Dear Members of the Tunisian National Constituent Assembly,
Human Rights Watch, an independent, nongovernmental organization, is writing to urge you to amend those articles of the second draft of the constitution that risk undermining human rights, including a broad formulation of permissible limitations on rights and freedoms, weak guarantees for the independence of the judiciary, immunity for the head of state, and discrimination based on religion. The National Constituent Assembly made this draft public on December 14, 2012.
The draft constitution upholds many key civil, political, social, economic, and cultural rights. These include articles on the right not to be detained arbitrarily, the right to bodily integrity, a prohibition of torture and the illegality of statutes of limitation for this crime, freedom to create political parties, freedom of movement, freedom to assemble and associate, a right to citizenship, the rights of persons who have been accused of breaking the law, arrested, or detained, and the right to work, health, and education.
The draft constitution provides for the creation of a constitutional court that will have the power to strike down laws that are not in harmony with the constitution. A positive aspect of this provision is that it will allow individuals to challenge the constitutionality of laws on the occasion of disputes before courts under conditions to be set out by law and to challenge final judgments on the grounds that they are contrary to the rights and freedoms guaranteed by the constitution.
In addition, the second draft constitution contains several improvements over the previous draft. NCA members dropped the criminalization of all attacks on "the sacred" and the criminalization of any form of "normalization" with "Zionism and the Zionist state," which threatened freedom of expression.
The new draft constitution contains language that better protects equal rights for women. The NCA abandoned draft article 28, which invoked notions of gender roles that are "complementary" and which risked diluting the principle of equality between men and women. Article 5 of the new draft provides that "All citizens, males and females alike, shall have equal rights and obligations and shall be equal before the law, without discrimination of any kind." It also states that "the state shall guarantee the protection of the rights of women and shall support the gains thereof."
At the same time, the revised draft constitution undermines rights protections in several ways. These include:
No explicit mention of international human rights conventions
The second draft constitution contains several references to human rights. For example, the preamble states that the constitution is derived from "the fundamentals of Islam and its open and moderate objectives, on the sublime human values and on the principles of human rights." Later, the preamble states that the Tunisian Republic will be "governed by respect for human rights and freedoms, sovereignty of the law, independence of the judiciary, prevalence of justice and equality in rights and obligations among all citizens, males and females alike, and among all groups and regions."
However, there is no explicit mention of the international framework of human rights or to "universal human rights," in contrast to the previous constitution, whose article5 stated, "The Tunisian Republic guarantees the fundamental freedoms and human rights in their universal, global, complementary, and interdependent sense." The absence of a clear reference to internationally recognized human rights law fails to situate the rights and freedoms set out in the draft constitution in their universally understood meaning and risks opening the door to divergent interpretations incompatible with universally recognized human rights.
Status of international conventions ratified by Tunisia
The draft constitution is unclear about whether international human rights treaties that have been duly ratified by Tunisia, including UN and African treaties and protocols, apply directly as law in Tunisia or have supremacy over domestic law. While article 38 stipulates, "international conventions promulgated by the president of the Republic and ratified by the parliament have supremacy over domestic law," article15 seems to contradict this by stating "respect for international conventions is compulsory if they do not contravene this constitution." [emphasis added] This provision is inconsistent with the Vienna Convention on the Law of Treaties, ratified by Tunisia, which states in article 27 that a "party may not invoke the provisions of its internal law as justification for its failure to perform a treaty," meaning that Tunisia has the duty to ensure that its constitution and laws comply with its international obligations. The ambiguous formulation of article15 might lead judges and legislators to ignore Tunisia's international obligations on the basis that they contradict the new constitution.
Broad leeway to the law to define the permissible limitations on human rights
Several articles in the second draft constitution define the scope of rights and freedoms by deferring to the law. For example, the right to privacy and free movement is guaranteed and shall not be restricted "unless under extreme circumstances provided for by law and backed with a judicial order." The state shall guarantee the freedom to establish parties, syndicates and associations, who shall engage to respect the legal procedures that will not be of a nature so as to "jeopardize the very essence of this freedom."
