20 December 2011
Human Rights Watch calls for dismantling of repressive Ben-Ali-era laws
(Human Rights Watch/IFEX) - Tunis, December 17, 2011 - Tunisia's Constituent Assembly should urgently revise laws to ensure freedom of speech and the independence of the judiciary, Human Rights said in a report released today. Legal reform in those two areas is key to safeguarding the human rights of all Tunisians, Human Rights Watch said.
The 49-page report, "Tunisia's Repressive Laws: The Reform Agenda," identifies freedom of speech and independent courts as two of ten priorities for legal reform. The others are freedom of movement, association and assembly, freedom to form political parties, the right of citizens to run for public office and choose candidates, the protection of rights while fighting terrorism, internet freedom, and immunity for the president of the republic - all areas where harsh laws inherited from the presidency of Zine El Abidine Ben Ali remain in effect.
"The dictator may have departed, but experience shows that as long as his repressive laws remain on the books, the temptation is there for those who succeed him to apply them when politically expedient," said Sarah Leah Whitson, Middle East and North Africa director at Human Rights Watch.
The priority for Tunisia's National Constituent Assembly (NCA), elected on October 23, 2011, is drafting a new constitution and preparing for general elections. But it also needs to reform some of the country's most egregious laws to protect Tunisians' rights, Human Rights Watch said.
The post-Ben Ali interim government used those laws to jail Samir Feriani, a high-ranking police officer, and Nabil Hajlaoui, an agronomist, for their critical writings. The director of the TV station Nessma, Nabil Karoui, faces prosecution for "defaming a religion." Feriani spent four months in pretrial detention and is on trial for spreading information "likely to harm public order" after he wrote a letter to the interior minister accusing current high-level ministry officials of responsibility for killing protesters during the Tunisian revolution. Hajlaoui spent more than a month in prison after the military tribunal of Sfax convicted him under the code of military justice for "publicly denigrating" the army because of an article he posted online criticizing its handling of post-election unrest in Sidi Bouzid.
Human Rights Watch recommended specific measures to bring Tunisian law in line with international human rights norms. To enhance judicial independence, the constituent assembly should amend the current law governing the profession of judges to eliminate the executive branch's structural voting majority on decisions to promote, transfer, or discipline judges. The assembly took a positive step in this direction on December 10 by including in the Law for the Provisional Organization of Powers an article endorsing the need to reform the judiciary in line with international standards.
To protect freedom of the press and of expression generally, the assembly should eliminate all provisions of the criminal and press codes that provide prison terms for non-violent speech, such as for distributing tracts "that can harm public order or good morals," Human Rights Watch said.
During the transition period, the interim government enacted a new press law, published in the Official Gazette on October 24 that is considerably more liberal than its predecessor. Meanwhile, the many repressive provisions of the criminal code on speech offenses have yet to be revised.
In reforming the press code, the interim government eliminated many of the defamation statutes, including those that provided prison terms for defaming state institutions and "offending the president." However, the new press code maintains defamation as a criminal offense and, although it eliminates prison terms, preserves fines for the offense of up to 10,000 dinars (US$7,000). The assembly should move all defamation statutes from criminal law to civil law, and eliminate from the law the concept of libeling a religion, Human Rights Watch said.
During the 10 months between Ben Ali's ouster in January and the seating of the assembly in November, Tunisia's interim authorities promulgated a number of laws favorable to human rights, including laws expanding freedom of association and the right to form political parties.
The law on associations that the interim government promulgated by decree on September 24 eases legal requirements for associations to form and eliminates all criminal penalties for activities related to setting up and running associations. The Ben Ali government had used the articles of the old law to refuse permission to scores of independent associations and to imprison thousands of opposition party activists for "membership" in or "providing services" to "unrecognized" associations.
The law on political parties, also promulgated by decree on September 24, eliminated an article stating that a political party may not base its principles, activities, and programs on a religion, language, race, sex, or region. The provision had been used to restrict the basis upon which Tunisians could found parties.
However, the interim authorities left intact many troubling laws, including those that give wide discretion to authorities to prohibit public gatherings and restrict travel by individuals, Human Rights Watch said. It also has made no revisions in the 2003 Counterterrorism Law, used to prosecute more than 1,000 Tunisians under Ben Ali under the law's excessively broad definition of terrorism and using trial procedures that compromised their right to mount a fair defense.
In addition, the interim government adopted some laws during its 10-month tenure that are harmful to human rights and that the assembly should repeal. On October 22, the eve of elections, the interim government promulgated an amendment to the penal code provisions on torture that contained both positive and negative provisions. It toughened punishments for the crime of torture and broadened the scope of personal responsibility for the crime to include those who ordered, incited, or condoned acts of torture. But the law also introduced a statute of limitation of 15 years for the crime of torture, contrary to international customary law, which provides that gross violations of human rights should not be subject to a statute of limitations.
"Tunisia's freely elected constituent assembly needs to begin the task of peeling away the layers of repressive laws used to stifle dissent and undermine the judiciary," Whitson said.