THE RESPONSE OF THE LTDH STEERING COMMITTEE
The LTDH Steering Committee acknowledges most of the facts as presented in the lawsuit but contests the plaintiffs' legal interpretation of them. But beyond their point-by-point response to the allegations of irregularities-a summary of which is provided below-the committee and its defenders stress the political pressures under which the LTDH had to decide on the modalities of its upcoming assembly.
Although the League's internal dynamics also contributed to the delay in convening the general assembly, the government impeded the normal functioning of the League through such measures as blocking efforts by the LTDH to rent halls for meetings. Government harassment also made it difficult for the League's forty-one local sections to function normally, helping to reduce all but a handful of them to inactivity. Amnesty International noted in a 1998 report,
As LTDH President Trifi summed it up in a recent interview, "No meeting could be held, not even receptions, due to supposed `leaks' or `fires' in the hotel halls that had been hired. Meetings could not take place because the material prerequisites for them were made unavailable."14
LTDH activities at the local level have also been stymied by conspicuous police surveillance and the intimidation of section members and potential clients. In 1998, Adel Arfaoui, who was then president of the LTDH section in the city of Jendouba and is now a member of the LTDH steering committee, told Human Rights Watch, "It would be fair to say that the LTDH is the weakest it has ever been." In that 1998 interview, Arfaoui described the pressures that contributed to the demobilization of the Jendouba section:
As for the timing of the legal challenge to their election, steering committee members contend that all four plaintiffs objected formally to the "irregularities" only after they ran as candidates and lost, even though many of these "irregularities" had been evident long before election day. One of the plaintiffs, Arbia Ben Ammar, was herself a member of the outgoing steering committee and of the commission charged with preparing the general assembly.
Steering committee members stated that the League's national council, which is composed of the steering committee and representatives of each local section, discussed and made decisions on some of the "irregularities" during the months preceding the election. The steering committee at the time presented a report justifying the holding of the assembly under such conditions. According to Trifi, only two sections, Sfax and Kelibia, voiced objections.16
Ben Ammar participated in this process, and shortly after failing to be elected to the steering committee was quoted as pledging that she would "abide by the results of the ballot box," and "continue working in the ranks of the League, since its work was not limited to the steering committee."17 Then two weeks later, she filed the lawsuit.
The plaintiffs have explained their lawsuit in various forums, including a December 1 press conference in Tunis, an Arabic/English/French press kit they distributed in Tunisia and abroad, letters to foreign media, and meetings with international human rights organizations. In their public comments they have focused more on criticizing the character of the new steering committee than on the alleged irregularities.
Interviewed by Human Rights Watch and the Observatory for the Protection of Human Rights Defenders in Tunis on February 12, Kamel Ben Younes repeated the plaintiffs' contention that they-and not the LTDH steering committee-were the ones most attached to safeguarding the League's independence and nonpartisanship.18 If the LTDH had wished, Ben Younes contended, it could have organized the elections in conformity with its bylaws and statutes. This did not happen, he said, because a small group around the successful presidential candidate, Mokhtar Trifi, was determined to manipulate the preparations to exclude from the vote those who might stand in their way. Ben Younes characterized the current leadership as dominated by political radicals whose uncompromising style would cause the LTDH to become marginalized and less effective vis-à-vis the government.
This allegation, with its suggestion that a more accommodating leadership would bring the LTDH more influence with the authorities, is in line with a remark attributed to one of the plaintiffs at the December 1 press conference: "It is preferable that the members of the [steering] committee have good relations with the authorities because this provides a strong asset when the League makes requests in favor of human rights and respect for the law."19
In a similar vein, the plaintiffs were quoted as maintaining that "the LTDH must not be a counter-force (contre-pouvoir) but a harmonizing national force (force national d'équilibre)."20 The same news report quoted plaintiff Abderraouf Jemel as calling the assignment of posts within the new steering committee "the straw that broke the camel's back" in prompting the decision to file the lawsuit.
