(Tunis) – A draft law to criminalize offenses against “sacred values” threatens freedom of expression. The Islamist Ennahdha group introduced the bill in the National Constituent Assembly on August 1, 2012.
The draft bill would provide prison terms and fines for broadly worded offenses such as insulting or mocking the “sanctity of religion.” International human rights law generally prohibits the criminalization of defamation of religion. Ennahdha holds a plurality of seats in the assembly, and its members hold key positions in the government, including prime minister and justice minister.
“If passed, this draft law would introduce a new form of censorship in a country that suffered from so much censorship under the ousted president,” said Eric Goldstein, deputy Middle East and North Africa director at Human Rights Watch.
The draft law would add an article to the Tunisian Penal Code making violating “sacred values” punishable by up to two years in prison or 2000 dinars in fines (US$1,236). The law defines the Sacred as being “Allah the Almighty, his prophets, the sacred books, the Sunna of his last Prophet Muhammad, the Kaaba, mosques, churches and synagogues.” The Kaaba is the most sacred site in Islam.
The bill further states that the offense can take the form of insults, irony, sarcasm, mockery, or the physical or moral desecration of the sanctity of the sacred values. The offense could be committed through words, images, or acts. The law would also criminalize any figurative representation of God and the prophets.
Ennahdha had announced its intention to introduce such a law following large-scale protests on June 10 against an artexhibit near Tunis displaying works that some Tunisians deemed offensive to Islam and to the feelings of Muslims. The Ennahdha group in the assembly issued a communiqué on June 12 stating, “Freedom of expression and the freedom of artistic creativity, even if they are among the freedoms that we approve, should not be absolute and without controls.”
Under the Law on the Provisional Organization of Public Powers, Tunisia’s de facto constitution for the interim period pending adoption of a permanent constitution, laws relating to rights and freedoms take the form of “organic laws.” Passing or amending such laws requires the support of an absolute majority of assembly members – 109 out of 217 – according to that body’s Rules of Procedure.
International human rights law, including the International Covenant on Civil and Political Rights (ICCPR) and the African Charter on Human and Peoples’ Rights, both ratified by Tunisia, guarantees freedom of expression and allows governments to restrict it only under narrow and clearly defined circumstances.
International human rights bodies have repeatedly affirmed that the legal protection of freedom of expression prohibits the criminalization of speech deemed to defame a religion. The Human Rights Committee, which provides the definitive interpretation of the ICCPR, held in 2011 that, “Prohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the covenant,” except in the very limited circumstances set out in the covenant concerning advocacy of religious hatred that constitutes incitement to discrimination, hostility, or violence.
The UN Human Rights Council, made up of countries from across the globe, in its key resolution 16/18 of March 2011, agreed by consensus to drop any notion of defamation of religion as a permissible limitation to free expression.
The Ennahdha group, in a document attached to the draft law, contended that there was a need to address the absence of laws in Tunisia that criminalize offenses to religion.
Since the ouster of Zine al-Abidine Ben Ali’s from the presidency in January 2011, however, Tunisian courts have imprisoned people for speech deemed offensive to Islam or Muslims despite the absence of such laws. They have relied on article 121.3 of the penal code, which criminalizes acts that disturbthe public order or public morals. Recently, a court in al-Mahdia sentenced two young men to seven-and-a-half years in prison for posting online caricatures and commentary lewdly mocking the Prophet Muhammad.
“Tunisia’s legislators should be working to abolish the laws that are still being used to muzzle speech, not adding to them,” Goldstein said.