Letter to the National Constituent Assembly Regarding the New Constitution

[Photo credit: Abdelkarim Benabdallah]

Dear Members of the Tunisian National Constituent Assembly,

The Tunisian National Constituent Assembly (NCA) has made important strides since its election on October 23, 2011 towards writing a new constitution. With the formation of the six drafting commissions, the deputies in the NCA will now have to make crucial choices regarding the system of governance, the foundational principles of the Tunisian republic, and the relations between the different branches of government.

Tunisian citizens have strongly expressed their demand for a new constitution that will prevent the abusive practices of the old regime. Human Rights Watch urges the National Constituent Assembly to be attentive to such demands in drafting the new constitution.

The constitution-drafting process is expected to conclude in a maximum of eighteen months, although no formal deadline has been imposed. The constitution approval process involves a vote on each article that a simple majority of the NCA will decide. Then the entire constitution will be submitted to the NCA. If it fails to win a two-thirds majority on two attempts, it will be submitted to a popular referendum. Following approval of a new constitution, Tunisia will hold presidential and legislative elections

Most of the draft constitutions that various parties across the political spectrum have presented so far share a broad agreement on principles such as: the prohibition of torture and the non-applicability of statutes of limitation for torture; equality of all citizens before the law; the rights of the defense in the judicial process; political rights such as the rights of association and assembly and to form political parties; the independence of the judiciary; and the right to participate in free and fair elections.

However, these draft constitutions diverge widely when it comes to sources of legislation, freedom of expression and the limitations on public and personal freedoms that should be permitted. Some of the drafts diverge from international human rights law, both in their formulation of certain human rights and in the discretion granted to the legislator to limit those rights.

Human Rights Watch urges the constituent assembly to draft a constitution that will ensure strong safeguards for human rights through the following elements:

Supremacy of human rights treaties over domestic law

Ensures that all international human rights treaties duly ratified by Tunisia, including UN and African treaties and protocols, apply directly as law in Tunisia and have supremacy over domestic law. This provision, already present in article 32 of the 1959 constitution, should be reaffirmed in the new constitution. In addition, the constitution should affirm that customary international law and the general rules of international law have the force of law in the domestic courts.

Includes a general clause making explicit the incorporation into Tunisian law of human rights as defined by international treaties ratified by Tunisia such as the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the African Charter on Human and People’s Rights with supremacy over domestic law. Tunisian courts should seek guidance from the bodies that officially interpret such treaties in determining the minimum standard of such rights. Such a clause will strengthen the basis for amending manydomestic laws that restrict rights, such as those that give wide discretion to authorities to prohibit public gatherings and restrict travel by individuals as well as laws that criminalize peaceful speech on vague grounds that include disturbing the “public order” or offending “public morals.” Human Rights Watch has published a report describing many repressive laws, the reform of which should be a legislative priority.

Specific rights to be enshrined in the Constitution

Ensures the equality of all citizens before the law and bars all forms of discrimination based on race, color, sex, religion, political or other opinion, national or social origin, property, birth or other status as enshrined in article 26 of the ICCPR. The constitution should specify that “other status” shall include, but not be limited to, pregnancy, marital status, ethnic origin, sexual orientation, age, disability, conscience, belief, culture, and language.

Ensures that the right to freedom of religion, thought and conscience encompasses the freedom to change religion or belief and to practice in public and in private any religion through worship, observance and customs, or to practice no religion.

Human Rights Watch urges the NCA to ensure in the constitution strong safeguards for the rights to freedom of expression, association, and peaceful assembly by, among other things, removing the restrictions and qualifying language contained in the 1959 Constitution that gave authorities leeway to restrict rights more than is permitted by the narrowly defined restrictions permitted under international law.

To this end, the NCA could include language affirming international law’s approach to permissible restrictions: that any limitations placed upon the exercise of the rights of association and assembly must not have the effect of negating the essence of that right and must be “prescribed by law and … necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others” (articles 21 and 22 of the ICPPR).

Human Rights Watch is particularly concerned by one draft of the constitution that members of Ennahdha, the dominant party of the governing coalition, have been circulating. It contains an article that reads “Freedom of thought, expression, press, and publication are guaranteed while considering the sanctities of peoples and religions.”

This provision is not compatible with norms of freedom of expression, which allows restrictions on speech that directly incites to religious or racial hatred, but does not allow restrictions merely because one or more social, national, or confessional group deems the speech to be offensive or insulting. By conditioning the right to freedom of expression on “considering the sanctities of peoples and religions,” this proposed article empties the right of its essence by opening the door to laws that criminalize dissent or critical speech pertaining to matters of belief and religion.

In addition, the new constitution should contain a specific mention of the right to privacy, which encompasses protection against unwarranted social and state intrusion through the protection of the person, the family, the home, personal data and personal communication, as enshrined under article 17 of the International Covenant for Civil and Political Rights.

The National Constituent Assembly should also enshrine economic, social and cultural rights as secured by the International Covenant on Economic, social and cultural rights, which Tunisia ratified. It should mention in particular the right to work, education, health and social security. The constitution should stipulate that the state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realization of each of these rights in accordance with international standards and ensure the minimum core level of each right is protected for all at all times.

Implementing mechanisms

The NCA should support a strong constitutional affirmation of judicial independence by promoting mechanisms that will shield the judges from the pressure of the executive branch, in their appointment, discipline and assignment to cases, and that does not give to the executive branch a decisive power over the career path of sitting judges

It is not sufficient that the NCA adopt a new constitution that incorporates these rights but must guarantee them through implementing mechanisms which should be also set out in the constitution. In particular, the NCA should consider the creation of a constitutional court that is empowered to rule on the constitutionality of laws, and that can invalidate laws that are not in conformity with human rights standards affirmed in the constitution. In addition the constitution should make clear that all courts, and all state bodies are bound to comply with and uphold the human rights set out in the constitution.

We thank you for your time and attention.

Comments

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Bassem Bouguerra

About Bassem Bouguerra

Human Rights activist and Software Architect at Yahoo! inc.

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