Tunisia: Open letter on the draft law on the creation of the Audio-visual communication body

21 June 2017

Open Letter to

Mr Beji Caid Essebsi, President of the Republic

Mr Mohamed Ennacer, President of the Assembly of People’s Representatives

Mr Youssef Chahed, President of the Government

National and international human rights organisations, signatories of this open letter, inform you of their deep concern about the draft law on the creation of the Audio-visual communication body of Audio-visual communication [sic] set up by the Ministry in charge of Relations with civil society and sent to the Head of Government, as being contrary to the benefits of the Constitution with regard to freedom of expression, information and independence of the Audio-visual sector.

We mention throughout our letter that this draft law is contrary to international standards and is likely to have negative repercussions on the independence of the media and citizens’ rights to a free press and one which respects the rules of ethics.

We insist on the danger of the dispersion of legal texts and their fragmentation. Thus, the forthcoming adoption of the draft law on “common provisions between constitutional bodies” by ARP and the separation of the Audio-visual communication law from the overall framework governing the sector, open the way to limiting Audio-visual communication and the independence of the regulatory body.

We assure you that this approach is contrary to the principles of good governance, international standards and practices in democratic countries that seek to unify rather than divide legal texts.

We call on the Government and the Assembly of Representatives to adopt a comprehensive Audio-visual law in line with the 2014 Constitution and international standards and developed within the framework of a serious and continuous dialogue with the relevant organisations of civil society, professionals and independent experts in the media sector.

The Honourable President of the Republic,

The Honourable President of the Assembly of People’s Representatives,

The Honourable President of the Government.

The Tunisian Audio-visual sector is governed by Legislative Decree No. 116-2011, which has also set up the Independent Audio-visual Communication Authority (HAICA).

After the adoption of the new constitution in January 2014, one expected the texts on freedom of Audio-visual communication to be harmonised with the Constitution.

In this regard, the ministry has drafted a bill to set up the Audio-visual communication body that is supposed to replace the current body (HAICA) without a comprehensive vision of audio-visual reform being adopted.

Such an approach makes it very difficult to evaluate the impact of the creation of a new Audio-visual regulatory body in the absence of an overall vision of the proposed reforms, which will be in the form of dispersed laws.

Moreover, the draft law has not been consulted to allow all those involved in the media sector to participate in the preparation of the legislative framework which concerns them. It should be emphasised that many of the latter have however, initiated or participated in initiatives aimed at preparing the replacement of Legislative Decree No. 116-2011.

And after consulting the draft law on the Audio-visual communication body, the signatory organisations raise the following observations:

Unsatisfactory wording: The poor quality of the drafting of the text and the lack of clear definitions of the terms used make the project difficult to understand and do not clearly establish the powers and powers of the Audio-visual Communication body [ICA in its French acronym].

A dangerous restriction of ICA prerogatives

Lack of clarity on the role of the body as regards licencing: The procedure provided for in Article 7 lacks clarity. The obligation of “coordination” with the institution responsible for granting frequencies raises concerns about the compatibility of the text with international standards. Indeed, the institution responsible for granting frequencies depends entirely on the State and the grant could therefore be a purely political decision. Under international law, an independent body must be the sole body responsible for granting licences to audio-visual media companies. The procedures and conditions for granting licences are also not specified in the text.

Confusion over the role of the body in the context of electoral campaigns: the current draft law gives common prerogatives for organising and regulating the electoral campaign in the media to the Audio-visual Communication body and the Independent Higher Authority of the elections (ISIE in its French acronym), without however specifying the powers of each of the bodies, which could cause conflict when interpreting each body’s competences, whereas Decree – Law 116 is more precise on this issue.

Insufficient role in the dismissal of directors of public media establishments: Article 14 of the draft stipulates that the body must give its “assent” to the government’s proposals for the appointment of CEOs of public enterprises. Nevertheless, the body has no prerogatives in the matter of dismissals and appointments, paving the way for appointments motivated by political or reasons of decorum. In this context, the signatory organisations recall that the Government should have consulted the HAICA for the assent of the Director General of Tunisian television, Elyes Gharbi on 16 June 2017, based on the principle of parallelism of forms and procedures. This recommends following the same circuit at the time of the appointment and dismissal, especially since there is constant jurisprudence in this sense.

Moreover, and in the light of international standards, public media companies must be transformed into actual public service companies whose independence from public and private authorities is ensured. Currently, Tunisian institutions remain subject to laws adopted under the old dictatorship such as Law No. 33 of 2007 on public Audio-visual institutions and its implementing decrees.

Uncertainty regarding the power to impose penalties: The draft law provides that the ICA shall identify deficiencies committed by Audio-visual communication establishments, receive complaints of any shortcomings and conduct investigations, these prerogatives falling under the monitoring and complaints section of the administrative body. The text refers, on several occasions, to the “sanctions” that the ICA may impose, but at no time is the nature of these sanctions specified in the text. In the light of international standards, sanctioning powers, the nature of such sanctions, as well as serious procedural guarantees, including a hearing, the obligation to give reasons in writing and the possibility to appeal, must be clearly defined by Law.

Absence of regulatory powers on the concentration and transparency of media ownership structures: the text does not provide for any prerogative to monitor compliance with the rules on concentration and transparency of media ownership. In view of international standards, media pluralism is one of the main objectives of media policy and must be guaranteed by Law. It is also important for the Law to precisely define the regulator’s role in this respect.

Deficiencies in the safeguards guaranteeing the independence of the body:

Undermined financial autonomy: Article 1 of the draft law provides that the ICA is “independent” and is “endowed with administrative and financial autonomy”. However, the draft law does not guarantee adequate funding for the ICA. The text indicates that the Council of the body approves an annual budget drawn up by the administrative body under the supervision of the President of the body, but nowhere in the text does one find the conditions / financial methods of the ICA, by whom and under what criteria. In view of international standards, the regulator should benefit from stable and sufficient financing spanning several years.

Inadequacies in the procedures for appointment and dismissal of ICA members: these include the procedures for dismissing members, insofar as the grounds for such revocation are not indicated – except for gross negligence or criminal conviction under article 49. Under article 30, it may be assumed that a member of the body would be removed for minor violations or for reasons unrelated to the exercise of his functions or for political reasons or decorum.

With regard to the draft framework law on constitutional bodies, the signatory organisations express their concern at the uncertainty created by the legal system of the ICA. According to article 2 of the draft law, the body will be governed both by its organic law (special system) and by the “common provisions between the independent constitutional bodies” (common system) which could lead to difficulties in application and interpretation, especially if there is a repetition or contradiction between the two texts.

Signatory organisations

  •  Al Bawsala
  • ARTICLE 19
  • Committee for the Respect of Liberties and Human Rights in Tunisia
  •  Community Media Solutions
  •  Euro-Mediterranean Human Rights Network (EMHRN)
  •  International Federation of Journalists (IFJ)
  • International Media Support
  •  National Union of Tunisian Journalists
  • Reporters Without Borders
  • Tunisian Association to Defend Academic Values
  •  Tunisian Forum for Economic and Social Rights (FTDES)
  • Tunisian League for the Defense of Human Rights
  • Tunisia Press Freedom Centre
  • Tunisian Union of Community Media
  • Tunisian Women Research and Development Association
  • Yaqadha (Vigilance) Association for Democracy and the Civic State