TUNISIA: NEW DRAFT CONSTITUTION UNDERMINES INDEPENDENCE OF JUDICIARY AND WEAKENS HUMAN RIGHTS SAFEGUARDS

The new draft constitution published in the official gazette is an entirely new text that maintains only some of the provisions of the current constitution

A new draft constitution issued by the Tunisian authorities on 30 June, after an obscure and fast-tracked drafting process, undermines institutional guarantees for human rights, including by further diminishing the independence of judiciary, Amnesty International said today. President Kais Saied announced a referendum on the new draft on 25 July.

The draft constitution does not offer Tunisia’s judiciary the necessary safeguards to operate with full independence and impartiality and removes oversight mechanisms used to hold the authorities to account. It contains worrying provisions that would give leeway to authorities to interpret rights in restrictive ways in the name of Islam. While the draft on paper still upholds several key rights, it grants the President largely unchecked emergency powers that could be wielded to curtail human rights.

“The proposed draft dismantles many of the safeguards provided in Tunisia’s post-revolution Constitution and fails to provide institutional guarantees for human rights. Removing these safeguards sends a chilling message and sets back years of efforts to strengthen human rights protection in Tunisia,” said Heba Morayef, Amnesty International’s Regional Director for the Middle East and North Africa.

“It is shocking that the Tunisian people have been denied a transparent explanation of how the proposed new constitution of their country was drafted. The authorities have an obligation to ensure that information of public interest is accessible to all, and that as with any new legislation the draft constitution is subject to genuine and meaningful public and political scrutiny.” 

On 19 May, President Saied created a National Consultative Body for the New Republic (NCBN), tasked with drafting a new constitution behind closed doors. The public did not have access to the work of the NCBN nor avenues to engage with the process as the presidential decree creating the NCBN imposed “secrecy of deliberations” for their work. Even more confusingly, on 3 July, the president of the NCBN said the draft published by President Saied is completely different to the one the committee had prepared.

The new draft constitution published in the official gazette is an entirely new text that maintains only some of the provisions of the current constitution. If passed, it would replace the 2014 constitution, which was drafted by the elected National Constituent Assembly through a two-year-long inclusive and transparent process and contained strong human rights safeguards.

Erosion of independence of the judiciary

The draft Constitution proposes the creation of three High Judicial Councils (HJC) to oversee the judiciary but does not guarantee their independence.

The HJC as established by the 2014 Constitution is a judicial oversight body meant to shield judges from government interference. The 2014 Constitution promoted the independence and impartiality of the HJC by requiring, for example, that at least two thirds of its members are judges elected by their peers. The new constitution does not include any mention of the composition of the judicial oversight institutions.

In addition, the draft constitution states that judges are appointed by direct presidential order upon recommendation from the HJC, a setback compared with the 2014 constitution which required the president to follow a binding opinion of the HJC for the appointment of judges and gave the mandate to the HJC to oversee removal, promotion, and transfer of judges. The draft constitution opens the door for the discipline and revocation of judges by the executive authorities by removing the mention that such decisions must be taken in accordance with a “reasoned decision of the HJC”.

The proposed draft dismantles many of the safeguards provided in Tunisia’s post-revolution Constitution and fails to provide institutional guarantees for human rights.

Heba Morayef, Amnesty International

International standards require that the appointment, promotion, and discipline of judges should be sufficiently independent of the executive, and subject to transparent processes, in line with the principle of separation of powers that ensures effective checks and balances between the executive, legislative and judicial branches of government against excesses and abuses, Amnesty International said.

The erosion of the independence of Tunisia’s judiciary proposed in this draft constitution follows nearly a year of successive attacks on the judiciary since President Saied’s power grab. In February,  Saied replaced the independent HJC with a temporary institution under his direct influence. In June, he illegally granted himself further powers to directly revoke judges and summarily dismissed 57 judges.

The draft also removes a requirement under the current constitution that military courts deal solely with military crimes, which is intended to protect civilians from being tried by them.

As a result of lawmakers failing to reform relevant laws to comply with this requirement, civilians have continued to be tried by military courts since 2014. Taking out this safeguard from the constitution entirely, however, would exacerbate the situation, especially considering the alarming increase in the number of civilians tried before military courts since Saied’s power grab.

Unchecked emergency powers

Article 96 of the draft Constitution also does not offer the safeguards required to protect human rights under a state of emergency.

Contrary to the 2014 constitution, it does not provide for any venues to challenge the exceptional measures nor impose a time limit for the decision to be reviewed. The draft article also omits the previous requirement that “the measures shall guarantee, as soon as possible, a return to the normal functioning of state institutions and services.” 

According to international standards, emergency powers and exceptional measures should only be applied when it is strictly necessary to protect national security from a threat to ‘the life of the nation.’ The Human Rights Committee, the UN body monitoring the implementation of the International Covenant on Civil and Political Rights (ICCPR), has stated that measures derogating from the provisions of the ICCPR pursuant to a state of emergency must be exceptional and temporary. The state’s predominant objective must be the restoration of the state of normalcy.

The dangers of religious references in Article 5 

Article 5 of the draft constitution states that Tunisia “belongs to the Islamic Ummah” and says the state is required to “achieve the purposes of Islam in preserving [people’s] souls, money, religion, and liberty.”

This language could allow state leaders, lawmakers, and the courts to refer to ‘purposes of Islam’ as a basis for undermining human rights, especially when reviewing laws related to gender equality or individual rights and freedoms, on the grounds that they are alleged to contradict religious principles. If passed, Article 5 could also provide a mandate to discriminate against other religious groups.

Background

A referendum on the proposed new constitution is scheduled for 25 July, which marks a year since President Saied suspended parliament and granted himself the exclusive right to rule by decree and redraft Tunisia’s Constitution. Since then, the authorities have increasingly bypassed the courts to arbitrarily impose travel bans and house arrests, and have prosecuted dozens of individuals for criticizing the President.