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Tunisia: 20 Human Rights Questions For Political Parties Presenting Candidates in the October 23 Constituent Assembly Election

Human Rights Watch will send the following questionnaire on August 9, 2011, to Tunisian political parties and independent candidate lists, inviting them to communicate their positions on a number of human rights issues. Human Rights Watch plans to publish the responses, along with commentary, in early October, to help Tunisian voters make their choices in the country’s first free election.

Tunisian voters are to elect delegates to a constituent assembly. Its priorities will be to rewrite the constitution, prepare legislative and presidential elections, and, until those elections are held, participate in governing the country.

It is important for voters to know the parties’ and candidates’ positions on basic human rights issues, and the priority they will give to these issues in the constitution they write and the domestic legislative agenda they pursue.

I. Freedom of Expression and Defamation

Tunisia’s penal and press codes contain numerous provisions for prison terms as punishment for nonviolent expression, based on the content.

Speech “offenses” that are criminalized include defamation, insults, and disseminating information “likely to cause harm to the public order or public morals.” Of these, the most extensive provisions pertain to defamation. These provisions impose prison terms for “defamatory” speech directed at a vast array of people and institutions. In addition to the general provisions covering defamation (press code art. 53 and penal code arts. 245 and 247), there are articles specific to the defamation of public officials (press code art. 52); the president (press code art. 48); state institutions, such as the judiciary and the armed forces (press code art. 51); foreign heads of state and foreign diplomats (press code arts. 59 and 60); and religions or members of religious groups (press code arts. 48, 52, and 53).

Under President Zine El Abidine Ben Ali, the government used the defamation laws, among others that criminalized speech offenses, to pre-empt public criticism and to jail dissidents and human rights activists who spoke out, particularly when they criticized the government or public officials.

The International Covenant on Civil and Political Rights, in Article 19, provides a robust right of freedom of expression, allowing individuals to express views and disseminate information that some may find insulting or offensive, and permitting states to restrict speech only in narrow and well-defined circumstances.

A growing number of jurists argue that free expression is best served when states decriminalize defamation laws, eliminating penal punishments for defamation and treating it under civil rather than criminal law. Also, jurists argue that the right that every individual has to protect his or her reputation must be balanced against the public interest in having public officials tolerate public criticism, to allow for robust debate about issues of concern to the community. For the same reason, jurists argue that laws governing the defamation of public institutions should be suppressed, and that only persons and “legal persons” such as private corporations should be able to sue for defamation.

1. Will you support legislation to decriminalize defamation in Tunisian law?

2. Will you support legislation to eliminate prison terms in the penal and press codes as a punishment for all nonviolent speech “offenses”?

3. Will you support legislation to eliminate the offense of defaming public institutions?

4. Will you support adding provisions to the law that recognize the need to tolerate criticism of public officials?

II. Freedom of Association

During Ben Ali’s presidency, the government restricted freedom of association by banning Tunisians from forming or maintaining associations that the government did not formally recognize. The administration often refused to accept the registration papers of associations that displeased it, or would accept their papers but then refuse to grant them legal recognition, which made them “unrecognized” associations, membership in which was punishable by prison terms, under article 30 of the Law on Associations. The government imprisoned thousands of Tunisians for membership in “unrecognized” associations, mostly in the Islamist an-Nahdha (Renaissance) party and, to a lesser extent, the Tunisian Communist Workers Party (Parti communiste des ouvriers de Tunisie, PCOT), political parties the government refused to recognize.

The government further undermined freedom of association when it amended article 1 of the Law on Associations in 1992 to deny to associations deemed to be “of a general character” – such as the Tunisian Human Rights League – the right to choose their own members. The law compromised the independence of associations by requiring them to admit everyone who pledged to respect the association’s objectives and statutes, leaving the associations vulnerable to an influx of ruling-party members.

International law prohibits restrictions on the right to free association except those that are narrowly tailored to exceptional circumstances, and found to be necessary in the interests of national security or public safety, public order (ordre public), the protection of public health or morals, or the protection of the rights and freedoms of others. The grounds for legitimately imposing restrictions must meet strict conditions and the restrictions must at all times be proportional to meeting the legitimate purpose for which they are imposed.

5. Will you support revising the law on associations to ensure the basic principle that organizations will be legally recognized when they make a good faith effort to notify the authorities of their existence, unless the authorities prove that an association meets strictly limited and narrowly tailored grounds for refusing recognition (such as direct implication in violence)?

