An Analysis of Human Rights Concerns
May 13, 2013
The NCA should close loopholes in the draft constitution that would allow a future government to crush dissent or limit the basic rights that Tunisians fought hard for.
Eric Goldstein, deputy Middle East and North Africa director

(Tunis) – Tunisia’s National Constituent Assembly (NCA) should modify articles in the new draft constitution that threaten human rights. Human Rights Watch analyzed the draft constitution to identify human rights concerns.

Among the most worrisome articles or gaps are: a provision recognizing universal human rights only insofar as they comport with “cultural specificities of the Tunisia people,” the failure of the constitution to affirm freedom of thought and conscience, and the overly broad formulation of permissible limitations to freedom of expression. In addition, the draft does not state clearly that human rights conventions already ratified by Tunisia bind the country and all of its authorities.

“The NCA should close loopholes in the draft constitution that would allow a future government to crush dissent or limit the basic rights that Tunisians fought hard for,” said Eric Goldstein, deputy Middle East and North Africa director at Human Rights Watch.

The assembly presented a third draft of the proposed constitution on April 25, 2013, after debating and revising two previous drafts, presented in August and December 2012. The full assembly is expected to start voting on the constitution in May.

The latest draft upholds many key civil, political, social, economic and cultural rights, and includes some improvements over the previous drafts. However, it also contains several articles that are incompatible with Tunisia’s international treaty obligations on human rights and that would undermine rights protections, Human Rights Watch found.

Article 21, which states that “International conventions duly ratified by the parliament have a status superior to the laws and inferior to the constitution,” creates a risk that the constitution will be used to override or reduce the protection offered by some fundamental human rights, set out in treaties to which Tunisia is party.

It is a basic principle of international law that a country needs to ensure that its constitution is compatible with the treaty obligations it has made. The constituent assembly needs to include in the constitution a provision recognizing that the human rights guaranteed in the international human rights treaties Tunisia has ratified will apply directly and that the constitution and law will be interpreted to comply with them.

Other provisions that cause concern are:

  • The preamble, which lays the foundation of the constitution on “principles of universal human rights in line with the cultural specificities of the Tunisian people.” This sentence offers wiggle-room for legislators and judges to depart from the global standards of fundamental rights;
  • Article 5, which says that, “The state guarantees freedom of belief and religious practice,” but does not mention freedom 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 of freedom of thought and of conscience;
  • Insufficient definition of the permissible limitations on freedom of expression, assembly, and association: several articles in the third draft constitution define the scope of freedom of expression, assembly, and association by permitting the legislature to pass laws that restrict the rights, without setting out clearly the limits on the restrictions; and
  • A discriminatory provision that only a Muslim can become president of the republic. The provision contradicts Article 6, which states, “All citizens are equal in rights and obligations before the law, without discrimination.” In addition, the draft constitution still limits equal protection of the law to citizens of Tunisia.

The assembly will vote on each article separately, with a simple majority required for passage, according to the rules it set for the process. The assembly must then approve the entire draft in a separate vote.

If the draft fails to pass by a two-thirds majority, the chief drafting committee must then submit a revised version to the full assembly. If the text fails again to win 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 National Constituent Assembly should make a number of revisions to the current draft to consolidate the rights protections and tighten loopholes, Human Rights Watch said.

“The assembly should address the troubling provisions now, before the constitution is set in stone,” Goldstein said. “Tunisians led the entire region in demanding their basic rights, and they shouldn’t let them slip away now.”

Articles and Language That Threaten Human Rights

Universal Human Rights Qualified by Reference to Cultural Specificities
The preamble of the new draft states that the constitution is built on “the fundamentals of Islam and its open and moderate objectives, on the sublime human values and on the principles of universal human rights in line with the cultural specificities of the Tunisian people.”This qualification of universal human rights with such broad language gives the executive branch, lawmakers, and the courts broad discretion to claim “cultural specificities” as a basis for undermining or limiting any human rights as they are universally recognized.

In addition, Article 136 of the draft, in the final chapter of the constitution, states that, “No revisions are allowed to the following: Islam as the religion of the state.” While having a state religion does not violate international law, states must not use this provision in a way that would undermine rights and freedoms, including equality.

The Human Rights Committee, which interprets the International Covenant on Civil and Political Rights, in its general comment No. 22, said that “The fact that a religion is recognized as a State religion or that it is established as official or traditional or that its followers comprise the majority of the population, shall not result in any impairment of the enjoyment of any of the rights under the Covenant […], nor in any discrimination against adherents to other religions or non-believers.”

