Human Rights Watch
Last updated: 29 May, 2013

“The National Constituent Assembly should make a number of revisions to the current draft to consolidate the rights protections and tighten loopholes”

While Tunisia's latest draft upholds many key civil, political, social, economic and cultural rights, it still contains a number of articles incompatible with international treaty obligations, writes Human Rights Watch.

Tunisia’s National Constituent Assembly (NCA) should modify articles in the new draft constitution that threaten human rights. Human Rights Watch analyzed the draft constitution to identify human rights concerns.

Among the most worrisome articles or gaps are: a provision recognizing universal human rights only insofar as they comport with “cultural specificities of the Tunisia people,” the failure of the constitution to affirm freedom of thought and conscience, and the overly broad formulation of permissible limitations to freedom of expression. In addition, the draft does not state clearly that human rights conventions already ratified by Tunisia bind the country and all of its authorities.

“The NCA should close loopholes in the draft constitution that would allow a future government to crush dissent or limit the basic rights that Tunisians fought hard for,” said Eric Goldstein, deputy Middle East and North Africa director at Human Rights Watch.

The assembly presented a third draft of the proposed constitution on April 25, 2013, after debating and revising two previous drafts, presented in August and December 2012. The full assembly is expected to start voting on the constitution in May.

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The latest draft upholds many key civil, political, social, economic and cultural rights, and includes some improvements over the previous drafts. However, it also contains several articles that are incompatible with Tunisia’s international treaty obligations on human rights and that would undermine rights protections.

Article 21, which states that “International conventions duly ratified by the parliament have a status superior to the laws and inferior to the constitution,” creates a risk that the constitution will be used to override or reduce the protection offered by some fundamental human rights, set out in treaties to which Tunisia is party.

It is a basic principle of international law that a country needs to ensure that its constitution is compatible with the treaty obligations it has made. The constituent assembly needs to include in the constitution a provision recognizing that the human rights guaranteed in the international human rights treaties Tunisia has ratified will apply directly and that the constitution and law will be interpreted to comply with them.

Other provisions that cause concern are:

* The preamble, which lays the foundation of the constitution on “principles of universal human rights in line with the cultural specificities of the Tunisian people.” This sentence offers wiggle-room for legislators and judges to depart from the global standards of fundamental rights;

* Article 5, which says that, “The state guarantees freedom of belief and religious practice,” but does not mention freedom of thought and of conscience, including the right to replace one’s religion with another or to embrace atheism. Human rights would be best protected by an explicit guarantee of freedom of thought and of conscience;

* Insufficient definition of the permissible limitations on freedom of expression, assembly, and association: several articles in the third draft constitution define the scope of freedom of expression, assembly, and association by permitting the legislature to pass laws that restrict the rights, without setting out clearly the limits on the restrictions; and

* A discriminatory provision that only a Muslim can become president of the republic. The provision contradicts Article 6, which states, “All citizens are equal in rights and obligations before the law, without discrimination.” In addition, the draft constitution still limits equal protection of the law to citizens of Tunisia.

The assembly will vote on each article separately, with a simple majority required for passage, according to the rules it set for the process. The assembly must then approve the entire draft in a separate vote.

If the draft fails to pass by a two-thirds majority, the chief drafting committee must then submit a revised version to the full assembly. If the text fails again to win a two-thirds majority, the draft goes next to a national referendum, with a simple majority of those who cast votes required for adoption.

The National Constituent Assembly should make a number of revisions to the current draft to consolidate the rights protections and tighten loopholes.

“The assembly should address the troubling provisions now, before the constitution is set in stone,” Goldstein said. “Tunisians led the entire region in demanding their basic rights, and they shouldn’t let them slip away now.”

For more points on this report, visit Human Rights Watch’s website.

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