The same applies to Article 25on the right to peaceful assembly and demonstration, which shall be guaranteed and "practiced according to the procedures provided for by law without prejudicing the very essence of this right." In addition, the right to establish trade unions, as well as the right to stage strikes, shall be guaranteed provided the life, health, and safety of individuals are not jeopardized. On freedom of expression, the draft states that "freedoms of opinion, expression, media and creativity shall be guaranteed. Such freedoms shall, under no circumstance, be subject to prior censorship." However, the draft goes on to state, "freedom of the media and of publication may not be restricted except by virtue of a law protecting the rights, reputation, safety, and health of others."
The International Covenant on Civil and Political Rights (ICCPR) allows certain restrictions to fundamental rights and freedoms on the condition that these restrictions be specified by law, serve a legitimate aim (respect of the rights and reputations of others, protection of national security or of public order, or of public morals or health) and are necessary in a democratic society. The Syracuse Principles on the Limitations and Derogation Provisions in the International Covenant on Civil and Political Rights (ICCPR), adopted by the UN Economic and Social Council in 1985, require that the scope of a limitation referred to in the Covenant shall not be interpreted in such a way as to jeopardize the essence of the right concerned.
The NCA should include in the draft constitution a general clause requiring that any limitations that are imposed on rights and freedoms be in conformity with the derogations provisions under the ICCPR, which allow only narrowly defined restrictions that are laid down in law and are necessary in a democratic society for the pursuit of aims that are legitimate.
State of emergency
Article 73 of the second draft allows the President to impose a state of emergency in the event of an imminent danger threatening the entity, security, and independence of the country. The NCA should make it clear in the draft that rights and freedoms shall be respected at all times, and that the limitations thereof will conform to the requirements of the ICCPR on situations of emergency as set out in article4 and General Comment no 29. This should include that emergency limitations on rights should only be necessary for a specific period of time to meet the exigencies of the situation, and that rights that are considered non-derogable in international law should never be limited under emergency powers. Both the declaration of the state of emergency and any powers assumed under it should be subject to judicial review.
Immunity for the head of state
The second draft constitution provides that "the President of the Republic shall, when exercising the mandates thereof, enjoy judicial immunity. He also enjoys such judicial immunity after the presidential term for all acts executed as part of the office."
While immunity laws are commonplace for elected officials while they hold office, they should be worded so as to exclude lifetime immunity from prosecution for grave human rights abuses and international crimes. Thus, Tunisia's immunity for acts "executed as part of the office" should either be eliminated or narrowed to prevent impunity for implication in the commission of grave abuses and international crimes, and to meet Tunisia's international obligations.
Article 22 of the draft constitution states that "all citizens are equal in rights and obligations before the law, without discrimination of any kind." This provision is, however, contradicted by the article of the draft constitution that states that only a Muslim can become president of the republic.
In addition, the draft constitution contains weak language on non-discrimination and equality before the law. Article 5 does not conform to Article 2 of the ICCPR, which requires the state to respect and ensure to all persons within its territory and subject to its jurisdiction, and not only its citizens, the rights recognized in the Covenant. In addition, the constitution should specify that the grounds for distinction include not just sex but also race, color, language, religion, political or other opinion, national or social origin, property, birth, or other status.
Weak guarantees for the independence of the judiciary
The chapter on the judicial power contains several positive articles that incorporate general principles on the independence of the judiciary. For example, Article100 of the draft constitution stipulates that "the judiciary is an independent authority that ensures the prevalence of justice, the supremacy of the Constitution, the sovereignty of the law and the protection of rights and freedoms. Judges are independent. No power shall be exercised over the rulings thereof other than the power of the constitution and law." These provisions are in accordance with international standards, which require that the basic principles relevant to the independence of the judiciary should be set out in the constitution or equivalent texts.
