Saudi Policy in Lebanon in Review
November 15, 2016
The Supreme Mind, Genies and the Dollar Bill: Turkey and Conspiracy Theories
December 9, 2016

Human Rights in Post-Revolution Tunisian and Egyptian Constitutions: Perspectives for a Future Syrian Constitution – Part One/Three: Tunisia

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A constitution is a pivotal factor in the long-term success or failure of the democratic transition that a country has after passing through an uprising or civil war. Both cases were seen during the “Arab Spring” where some countries descended into an armed conflict like Syria while others reverted back to even more authoritarian regimes like Egypt. The notable exception and possible success story is Tunisia. A constitution alone is not enough to guarantee the success of such transition if not coupled with legislative reforms and practical changes in institutions and their methods of operation.[1] This series aims to offer an overview on the respect of human rights in the new Tunisian and Egyptian constitutions, their application on the ground, and attempt to project their successes and failures to the case of Syria and its future constitution whenever it will be written.

The new Tunisian constitution was adopted by the National Constituent Assembly in January 2014, and it protects social, economic, political, civil, and cultural rights such as human dignity  and prohibiting torture (article 23), presumption of innocence (article 27), protection from arbitrary arrest (article 29), and right to defense (article 108).[2] It also includes the right to health, work, and education. Even economic justice is touched upon with Article 12 where it states that the poor and underdeveloped areas will receive economic assistance from the government.[3]

Another positive factor in the new constitution is the independence of the judiciary from political interference especially with the establishment of a Supreme Judicial Council that will be responsible for judicial appointments, discipline, and career progression of judges. A majority of the members (33 out of 45) are independently elected lawyers, judges, bailiffs, and notaries. This is a good step forward regarding the degree of independence of the court amid the history of strong political influence over the judiciary as seen previously with Ben Ali and the High Judicial Council.[4] In addition, a constitutional court is to be formed to guarantee the accordance of laws with the constitution and a human rights commission to investigate human rights violations.[5] The court’s members will be named by the President, parliament, and Supreme Judicial Council where each is entitled to name a third of the court’s members.[6]

Nevertheless, the constitutional court is yet to be formed, and this is having a negative impact on the progression of human rights since it is the authority tasked with ensuring that current and previous laws conform to the new constitution, which has been hailed as the most progressive in the region. The absence of such court has led to many injustices over the past years such as the case of a 22-year old Tunisian student who was accused of homosexuality and subjected to an “anal examination” based on Article 230 of the Penal Code which is in violation of Article 23 of the constitution that prohibits “mental and physical torture” and guarantees the right to “human dignity and physical integrity”.[7] With the holding of the elections of the Supreme Judicial Council in October 2016, Tunisia appears to be on track towards the establishment of the constitutional court, albeit a bit slow in the process.

The right to privacy which was guaranteed in article 24 of the 2014 constitution is limited by the 2004 Organic Act adopted by the Ben Ali regime. The Organic Act theoretically provides protection to the data of citizens by giving them rights, setting obligations on those in charge of processing this data, and this must be previously authorized by the INPDP (National Authority for Protection of Personal Data); however, organizations with a public personality such as police stations and tribunals are not bound by the obligations that are usually applied to personal data processors. The very low number of requests between 2009 till 2014 indicates the lack of application of the law. INPDP’s President indicates that the most important task on his agenda is the revision of the 2004 Organic Act so that it complies with international standards and the new constitution.[8] Another threat is the formation of the Technical Telecommunication Agency (ATT) which was established by a decree bypassing parliamentary approval. The ATT monitors and records internet traffic with full access to the networks of Internet Service Providers; moreover, its reports are “secret, unpublished, and only sent to the government”. Articles 122 and 124 of the constitution reduced the role of the High Independent Authority for Audiovisual Communication (HAICA) to an advisory one rather than a regulatory one after lobbying and pressure by civil society organizations. This progress was negated by the formation of the ATT whose relationship to the judiciary is not clearly stated and lacks any legal framework for civilian accountability.[9]

