Tunisia: Draft Constitution dangerous backwards step for human rights

Tunisia: Draft Constitution dangerous backwards step for human rights - Civic Space

ARTICLE 19 fully rejects the new draft Tunisian Constitution. The draft Constitution, published by Tunisian President Kais Saied at the end of June 2022, is to be voted on in a referendum on 25 July 2022. We warn that if approved, the Constitution will be a tool for dismantling the democratic system in Tunisia. It will erode the separation of powers, threaten democracy and endanger human rights in the country.

Background

On 25 July 2021, the Tunisian President, Kais Said, dismissed the government and suspended the Tunisian Parliament. This was followed by the publication of Presidential Decree No. 117, which suspended much of Tunisia’s 2014 Constitution. Since then, the President has largely governed by Decree-law. The draft Tunisian Constitution (Draft Constitution), published in the Official Gazette on 30 June 2022 with a set of modifications published on 8 July 2022, enshrines the unilateral measures decided by the President since he announced the state of emergency. The national referendum will take place on 25 July 2022.

ARTICLE 19 is deeply alarmed about the Draft Constitution as well as the process that led to it. Numerous provisions in the Draft Constitution weaken checks and balances, undermine judicial independence and fall short of international human rights standards. We find it to be a product of an illegitimate legislative process which excluded large segments of Tunisian society. If passed, it would mark a major setback for democracy, human rights and the rule of law in Tunisia. The Draft Constitution stands in stark contrast with the current Constitution, which was adopted following a representative and inclusive process and which was widely considered to be one of the most progressive constitutions in the Arab world.

ARTICLE 19’s key concerns

  1. The Draft Constitution undermines the principle of separation of powers

Our major concern is that the Draft Constitution gives authoritarian powers to the President and reduces the role and independence of both the legislative branches and the judiciary – thereby reversing the progressive steps introduced by the 2014 Constitution.

The Draft Constitution gives essentially unfettered control to the President over the Government and allows him to set the public policies of the State (Article 100). The parliamentary oversight mechanisms established under the 2014 Constitution are eliminated. Parliament no longer bears the main responsibility to form the Government (Article 89 of the 2014 Constitution). Instead, it is the President who appoints the Government that implements the policies set by him (Article 101) and the Government is accountable to the President in doing so (Articles 111 and 112). This is alarming, not only from a democratic perspective but also because parliamentary oversight mechanisms are essential to safeguard human rights.

Any possibility of holding the President accountable for his actions as President is eliminated, which will inevitably contribute to a culture of impunity, further endangering human rights in the country. It is another significant step back from the 2014 Constitution pursuant to which the Parliament could present a motion to remove the President in case of grave constitutional breaches (Article 88). Instead, Article 110 of the Draft Constitution explicitly provides that ‘the President is not accountable for any actions he might take in carrying out his functions’.

The Draft Constitution also significantly undermines parliamentary independence and immunity and gives broad legislative power to the President. In particular, it allows the President to dissolve both legislative Chambers (i.e. the Assembly of the Representatives of the People and the newly introduced National Council of Regions and Districts) if Parliament presents more than one motion of censure against the Government during the same parliamentary term (Article 116). It also empowers an interim President to dissolve both Chambers of Parliament and weakens parliamentary immunity by introducing broad exceptions for slander, defamation or the obstruction of the “normal functioning of Parliament” (Article 66). In terms of legislative powers, Article 97 provides that the President may at any time submit to referendum draft laws that are related to the regulation of public authorities as well as the ratification of international treaties that may have an impact on the functioning of State institutions. This is particularly concerning given the number of problematic presidential decree laws passed since July 2021.

  1. The Draft Constitution erodes judicial independence

In a further consolidation of power in the President’s hands, the Draft Constitution erodes judicial independence.

ARTICLE 19 already expressed deep concerns when the President issued Decree-Law No. 11-2022, which dissolved the Superior Council of the Judiciary.  The creation of a Superior Council of the Judiciary (provided for by Organic Law No. 2016-34 of 28 April 2016) was one of the most important achievements of the 2014 Constitution, as it guarantees the independence of the judiciary through supervision by an independent body that is composed largely of judges elected by their peers. Decree-Law No. 11-2022 established the Provisional Superior Council, which, among others, conferred on the President the power to directly appoint some of the members of the Provisional Superior Council. The decree law was followed up by Decree-Law 2022-35 which gave the President the authority to summarily dismiss judges.

The Draft Constitution removes almost all of the provisions of the 2014 Constitution which sought to ensure the independence of the judiciary – for example the explicit prohibition of ‘All kinds of interference in the functioning of the judicial system’. Articles 119 and 120 of the Draft Constitution mention the Superior Judicial Council, without, however, specifying how its members are chosen – leaving the door open for legislation that will allow the President to appoint members of the Superior Judicial Council. It is also the President who appoints judges, upon nomination by the Superior Judicial Council. The Draft Constitution further removes the requirement that judges may only be disciplined or revoked by executive authorities upon the ‘reasoned decision by the Superior Judicial Council’ (as provided for under Article 107 of the 2014 Constitution). ARTICLE 19 is concerned that this will open the door for the discipline and revocation of judges by the executive authorities on arbitrary grounds.

