Moreover, the court relied on the recommendations of the truth commission set up by Zelaya’s successor to clarify the events of 2009 and to make proposals meant to prevent such crises.^{Footnote 117} The latter had found the actions of the military in ousting Zelaya to have been illegal and unjustifiable and called for comprehensive constitutional reform. This decision not only made curious use of the unconstitutional constitutional amendment doctrine – declaring a provision of the constitution itself unconstitutional, not an amendment – but it also invoked international human rights standards in a dubious manner, and possibly against their core purposes.^{Footnote 118} It may also have shown unamendability to be surmountable when faced with enough political pressure and arguments about its newfound irrelevance.^{Footnote 119}

Honduras’s case is instructive primarily in showing how serious the consequences of unamendable executive term limits can be, or else how limited their capacity to withstand pressures to capture the presidential office in divided societies. The inclusion of these clauses in the constitution may lead to crisis when actors wishing to repeal such an eternity clause gain sufficient power but find themselves in a standoff with other political actors or with the judiciary. The relevance of debates on the wisdom of entrenching executive term limits has been proven no more recently than during 2015, when a number of African countries struggled with contestations of limits on presidential re-election. For example, the announcement that Burundi’s president would seek a third term in violation of the constitutional limit of two sparked violent clashes in the country; it was subsequently approved by the country’s Constitutional Court but challenged before the Court of the East African Community in July 2015.^{Footnote 120} Rwanda’s president similarly set in motion a process of constitutional change when he indicated a wish to be elected for a third term.^{Footnote 121} While these two post-conflict constitutions do not formally render term limits unamendable, they serve to highlight the continued relevance of constitutional mechanisms for containing executive usurpation.^{Footnote 122} It is unsurprising, therefore, that Tunisia, a country emerging from decades of authoritarian rule, would seek to protect its nascent multiparty democracy by entrenching limits on executive power. Whether those limits could withstand a crisis such as Honduras’s is not a given and will depend to a great extent on balance of power considerations at the time.

Unamendable amnesties

Also potentially attractive to post-conflict and post-authoritarian constitution-makers are amnesties absolving certain groups and their leaders from responsibility for past actions. The constitutionalisation of amnesties for human rights violations was first achieved in South Africa, where it was made conditional upon the fulfilment of certain conditions such as public apology and voluntary confession.^{Footnote 123} Amnesties have been elevated to unamendability in basic laws such as the 2010 constitution of Niger or the 2013 Fijian basic law.^{Footnote 124} The former protected Article 185, which had declared that ‘An amnesty is granted to the authors, co-authors and accomplices of the coup d’état of eighteen (18) February 2010.’ The latter included extensive provisions on immunities and amnesties for conduct during the 2006 Fijian coup d’état and declared a 2010 decree having provided for these immunities and amnesties as not subject to review (Chapter X). In Tunisia, the approach taken was precisely to stipulate that no amnesties would prevent transitional justice (Article 148(9)), although that article was not declared unamendable.^{Footnote 125}

Amnesties may be viewed as the best example of how the normative aspirations of a constitution – to the consolidation of democracy, the rule of law, and human rights protections – come into tension with the elite deals necessary for political settlements in post-conflict settings. On the one hand, the intention behind the entrenchment of such amnesties seems clear: it provides guarantees to formerly warring parties that they will not face prosecution once the new constitution comes into force and as such ensures their buy-in for the broader political settlement. Some scholars agree and view these as a separate type of eternity clause they call ‘reconciliatory’, whose aim is:

Other scholars, writing on the Fijian provisions, point to their origin in backlash against a Court of Appeal decision declaring the 2006 seizure of power as illegal; the 2013 Fijian constitution thus sought to legitimate the regime but also to curtail the expansion of judicial power.^{Footnote 127}

On the other hand, the constitutionalisation of amnesties will not extinguish the complexity involved in addressing past wrongdoings during post-conflict transitions. The South African Constitutional Court acknowledged as much in a case involving a challenge to amnesties for criminal and civil liabilities granted to perpetrators having disclosed the truth about past atrocities.^{Footnote 128} The Court upheld the granting of amnesties but limited its analysis to a review of constitutionality, while at the same time acknowledging that the case involved

In other words, the Court deferred judgment on the appropriateness of amnesties as reconciliation devices to lawmakers and restrained its own intervention on the matter to a constitutionality check, but perhaps with inadequate consideration of international human rights law.

