Article 19 recommends further improvement to the draft Tunisian constitution in order to conform to international law
|Publication Date||27 June 2013|
|Cite as||Article 19, Article 19 recommends further improvement to the draft Tunisian constitution in order to conform to international law, 27 June 2013, available at: http://www.refworld.org/docid/51d553104.html [accessed 25 March 2017]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
While the National Constituent Assembly (NCA) prepares to vote on the fourth draft of the Constitution in plenary, ARTICLE 19 draws the attention of parliamentarians to a number of provisions in the draft and calls for more changes in order to comply with international law.
First, ARTICLE 19 considers that the definition of freedom of expression remains incomplete with respect to international standards. The same goes for the definitions of restrictions on the right to freedom of expression and freedom of information as well as the right of access to information.
Second, the mandate given to the Media Authority is excessive and should be limited to audio-visual media. In addition, the guarantees of independence of this institution are incomplete.
Third, the protection of religion and sanctity is not permitted by international law. References to this type of protection by the state should be removed.
Finally, it is highly desirable that the NCA includes a means of individual appeal to allow effective implementation of rights and freedoms.
In view of those points previously stated, ARTICLE 19 calls on the National Constituent Assembly to take into consideration the recommendations of Article 19 and the three previous analyses of the previous versions of the constitution. We consider it necessary to continue to revise the provisions in question in order to align the constitution with existing international standards in this area.
It should be noted ARTICLE 19 has produced several analyses examining compliance with international law provisions protecting freedom of expression in the different versions of the draft Constitution. We recognize the efforts of those drafting of the new constitutional to guarantee basic human rights and thus fulfil the obligations of Tunisia under international human rights law. However, it is clear from our general analysis of the new draft constitution that unfortunately the shortcomings we had identified previously have not been remedied. The provisions relating to freedom of expression should be revised to ensure full compliance with international standards in this area.
ARTICLE 19 recommends in particular that:
There be a reference to the Universal Declaration of Human Rights, and, where appropriate, other international treaties protecting human rights, such as the International Covenant on Civil and Political Rights, would be desirable in the Preamble.
The phrases "the state is the guarantor of religion" and "it is the protector of sanctity" should be deleted from Article 6 as they are contrary to international law. Article 6 should be reworded to ensure freedom of religion and belief for all, in accordance with international human rights standards, notably Article 18 of the International Covenant on Civil and Political Rights.
There be a broad definition of freedom of expression that protects all forms of expression and means of communication and its dissemination. There should be a strict legal framework for restrictions on freedom of expression (Article 30 and 48).
There be the complete and explicit protection of freedom of information and access to information, as well as authorised (Article 31) restrictions.
Any media authority which could impact on freedom of expression should see its powers strictly limited to the regulation of audio-visual media. Article 124 should guarantee the independence of the body of audio-visual media, in particular the appointment of its members.
References to "citizens" in paragraph 1 of Article 20 should be replaced by "all men and women."
Article 19 of the Constitution should clearly state that the supremacy of the Constitution over international treaties cannot be invoked to justify non-compliance with international law. The constitution should also include, where appropriate, a provision that treaties and international agreements duly ratified or approved in principle cannot be repealed, amended or suspended only as provided in the treaties themselves or in accordance with the general standards international law.
The NCA should consider adopting a direct means of individual appeal. The implementation of an individual appeal of exception should take place as quickly as possible and in any event within 3 years under Articles 120 and 146 of the draft constitution.
ARTICLE 19 believes that the National Constituent Assembly (NCA) will be able to meet the expectations of the Tunisian people to gain their freedom and establish a democratic government through the adoption of a new constitution respecting the commitments of Tunisia and international standards of human rights.
- See more at: http://www.article19.org/resources.php/resource/37131/en/article-19-recommends-further-improvement-to-the-draft-tunisian-constitution-in-order-to-conform-to-international-law#sthash.0NS6zGTK.dpuf