The constitution has been praised for its advancement in women’s rights. It has been labeled as the first in the Arab world in giving men and women the right to be presidential candidates (article 73). For instance, article 21 guarantees equal rights and duties between men and women. Moreover, article 46 grants women the rights to divorce, to marriage by mutual consent, and banning polygamy. It also specifies parity between men and women in all elected assemblies; however, it does not guarantee the same principle in government posts.[10] This principle was upheld during the 2014 parliamentary elections where the electoral law required alternating males and females in party lists.[11] The state will also ensure gender equality and fair wage in the workplace through affirmative action measures (article 40).  Additionally, most rights given to women are related to citizenship in spite of article 46 explicitly stating that “the state is obliged to act through public authorities by taking measures to eliminate all forms of violence against women”.[12]

On the other hand, the constitution does have some ambiguous phrases which could be exploited such as prohibiting “attacks on the sacred”, “apostasy”, and “inciting violence or hatred” in article 6 which deals with freedom of conscience and belief. Another drawback is the absence of an article abolishing the death penalty even though a moratorium is in effect since the early 1990s.[13]

Several articles could be interpreted in a manner which could threaten the respect of rights such as article 20 which limits the scope and jurisdiction of international treaties by placing them above regular laws but inferior to the constitution. This does mean that the Code of Criminal Procedure must be revised to conform to international treaties signed by Tunisia.[14] Article 49 mentions types of limitations which could be placed on human rights and freedoms by also stating that such restrictions cannot compromise the essence of rights that are guaranteed by the constitution. Some of these types include protecting “the rights of others”, “public order”, and “national defense”.[15] The rights stated in the constitution are mentioned in a short manner while in comparison, the limitations are stated in detail in article 49 which opens the door for potential abuse especially since the terms used are very vague and general.[16]

Article 80 provides the President with the ability to take “any measures” in case of “imminent danger”. This again opens the door to abuse especially since it doesn’t set a time limit to a possible state of emergency or exceptional powers that could be granted to security institutions.[17] A consequence for this was seen with the declaration of a state of emergency following a series of attacks (Bardo, Sousse…) claimed by the Islamic State. This state was repeatedly extended for months at a time after each attack.[18] Normalizing this act poses a threat to the rights fought for during and after the revolution. Suspending certain rights, banning strikes and demonstrations, controlling media and publications, mass arrests without warrants, and placing anyone deemed a threat to public order under house arrest, even for a short period of time under the pretext of preserving security, could quickly lead to a slippery slope.[19]

Lawyer Abdessatar Ben Moussa, former President of the Tunisian Bar and head of the Tunisian League for the Defense of Human Rights (one of the members organizations of the Tunisian National Dialogue Quartet which was awarded the 2015 Nobel Peace Prize), was critical of the transition to democracy in Tunisia and highlighted the need to do much more. He mentioned that journalists are still being arrested and tried based on draconian laws which are in conflict with legal decree 115 of 2011 which guarantees the freedom of press. He also stated that in spite of the constitution indicating the need for a lawyer to be present during police detention, Criminal Procedure Rules have still not been amended. Even torture is still part of the culture of the police as a method to extract confessions, albeit at a smaller scale than it was during Ben Ali’s rule. Ben Moussa also pointed out that the new terrorism law coupled with the state of emergency opens the door for human rights violations guaranteed by the constitution to be carried out by the police without any judicial oversight.[20]

Ramy Khouili, Maghreb Policy Advisor with Euromed Rights-Euro-Mediterranean Human Rights Network, indicated that significant advances have been made in Tunisia regarding human rights after the fall of Ben Ali in 2011 especially regarding freedom of expression, but many laws are not in harmony with the new constitution and have not yet been amended. The Penal Code dates back to the colonial era with only a few amendments. It was written with the aim of “preserving public order” rather than protecting human rights. Even laws that protect human rights are not always implemented. For instance, the LGBT community is repressed within Tunisian laws; however, there has been a gradual shift in the past years through awareness and pressure by civil society towards respecting the freedom of expression of LGBT members. The media is also moving away from the discourse of homosexuality being a “sickness” towards a more rights oriented approach.[21]