The United Nations special rapporteur on freedom of religion and belief said that, “While the notion of State religions is not per se prohibited under international human rights law, States have to ensure that this does not lead to a de jure or de facto discrimination of members of other religions and beliefs.” He further said that, “It seems difficult, if not impossible, to conceive of an application of the concept of an official ‘State religion’ that in practice does not have adverse effects on religious minorities, thus discriminating against their members.

He further pointed out that “when the State itself announces its religion in the Constitution, the law arguably ceases to reflect the ethnic and religious variety of the society, opening the floodgates to arbitrary action and religious intolerance…Both with regard to State religions and other religious or belief communities, the State should never try to take control of religion by defining its content and concepts or by imposing limitations, apart from those which are strictly necessary pursuant to article 18, paragraph 3, of the International Covenant on Civil and Political Rights.”

No Right to Freedom of Thought, Conscience; Ambiguous Affirmation of Freedom of Belief
The chapter on general principles states that, “The State guarantees freedom of belief and religious practice.” However, it omits the broader concepts of freedom of thought and of conscience, which more clearly encompass the right to replace one’s religion with another, to practice no religion at all, or to embrace atheism. Explicit recognition of the right to freedom of thought and conscience would better protect Tunisians from, for example, the introduction of domestic laws that would criminalize apostasy, the repudiation of one’s faith.

The International Covenant on Civil and Political Rights (ICCPR) and the African Charter classify freedom of thought, conscience, and religion together. The Human Rights Committee has held that Article 18 of the ICCPR encompasses freedom of thought on all matters such as personal conviction and the commitment to religion or belief. In addition, the committee states “that this freedom to ‘have or to adopt’ a religion or belief necessarily entails […] the right to replace one's current religion or belief with another or to adopt atheistic views, as well as the right to retain one's religion or belief.”

The constitution mentions freedom of belief only in the chapter on general principles and not in the chapter on rights and freedoms. Article 5 says that, “The state shall be the patron of religion, the guarantor of freedom of belief and practice of religious rites, the protector of religious sanctities and the assurer of the neutrality of houses of worship from partisan instrumentalization.” This formulation links freedom of belief to practice of religious rites, thereby seeming to narrow what counts as protected beliefs.

Broad Leeway to Define Permissible Limitations on Freedom of Expression, Assembly, Association
The third draft constitution appears to limit the scope of freedom of expression, assembly and association by permitting the legislature to pass laws that restrict this right, without setting out clearly the limits for any restrictions. Article 40 says: “Freedoms of opinion, thought, expression, media and creativity shall be guaranteed. Such freedoms shall, under no circumstance, be subject to prior censorship.” However, the draft goes on to say, “Freedom of expression and freedom of the media and of publication may not be restricted except by virtue of a law protecting the rights, reputation, safety, and health of others.” Similarly, Article 34 says that “The right to access information is guaranteed without prejudice to national security, public interest or private information of others.” Article 30 states that “The right to form parties, syndicates and associations is guaranteed. The law regulates the procedures for the constitution of parties, syndicates and associations without prejudice to the very essence of these freedoms.” The same applies to the right to peaceful assembly and demonstration, which shall be guaranteed and “practiced according to the procedures provided for by law without prejudice to the very essence of this right.”

These limitations give too much leeway to the legislature to pass a law to restrict these rights, without requiring the restrictions to meet strictly the three-part test set by international law. Under international law, any restrictions on human rights must be: first prescribed by law; second, pursue a legitimate aim, such as respect of the rights or reputations of others, protection of national security, public order, public health, or morals; and third, necessary to secure the legitimate aim and meet the test of proportionality.

For example, the Declaration of Principles on Freedom of Expression in Africa (African Declaration), adopted by the African Commission on Human and Peoples’ Rights in 2002, affirms that, “Any restrictions on freedom of expression shall be provided by law, serve a legitimate interest and be necessary in a democratic society.” It further states that, “Freedom of expression should not be restricted on public order or national security grounds unless there is a real risk of harm to a legitimate interest and there is a close causal link between the risk of harm and the expression.”

The Human Rights Committee stated in its general comment on Article 19 of ICCPR that restrictions to freedom of expression may be only subject to these conditions: the restrictions must be “provided by law”; they may only be imposed for a legitimate ground; and they must conform to the strict tests of necessity and proportionality.

Discriminatory Provisions
Article 6 of the draft constitution states that, “All citizens, males and females alike, shall have equal rights and obligations and shall be equal before the law, without discrimination” This provision is, however, contradicted by the article of the draft constitution that states that only a Muslim may become president of the republic. While this provision seems to refer to a narrow situation, its presence in the constitution erodes the principle of non-discrimination.

