In view of the forthcoming debate on the new draft constitution finalised by the Commissions of the Tunisian National Constituent Assembly in December 2012, ARTICLE 19 has developed this legal analysis aiming at supporting and encouraging discussions especially around the new constitutional provisions related to the protection of freedom of expression and freedom of information.
ARTICLE 19 produced a first analysis examining the previous draft constitution's compliance with international human rights standards. This new document highlights the improvements that the Tunisian National Constituent Assembly has brought compared to the previous draft, as well as the aspects that are still problematic and need to be further improved.
ARTICLE 19 notes the efforts of the drafters of this new version to guarantee fundamental human rights and fulfill the Tunisian state's obligations under international human rights law. Nonetheless, it is clear from our analysis of the new draft constitution that, in general, the shortcomings of the text that we had previously identified have not been addressed. The provisions related to freedom of expression should thus be reviewed in order to make them consistent with international standards.
First, the definition of freedom of expression is still incomplete compared to international standards. Similaraly, the restrictions to freedom of expression and freedom of information, and for the right to access information that the Constituent Assembly adopted are also not sufficient.
Second, the guarantees given in the name of freedom of the press are insufficiently explicit. The provisions relating to the information independent body independent authority on information offer incomplete guarantees of independence and are contrary to the fundamental principles of democracy.
Third, protection of religion and “the sacred” are not permittable restrictions under international law. Fourth, the provisions relating to the protection of women's rights are still ambiguous so it is necessary to introduce a clear and unequivocal fundamental principle of equality between men and women.
Finally, as to the effective implementation of rights at the national level, the constitutional provisions relating to the functioning of the constitutional Court remain vague and lack clarity. The place and the value given by the constitution to international law in the domestic legal order is not in accordance with the Vienna Convention on the Law of Treaties.
Given the issues listed above, ARTICLE 19 calls on the National Constituent Assembly to take into consideration the need for additional changes to the provisions related to freedom of expression in the current draft constitution. We consider it necessary to continue the revision of the relevant provisions to align them with existing international norms in this area. The National Constituent Assembly members are invited to examine the recommendations below.
ARTICLE 19 invites the National Constituent Assembly to take into consideration the following recommendations:
The new constitution should contain notably in its preamble provisions stating its support to the principle of universality, interdependence and indivisibility of human rights.
The reference to citizens' (male and female citizens) “duties” should be withdrawn from the Preamble.
The drafters of the new constitution are invited to follow ARTICLE 19's recommendations on the draft constitution, to the extent that they remain largely relevant in the context of this analysis, including:
- A reference to the Universal Declaration of Human Rights, and where necessary, to other international treaties protecting human rights such as the International Pact relating to Civil and Political rights, would be desirable.
- A broad definition of freedom of expression that protects all the forms of expression and modes of communication, and their means of diffusion, and a strict legal framework for restrictions to freedom of information.
- A complete and explicit protection of freedom of information and access to information and the permitted restrictions.
- A complete and explicit protection of media freedom. Regarding this point ARTICLE 19 draws the attention of the National Constituent Assembly to the incompatibility of the provisions relating to the independent authority of information with the fundamental principles of democracy, which must be withdrawn.
- Freedom of religion for all, in compliance with the International Covenant on Civil and Political Rights.
- The withdrawal of constitutional provisions relating to the protection of the “sacred”, because they are contrary to international norms.
- The fundamental principle of equality between men and women, provided for in a clear and unequivocal way.
- Effective appeals allowing the implementation of rights and freedoms guaranteed by the constitution.
- The review of the constitution before ratification of an international treaty in case the constitutional court would declare that such international engagement includes a clause in opposition with the constitution.
- The withdrawal of a constitutional provision (article 15) enunciating the supremacy of the constitution over international treaties and the drafting of a new provision, for example, in the manner of article 55 of the French constitution.
- The Constitution should contain another article stating that signed and ratified treaties, once they have been published, are directly binding in the domestic legal order.
- The Constitution could also include, where required, a provision explaining that treaties and international agreements regularly ratified or approved can only be abrogated, modified or suspended under the form stated in the treaties themselves or in compliance with general norms of international law (see for example article 96 of the Spanish Constitution).