Tunisia, under Ben Ali, was considered to be a police state given the crucial role the police apparatus played in repressing dissent and opposing voices. Because of this, comprehensive reform in the security sector was one of the key objectives for the governments which assumed power after the revolution. This has yet to occur, and if it does, it has to tackle three levels according to Derek Lutterbeck. The first level is legislative so that a new legal framework is adopted and repressive laws are abolished. The second level is institutional so that there is more transparency and accountability to members of the police force. The third level is “police culture” so that it is transformed from a culture of authoritarianism to a culture respect for human rights and rule of law. Limiting reform to the dismissal of certain high ranking officials is merely a symbolic gesture which does not tackle the social and cultural roots of the problem.[22]

Signs of police abuse are still present today as many claims about violations have been raised. For example, Afraa Benazza, a 17 year-old Tunisian student, stated that she was humiliated, sexually harassed, and physically and verbally abused by officers at a police station because of an opinion she expressed on Facebook. Even though she is a minor, she was not allowed to contact neither her parents nor a lawyer. Another example is Adnen Meddeb and Amine Mabrouk, two Carthage Film Festival volunteers, who were arrested for breaching curfew, beaten up, and charged with drug use because the police found a pack of rolling papers in their car. Likewise, statistics show that more than a third of those incarcerated (more than 7,000 Tunisians) are jailed for cannabis use based on Article 52 of the penal code. Such practices reawaken the collective memory of Tunisians of the violations carried out by the police in the name of “ethics”.[23]

Several key factors helped manage a so-far successful transition after the revolution such as the negotiations and compromises made by both secular and Islamist parties especially after the assassinations in 2013 which made the leaders of these parties realize that dialogue is crucial if they are to avoid the fate of the other Arab countries that descended into civil war. Another key factor is the role of the civil society especially workers’ unions and women’s rights groups which lobbied and protested to push for a progressive and representative constitution. A third and important factor is the willingness of the ruling Ennahda party to discuss and reach a settlement on controversial issues with their opponents rather than trying to impose their own views on everyone.[24]

The absence of comprehensive legislative, judicial, and police reform is having a negative impact on the attempted progress with the constitution. In addition, the continued corruption and bad economic conditions are undoubtedly building up frustration among the population, especially the youth. Tunisian members of parliament and judges must ensure that the provisions of the new constitution are translated into practical action through adopting new laws or modifying already existent laws that pose a threat to the rights of citizens as well as interpreting them from a viewpoint which protects freedom and democracy. This should be coupled with a serious development plan to improve the economic conditions and employment opportunities. Without guaranteeing proper social and economic conditions for the youth to advance in life, they will be an easy target for recruitment for terrorist groups. The only way for a durable peace and achieving security is through the respect and protection of human rights especially in times of crisis.

The Tunisian people are attempting to move away from decades of dictatorship and oppression which molded state institutions and personnel in a manner that suited their interests and cemented their position in power. This is not an easy transition and is not expected to be a swift and smooth process; however, it is important to stay alert so that pretexts of security and stability do not derail the movement towards durable democracy and protection of rights. Human rights violations are still present, and deep courageous reforms must be pursued to cement the advancements being made; nevertheless, in a region embroiled in bloody sectarian and ethnic conflict, Tunisia remains the one of the last beacons of hope for a positive future, and a model to learn from by other Arab countries, through both its successes and missteps.

[1] Klibi, S. (2015) Implementing Tunisia’s New Constitution Requirements and Roadmap, Constitution Net, Retrieved from http://www.constitutionnet.org/news/implementing-tunisias-new-constitution-requirements-and-roadmap

[2] Ibid.

[3] Al Anani, K. (2014) Tunisia’s New Constitution, Middle East Institute, Retrieved from https://www.democracy-international.org/assessing-tunisias-new-constitution

[4] Guettari, R. (2016) Members of Supreme Judicial Council Announced after Historic Vote, Tunisia Live, Retrieved from http://www.tunisia-live.net/2016/10/25/members-of-supreme-judicial-council-announced-after-historic-vote/

[5] HRW (2014) Tunisia Let Constitution Herald Human Rights Era, Human Rights Watch, Retrieved from https://www.hrw.org/news/2014/02/01/tunisia-let-constitution-herald-human-rights-era

