It is critically important to bring Tunisia's new constitution in line with international human rights standards and Tunisia's obligations under international law, four human rights organizations said on July 24, 2013.
Include a general clause directly incorporating into Tunisian law human rights as defined by customary international law and international treaties ratified by Tunisia, including the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the African Charter on Human and Peoples' Rights. Amend the phrasing of "the supreme/noble and universal human rights principles," as it may be interpreted to imply that there is a hierarchy of universal human rights, with some more important than others;
Al Bawsala, Amnesty International, Human Rights Watch, and The Carter Center have independently followed the constitution-drafting process from its outset and have built a consensus around key issues of concern.
A Consensus Commission is currently in place at the National Constituent Assembly (NCA), and is charged with building consensus around the main contested issues in the final draft of the constitution, which was presented to the public on June 1, 2013. The commission's work may prove critical as the Assembly prepares to vote on the constitution article by article, then in its entirety. With the aim of supporting a successful transition to democracy in Tunisia, in which human rights are respected, the groups urge the Consensus Commission and the NCA more broadly to consider the following recommendations:
Guarantee that domestic law reflects and respects Tunisia's international commitments on human rights. The constitution should state that all treaties "duly approved and ratified" by Tunisia without exception have a status superior to national law. The assembly should also include a clause stating that the rights and freedoms set out in the constitution bind the legislature, the executive, the judiciary, and all organs of the state;
Include a clause stating that judges should always interpret the law, including the constitution, in a way that most favors the enforcement of a right or fundamental freedom, and specifically say that they should take into account the interpretation of human rights treaties from any official treaty body, including courts and commissions, as a minimum standard;
Strengthen the guarantees for economic, social and cultural rights, by specifying that Tunisia has an obligation to progressively achieve the full realization of these rights to the maximum of the country's available resources, including by providing for specific mechanisms to implement these rights gradually;
Enshrine the principles of equality and non-discrimination before the law and extend it to anyone subject to the jurisdiction of the Tunisian authorities, citizens and foreigners alike. The constitution should specify that discrimination, direct and indirect, is prohibited on the grounds of race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and that discriminatory laws or state policies are unconstitutional;
Articulate the principle of equality between men and women in all its facets. The constitution should specify that men and women are equal and entitled to full equality in law and practice, as well as to equal opportunities in all areas of life – whether civil, cultural, economic, political or social, as defined in international human rights standards. The Assembly should consider adding a provision to direct the state to adopt positive measures in all areas to achieve the effective and equal empowerment of women;
Ensure that the scope of the right to freedom of religion and conscience covers all facets of these rights, including the freedom to adopt, change, or renounce a religion or belief, as well as the freedom to not practice a religion at all and the freedom to practice in public and private;
Provide for the full protection of fundamental rights, including those pertaining to freedom of expression, assembly, health, education, food, water, association, movement and the right of access to information;
Delete the restrictions outlined in the articles pertaining to freedom of expression, assembly, association, movement and the right of access to information, as they could allow for arbitrary restriction of fundamental rights in national laws, and an erosion of individual rights in future. Instead, the constitution should stipulate that any restrictions to rights and freedoms should be limited to those reasonable, necessary and proportional to secure a legitimate aim. This would include adding language to article 48 (the general limitation clause) clearly stating that the rights and freedoms affirmed by the constitution may only be restricted when such restrictions are permitted under international human rights law;
Clearly specify that any restrictions to rights and freedoms in a state of emergency must be specified by law, demonstrably necessary for the purpose of protecting a legitimate aim, in a manner that is proportionate to protect that aim, for a specific period of time to meet the exigencies of the situation, and subject to judicial review. Furthermore, specify that rights considered non-derogable, or absolute, in international law remain protected, and ban their restriction under emergency powers;
State clearly a prohibition on cruel, inhuman and degrading treatment or punishment and uphold the principle of nonrefoulement, i.e. the forced return to a serious risk of persecution;
Incorporate international standards on independence of the judiciary, including the unambiguous affirmation of security of tenure, in regards to appointment, promotion and discipline with removal of judges possible only for serious misconduct, following fair trial guarantees and when decided upon by a high judicial council;
Grant the Constitutional Court, immediately upon its creation, the full power to consider the constitutionality of existing laws and proposed laws, and to strike down laws and articles of laws that violate the rights provisions of the constitution. Extend the right to verify the constitutionality of new laws, which in the current draft belongs only to the President of the Republic, to members of the People's assembly according to a formula to be determined by the Constitution; and
Set clear deadlines for the entry into force of the various provisions of the constitution.
For more detail on the above recommendations, please see:
Amnesty International publication, June 5, 2013, "Last opportunity for Tunisian lawmakers to enshrine human rights for all in Tunisia's new Constitution"
The Carter Center publication, June 12, 2013, "The Carter Center Congratulates Tunisia's National Constituent Assembly on Final Draft of Constitution and Urges Safeguards for Human Rights"
Human Rights Watch publication, May 13, 2013, "Tunisia: Revise the Draft Constitution"