THE LEGAL CHALLENGE TO THE LTDH ELECTIONS

The first official public response to the LTDH election appeared in the press two days after it was held. In an interview published in the Tunisian Arabic-language daily ech-Chourouk on November 2, Abderrahim Zouari, then-secretary-general of the ruling RCD,⁸ observed:

Public opinion in our country is surprised by the direction that the League took during its recent congress. A number of observers concur that the League has been tarnished by numerous violations that have put the League on a path that is contrary to its objectives and function....What emerged from the recent congress was a departure from the working framework of the League, giving it the appearance of an extremist political party, which constitutes a dangerous turn in the path of this association.

Zouari went on to list two of the alleged violations of the LTDH's internal statutes that, three weeks later, figured in the lawsuit filed by the four league members. These were the "failure to renew the regional sections before holding the general assembly, and noncompliance with Article 22 of the bylaws, which does not allow serving in the steering committee for more than two consecutive sessions." Such violations, Zouari contended, "have paved the way for a monopolization of responsibilities by extremist figures." He said the first statements emanating from some members of the new steering committee "were evidence of a dangerous departure from the principles of the League" and confirmed a "sectarian bent" that will "hinder its future relations with all entities within civil society." He continued, "It is clear that behind this tendency is an exclusionary mentality that will work to alienate others committed to defending and protecting human rights..."⁹

Following this critique by the head of the ruling party, Tunisia's main media published similar allegations-and worse-without presenting viewpoints sympathetic to the steering committee. Es-Sabah, an Arabic-language daily that like all other privately owned dailies hews close to the official line, cautioned readers in an editorial "to distinguish between the right to struggle for individual and collective freedoms and the agenda of certain persons to exploit the human rights dossier for partisan and political interests at home and abroad...and to distinguish between improving the state of liberties and the plans of certain parties who wish to impose on Tunisia conditions that everyone knows have nothing to do with the interests of the Tunisian people and their aspirations for progress, to say nothing of an effort to put an end to national sovereignty."¹⁰

On November 15, two weeks after the RCD chief denounced the election, Tunis lawyer Fayçal Triki told journalists he had been engaged by four LTDH members to file a civil suit seeking nullification of the general assembly and all actions emanating from it, including the election of the new steering committee.¹¹ The complaint filed two days later by Samir Assbouï, Abderraouf El-Jemel, Kamel Ben Younes, and Arbia Ben Ammar Bouchiha alleged that the general assembly was marred by several violations of the League's statutes (statuts) and bylaws (règlement intérieur), including:

· failure to enforce the rule requiring annual renewal of individual memberships (Articles 9 and 10 of the statutes);
· failure to hold biennial elections within the LTDH's forty-one local sections (Article 9 of the bylaws);
· failure to hold the general assembly within three years of the previous one (Article 20 of the statutes);
· failure to follow the bylaws in allowing for the election by local sections of up to eight additional delegates each to the general assembly (Article 15 of the bylaws);
· the election of a twenty-five member steering committee instead of the twenty-two member body stipulated in Article 13 of the statutes;
· the designation of six vice presidents and a deputy treasurer but no deputy secretary-general, in violation of Article 17 of the statutes, which calls for three vice presidents, a deputy secretary-general but no deputy treasurer;
· the re-election to the committee of long-time members Slaheddine Jourchi and Khemaïs Ksila, in violation of Article 22 of the bylaws, which prohibits more than two consecutive terms of service in the committee; and
· the prevention of certain members of the outgoing steering committee from attending the general assembly.

These "infractions," according to the complaint, reveal "an intention to monopolize the association, usurp control over it and to lead it away from its objectives, for the purpose of preventing citizens who joined from participating, making their voices heard, expressing their opinions, and choosing their representatives in a legal manner, in complete freedom." The complaint focused not on the actual ballot count, which no one contested, but rather on irregularities in the preparation of the elections. It named as respondents Héla Abdeljaoued as president of the fifth general assembly and the LTDH in the person of its legal representative.

The lawsuit explains the basis for going to court: Article 1 of the Law on Associations states that the establishment of associations is governed "by general principles of contracts and business transactions." The association's statutes constitute, according to the plaintiffs, a legal contract to which League members are bound. Article 242 of the Code of Contracts and Obligations stipulates that "contractual obligations validly formulated have the force of law to those who enter into them." The plaintiffs state that they embraced the statutes of the League upon joining it and have now suffered harm by the violation of those statutes. The plaintiffs also claim that they have suffered violations of their rights under the Tunisian Constitution, notably Articles 7 and 8, which say in part, respectively, "The citizen shall enjoy all of his rights in the forms and under the conditions provided by the law," and "freedom of thought and expression...shall be guaranteed and exercised in accordance with the law."

The Tunis Court of First Instance, Second Chamber, scheduled the first hearing in the case (docket number 2000/18819) for December 9, but postponed it until December 25.