[6] Mersch, S. (2015) Judicial Reforms in Tunisia, Carnegie Endowment, Retrieved from http://carnegieendowment.org/sada/?fa=59746

[7] Levine, D. & Khouili, R. (2016) Post-Revolution Tunisia and the Struggle for Individual Liberties, iAffairs Canada, Retrieved from http://www.iaffairscanada.com/2016/post-revolution-tunisia-and-the-struggle-for-individual-liberties

[8] Perarnaud, C. (2016) Data Protection in Tunisia A Legal Illusion, Centre for Internet and Human Rights, Retrieved from https://cihr.eu/policy-analysis-data-protection-in-tunisia-a-legal-illusion/

[9] Williams, N. (2014) Undermining Progress Digital Surveillance and the Tunisian Constitution, Index on Censorship, Retrieved from https://www.indexoncensorship.org/2014/05/undermining-progress-digital-surveillance-tunisian-constitution/

[10] UN Women (2014) Tunisia’s Constitution A Breakthrough for Women’s Rights, UN Women, Retrieved from http://www.unwomen.org/en/news/stories/2014/2/tunisias-new-constitution

[11] Lunde, D. (2015) If You Want to Know whether Islam and Democracy are Compatible Look to Egypt and Tunisia, Muftah, Retrieved from http://muftah.org/islam-democracy-egypt-tunisia/

[12] UN Women (2014) Tunisia’s Constitution A Breakthrough for Women’s Rights, UN Women, Retrieved from http://www.unwomen.org/en/news/stories/2014/2/tunisias-new-constitution

[13] Ibid.

[14] Ibid.

[15] Hofmann, K. (2014) Assessing Tunisia’s New Constitution, Democracy International, Retrieved from https://www.democracy-international.org/assessing-tunisias-new-constitution

[16] Al Ali, Z. & Ben Rommdhane, D. (2014) Tunisia’s New Constitution Progress and Challenges to Come, Open Democracy, Retrieved from https://www.opendemocracy.net/arab-awakening/zaid-al-ali-donia-ben-romdhane/tunisia%E2%80%99s-new-constitution-progress-and-challenges-to-

[17] Ibid.

[18] AFP (2016) Tunisia Extends State of Emergency by Two Months, Yahoo News, Retrieved from https://www.yahoo.com/news/tunisia-extends-state-emergency-two-months-171640766.html

[19] MEE Staff (2015) Tunisia’s State of Emergency should not Impede Human Rights, Middle East Eye, Retrieved from http://www.middleeasteye.net/news/hrw-tunisia-s-state-emergency-should-not-impede-human-rights-513459309

[20] Moussaoui, R. & Ben Moussa, A. (2016) Respect for Human Rights is Best Weapon against Terrorism, People’s World, Retrieved from http://peoplesworld.org/respect-for-human-rights-is-best-weapon-against-terrorism/

[21] Ghorbani, M. (2016) Tunisia A Collective Fight for Individual Rights and Freedoms, Association for Women’s Rights in Development, Retrieved from http://www.awid.org/news-and-analysis/tunisia-collective-fight-individual-rights-and-freedoms

[22] Lutterbeck, D. (2013) Tunisia after Ben Ali Retooling the Tools of Oppression, Norwegian Peace Building Resource Center, Retrieved from https://www.ciaonet.org/attachments/24200/uploads

[23] Sghaier, R. (2016) 5 Years after the Tunisian Revolution Are Tunisians Losing their Dignity, Huffington Post, Retrieved from http://www.huffingtonpost.com/yala-young-leaders/5-years-after-the-tunisia_b_8898580.html

[24] Al Anani, K. (2014) Tunisia’s New Constitution, Middle East Institute, Retrieved from https://www.democracy-international.org/assessing-tunisias-new-constitution

Jimmy Matar
Jimmy Matar
Jimmy Matar earned a BA in International Affairs and Diplomacy at Notre Dame University Louaize. His work focuses on Islamism in general, and jihadist groups in particular; in addition to their direct role in the Middle East. He is a fellow researcher in the office of Islamists in the Middle East Institute for Research and Strategic Studies (MEIRSS) based in Lebanon. Furthermore, he is active in several NGOs focusing on Human Rights and interreligious dialogue.