Ben Younes denied that he and his co-plaintiffs had failed to object to the alleged procedural irregularities within the League prior to the elections. However, several members of the elected steering committee, as well as others who attended the general assembly, flatly contradicted Ben Younes. 21 They said the plaintiffs could easily have raised such issues but did not do so, although congress-goers did debate the composition of the slates and, later, the awarding of posts within the steering committee. But among those LTDH members who criticized the makeup of the candidate lists or the division of posts within the steering committee, few voiced support of the plaintiffs' lawsuit; in fact, some publicly dissociated themselves from it.
Plaintiff Ben Ammar was asked at the press conference how she could mount a legal challenge to the legality of the assembly and the elections when she had served on the outgoing steering committee and the committee preparing the assembly, and then ran as a candidate. "A person has the right to reconsider her assessment and to scrutinize the matter in detail," she was quoted as saying. "And that's what happened-not to mention the fact that many of the issues relating to preparation of the Congress were not decided upon by majority vote within the outgoing steering committee."22
Members of the LTDH, like activists in human rights organizations around the world, have honest differences about the best strategy to adopt vis-à-vis the government. Some fear the LTDH will achieve less under a leadership that is perceived, whether accurately or not, as close to political tendencies that the authorities regard as radical. Some believe quieter démarches and private contacts will be more fruitful with the present government than a barrage of critical communiqués. The plaintiffs have made such arguments to justify their case. Nonetheless, they have given the government a judicial cover for trying to neutralize the League at a time when it is committed to aggressively monitoring and criticizing abuses.
The government's interest in the case was revealed by, among other things, the unusual alacrity with which a court bailiff and the police executed an interim order freezing the activities of the steering committee (see below). The action came on the very afternoon that Emergency Court Judge Derouich granted the plaintiffs' request, filed two days earlier, to suspend the steering committee.
To justify these drastic measures, Judge Derouich in his written ruling (docket number 2000/81786), cited a defiant comment attributed to steering committee Vice President Anouar Kousri as evidence that the plaintiffs' interests were in immediate jeopardy:
In an ultimately unsuccessful appeal of the emergency judge's ruling, the steering committee argued that it exhibited numerous errors of form and of law. Their arguments, made in a brief dated November 29 and another one for the appeal court dated February 2, are summarized here:
· The decision to freeze the steering committee and replace it with an administrator is a misapplication of a law intended to apply to disputes over ownership of material assets (Article 1044 of the Code of Contracts and Obligations), and not to a dispute within an association over an election.
· The injunction was issued on the basis of a mere suspicion that the steering committee might mishandle documents and assets, whereas a far higher standard of showing misconduct should be required to suspend the committee and designate an administrator to replace it. Moreover, it was wrong to base such a suspicion on remarks attributed to one member of the steering committee (those of Anouar Kousri), since those remarks had not been part of the defense's submission to the court. The LTDH is an organization with a specific structure, and oral statements made by one member do not necessarily represent the position of the LTDH.
· The new steering committee had already held office for nearly a month and there was no evidence of such wrongdoing. The plaintiffs, furthermore, had not shown the court that they had first requested the documents in question from the steering committee and been rebuffed.
· The minister of interior is the only authority empowered to suspend a legally recognized association, and then only "in a case of extreme urgency and in order to prevent a disturbance to the public order," and for a period not to exceed fifteen days, pursuant to Article 23 of the Law on Associations (see text in Appendix).