The Draft Constitution also removes the power of the Constitutional Court to decide on motions requiring the removal of the President as Head of State for committing a grave breach of the Constitution (see Article 88 of the 2014 Constitution). As mentioned, it also is precluded from assessing decisions of the President relating to the state of emergency (Article 96 of the Draft Constitution). Finally, all judges will be banned from striking.

ARTICLE 19 reminds the Tunisian Government that a competent, independent and impartial judiciary plays a fundamental role in protecting human rights. We further remind the Tunisian Government that Tunisia has committed to guarantee the right to trial by a competent, independent, and impartial court in accordance with international and regional instruments (in particular Article 14 of the ICCPR and Article 7 of the African Charter on Human and Peoples’ Rights) and that the UN Basic Principles on the Independence of the Judiciary, as endorsed by the UN General Assembly, provide that it ‘is the duty of all governmental and other institutions to respect and observe the independence of the judiciary’ (Principle 1).

  1. The restrictions on freedom of expression and other human rights fall short of international human rights standards

Title 2 of the Draft Constitution is devoted to ‘rights and freedoms’. It reproduces most of the rights and freedoms enshrined in chapter 2 of the 2014 Constitution, including freedom of expression, opinion and thought; the right to information; freedom of association and freedom of assembly.

However, under the Draft Constitution, these fundamental rights can be restricted in a manner that clearly goes beyond the permissible scope of restrictions as provided by the International Covenant on Civil and Political Rights (ICCPR) – to which Tunisia is a party. For instance, under Article 19(3) of the ICCPR, interferences with freedom of expression are only permissible if they pass the test of legality, legitimacy, necessity and proportionality. In contrast to the equivalent provision in the 2014 Constitution (Article 49), the Draft Constitution does not require that restrictions meet the proportionality test. ARTICLE 19 is deeply concerned that this was a deliberate change to allow for disproportionate and arbitrary interference with freedom of expression and other human rights.

  1. State emergency powers are not restricted in any meaningful way

The conditions required for the government to exercise emergency powers are set out in Article 96 of the Draft Constitution. Article 96 eliminates significant safeguards that are provided in the 2014 Constitution (Article 80). In contrast to the 2014 Constitution, it contains no requirement to officially declare a ‘state of exception’. This is, however, a clear requirement under Article 4 of the ICCPR, according to which ‘[t]he State party must have officially proclaimed a state of emergency’ – a requirement which the Human Rights Committee has held to be ‘essential for the maintenance of the principles of legality and rule of law at times when they are most needed’ (see General Comment No. 29, paragraph 4). It also eliminates the requirement under the 2014 Constitution that the measures guarantee a return to the normal function of state institutions ‘as soon as possible’ as well as the possibility to challenge the exceptional measures before the Constitutional Court. ARTICLE 19 is further concerned that the Draft Constitution – like the 2014 Constitution – fails to specify that certain human rights, such as the prohibition of torture or slavery, are non-derogable even in states of emergency, falling short of the requirements of Article 4(2) ICCPR.

The Draft Constitution eliminates guarantees for the independence and impartiality of six institutions, including the Anti-Corruption Commission, the Human Rights Commission and the Audio-Visual Communication Commission. As ARTICLE 19 has highlighted previously, the Audio-Visual Communication Commission has been an important body for ensuring press freedom and media pluralism in Tunisia. If the guarantees for independence are removed, there is a real risk that the Commission could become an instrument for the Tunisian Government to exercise undue influence and control over the media sector.

  1. Guarantees for independence and impartiality of the Audiovisual Communication Authority and other constitutional bodies are eliminated

The Draft Constitutions eliminates guarantees for the independence and impartiality of six constitutional bodies, including the Anti-Corruption Commission, the Human Rights Commission and the Audio-Visual Communication Commission.

This is extremely problematic. As ARTICLE 19 has highlighted previously, the Audio-Visual Communication Commission has been an important body for ensuring press freedom and media pluralism in Tunisia. If the guarantees for independence are removed, there is a real risk that the Commission could become an instrument for the Tunisian Government to exercise undue influence and control over the media sector.

  1. The place of religion in the Constitution is unclear

The Draft Constitution removes the references to Islam as a state religion, as stipulated in Article 19 of the 2014 Constitution. However, it introduces a new Article 5 which states that ‘Tunisia is part of the Islamic Umma, and it is incumbent on the state alone to work to achieve the purposes of Islam in preserving the soul, honor, property, religion, and freedom’. Further, the draft amendments of 8 July also state that the process of ‘work[ing] to achieve the purposes of Islam’ will be carried out ‘within the framework of a democratic system’.

ARTICLE 19 finds these provisions confusing. Although the freedom to express one’s religion is specifically protected by the ICCPR, it still constitutes an aspect of freedom of expression. For this reason, international human rights bodies have repeatedly reiterated that while the notion of State religions is not per se prohibited under international human rights law, States have to ensure that this does not lead to a de jure or de facto discrimination of members of other religions and beliefs. They also warned that it seems difficult, if not impossible, to conceive of an application of the concept of an official ‘state religion’ that in practice does not have adverse effects on religious and other minorities as well as gender discrimination, thus discriminating against their members.

From the proposed text, it is clear that the Draft Constitution attributes great importance to Islam. It, therefore, seems appropriate to clarify the place of religion in the Constitution in relation to international law and instead, refer to the universal values of human rights and the fundamental principles of democracy. We are also concerned that the proposed provisions will be used to discriminate against minorities, including based on gender and sexual orientation.