Tunisian draft constitution threatens free expression
The constitution, as drafted by six assembly committees and made public on August 8, 2012, is currently before a coordinating committee of the assembly that will prepare it for presentation to the full assembly for debate and a vote. The shortcomings in human rights protections largely concern the status of international human rights conventions ratified by Tunisia, freedom of expression, freedom of thought and belief, equality between men and women, and non-discrimination, Human Rights found in an analysis of the proposals.
“If passed with these articles intact, the constitution will undermine freedom of expression in the name of protection of 'sacred values,' provide a basis for chipping away at the country's proud record on women's rights, and weaken in other ways Tunisia's commitment to respect international human rights treaties it has signed,” said Eric Goldstein, deputy Middle East and North Africa director at Human Rights Watch.
The National Constituent Assembly, elected on October 23, 2011, has as its main task the drafting and adoption of a new constitution, to be followed by legislative and presidential elections.
A coordinating committee consisting of the assembly president and the six chairs of the constitution-drafting committees is tasked with reconciling the sections of the draft submitted by these committees and forging from these a complete version to present to the full assembly.
The rules set by the assembly for adopting the constitution require a discussion of the draft by the full assembly, followed by a separate vote on each article of the constitution, with an absolute majority – 109 votes out of 217 members – required for adoption. Then the assembly must approve the entire draft in a separate vote, by a two-thirds majority.
If the assembly fails to adopt a draft, the constitutional coordinating committee must revise the text and re-submit it to the full assembly. If the assembly fails again to approve the text by a two-thirds majority, the draft is to be submitted for a national referendum, with a simple majority of those who cast votes required for adoption.
In its analysis of the draft constitution, Human Rights Watch found that article 17, which states that “Respect for international conventions is compulsory if they do not contravene this constitution,” creates legal uncertainty on the applicability of international human rights conventions previously ratified by Tunisia. The provision may tempt judges and legislators to disregard these treaties on the pretext that they contradict the new constitution, Human Rights Watch said.
Article 3 threatens freedom of expression by stipulating that, “The state guarantees freedom of belief and religious practice and criminalizes all attacks on the sacred.” This provision, which defines neither what is “sacred” nor what constitutes an “attack” on it, opens the door to laws that criminalize speech, Human Rights Watch said. In addition, the draft constitution contains another article criminalizing any form of “normalization” with “Zionism and the Zionist state,” which could lead to repressing various forms of peaceful expression and exchange with Israeli citizens.
Other provisions that cause concern are:
-Article 3, which says that, “The state guarantees freedom of belief and religious practice,” but omits wording that would affirm freedoms of thought and of conscience, including the right to replace one's religion with another or to embrace atheism. Human rights would be best protected by an explicit guarantee in the constitution of a right to change one's religion or to have no religion, Human Rights Watch said.
-Article 28 on women's rights invokes the notion of complementarity of the roles of women and men inside the family, omitting the principle of equality between the sexes.
-Article 22, stating that, “All citizens are equal in rights and freedoms before the law, without discrimination of any kind,” is contradicted by another article that states that only a Muslim can become president of the republic.
“The draft constitution contains many loopholes that will allow the authorities to confiscate the rights affirmed in the constitution at will,” Goldstein said. “The NCA should address those flaws before voting on the constitution”.
Read a letter written by Human Rights Watch to members of the National Constituent Assembly