Human Rights Watch (Washington, DC)

3 January 2014

Tunisia: Strengthen New Constitution's Human Rights Protection - Guarantee Equality for All - Affirm International Law Obligations

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The wording of this article is vague in that it does not specify which cases can legitimize infringements of the right to life and under what conditions.

The four organizations oppose the death penalty in all cases as it constitutes a violation of the right to life and the right to be free from cruel, inhuman or degrading treatment or punishment.

- Amend the phrase "the supreme/noble and universal human rights principles" in the preamble by deleting "noble/supreme,"as it may be interpreted to imply that there is a hierarchy of universal human rights.

The terminology "supreme/noble" was included in the fourth draft to replace a controversial reference to the "cultural specificities of the Tunisian people.

"While the new formulation in the preamble to universal human rights is an improvement, the apposition of "noble/supreme" might reintroduce relativity and erode the very meaning of universal human rights, which are by nature indivisible, interdependent and inter-related

- Amend article 19 to ensure that all treaties duly ratified by Tunisia have a status superior to national law; the current article grants supremacy only to treaties ratified by the Assembly of the People's Representatives, which is the name of the future legislative body.

This could mean that treaties approved by the former legislative body would not have the same superior legal status. Article 19 should refer to any treaties "duly approved and ratified" instead of specifying only those approved by the Assembly of the People's Representatives, to avoid such differentiation.

- Further strengthen article 48 by providing that judges should interpret the law, including the constitution, to give priority to enforcement of a right or fundamental freedom, and to take into account the interpretation of human rights treaties from any official treaty body, including courts and commissions, as a minimum standard.

- Strengthen guarantees for economic, social and cultural rights by specifying that Tunisia has an obligation to achieve progressively the full realization of these rights tothe maximum of the country's available resources, including by providing for specific mechanisms to achieve these rights.

- Enshrine the principles of equality and non-discrimination before the law and extend it to anyone subject to the jurisdiction of Tunisian authorities, including both citizens and foreigners.

Article 20 should specify that discrimination, direct and indirect, is prohibited on the grounds of race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and that discriminatory laws or state policies are unconstitutional.

The current draft limits the protection of rights to citizens and does not specify the prohibited grounds of discrimination.

- Articulate the principle of equality between men and women in all its facets. The constitution should specify that men and women are equal and entitled to full equality in law and practice, as well as to equal opportunities in all areas of life - whether civil, cultural, economic, political, or social, as defined in international human rights standards.

Article 45 should specify equality in opportunity and rights between men and women. It should amend the phrase:"the state takes all necessary measures to eliminate violence against women" to include "all forms of discrimination and violence."

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