Unamendability in this case thus primarily serves to indicate the commitment of drafters to maintaining amnesties beyond the ratification of the new constitution. Such pledges are especially important to minority or weaker parties, who may otherwise fear that the majority would amend constitutional amnesties once the basic law is ratified. The granting of amnesties in general carries legitimacy problems which hark back to peace versus justice debates and to controversies over the rise of individual criminal responsibility in international law.^{Footnote 130} Alternatively, problems may arise if an eternity clause enshrining amnesties is one-sided, for instance where amnesties are granted to one party to the conflict but not to the other. The few examples of unamendable amnesties we have thus far suggest that the primary objective behind their adoption is reaching agreement around a political settlement and the legitimation of a new regime, all of which are sought before the adoption of the new constitution. How such unamendability would fare were it to be seriously contested post-ratification remains at the level of speculation for now. Without a doubt, however, any such contestation would expose the uneasy relationship between the political agreement having made the constitution possible and the latter’s normative aspirations.

Interim constitutions

Several alternative institutions have been used with a view to preserving an initial agreement. One such tool, interim constitutions, has been discussed in detail by Rodrigues in this issue and by other scholars.^{Footnote 131} They act as mediating tools, gaining more time for the constitution-making process and may facilitate the adoption of ‘a more durable and more optimized constitution’.^{Footnote 132} Rodrigues’s argument – that given the extremely fluid political and security environments in which post-conflict constitution-making occurs, the drafting process itself should have some in-built fluidity such as the use of an interim constitution – resonates with other scholars’ advocacy for a ‘multi-track constitutionalism’.^{Footnote 133} It is an argument with particular relevance to eternity clauses and can work in two ways. Insofar as eternity clauses aim to insulate from amendment values or principles deemed essential to the polity, their drafting may benefit from a more inclusive and transparent process once conditions on the ground are more stable. A society-wide debate on whether unamendable language or religion are opportune may stand better chances of taking place once the situation has become more peaceful in the country.

Conversely, interim constitutions may themselves contain unamendable commitments which are then taken up, or not, in the permanent constitution. This was in a sense the method adopted in South Africa^{Footnote 134} and arguably, given the initial temporary nature of the Basic Law, in Germany.^{Footnote 135} An interim constitution may have the advantage of securing consensus around certain non-negotiable principles without which there may not be any political settlement at all. Given that the 1996 South African constitution does not contain an eternity clause, the inclusion of such immutable principles in its 1993 interim constitution (Section 74) functioned similarly to a sunset clause. The permanent South African constitution includes a differentiated amendment procedure with a high threshold of 75 per cent for amendments to Article 1, which lists the values underpinning the state, the supremacy of the constitution, citizenship, the national anthem and flag, and the official languages, and to Article 74, which stipulates the amendment procedure itself. Thus, constitution-makers in South Africa opted for a high degree of entrenchment of certain values but not complete unamendability. They also entrusted the interpretation of the new constitution to an empowered constitutional court, whose task it would be to act as guarantor of rights and democracy.^{Footnote 136}

After the Jasmine Revolution, the newly elected Tunisian legislature also assumed the role of constituent assembly, invalidated the 1959 constitution, and instituted a provisional legal regime, under which the basics of power arrangements in the state were stipulated together with the working rules of the constituent assembly itself.^{Footnote 137} This transitional legal regime has been criticised as insufficient for the needs of the post-authoritarian Tunisian context and as containing discriminatory provisions, and the absence of a mechanism of judicial review has in particular been pointed to as problematic.^{Footnote 138} Presumably, drafters were well aware of the option of adopting more comprehensive interim legal provisions. Neighbouring Egypt had itself adopted a fraught Constitutional Declaration in March 2011 and Iraq had also experimented with the well-known (and also fraught) Transitional Administrative Law. The level of detail and scope of issues covered by interim constitutions in conflict-affected states has historically varied,^{Footnote 139} and Tunisia’s choice to invest its post-revolutionary energy into drafting a new permanent constitution was likely a deliberate choice.

