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Pathways and Pitfalls for Tunisia’s New Constituent Assembly

While human rights have improved, many challenges face the constituent assembly.
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Over the nine months since the ouster of President Zine el Abidine Ben Ali, Tunisia’s human rights situation has improved somewhat as the three interim transition governments have prepared the ground for democratic change. However, huge challenges still lie ahead for the constituent assembly that will rewrite the constitution, appoint a new interim government and exercise legislative powers.

During the transition, the High Commission for the Protection of the Objectives of the Revolution, Political Reform and Democratic Transition, which served as an ad hoc legislative assembly to draft the legal framework for the next elections, made significant inroads in overhauling laws from the Ben Ali era’s repressive legal arsenal. The Decree Law on associations, promulgated on September 24 by the interim government, did away with penalizing  “membership in” or “providing services to” an “unrecognized” association, which had resulted in the imprisonment of thousands of Tunisians.

Similarly, the Decree Law on political parties considerably narrowed the grounds on which authorities may forbid a party from operating, replacing a law with sweeping limitations that provided that no party may “fundamentally base its principles, activities, and programs on a religion, language, race, sex, or region”.

The draft Press Code, as adopted by the High Commission on September 23, contains provisions consistent with the right to free expression, eliminating the offenses of defaming public officials, religions or state institutions. It would preserve defamation as a criminal offense, although it would replace prison terms with fines.

Creating this new legal framework was a significant step forward.  What needs to happen after the election is for the new assembly to adopt a constitution that guarantees human rights and fundamental freedoms and establishes mechanisms that can promote and protect these rights. And that needs to be followed by decisive action to harmonize Tunisia’s laws with these constitutional provisions.

Will the constituent assembly uphold human rights and freedoms and ensure the mechanisms for protecting them? The answer is not certain since many factors are in play.

First and foremost will be the composition of the assembly. The electoral decree for the assembly elections promulgated by the interim president on May 10 called for an electoral system based on proportional representation. The system was designed to allow for the election of a broad spectrum of parties and to reduce the likelihood that any party would obtain a commanding majority via a winner-take-all system. However, such an electoral system has some drawbacks, such as the greater risk that a fragmentation of the parties in the assembly will foster the formation of fragile political coalitions unable to act decisively.

Although the Islamist party al-Nadha has repeatedly pledged its adherence to the principles of democracy, pluralism and human rights, some Tunisians are concerned that it will advance a religious-based agenda once it is in the assembly. The program the party released on September 13 has sparked interest among the Tunisian political constituencies, with some saluting its adherence to the broad principles of democracy and human rights and others expressing skepticism.

The conundrum of the place of Islam in the new constitution and the ensuing legal framework also has some bearing on the issue of human rights. Most of the parties, even the most modernist, seem to agree that the formulation of article 1 of the 1959 Tunisian Constitution, which reads that the religion of Tunisia is Islam, should be maintained. Whether this formulation of Islam as the state religion will only be perfunctory or whether it will have a significant impact on the legal framework is difficult to foretell, given the still-untested nature of the political landscape and the growing religious conservatism of parts of Tunisian society.

Some of the most important parties across the political spectrum have accorded human rights issues an important place in their platforms, with varying degrees of details and specificity. Some articulated their vision of an array of human rights and the safeguards for their protection that should be enshrined in the new constitution, while others merely made reference to the broad principles without elaboration. There is general agreement on some fundamental principles, such as the need to guarantee the independence of the judiciary,  to ensure accountability for past crimes, and to guarantee freedom of association and the right to form political parties.

But matters relating to privacy, non-discrimination between men and women and personal status rights are more contentious. These can be expected to provoke fierce political wrangling in the constituent assembly.

Freedom of expression is another concept on which everybody seems to agree although its content, breadth and limitations are not always understood in the same way.

One recent incident might be considered as the harbinger of how the issue of identity, religion and human rights will be discussed at the constituent assembly and how this might affect freedom of expression. On October 9, hundreds of protesters rallied against the decision by a private Tunisian television station, Nessma TV, to broadcast Persepolis, an animated film, dubbed in Tunisian dialect, depicting the story of a girl in post-revolution Iran. What caused the outcry was a scene in which the main character has a dialogue with Allah depicted as an old man with a white beard, which some perceived as violating the Islamic precept prohibiting images personifying God.

Some major political parties such as al-Nahdha and the Progressive Democratic Party, while condemning the attempted assault on the TV station, also expressed their shock at, and condemnation of, what they considered to be an attack on people’s beliefs. They contended that a distinction must be made between the right to expression, thought and creativity and attacks on beliefs and sacred symbols.

Such reactions, though, empty the concept of freedom of expression of its substance by referring to abstract concepts like “hurting the religious feelings” and “libeling sacred religious principles” of Muslims. The general anxiety around issues of identity, religion and morals has reactivated the perennial debate over the compatibility of Islam and human rights, less than two weeks before the election of the Constituent Assembly. This debate is a snapshot of the kind of challenges that will face the new Assembly.

A link to latest incident with Nessma TV: http://www.hrw.org/news/2011/10/13/tunisia-drop-criminal-investigation-tv-station

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