In terms of procedure, the steering committee contended that the emergency court judge had violated the right to a fair legal proceeding by taking draconian measures against it on November 27 before hearing the oral arguments that had been postponed until November 30. The committee also alleged that the judge had allowed the case to proceed even though the plaintiffs had failed to prove their standing in the case by providing the court with legally recognized documentation of their membership in the LTDH.23
The plaintiffs responded in a brief prepared for the appeal and dated February 12 that Judge Derouich had acted properly in issuing the injunction on November 27 before the hearing scheduled for three days later. The brief argued that the injunction was an appropriate "preemptive measure" given the "fear of actions that could harm the rights of the petitioners during this period." In the plaintiffs' view,
The appeal against the emergency court's injunction was finally examined on March 13, after four postponements. On March 27, the court upheld the original ruling of the emergency court, renewing the mandate of the court-appointed administrator until a verdict is reached in the appeal of the original case.
The trial of the original case was postponed three times, from December 9 to December 25, to January 15, then to January 29. The hearing on January 29 was cut short before oral arguments began by a walkout by the lawyers for the steering committee. The lawyers protested that they had been deprived of their right to a fair trial when Judge Néjib Hanene ordered them even before oral arguments had begun to confine their remarks to the legal points in dispute, and when he refused to allow lawyers dispatched by the Cairo-based Arab Lawyers Union (ALU) and the Arab Organization for Human Rights (AOHR) to join the defense team. After the walkout, Judge Hanene heard arguments presented by the plaintiffs' lawyers and then orally summarized some of the arguments made by the respondents in their written briefs. The judge then ended the hearing and announced he would issue a ruling on February 12.
The AOHR had sent to the January 29 session an Algerian lawyer, Boudjemaâ Ghechir, president of the Algerian Human Rights League. According to a bilateral treaty, Ghechir as an Algerian lawyer is entitled to plead before courts in Tunisia. The ALU had mandated Egyptian lawyers Nur Farahat and Yahia al-Gamal. In addition, the day before, lawyer Eric Plouvier, who had been mandated by the Observatory for the Protection of Human Rights Defenders to attend the hearing, was refused entry at Tunis-Carthage airport and put on a plane back to France.
With rare exceptions, however, the LTDH trial has been open and accessible to the public. Sessions have generally been attended by several observers from foreign human rights organizations, as well as locally based foreign diplomats.
On February 12, Judge Hanene's ruling was announced. The court nullified the League's fifth general assembly and all decisions emanating from it, and ordered the outgoing steering committee to reconvene the general assembly in a manner consistent with the League's statutes and bylaws. In the written version of this decision, published a few days later, Judge Hanene explained why the plaintiffs were entitled to bring a dispute of this nature before the court. He rejected the respondents' contention that the burden of proof rested with the plaintiffs, and ruled that the failure of the respondents' lawyers to answer in court to the allegations of irregularities (occasioned by their walkout on January 29) was procedurally equivalent to conceding the case against them:
The steering committee's appeal of this ruling opened April 16 before the Tunis Appeals Court and will resume April 30.
Some Tunisian lawyers sympathetic to the LTDH steering committee questioned the legal reasoning of the verdict. They asked how a judge could rule on a civil suit between two parties (on one side the four plaintiffs and, on the other side, the LTDH and Héla Abdeljaoued as general assembly president) by ordering a third party (the outgoing steering committee) to take a certain action (redo the assembly and the elections) without even summoning that party to be heard during the proceedings.25
Taoufik Bouderbala-who as outgoing LTDH president, heads that third party-endorsed this analysis. He has also indicated that he had no intention of reconvening the general assembly. However, he said he preferred to withhold a definitive assessment of the affair until the Appeals Court rules.26
The LTDH did not get to argue the merits of the original case, due to the lawyers' walkout (see above). However, lead attorney Mohamed Jmour outlined orally to Human Rights Watch and the Observatory for the Protection of Human Rights Defenders in a meeting on February 13, 2001 the defense's point-by-point response to the allegations of irregularities in the complaint. Jmour also noted, in introducing the steering committee's position, that the League's statutes give it wide discretionary powers. Article 16 states, "The steering committee is empowered to take all measures concerning the association except for those decisions that lie within the competence of the general assembly." A summary of Jmour's presentation of the case for the respondents follows:
· The plaintiffs note that LTDH statutes require in Article 9 that members pay their dues each January. However, the statutes and bylaws do not state that nonpayment triggers automatic loss of membership. Similarly, while Article 9 of the bylaws states the sections are to elect their office-holders every two years, the failure to do so carries no sanction.
