No one can deny that one of the most important flaws and shortcomings in the constitution of post-independence Tunisia is the issue related to the consecration of rights and freedoms. The 1959 constitution did not devote a separate chapter on rights and freedoms. Rather, it confined itself to specifying some rights briefly and separately between the preamble and the first chapter devoted to general provisions. Therefore, the Constitution of January 27, 2014, came to make a radical break in this context by devoting it to an independent section related to rights and freedoms (Section two from Article 21 to Article 49), which, next to it, we find Article Six within the Section of General Provisions and it is related to religious freedom.
This article states that “the state is the guardian of religion, guarantees freedom of belief and conscience and the practice of religious rites, and guarantees the impartiality of mosques and places of worship from party employment. The state is committed to spreading the values of moderation and tolerance and to protect sacred things and prevent them from being undermined, and it is also committed to preventing and confronting accusations of apostasy and incitement to hatred and violence.”
This article is considered a qualitative leap and a constitutional revolution in the fullest sense of the word, as Tunisia’s 2014 constitution is the first constitution for an Arab country to explicitly enshrine freedom of conscience.
Freedom of conscience is one of the basic individual freedoms and a fundamental human right and means that a person has the right to believe what his conviction dictates and this opens the way for making choices among contradictory things in the intellectual, philosophical, religious, artistic, etc…
In this sense, freedom of conscience falls within the domain of independence enjoyed by the citizen vis-à-vis the state and society. This is what Benjamin Kinston expresses as the freedom of independence. Freedom of conscience is related to other rights and freedoms that are associated with it, perhaps the most important of which is freedom of thought, which explains why the Tunisian constitution stipulates in Article 31 that “freedom of opinion, thought, expression, information, and publishing is guaranteed.”
It is not permissible to survey these freedoms, as freedom of conscience is complementary to freedom of thought. This is since freedom of thought is comprehensive general freedom that includes the freedoms of scientific and academic thought, philosophical consideration, and religious contemplation, freedom of belief, production, and artistic creation.
Article 18 of the International Covenant on Civil and Political Rights of 1966, ratified by the Tunisian state, establishes an interrelated relationship between freedom of thought, conscience, and religion.
«Freedom of conscience lies in the middle ground between freedom of thought and freedom of religion.»
Freedom of thought gives the individual the intellectual tools that allow him to freely select and exercise and distinguish his emotional and religious choices, his convictions, and the freedom of conscience that allude to the normative life and the internal value of the individual that allows him to crystallize his convictions, including religious and faith convictions.
In this sense freedom of conscience goes beyond the narrow concept of freedom of belief. It does not mean only the right to choose between religions, but in particular the right to believe and not to believe, that is, not to choose any religion and embrace a non-religious order.
Freedom of conscience also implies the right to change one’s religion. For example, a person can move from the Islamic religion to the Christian religion or vice versa without being subject to punishment, or to risk diminishing his citizenship rights.
This is in line with the position of the Human Rights Committee in its General Comment No. 22 on the aforementioned Article 18, which affirmed that freedom of conscience essentially entails “the freedom to choose a religion or belief, including switching a person’s religion or belief to another religion or belief or adopting a position that is contrary to all Religion.”
From this perspective, freedom of conscience is considered one of the basic freedoms and the main pillars of the democratic system, and it is the criterion of differentiation between the civil state based on the sovereignty of the people and the supremacy of the law and the religious theocratic state, which is further confirmed with the prohibition of article 6 of accusations of apostasy and incitement to hatred and violence. There is no point in prescribing freedom of conscience and thinking if the door is open to accusations of apostasy, violence, hatred, physical liquidation, and the permissibility of blood for religious choices, philosophical opinions, or artistic perceptions, even if they are shocking, daring, and contrary to the prevailing and familiar.
On the other hand, freedom of conscience entails equality in law and before the law between male and female citizens, which is found in Article 21, which states: “Citizens have equal rights and duties and are equal before the law without discrimination.”
Consequently, the legislative or general regulatory authority cannot lay down a legal text that distinctions between citizens based on race, gender, or political or social affiliation, especially based on religious ideas or faith choices.
It should be noted that the first article, in its stipulation that the state religion is Islam, does not contradict the sixth article on freedom of conscience, because the recognition of Islam as the official state religion in the first article is nothing more than the recognition that Islam is the religion of the overwhelming majority of Tunisian citizens.
It cannot, therefore, justify, in one way or another, a violation of the freedom of conscience and of restricting its exercise. The different parts of the constitution interpret and explain each other as a harmonious unit, according to what is stipulated in Article 146 of the Constitution. Consequently, there is no contradiction between the recognition of the religion of the majority of the people as a sociological, historical, and a civilization given, on the one hand, and the right of every individual to determine freely and without interference by the state or any other party his religious, ideological and philosophical choices on the other hand. Additionally, article two of the Constitution clearly guarantees the civil character of the Tunisian state, the supremacy of the law, and the sovereignty of the people, which makes religion a subject to the Tunisian state and does not allow the state to be subordinate to religion.