The articles under attack concern in particular freedom of expression, women’s rights, the principle of non-discrimination and freedom of thought and conscience. To these can be added questions concerning the judicial immunity of the head of state, the independence of the judiciary and the national conventions ratified in the past by the Tunisian state. Even though the constitutional draft protects numerous values and foresees the creation of a constitutional court which would be responsible for guaranteeing that Tunisian laws are in harmony with the constitution, it still contains numerous articles that are incompatible with the obligations assumed by Tunisia at the moment of the ratification of international agreements as far as concerns human rights and the guarantee of the same.
The new constitutional draft is not clear on what will happen to the international treaties on human rights ratified by Tunisia, including the United Nations and African Nations treaties, as well as protocols having supremacy over national laws. One of the thorniest issues is the discordance between articles 38 and 17. While in the first it states that ‘the international conventions promulgated by the president of the Republic and ratified by the parliament have supremacy over national laws’, in the second on the other hand it sets down that ‘the respect the international conventions is obligatory if they do not contravene this constitution’.
Other issues regarding freedom of expression, freedom of thought and religions, equality between men and women and non-discrimination also call the attention of the Observatory. Article 26 foresees that the above rights be guaranteed, but article 3 threatens freedom of expression insofar as it declares that ‘the state guarantees the freedom of religious belief and practice and criminalises all attacks on that which is sacred’, without however specifying what ‘sacred’ is and what could threaten it. In addition to the criminalisation of the language offending religion, the draft constitution contains a further article that criminalises any form of ‘normalisation’ with ‘Zionism and the Zionist state’. However, article 3 also omits the wider concept of freedom of thought and conscience which would make implicit the right to change religion or to embrace atheism as established by article 18 of the International Convention on Civil and Political Rights.
In 1985 Tunisia ratified the CEDAW (Convention on the Elimination of All Forms of Discrimination against Women) which in article 2 states that ‘States Parties condemn discrimination against women and undertake to pursue a policy of eliminating it in all its forms. States Parties undertake to: include the principles of equality of men and women in national constitutions’. It is for this reason that the international observers view article 28 of the draft constitution with great concern as it, even though stigmatising any form of violence on women, invokes the principle of complementarity between genders thus justifying practices that are based on the idea of inferiority or superiority of one of the two sexes or on stereotyped roles for men and women. Tunisia expressed its reservations with respect to the CEDAW in August 2011. So doing, the ad interim authority of Tunisia decided to ‘not take any organisational or legislative decision in conformity with the requirements of the Convention in question should such a principle be into conflict with the provisions of art. 1 of the Tunisian constitution’. Article 28 has been presented and approved by an-Nahda; in this article the figure of the woman seems to be ‘complementary’ to man, therefore in a secondary position. Following the formal concerns of the United Nations and other international organisations, together with the protests by the Tunisian women, the article was modified.
Last but not least is the question that concerns the immunity of the president of the Republic. According to most of the observers and the members of the organs of civil society, this represents a pure and simple repetition of article 41 of the old constitution. The same argument has been taken from article 68 of the draft of the new constitution which extends the immunity of the president of the Republic to beyond the end of his mandate for acts committed in the exercise of his presidential functions. Is there perhaps an attempt to go back to the situation that existed before the revolution?
In conclusion we can affirm that the National Constituent Assembly has on more than one occasion been urged to insert a general note in the new constitution which directly includes in Tunisian law the human rights as defined by the international treaties ratified by Tunisia, as well as a clause which establishes that the judges shall interpret the law in a way that is in line with the international law of human rights. A good start could be achieved by means of the extension of the concept of freedom of religion, thought and conscience, including the freedom to change religion or creed as well as practising any religion at all either publicly of privately.
Besides the lacunas identified, the Observatory of Human rights declared that there were a number of improvements in the second version of the draft constitution, especially as far as concerns the language used and the omission of articles threatening the freedom of expression. Nonetheless, the existing text must be discussed once again in the plenary session of the National Constituent Assembly before being definitively adopted and ratified.
There is no unity in the troika, the three parties in the government (an-Nahda, al-Mutamar, Ettakatol): for example Ikbal Msadaa of al-Mu’tamarsi was in favour of a direct election of the Head of State, while his political allies approved his parliamentary election. In the meantime, great attention is being paid to the whole ongoing constituent process by the Tunisian people and the media, that incessantly follow every step of the course of national formation.