The proposed law’s provisions and procedures for exclusion amount to an unnecessary and disproportionate restriction on political rights. Among other concerns, it includes a broad list of categories of people to be excluded based on their past association without the possibility of considering individual circumstances. The bill would also exclude people covered by the ban from an unnecessarily wide array of positions and lacks adequate due process guarantees, including a provision to automatically notify those banned. A vote is expected in the Tunisian legislature in June 2013.
“The authorities have a legitimate interest in protecting Tunisia’s nascent democracy, but unnecessarily banning thousands of people from political positions for years to come is not the way to go,” said Eric Goldstein, deputy Middle East and North Africa director at Human Rights Watch. “This sweeping law automatically excludes people, depriving them from fundamental political rights, without a real chance to rebut the claims against them.”
The Law on the Immunization of the Revolution was introduced on November 30, 2012, by five parties, including Ennahdha and the Congress for the Republic, both members of the governing coalition. On April 30, the commission on general legislation in Tunisia’s legislature, the National Constituent Assembly, adopted the draft law and decided to submit it to the plenary session for voting. It would require approval by an absolute majority, or 109 of the 217 members.
The law would disqualify all members of the successive Ben Ali governments, from 1987 to 2011, as well as senior members of the former ruling party, the Constitutional Democratic Rally (Rassemblement Constitutionnel Democratique, RCD), from holding certain elected or appointed positions, and from forming or joining the governing bodies of any political parties. The numbers affected are unknown but estimates rise to tens of thousands.
The governing coalition parties that sponsored the draft law have said that their intention is to protect Tunisia’s nascent democracy from the old guard, who could rely on patronage and local prestige to win seats and use their influence to interfere in future elections.
Countries that suffered under dictatorship and are struggling to build democratic societies in which individual rights are respected have a legitimate concern that these efforts could be undermined by people whose past conduct reflected the criminal, repressive, or corrupt character of those dictatorships, Human Rights Watch said. As a result, there is some justification for restricting political rights of certain people associated with the previous dictatorship at the beginning of the transition process.
However, international standards require restrictions on political rights to meet clear conditions.The measures envisaged in the draft law violate those standards, Human Rights Watch said.
Any restrictions should be necessary to the goal of protecting democracy, based on clear criteria set out in law, and proportionate, affecting a limited number of people for a limited period. In addition, anyone affected should have full due process protection, including the right to confront and challenge the evidence against them, a chance to present their own evidence, and the right to appeal to an independent judicial tribunal.
The draft law is inconsistent with these requirements, Human Rights Watch said. It contains sweeping categories of people to be disqualified from a wide range of appointed or elected offices, based on broad areas, without the possibility of addressing individual circumstances. The ban on almost all forms of political participation is also unnecessary and disproportionate. People disqualified will not only be barred from running in legislative elections, but from municipal and regional elections as well and from holding senior positions in any political party, even though many of the positions from which they would be excluded could not reasonably pose any threat to Tunisia’s democracy.
The draft law would establish a committee, the Superior Independent Body for Elections (Instance supérieure indépendante pour les elections) to identify people who would be banned from certain political offices, but does not provide for notification of the people on the list. The law provides for an appeal to the independent Administrative Tribunal, but only to determine whether the person fits one of the broad categories specified in the law.
The seven-year ban from holding a number of elected or appointed positions would cover people who held certain jobs between November 7, 1987, and January 14, 2011. Those covered would include members of the successive governments and their chiefs of cabinet; former ruling party candidates for legislative electionsregardless of whetherthey actually won the elections; the secretary-general and deputy secretary-general of the party; members of the party’s political bureau and central committee; the secretaries-general of the party coordination committees and regional sections and the presidents of the party’s local sections, and anyone who called for Ben Ali to run for election in 2014.
Those listed would be banned from holding senior positions – including the presidency, the president’s chief of staff, head of government, head of parliament, member of parliament, governor or deputy governor of the central Tunisian bank, ambassador, consul, or governor. But they would also be excluded from a wide range of lower-level positions that could not reasonably be envisaged to threaten Tunisia’s democracy, including membership inany of the “constitutional authorities” to be created in accordance with the new constitution such as the constitutional court or the High Judicial Council; any municipal or local authority; president or member of the central or regional governing bodies or the constitutive organ of any political party.
“The proposed law is still broad and sweeping, and most importantly, doesn’t allow for taking a person’s actual circumstances into account,” Goldstein said. “This draft law would treat identically the people who were most involved with oppressive rule under Ben Ali and those who had a very minor role and got out many years ago.”
International Law and Political Participation
As a party to the International Covenant on Civil and Political Rights (ICCPR), Tunisia is required to allow citizens “to take part in the conduct of public affairs, directly or through freely chosen representatives” without discrimination and without unreasonable restrictions.
