(Tunis) – Imposing a state of emergency does not give the Tunisian government the right to gut basic rights and freedoms. President Beji Caid Essebsi declared a state of emergency on July 4, 2015. The measure comes one week after an extremist gunned down 38 European tourists at a beach resort near Sousse.
“Tunisia’s security challenges may call for a strong response, but not for sacrificing the rights that Tunisians fought hard to guarantee in their post-revolution constitution,” said Eric Goldstein, deputy Middle East and North Africa director.
Under a 1978 presidential decree, the president may declare a state of emergency of up to 30 days, renewable, in response to serious disturbances to the public order.
The decree gives the executive – in practice the Interior Ministry or local governor – the authority to suspend certain rights. The executive may prohibit any strike or demonstration deemed to threaten public order, order the house arrest of anyone whose “activities are deemed to endanger security and public order,” and prohibit gatherings “likely to provoke or sustain disorder.” The executive also can “take any measure to ensure control of” the press and other publications of any nature, as well as radio, television, film screenings, and theater performances.
Article 80 of the 2014 Tunisian constitution gives the president the power to announce exceptional measures “in the event of imminent danger that threatens the nation or the security or independence of the country and that hampers the normal operations of state institutions.” The measures are to provide for a return to the normal functioning of state institutions and services at the “earliest opportunity.” The constitution gives the president of the Parliament or 30 of its members the right to petition the Constitutional Court to rule whether the conditions justify a state of emergency. However, the constitutional court has not yet been set up.
Tunisia was under a state of emergency from 2011, following the toppling of President Zine el-Abidine Ben Ali, until March 2014, when then-President Moncef Marzouki lifted it.
The International Covenant on Civil and Political Rights (ICCPR), in article 4, allows states “in times of public emergency which threatens the life of the nation” to adopt exceptional and temporary restrictions on certain rights that would not otherwise be permitted. But the measures must be only those “strictly required by the exigencies of the situation.” The Human Rights Committee, which interprets the covenant, has said that the situation would require states parties to “provide careful justification not only for their decision to proclaim a state of emergency but also for any specific measures based on such a proclamation.” The committee stressed that “measures taken under article 4 are of an exceptional and temporary nature and may only last as long as the life of the nation concerned is threatened.”
Tunisia’s emergency decree appears to give authorities broad powers to curtail freedom of speech, union rights, and freedom of assembly and of association, and to impose arbitrary detention if officials decide to impose sweeping prohibitions and restrictions.
Tunisian authorities should refrain from using these emergency powers in a way that goes beyond what international law and the Tunisian constitution permit, Human Rights Watch said. Authorities should respect the conditions set up under article 49 of the Tunisian Constitution, which states that any restrictions imposed on the human rights that the constitution guarantees “must not compromise the essence of such rights; must not be imposed except where necessary in a civil and democratic society to protect the rights of others, public order, national defense, public health, or public morals; and that such restrictions must be proportionate to the intended objective.”
Under the ICCPR, certain basic human rights cannot be restricted even in times of emergency. These include the right to life, the prohibition of torture and ill-treatment, the prohibition of discrimination, and freedom of religion, as well as the right to a fair trial and freedom from arbitrary detention, in particular the right of every detainee to have their detention reviewed by an independent tribunal. It is strictly prohibited for any measures in effect during states of emergency to discriminate solely on the ground of race, color, sex, language, religion, or social origin.