· The plaintiffs claim that certain LTDH members who were entitled to participate in the general assembly had been excluded. However the outgoing steering committee complied with the bylaws by notifying LTDH members of the assembly by placing announcements in the press rather than sending out individual invitations. Members of the steering committee who did not attend the assembly, were not "prevented" from participating or "stripped" of their status as delegates, as the lawsuit contended. Rather, these committee members chose not to attend, and for the most part were members who had seldom if ever attended LTDH functions in the past.
· The plaintiffs allege an irregularity in the absence of delegates to the assembly who were to be elected by the general membership of each section, pursuant to Article 15 of the bylaws. However, the steering committee had decided early in 2000 not to initiate the process of electing and inviting these delegates, a decision taken within its prerogatives under the League's statutes. The LTDH also contested the standing of the plaintiffs to file a suit that alleges certain potential delegates were excluded when those delegates had not joined the suit or authorized the plaintiffs to file such a complaint on their behalf.
· The plaintiffs claim that the reelection of two members of the outgoing steering committee, Khemaïs Ksila and Slaheddine Jourchi, violates Article 22 of the bylaws since they had already served two consecutive terms on the committee. However, Article 22 had been put into effect only in 1994. The LTDH interprets this article to be non-retroactive, and therefore the first term for Jourchi and Ksila commenced with the 1994 election and the second with their reelection in 2000.
The challenge to Jourchi and Ksila's election follows a history of the two men being singled out for harassment by the authorities. Apparently in reprisal for his activities in the LTDH, Ksila was fired in 1996 from the post he held for more than fifteen years with the national railroad authority. The following year he was arrested and then sentenced to three years in prison for defamation and disseminating "false" information capable of disturbing "the public order." The "false" and defamatory information was contained in a press release he had issued in his own name on September 29, 1997 condemning his dismissal and the deterioration of human rights in general.27 Ksila was released after serving two years, in the wake of sustained international pressure.28 Jourchi, a leading thinker within Tunisia's Islamist movement in the 1980s, has served on the LTDH steering committee since 1982. In 1997, he was fired from his post as an editor of the Arabic-language section of the privately owned weekly political magazine Réalités/Haqa'iq. Jourchi said his boss told him at the time that he was being dismissed because of pressure from the Presidency. Jourchi believes this pressure was prompted by his LTDH activities. He noted, in particular, a visit he had made with other LTDH members in September 1996 to the United States, where they had solicited support for their demand that political and human rights activist Khemaïs Chammari be released from prison in Tunisia.29 Earlier, in the mid-1990s, Jourchi had been prevented from traveling abroad for several months. He has been free to travel since then.
The lack of judicial independence in Tunisia has been noted by numerous observers. For example, Amnesty International stated in a 1998 report that the court system "appears to be more concerned with implementing the authorities' agenda than with respecting the rights of those coming before it," and "leaves virtually no avenue of recourse for victims of violations."32 The U.S. Department of State, which has had observers at numerous political trials in recent years, observed in its Country Reports on Human Rights Practices for the year 2000:
13 Amnesty International, "Human Rights Defenders in the Line of Fire," November 1998. Available: http://www.amnesty.org [April 11, 2001].
14 Interview in the online magazine Alternatives Citoyennes.
15 Interview with Human Rights Watch, Jendouba, August 25, 1998.
16 Interview in the online magazine Alternatives Citoyennes.
17 "Ms. Arbia Ben Ammar: I Will Continue My Militancy in the League Despite the Crooked Methods," ech-Chourouk, November 2, 2000. The article said she was unhappy with the circumstances prior to the elections, principally the exclusion from the candidate slates of members of legal political parties and the inclusion of members of "illegal" political parties. Ben Ammar is a prominent member of the legal Popular Unity Party (Parti d'Union Populaire). The article describes her charge of partisan divisiveness within the League but mentions no allegations of procedural irregularities.
