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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Also adda provision to direct the state to adopt positive measures in all areas to achieve the effective and equal empowerment of women.

- Clearly specify in article 79 that any restrictions to rights and freedoms during a state of emergency must be specified by law, demonstrably necessary for the purpose of protecting a legitimate aim, in a manner that is proportionate to protect that aim, for a specific period of time to meet the exigencies of the situation, and subject to judicial review.

Furthermore, specify that rights considered non-derogable, or absolute, in international law, such as the prohibition of torture, slavery and the right to freedom of thought and conscience remain protected, and cannot be restricted under emergency powers.

- State clearly a prohibition on cruel, inhuman and degrading treatment or punishment and uphold the principle of non-refoulement, the forced return to a serious risk of persecution.

- Incorporate in article 104 international standards on independence of the judiciary, including the unambiguous guaranteeof security of tenure and independence from the executive with respectto appointment, assignment, promotion and discipline.

In particular, removal of judges should be possible only for serious misconduct by a reasoned decision of an independent supervising institution, the High Judicial Council whichguarantees the right to due process.In addition, the chapter on the judiciary should include strong guarantees of the independence of the prosecution from the executive branch.

The groups also urged the NCA to adopt the language proposed by the Consensus Commission in the draft it has submitted:

- Adopt the draft language recommended by the Consensus Commission to remove excessive restrictions on rights and freedoms in the majority of provisions, including the freedom of movement, expression and information, and assembly.

- Adopt the Consensus Commission's draft language strengthening the wording of article 48 (general limitation clause for rights and freedoms).

The commission's proposed language better reflects Tunisia's international legal obligations by stipulating that any restrictions on rights and freedoms should be limited to those "necessary and proportional to secure a legitimate aim."

- Adopt the commission's draft language regarding the transitional provisions, granting the Constitutional Court immediately upon its creation within a year of the results of the legislative elections the full power to consider the constitutionality of existing laws and proposed laws, and to strike down laws and articles of laws that violate the rights provisions of the constitution (chapter 10) and granting the right to refer new laws to the Constitutional Court not only to the President of the Republic, as previously envisaged, but also to the prime minister as well as to 30 members of the Assembly of People's Representatives (article 117).

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