6. Will you support decriminalizing mere membership in “unrecognized” associations, currently punishable by prison terms under article 30 of the Law on Associations?

7. Will you support eliminating the provision in article 1 of the Law on Associations that deprives certain types of associations of the freedom to decide who may join?

III. Gender equality

Tunisian laws protect women’s equality more than do the laws of most other countries of the Arab world. The law on personal status, promulgated in 1956 by then-President Habib Bourguiba, greatly reduced gender inequality in many facets of family life, including marriage and divorce. However, Tunisian law continues to discriminate against women in inheritance.

The Convention for the Elimination of All Forms of Discrimination against Women (CEDAW) requires states parties “[t]o take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women.” (article 2)

8. Do you support changing Tunisia’s law on personal status? If so, what types of changes do you support?

9. Will you support modifying provisions of the personal status law to provide men and women equal inheritance rights?

Tunisian authorities have applied laws in a way that deprives Muslim women the same right to marry non-Muslim men as Muslim men have to marry non-Muslim women.

10. Do you favor laws that guarantee to Muslim women the same rights to choose a spouse that Muslim men have? 

Tunisia registered formal reservations to its ratification of CEDAW that effectively exempt Tunisia from its commitment under that treaty to guarantee women equal rights under the law in such realms as marriage, inheritance, choosing where to live, and passing her nationality on to her husband and children.

11. Do you favor removing these formal reservations that Tunisia registered to its ratification of Convention for the Elimination of All Forms of Discrimination against Women? Will you oppose removing any or all of these reservations, and if so, which ones and why?

IV. Freedom to Practice Religion or no Religion

Tunisia has ratified the International Convention on Civil and Political Rights (ICCPR) and the African Charter on Human and People’s Rights, both of which protect freedom of religion and prohibit discrimination based on religion.

(a) The religion of the president of the republic

Article 40 of the suspended Constitution requires presidential candidates to be Muslims. This article discriminates against the minority of Tunisians who are Christian, Jewish, or atheists.

12. Will you support removing all religious qualifications for the president and for elected public officials?

(b) Proselytism

Although no Tunisian law explicitly bans proselytizing, authorities have tended to prohibit such activity if carried out by non-Muslims. However, the ICCPR requires states to respect the right to freedom of religion and freedom of speech, including non-coercive speech intended to convince others to change their religion.

13. Will you support a shift in government policy toward recognizing the right to proselytize, and ensure that the right is granted equally to Muslims and non-Muslims? Would you place any limitations on this right?

(c) Choice of clothing, including the headscarf and niqab

Various human rights principles support the right of individuals to wear religious garb. The ICCPR specifies that the right to freedom of religion includes the right to manifest one's beliefs “through worship, observance, [and] practice.” Human rights law requires states to guarantee the right to a private life, which includes the right to autonomy, for example the freedom to choose what to wear, in private and in public. Third, states must ensure the right to equality or non-discrimination, particularly with regard to gender or religious belief. The United Nations Human Rights Committee has clarified that the concept of worship includes the display of symbols, and that observance and practice can include wearing distinctive clothing or head coverings.

Governments may limit the exercise of certain rights only when they can demonstrate convincingly that restrictions are necessary to protect public safety, public order, health, or morals, or the fundamental rights and freedoms of others. This is a high threshold for a government to meet. 

Under Ben Ali’s presidency, government directives banned the headscarf in certain settings, and during the 1990s police often harassed women wearing the headscarf in public, forcing them to remove it. In recent years, such practices became less frequent.

14. Do you believe that adult women have the right to wear a headscarf in all public locations, including administration buildings and workplaces? Do you believe that the same right applies to wearing a niqab?

Will you seek to propose legislation or regulations that would require women either to wear – or to refrain from wearing – a headscarf or a niqab in the following contexts:

In public outdoor spaces (e.g., on the streets, in parks, on public transportation)? In public buildings? When employed in the public administration? When attending public universities as students? When working as teachers in public schools?

V. The Right to Privacy for Consenting Adults

Article 17 of the ICCPR guarantees that “No one shall be subjected to arbitrary or unlawful interference with his privacy,” and further guarantees the right to protection from such interference. In a 1994 case, the UN Human Rights Committee, which monitors compliance with and adjudicates violations under the ICCPR, held that laws banning adult consensual sodomy violate the Covenant’s protections against discrimination and its Article 17, affirming a right to privacy. Specifically, the committee held that “sexual orientation” was a status protected under the ICCPR from discrimination, finding that “the reference to ‘sex’ in articles 2, paragraph 1 and 26 is to be taken as including sexual orientation.” The United Nations Working Group on Arbitrary Detention has held that arrests for consensual homosexual conduct are by definition human rights violations.