18 Ben Younes and the other plaintiff who is not a member of the ruling party, Arbia Ben Ammar, issued a joint statement on November 28, 2000 declaring, "Our effort is aimed at securing that the League, which represents an invaluable achievement, reinforce its underpinnings...in total independence and without being subjected to any intrusion or external interference." (English version as provided by Ben Younes.) At the December 1 press conference, the four plaintiffs were reported to have said they were "devoted" to the League and were only trying to "rescue it from the wrong turn it has taken." "We Oppose Control over the League by Any One Group-Including the Ruling Party!" es-Sabah, December 2, 2000.
19 "We Oppose Control," es-Sabah, December 2, 2000.
20 "Nous ne cherchons pas la dissolution de la Ligue," le Temps, December 2, 2000.
21 The observer sent by the Euro-Mediterranean Human Rights Network (EMHRN) to attend the general assembly, Network president Abdelaziz Bennani, endorsed this claim. His unpublished report to the EMHRN notes, "The case filed in court by persons who attended the Congress was all the more surprising because they never voiced any reservations during the Congress about the way it was conducted."
22 "We oppose control," es-Sabah, December 2, 2000.
23 This was a procedural objection; the respondents knew the plaintiffs to be LTDH members, but some found evidence of bias in the court's non-enforcement of its usual procedure by which parties prove their standing at the opening of the case by presenting to the court pertinent identification documents in the original.
24 The court ruling is reprinted in es-Sabah, February 20, 2001.
25 This line of argument is taken up in the newsletter of the League, Risalat ar-Rabita, no. 3, March 2001, p. 1.
26 Phone interview with Human Rights Watch and the Observatory for the Protection of Human Rights Defenders, March 22, 2001.
27 For detailed expositions of the case and the trial, see the Euro-Mediterranean Human Rights Network, "Mission d'Observation en Tunisie: Rapport à l'occasion du procès en appel de M. Khemaïs Ksila," July 1998, and Fédération internationale des droits de d l'Homme, "Une détention manifestement arbitraire: rapport d'observation judiciaire au procès de Khemaïs Ksila, Tunis 1998," La Lettre de la Fédération Internationale des Ligues des Droits de l'Homme, no. 756-758, July 30, 1998, pp. 16-26.
28 The U.N. Working Group on Arbitrary Detention ruled that Ksila's detention was arbitrary "in view of the fact that it violated Article 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights..." Opinion No. 5/1999, adopted May 20, 1999.
29 Telephone interview with Human Rights Watch and the Observatory for the Protection of Human Rights Defenders, March 24, 2001.
30 LTDH communiqué, November 24, 2000.
31 Letter, dated December 14, 2000, addressed to the editor of Marianne, in response to article by Marie-Claire Mendès-France in the issue of December 11-17, 2000. Copy of letter provided by Ben Younes.
32 "Human Rights Defenders in the Line of Fire."
33 See also numerous reports by trial observers, including Amnesty International, Human Rights Watch, and the Observatory for the Protection of Human Rights Defenders, "The Administration Of Justice In Tunisia: Torture, Trumped-Up Charges and a Tainted Trial," Human Rights Watch, vol. 12, no. 1(E), March 2000. Available: http://www.hrw.org/reports/2000/tunisia/ [April 12, 2001] and http://www.fidh.imaginet.fr/rapports/robs1.htm [April 12, 2001]; Human Rights Watch and the International Human Rights Law Group, "Military Courts that Sentenced Islamist Leaders Violated Basic Fair-Trail Norms," Human Rights Watch, vol. 4, no. 9, October 1992.