However, the draft constitution contains weak guarantees for the tenure of judges, contrary to international standards on the independence of the judiciary. While prohibiting transfer of judges without their consent or removal of judges, the draft constitution envisages exceptions "in accordance with guarantees provided for by the law," a formulation that gives too much leeway to the legislative power and risks undermining the essence of this protection. For example, the draft does not state that only serious misconduct should warrant removal from office, as required by the Principles and Guidelines on the Right to Fair Trial in Africa, which state that "judicial officials may only be removed or suspended from office for gross misconduct incompatible with judicial office, or for physical or mental incapacity that prevents them from undertaking their judicial duties."
In addition, the draft constitution contemplates the creation of a High Judicial Council, in charge of "ensuring the prevalence of justice and respect for the independence of the judiciary, proposing reforms and making recommendations with respect to draft laws related to the judiciary, and deciding on the professional conduct of and disciplinary measures for judges."
The creation of a high judicial council is strongly encouraged by international standards on the independence of the judiciary. However, the council as envisioned in the revised draft constitution does not enjoy sufficient guarantees of its independence. Indeed, article 110 states that half of the council "shall be composed of elected judges and appointed judges while the other half shall be composed of other individuals." The draft does not indicate how the members shall be selected.
While international law provides no unique model for assuring independence of the judiciary, it does encourage states to create an authority for the supervision of the judiciary that is not dominated by the government and the administration. Several international instruments recommend that this body have a mixed composition of judges and non-judges, and that a substantial proportion, or even a majority of the members of the judicial council should be elected by the judiciary itself. For example, for the European Commission for Democracy through Law, better known as the Venice Commission, the Council of Europe's advisory body on constitutional matters, an appropriate method for guaranteeing judicial independence is the "establishment of a judicial council, which should be endowed with constitutional guarantees for its composition, powers and autonomy, especially for new and emerging democracies." It further states that a substantial element or a majority of the members of the judicial council should be elected by the judiciary itself. In addition, the European Charter on the Statute for Judges (1998) "envisages the intervention of an authority independent of the executive and legislative powers within which at least one half of those who sit are judges elected by their peers following methods guaranteeing the widest representation of the judiciary."
In order to safeguard human rights in the constitution and eliminate the threats to those rights in the draft currently before it, Human Rights Watch urges the NCA to revise the draft to:
Include a general clause directly incorporating into Tunisian law human rights as defined by international treaties ratified by Tunisia, including the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the African Charter on Human and People's Rights; and customary international law. Such treaties and customary law should have explicit supremacy over domestic law. The NCA should also include a clause stating that the rights and freedoms set out in the constitution bind the legislature, the executive, the judiciary, and all the organs of state. It should also include a clause that judges should interpret the law, including the constitution, in a way that is consistent with international human rights law.
Include a general clause stating that the rights and freedoms affirmed by this constitution can only be restricted in the following ways
By a clear law
That the limitation is necessary in a democratic society for the protection of legitimate aims
The scope of a limitation referred to in the constitution shall not be interpreted so as to jeopardize the essence of the right concerned.
In addition, the constitution should make clear that certain rights can never be limited, even in emergencies, such as the ban on torture or on discrimination, or the right of everyone detained to go before a judge.
Ensure that any immunity provision in the constitution states that such immunity would not apply to international crimes, including those covered by the Rome Statute of the International Criminal Court (ICC), which Tunisia ratified in June 2011 as well as acts of torture and enforced disappearance, among others.
Eliminate the draft provision that discriminates among citizens by requiring that the President of the Republic be a Muslim.
State that all citizens and persons within the territory or jurisdiction of Tunisia shall enjoy equal protection of the law.
Incorporate international standards on independence of the judiciary, including the unambiguous affirmation of security of tenure, with removal possible only for serious misconduct, following fair trial guarantees and when decided upon by a High judicial council.
Revise the composition of the High Judicial Council to include a significant percentage of judges elected by their peers.
You have included many positive provisions in the constitution affirming rights that Tunisians have long been denied. We urge you to remove the existing major loopholes that could allow authorities in the future to confiscate those rights.
We thank you for your time and attention,
Sarah Leah Whitson
Executive Director, Middle East and North Africa Division