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Tunisia: Carving up the Constitution represents a threat to human rights

Originally published in French in Le Monde

The authoritarian turn in Tunisia began on 25 July with the suspension of Parliament and has now been unequivocally confirmed. President Kaïs Saïed took a further step on 22 September by suspending certain chapters of the 2014 Constitution, assuming full executive and legislative powers, and appointing himself to oversee a review of the Constitution with the help of an Expert Committee.

The decree ratifying these decisions illustrates the vast powers the President has unilaterally endowed upon himself. Kaïs Saïed can now legislate by decree-law to change laws on the organization of political parties, associations and their financing, on the press and information, on justice, on freedoms and human rights, and even on the Code on Personal Status, which regulates family law in Tunisia. The list is mind-boggling.

What is worse, however, is that the decree specifies that these interventions are not subject to appeal. It also abolishes the “provisional body for monitoring the constitutionality of laws”. This body was created by the 2014 Constitution pending the establishment of the Constitutional Court (which never came into being) to ensure that laws passed by Parliament did not contravene the Constitution.

It is true that the text presented on 22 September states that “in issuing these decree-laws, the achievements in terms of human rights and freedoms guaranteed by the national and international legal system may not be undermined”. And yet the absence of any supervisory powers, including any authority to review these decisions, is in itself a weakening of human rights protection.

International law requires states to provide effective remedies for human rights violations, and the fact that the President is creating such an exceptional situation for an indefinite period of time is troubling to say the least.

A knock-out blow

The 2014 Constitution was the result of a veritable political saga in post-revolution Tunisia. For three years, antagonistic forces clashed with the aim of reaching a consensus on how to define the institutional, political and legal bases of national community life. This presidential carving up of the Constitution represents, both in form and in substance, a real threat to these rights.

For all those who attended and participated in the feverish, passionate, and sometimes vicious debates that accompanied the drafting of this Constitution, and which was supposed to create the foundations of a new post-revolutionary social pact, this decision comes as a blow and nothing less than an end to Tunisia’s institutional transition.

The 2014 Constitution contains a fundamental chapter entitled “Rights and Freedoms”, which formed the object of bitter discussion among polarized groups representing the different movements and ideologies of Tunisian society. All of them left their mark on the Constitution. Parliamentarians, different civil society actors and citizens interested in public affairs spent days huddled together discussing the best formulation to give to this or that article in order to prevent any abuse of power, to get it framed in the best possible way, and avoid pitfalls that could slide into vague formulations.

Together with its governing coalition parties, Ennahda – the party that won a majority of seats on the National Constituent Assembly (ANC) at the time – had imposed a text that risked violating international human rights standards. And it was civil society’s perseverance in obtaining a universal acceptance of rights and incorporating the most advanced international protections that resulted in a chapter that made many breakthroughs in the field of human rights, including such essential principles as non-discrimination and the equality of citizens before the law.

This relentless fight for fundamental freedoms in Tunisia, which took place against the backdrop of great upheaval in the country, including two political assassinations of opposition figures, resulted in a balanced text of which the country’s driving forces could be proud. The new Constitution embodied the struggles they had gone through, the torments they had experienced, the blood they had shed, and also their desire to find a common platform despite dissenting opinions.

Technocratic opacity

This balance was rejected by Kaïs Saïed on several occasions, and the first of these came well before these most recent decisions. The President would now like to replace the Constitution – which is certainly imperfect but incorporates essential rights – with new texts that are likely to challenge a number of its achievements. They would represent a shift from the democratic space that gave rise to the 2014 Constitution to technocratic opacity, on the pretext of getting rid of the unnecessary “red tape” that has ended up paralyzing the State institutions.

Despite the deceptively reassuring tone of the presidential decree with regard to guaranteeing “public and individual rights and freedoms”, Kaïs Saïed’s conception of human rights is neither reassuring in speech nor in practice. As a candidate, he opposed gender equality in inheritance, citing sharia law. He has also spoken out in favour of criminalizing homosexuality, calling homosexuals “deviants” and labelling the associations that defend them the puppets of foreign forces wanting to change Tunisian society. As president, he defended the retention of the death penalty and reaffirmed his opposition to equal inheritance.

Since declaring a state of emergency, the President has resorted to abusive restrictions on freedom of movement. On the pretext of fighting corruption, he has placed dozens of public figures under indefinite and arbitrary house arrest, and he made clear his desire to take control of the judiciary by declaring, on the evening of 25 July, that he would personally preside over the Public Prosecutor’s Office in certain cases, although he did later retract this statement. This rhetoric and these practices therefore bear the seeds of a denial of rights and freedoms, and this represents a real threat to Tunisia.

Against this extremely worrying backdrop, it is essential to remember that no president, no matter how popular, should be above the law, and especially not in this situation of absolute legislative powers. Civil society and the international community must do everything in their power to protect the rule of law and to protect those public freedoms that have been so hard-won since the revolution.