15. Will you support the abrogation of the penal code’s article 230 criminalizing and providing prison terms for consensual sodomy, and the implementation of laws forbidding discrimination based on sexual orientation and gender identity?

VI. Preventing Torture

Torture by police was commonplace in the interrogation of suspects in Tunisia during the Ben Ali presidency, even though Tunisia has ratified the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, and adopted an amendment to the penal code criminalizing torture.

One safeguard against torture is to grant suspects in garde à vue (pre-arraignment) detention the legal right to see a lawyer promptly. Defendants currently have the right to counsel only upon their first appearance before the investigating judge, which, according to the law, can be as much as six days after being detained.

16. Will you support amending the Code of Penal Procedure to give suspects immediate access to legal counsel upon being placed in garde à vue detention?

Article 13of the Convention against Torture provides that each state party shall ensure that “any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to and to have his case promptly and impartially examined by its competent authorities.”

Tunisia’s Code of Penal Procedure allows detainees or their relatives to request a medical examination during or after garde à vue detention, which is one means of checking for evidence of torture or ill-treatment. However, this right to request an examination is not tantamount to a right to receive one, since the judge still has discretion on whether to grant the request. Tunisian judges frequently have denied defendants the opportunity to seek such a medical examination, depriving them of the ability to obtain medical corroboration for their allegations of torture.

17. Do you favor amending the law to oblige authorities to grant a request made by a detainee, his family, or his lawyer for a medical exam, and to require that the medical examiner have an independent status?

VII. Promoting Judicial Independence

Article 14 of the International Covenant on Civil and Political Rights provides that people facing trial or lawsuits have the right to “a fair and public hearing by a competent, independent and impartial tribunal.” Under President Ben Ali, Tunisia’s courts lacked independence in handling politically sensitive cases. One way the executive branch exerted pressure on judges was the Law on the Magistrature, which gave a majority vote to the president and his appointees over decisions on promoting and assigning individual judges.

18. Will you support amendments to the Law on the Magistrature to remove the control that the executive branch and its appointees effectively exercise in the High Council of the Magistrature over decisions on promoting and assigning judges?

VIII. Protecting Rights While Combating terrorism

In 2003, Tunisia passed an anti-terrorism law (Law no. 2003-75 of December 10, 2003). Well over a thousand Tunisians have been tried under this law since 2003 -- not for their role in any terrorist plots or acts that materialized, but rather for allegedly expressing an interest in, or exchanging views or information about, jihadist movements in other countries.

The anti-terrorism law provides overbroad definitions of terrorism, incitement to terrorism, and membership in a terrorist organization, such that people could be prosecuted for nonviolent acts of speech, assembly, or association. This law also reduces the fair-trial protections for people accused of terrorist offenses, compared with the protections ordinarily available to defendants under the code of penal procedure.

The internationally guaranteed due process rights that are compromised include the right of defendants to examine, or have examined, the witnesses against them, to challenge their testimony. The law also obliges everyone to inform authorities immediately of any terrorist infractions they learn about, exempting only family members of the accused person [OK?] but not lawyers or other professionals normally bound by confidentiality.

To bring the anti-terrorism law into line with international standards, its broadly worded definition of “terrorism” should be narrowed and limited to acts that constitute offenses within the scope of, and as defined in, the international conventions and protocols relating to terrorism. These require that such acts are a) committed with the intention of causing death or serious bodily injury, and not just property damage; and b) committed for the purpose of provoking terror in the general public or part of it, intimidating a population, or compelling a government or an international organization to do or refrain from doing any act.

The anti-terrorism law’s provisions on procedure that radically reduce the rights of the defendants in terrorism cases should be abolished – including those that allow key witnesses to testify outside the presence of, and without disclosing their names to, the defendant. Further, the basic rights to confidentiality in lawyer-client, doctor-patient and certain other relationships should be recognized.

19. Will you support either eliminating the anti-terrorism law or revising it in ways that bring it in line with international standards, as indicated above?

IX. Accountability for Past Human Rights Abuses

International standards affirm the right to a remedy and reparation for victims of gross violations of international human rights law. These standards, articulated in the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights, are based on international legal obligations, including Tunisia’s specific treaty obligations.

20. Do you support a right to reparation for all victims of serious human rights abuses, and their survivors, including investigations, prosecutions of those responsible for international crimes, and financial compensation where appropriate?

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