Sunset clauses

Sunset clauses are another alternative to eternity clauses and may be understood as mechanisms of temporary absolute rigidity which are set to expire at a given point in time or once certain conditions have been fulfilled.^{Footnote 140} One of the best-known examples of constitutional sunset clauses was incorporated into the constitution of the United States: amendments to Article I, Section 9, clauses 1 and 4, which protected the importation of slaves and prohibited some capitation taxes, were prohibited until 1808.^{Footnote 141} The lineage of this type of law-making, however, goes back as far as ancient Athens, and continues to be employed in constitutional design today.^{Footnote 142} The presumed advantage of sunset clauses is that they allow stability to trump constitutional flexibility, but not indefinitely. The implicit suppositions behind their use are that something significant will change in the intervening period, that entrenchment is required during democratic consolidation but will not be later, and that the need for ‘gag rules’ will diminish and spirits will cool.^{Footnote 143} Jennifer Widner has highlighted the potential utility of sunset clauses in post-conflict situations for precisely their capacity to reduce passions and has given the examples of South Africa, Bougainville and Uganda as places where sunset clauses have played a positive role in constitutional transitions.^{Footnote 144} Interestingly, the second Tunisian draft had included a sunset clause alongside an unamendability provision, banning amendments for a period of five years after the constitution would enter into force.^{Footnote 145} Entrenching the hard-fought gains of the drafting process was clearly on the minds of its architects.

When compared to eternity clauses, on their face, sunset provisions seem to achieve many of the same objectives without the downsides of long-term rigidity: they may facilitate and safeguard initial agreement without frustrating constitutional evolution further down the road. However, to the extent that unamendability is resorted to precisely so as to preclude any renegotiation of principles, irrespective of democratic consolidation or any changes in circumstances, then sunset clauses may not be adequate replacements. Indeed, sunset clauses themselves have been viewed as especially rigid constraints on future generations to the extent that they may trigger the artificial abandonment of an otherwise well-functioning constitution.^{Footnote 146} More significant, however, is the fact that sunset clauses are accompanied by much insecurity: the delicate balance of powers achieved at the time of drafting the constitution may change dramatically by the time a sunset clause is set to expire. Parties to a political settlement may thus not wish to take the risk of their initial bargain unravelling in a context in which they do not wield sufficient power and may opt for permanent unamendability instead. In Tunisia’s case, the final compromise on Article 1 may be especially sensitive to changes in the balance of power, as may be the unamendable presidential term limit.

Deferral

Other means of reaching agreement over a constitution which may function as alternatives to unamendability may be less obvious. One mechanism would be deferral, understood as the deliberate choice of drafters to postpone deciding on certain contentious elements of constitutional design and defensible on grounds similar to those underpinning sunset clauses: that a solution can be reached once passions subside. There is some evidence that in cases where deferral was not embraced in the constitutional design, the likelihood of ‘significant pressures for whole-scale constitutional replacement, as opposed to amendment’ increased.^{Footnote 147}

Applying this to eternity clauses which were adopted in a non-inclusive, contested manner, one might expect them to be the source of continued instability in the polity and potentially to trigger early constitutional replacement. More generally, the literature on incrementalism suggests that not deciding everything during drafting may allow for the gradual development of consensus which a more specific initial draft would preclude.^{Footnote 148} However, in cases where no initial consensus is possible without certain ironclad guarantees, included in the eternity clause, prospects for more consensus down the line may not be better. To the extent that unamendable provisions in the constitution provide assurances without which constitutional negotiations would break down, deferral of the principles these provisions enshrine may not be a feasible solution. Considering this option in the case of Tunisia, it is impossible to imagine a political settlement being reached at all if the most contentious issues during negotiations, later declared unamendable, had been postponed. The climate of insecurity and distrust among the political actors have likely prevented deferral from amounting to a meaningful constitutional design option, at least with regard to the elements of the eternity clause.