The African Charter on Human and Peoples’ Rights, also ratified by Tunisia, requires countries to ensure that every citizen has the right to participate freely in government.
International standards impose clear conditions on countries emerging from dictatorship and on moves to restrict the political rights of certain people whose past conduct reflected the unlawful character of authoritarian governments, a process known as lustration.
The restrictions should not be arbitrary. They should be based on clear criteria set out in law and should be proportionate, affecting a limited number of people for a limited period. In its interpretation of article 25 of the International Covenant on Civil and Political Rights (ICCPR) on the right to participate in public affairs, the United Nations Human Rights Committee, which interprets the covenant, stated that, “Any conditions which apply to the exercise of the rights protected by article 25 should be based on objective and reasonable criteria.” The same comment says that, “Persons who are otherwise eligible to stand for election should not be excluded by unreasonable or discriminatory requirements such as education, residence or descent, or by reason of political affiliation.”
The European Court on Human Rights (ECHR) has allowed some discretion to new democracies emerging from dictatorship to place limited restrictions on the right of senior members of the former ruling party under authoritarian governments to run for elected office, but has required those measures to respect the principles of necessity, proportionality, non-discrimination, and judicial review.
The Parliamentary Assembly of the Council of Europe (PACE) has noted that the implementation of lustration laws must ensure “the right of defence, the presumption of innocence until proven guilty, and the right to appeal to a court of law.”
The Draft Law’s Flaws in Meeting International Standards
Overly broad list of people to be excluded
The draft law contains a list of categories of people who held certain positions under the Ben Ali governments who would be disqualified from holding certain offices, from running in legislative or local elections, and from holding certain positions within political parties. Among those excluded are the ministers of Ben Ali’s governments and their heads of cabinet; the former ruling party’s legislative candidates; and members of the political bureau, central committee, coordination committees, and regional and local sections of the party as well as anyone who called for Ben Ali to run for elections in 2014.
These broad categories could lead to the exclusion of people who were only accidentally or incidentally associated with the former governments. For example, it is widely acknowledged that some of those who called for the re-election of Ben Ali were either compelled to do so under intimidation, or found themselves on the list without their consent.
Overly broad ban on political activity
The Council of Europe’s Parliamentary Assembly said in its “Guidelines to ensure that lustration laws and similar administrative measures comply with the requirements of a state based on the rule of law” that:
Lustration should be limited to positions in which there is good reason to believe that the subject would pose a significant danger to human rights or democracy, that is to say appointed state offices involving significant responsibility for making or executing governmental policies and practices relating to internal security, or appointed state offices where human rights abuses may be ordered and/or perpetrated.
Tunisia’s draft law does not conform to this requirement, as it bars people not only from holding certain senior positions within the state, but also from being members of political party governing bodies.
Sweeping disqualification from electoral rights
The European Court for Human Rights has set a higher standard for disqualification from candidacy rights than for appointment to certain sensitive positions within the government. In Ždanoka v. Latvia, the court accepted the legitimacy of such measures affecting the electoral rights of the interested people. However, it said that the standard for judging whether the limitations on the right to run for elections is proportionate to the legitimate aim of protecting democracy is whether the applicant’s current conduct is likely to endanger democracy.
In Adamsons v. Latvia, the court examined a person’s disqualification as a candidate in parliamentary elections. The court ruled that, “A restriction of the electoral rights […] should take a case-by-case approach which would allow their actual conduct to be taken into account.”
Thus, the law should allow for considering individual circumstances in assessing whether to exclude a person from running for office.
Weak procedural guarantees
International standards also require respect for certain procedural guarantees in carrying out political exclusion laws. A person must be able to challenge the exclusion, including the facts alleged against them and the proportionality of the exclusion measures. The draft law fails to meet these requirements.
While the draft law provides for the right to appeal to the Administrative Tribunal, it is not clear whether the appeal could be based on substantive grounds, i.e. whether the person can introduce material proving that neither their past nor present conduct could endanger democracy. The law rather implies that the tribunal’s role will be only perfunctory by checking whether the person on the list fits one of the categories included in the law.
National case law of post-communist countries suggests that the assessment of proportionality of lustration measures should fully consider individual circumstances. For example, the constitutional court of Latvia ruled that a person who had contributed significantly to the “renewal of the democratic values in Latvia […] is in a different situation from somebody who opposed Latvia's independence and should accordingly be treated differently.”
In addition, the draft law does not have sufficient safeguards against abusive exclusion. The law does not provide for automatic notification of people on the excluded list. Instead, they would find out only if they filed a request for verification within 10 days of public notification that the provisional list had been finalized. As a result, people listed could lose the opportunity to challenge their disqualification.
The National Constituent Assembly should revise the law both to require notification of people on the list and to allow people on the list to challenge the decision based on individual circumstances.