Tunisia’s National Constituent Assembly (NCA) made the second draft of the new constitution public on December 14, but it is still being negotiated between the ruling Ennahda party and its allies and the opposition.
(Human Rights Watch/IFEX) – 23 January 2013 – The Tunisian National Constituent Assembly (NCA) should modify articles in the new draft constitution that threaten human rights, Human Rights Watch said today in a letter to the assembly members. The provisions that cause concern relate to the status of international conventions ratified by Tunisia, judicial immunity for the head of state, lack of sufficient guarantees for the independence of the judiciary, and ambiguous formulations that could threaten rights and freedoms.
The Constituent Assembly released a new draft on December 14, 2012, with extensive revisions to the first draft, issued in August. The assembly is holding consultations with the Tunisian public and civil society groups before it deliberates on the text and decides whether to modify it further before voting on its adoption.
“The second draft of the constitution contains better language on freedom of expression and women’s rights than the first draft,” said Eric Goldstein, deputy Middle East and North Africa director at Human Rights Watch. “However, the NCA should address loopholes and omissions in the text that judges and legislators might use to curb rights.”
The second draft contains several improvements. These include dropping articles that threatened freedom of expression by criminalizing any “normalization” with “Zionism and the Zionist state,” and offences on the “sacred.” In addition, the new draft constitution contains clearer language on equal rights for women, Human Rights Watch said.
At the same time, Human Rights Watch is concerned about article 15, which states that “Respect for international conventions is compulsory if they do not contravene this constitution.” The language may tempt judges and legislators to disregard these treaties on the pretext that they contradict the new constitution, Human Rights Watch said.
Human Rights Watch also expressed concern about provisions that provide:
• Judicial immunity for the president while serving and afterward for all acts executed as part of the office. The provision should explicitly exclude international crimes, including those covered by the Rome Statute of the International Criminal Court (ICC), as well as acts of torture and enforced disappearance;
• Inadequate guarantees for the independence of the judiciary, such as an ambiguous affirmation of security of tenure and excessive discretion for the legislative branch to define the conditions for dismissing judges; and
• A discriminatory provision that only a Muslim can become president of the republic. The provision contradicts article 5, which states, “All citizens are equal in rights and obligations before the law, without discrimination of any kind.” In addition, there is a limitation of equal protection of the law to citizens only, as article 5 states.
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 a draft is put to a vote and fails to pass, the chief drafting 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 goes next to a national referendum, with a simple majority of those who cast votes required for adoption.
“The draft constitution contains many strong affirmations of key human rights, including some that were absent in the first draft,” Goldstein said. “The NCA should now work toward closing the remaining loopholes so that the constitution will stand as a rampart against repressive interpretations of rights by judges and government officials.”