Ambiguity

Similar to deferral is deliberate ambiguity in constitutional language. It is a mechanism for accommodating diversity in spite of deep uncertainty at the time of drafting a new constitution. The Indian constitution, for example, had to fit but also unify a diverse society rife with religious, social, ethnic, linguistic, and regional tensions, a mission accomplished via what one scholar has termed ‘constructive ambiguity’: embracing such conflicts and importing them into the constitution via the deliberately ambiguous formulation of constitutional provisions.^{Footnote 149} This was a strategy to accommodate diversity and allow room for the uncertainties at the time of founding (such as the fate of Muslims in newly independent India) and led to the development of a distinctive type of legal pluralism.^{Footnote 150} Ambiguity has broader application and has been used as a tool in the constitutional adjudication of contentious issues such as subnational secessionist claims.^{Footnote 151}

In a sense, ambiguity is already embedded in eternity clauses by their very nature: unamendable commitments to democracy, the rule of law, or human rights will only lose their vagueness once operationalized in legislation or case law. In the case of other unamendable provisions such as executive term limits, it is precisely their unambiguous statement which renders them appealing to drafters. However, describing the relationship between the state and an official religion or language in more ambiguous language such as in the Tunisian constitution does may leave room for more inclusive constitutional evolution. This ‘semantic ambiguity’ in the Tunisian constitution was a deliberate choice made by drafters who sought compromise on the religious framework, and was coupled with the ‘terminological polysemy of Article 6’ (which declares the state the ‘guardian of the sacred’).^{Footnote 152} This shows ambiguity to not necessarily be an alternative to eternity clauses but to be compatible with them.

Silence

Both deferral and ambiguity are cousins of another, perhaps more controversial drafting technique: constitutional silence. Also termed ‘abeyances’, constitutional silences have been explored as useful in mediating constitutional crises.^{Footnote 153} They have been referred to as ‘an intermediate layer of obscurity’, between uncodified custom and positive law, which ‘accommodates those implicit understandings and tacit agreements that could never survive the journey into print without compromising their capacious meanings and ruining their effect as a functional form of genuine and valued ambiguity’.^{Footnote 154} Vicki Jackson has also recently speculated on the potential usefulness of silence in constitution-making.^{Footnote 155}

Thus, whereas deferral postpones decisions on disputed matters and ambiguity addresses them in purposefully obscure language, constitutional silence implies drafters say nothing at all on a particular issue. In that way, it is the starkest alternative to eternity clauses. In practice, opting for silence might take the form of no provision at all on official languages, religion, or on other controversial state characteristics. Presumably, some of these could be legislated on at a later time, but not constitutionalising them may lower the stakes of such later negotiations. However, the meaning of silence in the constitutional text will invariably depend upon its subsequent interpretation. This would in turn raise the stakes of negotiations over the body entrusted with such interpretation, presumably a constitutional court, with the battleground over safeguarding the political settlement fought over issues of judicial appointments, independence, and powers. This is already apparent in Tunisia, where the draft law to finally establish the new constitutional court has generated fierce debate. Moreover, the same conditions of uncertainty which reduced the likelihood of drafters in post-conflict settings resorting to deferral or ambiguity may also apply to silence. To the extent that their concern is precisely with enshrining the hard-fought political agreement into the constitution, they are unlikely to be content with not doing this explicitly, or to risk its undoing by way of later judicial interpretation.