Meanwhile, on November 25, the plaintiffs requested a preliminary injunction that would freeze activities by the new steering committee and designate a legal administrator to oversee League affairs until a ruling was issued in the original court case. Their written request contended, "The current steering committee, by its fundamental violations of the law and the internal regulations of the League, and its usurping the administration of the League, is causing grave harm to the League and its internal structures that necessitate removing it and stopping further damage, not to mention the fact that their conduct should be seen as an outrageous abuse of authority that is without any legal or legitimate basis." The plaintiffs asked the court to protect the LTDH's documents and assets from the steering committee.

With the hearing on the injunction scheduled for November 27, the LTDH's lawyers requested a postponement of oral arguments in the case. On the morning of November 27, Emergency Judge (juge des référés) Imed Derouiche of the Tunis Court consented to reschedule the hearing for November 30 but nonetheless issued an interim injunction, effective immediately, ordering the steering committee to halt all activities and surrender its prerogatives, pending a ruling in the original case.

That afternoon, a bailiff arrived at the LTDH headquarters in downtown Tunis, accompanied by the local district police commander (préfet). According to LTDH President Mokhtar Trifi, the bailiff ordered all present to evacuate the office within thirty-five minutes and then sealed the premises. On the street below, a large contingent of police cordoned off the neighborhood and prevented arriving LTDH members from reaching the office.

On November 30 Judge Derouich appointed Abderraouf Majour, an accountant, as administrator (juge administrateur in French, or haris qadha'i in Arabic) of the office and the affairs of the LTDH until a verdict was reached in the original case. These have since remained under Majour's administration without interruption, even though a verdict was reached in the original case February 12 and there was no new judicial order renewing his mandate until six weeks later.

Since November 27, the League's steering committee has been prevented from using the office. Majour also dismissed the League's staff secretary and brought in his own assistant. Steering committee members expressed concern to Human Rights Watch and the Observatory for the Protection of Human Rights Defenders that, under these circumstances, confidential LTDH files-such as complaints or testimony by private citizens who had requested anonymity-could easily be viewed, photocopied, or tampered with by state authorities.

Government officials, including Minister of Human Rights Afif Hindaoui (who was replaced by Slaheddine Maâoui in late February 2001), have steadfastly denied to the media and before the Chamber of Deputies that the government has had any role in the lawsuit. In an interview with Human Rights Watch and the Observatory for the Protection of Human Rights Defenders in Tunis on February 15, 2001, Hindaoui said, "I defy anyone to provide a shred of evidence showing the government has had anything to do with the case. It is a purely internal dispute. The League is an institution (un acquis) of Tunisian society. We want it to function normally."¹²

At the same time, Minister Hindaoui used terms to describe the LTDH that echoed much of the hostile coverage in the pro-government press. "This is the first time the League is dominated by a single tendency, that of Maoists and Trotskyists," he said. "The plaintiffs are unwilling to accept a departure from the League's tradition of being composed of diverse political currents." He also suggested that politics lay behind the way the elections were organized, saying that to have held section-level elections before the general assembly would have "threatened" the eventually successful slate, presumably by changing the composition of the electorate at the assembly. Still, Hindaoui observed, "it is regrettable the plaintiffs didn't try to resolve the dispute internally, rather than go to court."

Maâoui, Hindaoui's successor as minister, echoed the same themes in an interview published in le Monde on April 6, 2001:

No one wants to believe it, but the state takes no sides in the case....Politically, I have to admit it's true that the government was not very comfortable with the composition of the new steering committee of the League, which is dominated by extreme leftists. But if an assembly of the League were summoned to meet again and elect for a second time its steering committee, I think they'd choose pretty much the same committee. The League members seem determined to confirm the choices they made the first time.

Do you really think that certain opposition figures, whom the authorities regard as particularly controversial, will be tolerated within the steering committee?

There is no factual basis to say the government has a veto over this or that member. The government is closely following the recent quarrels within the League, but has no intention of interfering in order to impose its preferences....

⁸ Zouari became minister of youth and sports one month later and was replaced as party chief by Ali Chaouch, a former minister of interior.

⁹ "Zouari to ech-Chourouk: The League Has Deviated from Its Principles...And This Is What Has Hurt Its Credibility," ech-Chourouk, November 2, 2000.

¹⁰ "Supporting freedoms is a principled choice...but loyalty to Tunisia comes first," es-Sabah, November 16, 2000. For further examples of media attacks on the League in the days preceding the filing of the civil lawsuit, see Selim al-Krai, "Human Rights League in Tunis and Exclusionist Practices," El-Gharb (weekly), November 15, 2000, and "The Human Rights League Is Walking a Fine Line!!" ("Sha'ra mu'awiya fi rabita huquq al-Insan!!") as-Sarih (weekly), November 20, 2000.

¹¹ Associated Press, "Tunisie: recours en justice pour l'annulation du dernier congrès de la LTDH," November 15, 2000.

¹² Hindaoui made a similar denial in an Associated Press story dated December 2, 2000, "Les autorités soulignent ne pas être impliquées dans la crise de la Ligue tunisienne des droits de l'Homme."