Tunis — Tunisia's Parliament should abandon or substantially revise a bill that would give the government sweeping powers to restrict rights during declared states of emergency, Human Rights Watch said today.
The legislation would allow the executive to prohibit any strike or demonstration deemed to threaten public order, place under house arrest anyone whose "activities are deemed to endanger security," and suspend associations on mere suspicion of participation in harmful acts. The bill provides insufficient judicial review of measures taken under these powers.
"The untamed powers that this bill grants would roll back many of the rights Tunisians have been fighting to protect since the 2011 revolution," said Amna Guellali, Tunisia director at Human Rights Watch. "Emergency powers should be limited in scope and duration, and subject to court review."
Tunisia has been under a state of emergency for more than three years.
President Béji Caid Essebsi submitted the bill to parliament on November 30, 2018. Parliament's Committee on Rights, Freedoms and External Relations began discussing it on January 18, 2019.
Caid Essebsi declared a state of emergency on November 24, 2015, after a suicide bombing in Tunis killed 12 presidential guards. He has renewed it continuously since, most recently on January 6.
His declarations have been based on a 1978 presidential decree that allows the president to declare a state of emergency of up to 30 days, renewable, in response to serious disturbances to the public order. That decree gave the executive - in practice, the Interior Ministry and regional governors, who are part of that ministry - the authority to suspend certain rights. The current bill is designed to replace the 1978 decree as the legal basis for states of emergency in Tunisia.
The explanatory memorandum attached to the bill says that it aims at "a balance between the protection of the state and national territory from internal and external threats and the need to respect human rights and freedoms in the framework of the proportionality principle required by the Constitution."
Instead of striking that balance, though, the bill would expand the authorities' broad powers to act without prior judicial approval to curtail freedom of speech, assembly, association, and movement and union rights.
The bill defines "state of emergency" more broadly than international law permits, which provides that states of emergency suspending basic rights are permitted only when a situation "threatens the life of the nation." The legislation allows the president to impose a state of emergency, after consultation with the head of government and the High Council for security, for six months, renewable for three months, when there are events "akin by their magnitude to a 'disaster'" or if there is "an imminent danger threatening public order and security, the security of people and institutions and the vital interests and property of the state." The draft law does not spell out clearly the maximum duration of the state of emergency, leaving it open to the executive to renew it indefinitely.
Under the bill, the governors and interior minister maintain the powers under the 1978 decree to bar from a certain geographical area anyone seeking to "obstruct in any way the action of the public authorities." The officials can also impose house arrests, prohibit any demonstration or public gathering deemed to endanger public order or security, and close down public meeting rooms.
The bill adds to the 1978 powers, allowing the interior minister to place people under "administrative control," requiring them to sign in at a police station three times a day. The minister can also confiscate a passport or order interception of communications. Authorities can search places frequented by anyone it suspects of presenting a "threat to national security," and seize their computers or other information systems, without a judicial order.
The bill also empowers the authorities to order an association to suspend all activities that officials decide "contribute hampering public order or security" or are "obstructing the work of the public authorities." This overrides the 2011 law on associations, which gives to the judiciary the exclusive prerogative to suspend an association.
As Human Rights Watch has documented, police operations under the state of emergency have led to many abuses, with disastrous consequences for the targets and their families.
The authorities have placed more than 130 people under house arrest and restricted the travel of hundreds of others, causing many to lose jobs and fall under the suspicion of friends and neighbors.
The International Covenant on Civil and Political Rights (ICCPR), in article 4, allows states "in times of public emergency which threatens the life of the nation" to restrict certain rights on an exceptional basis. The measures must be only those "strictly required by the exigencies of the situation," and that meet the strict tests of necessity and proportionality.
The Human Rights Committee, the authoritative interpreter of the covenant, has said that the situation would require states parties to "provide careful justification not only for their decision to proclaim a state of emergency but also for any specific measures based on such a proclamation." The committee stressed that "measures taken under article 4 are of an exceptional and temporary nature." The primary aim of any state of emergency should be ensuring the conditions to allow a return to normal policing subject to judicial controls, the committee said.
Article 49 of the Tunisian Constitution states that any restrictions on the human rights that the constitution guarantees "must not compromise the essence of such rights; must not be imposed except where necessary in a civil and democratic society to protect the rights of others, public order, national defense, public health, or public morals; and that such restrictions must be proportionate to the intended objective."
Any legislation on state of emergency should include stronger safeguards, including specifying a maximum duration of both the state of emergency itself and each measure and a statement of the objective to lift it as soon as possible. The bill should require that a high judicial authority review the legal validity of the declaration or renewal of the state of emergency.
Authorities should deliver a written copy of their decision to each individual and organization whose rights they restrict using emergency powers. The law should allow the affected parties to challenge and obtain prompt judicial review of the restrictive measures.
Human Rights Watch has documented how the absence of written notification makes it difficult for those under house arrests or travel restrictions to challenge the orders before the administrative court, which reviews administrative decisions. The court's rules require the complainant to provide a copy of the administrative decision that they seek to challenge.
Each renewal of such orders should be subject to review by a court with the state authorities having to prove the necessity for ongoing restrictions, considering all the circumstances, including the access to work for the person involved. Suspension of associations should remain in principle a prerogative of the judiciary.