In addition, the draft constitution contains weak language on non-discrimination and equality before the law. Article 6, by limiting the protection of rights to citizens, does not conform to Article 2 of the ICCPR, which requires the state to respect and ensure to everyone within its territory and subject to its jurisdiction, and not only its citizens, the rights recognized in the covenant. In addition, the constitution should specify that the prohibited grounds of discrimination include not just sex but also race, color, language, religion, political or other opinion, national or social origin, property, birth, or other status. As written it could be interpreted as protecting equality only on grounds of gender.

With regard to gender equality, Article 42   provides that “The State guarantees the protection of women’s rights and supports their gains.” The same article goes on to say “The State guarantees equal opportunity between men and women to assume responsibilities. The State guarantees the elimination of all forms of violence against women.” These provisions are positive as they depart from a previous formulation that invoked notions of “complementary” gender roles that risked diluting the principle of equality between men and women. 

However, they only partially embody the principle of equality between men and women, as they refer to equal opportunity in “assuming responsibilities” and not to the broader right to equal opportunities in political, economic, cultural, and social spheres.

Status of Human Rights Conventions Ratified by Tunisia
The draft constitution remains unclear about whether international human rights treaties that have been duly ratified by Tunisia, including UN and African treaties and protocols, apply directly as law in Tunisia and bind all state institutions and individuals. Article 21 of the new draft states that, “International conventions duly ratified by the parliament have a status superior to the laws and inferior to the constitution.” While this language represents a revision of the former draft, which said that, “Respect for international conventions is obligatory if they do not contravene this constitution,” it still places the constitution above international human rights conventions previously ratified by Tunisia.

This violates the Vienna Convention on the Law of Treaties, ratified by Tunisia, which states in article 27 that a “party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.” In other words, Tunisia has the duty to ensure that its constitution and laws comply with its international obligations. The formulation of Article 21 might lead judges and legislators to ignore Tunisia’s international obligations on the basis that they contradict the new constitution. The draft constitution also does not mention customary international law, which is also binding on Tunisia.

The draft constitution does not address how judges and others shall interpret the human rights set out in the constitution and in international treaties, nor how they shall deal with any clash between human rights law and specific articles of the constitution, or regular laws that contradict it. For example, the South African and Kenyan constitutions include a clause stating that judges should interpret the law, including the constitution, in a way that most favors the enforcement of a right or fundamental freedom, and specifically say that they should take into account the interpretation of human rights treaties from any official treaty body, including courts and commissions.

State of Emergency
The third draft still allows the president to impose a state of emergency in the event of an imminent danger threatening the entity, security, and independence of the country. The assembly should make it clear in the draft that rights and freedoms shall be respected at all times, and that any limitations will conform to the requirements of the ICCPR on emergency situation as set out in Article 4 and General Comment no 29. This should include that emergency limitations on rights should only be those that are necessary for a specific period of time to meet the exigencies of the situation, and that rights that are considered non-derogable in international law should never be limited under emergency powers. Both the declaration of the state of emergency and any powers assumed under it should be subject to judicial review.

Recommendations
The National Constituent Assembly should make a number of revisions to the current draft to consolidate the rights protections and tighten loopholes, Human Rights Watch said:

  • It should include a general clause directly incorporating into Tunisian law human rights as defined by international treaties ratified by Tunisia, including 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, and customary international law. Such treaties and customary law should form an integral part of the law of Tunisia under the new constitution. The assembly should also include a clause stating that the rights and freedoms set out in the constitution bind the legislature, the executive, the judiciary, and all the organs of the state;
  • It should include an affirmation of the right to freedom of religion, thought, and conscience, and affirm that this 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;
  • It should clarify that the mention of Islam as a state religion or references to Islam in the preamble should not be interpreted in a way contrary to the rights and freedoms set out in the constitution and to the international human rights conventions ratified by Tunisia,nor should it result in discrimination against adherents to other religions or non-believers;
  • It should include a general clause stating that the rights and freedoms affirmed by the constitution may only be restricted when restrictions are permitted under international law and when:
  • They are defined in a clear law;
  • They are permissible for a reason set out in a human rights treaty as a permissible reason to limit that specific right;
  • They are reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom;
  • They are not directly or indirectly discriminatory; and
  • The scope of a limitation referred to in the constitution is proportionate to the interest to be protected, and shall not be interpreted to jeopardize the essence of the right concerned or be interpreted in a restrictive way.
  • It should eliminate the draft provision that discriminates among citizens by requiring that the president of the republic be a Muslim; 
  • It should state that all citizens and people within the territory or jurisdiction of Tunisia shall enjoy equality before the law without discrimination on any ground such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status; and
  • The Constitution should include a provision specifying that women and men are recognized as equal, and are entitled to full equality in law and practice and equal opportunities in all areas of life, including without limitation in the civil, cultural, economic, political, and social spheres.
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