Carter Center Congratulates Tunisia's National Constituent Assembly on Final Draft of Constitution and Urges Safeguards for Human Rights

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The Carter Center, working to support a successful transition to democracy in Tunisia, has evaluated the country's working constitutional draft and assessed the extent to which it is consistent with obligations under public international law. While the draft underscores the authorities' strong commitment to democratic reform following the revolution, it continues to fall short on critical guarantees of human rights and fundamental freedoms. In a report released June 12 (PDF), The Carter Center elaborates on these and other areas of concern, in order to assist the National Constituent Assembly (NCA) in its drafting process.

On June 1, Tunisia NCA President Mustafa Ben Jaâfar officially presented a final draft of a new Tunisian constitution to the media. This draft now will undergo an article-by-article debate in the NCA, giving plenary members one last opportunity to consider revisions.

The Carter Center recognizes the importance of the work carried out by the NCA, the extent of the progress made throughout the different drafts of the constitution, and the willingness of assembly members to take into account the opinions and views expressed throughout the process by political representatives, civil society, and citizens. Overall, the various consultation mechanisms were productive in reaching consensus on key issues. The NCA has demonstrated its ability to take into account numerous suggestions, including the overall structure of the draft, the internal coherence of the text, and in particular concerns expressed regarding the protection of certain fundamental rights and liberties. Nevertheless, The Carter Center notes that, despite this progress, several important issues should be addressed.

The Center calls upon NCA members to ensure that the future constitution upholds Tunisia's international treaty obligations on human rights and political freedoms, including the freedom of religion, expression, association, and assembly. The current text lacks clear provisions articulating strong protections for these and other fundamental liberties, and does not adequately address the limited conditions under which international law allows such fundamental rights to be restricted. The Center further urges NCA members to ensure protections for the significant advances that Tunisia has made regarding the role of women and minorities in society, and to establish clear constitutional protections for women's rights and against discrimination in all its forms, including discrimination based on religious beliefs. To protect these rights and the overall gains of the revolution, the Center recommends that the Constitutional Court be granted full and effective authority in the new constitution to consider the constitutionality of legislation and judicial cases upon its creation.

The Center also encourages the members and leadership of the NCA to commit fully to their work and to efforts to ensure broad popular understanding of the future constitution. While the Center notes that the majority of assembly members are diligent in carrying out their responsibilities, the recurring absence of some members in plenary and working sessions has contributed to a negative perception of the NCA by Tunisian citizens. To address such concerns, the Center encourages all NCA members to participate fully in the article-by-article consideration of the text before its final adoption, so as to fulfill their representative duties, and to broadly disseminate information regarding the deliberations and decisions made.

In the spirit of collaboration and in support of the work of the NCA, The Carter Center offers the following recommendations for consideration by its members during the article-by-article review. In order to conform fully with international law, the constitution should:

• Enshrine the principle of non-discrimination. Relevant language should prohibit discrimination on the grounds of race, color, language, religion, political or other opinion, national or social origin, property, birth, and other status to all people in Tunisia, citizens and foreigners alike.
• Articulate the principle of equality between men and women in all its facets. The Center also would welcome a constitutional provision that encourages the State to adopt positive measures to achieve the effective and equal empowerment of women.
• Ensure that the scope of the right to freedom of religion and conscience covers all facets of these rights, including the freedom to adopt, change, or renounce a religion or belief.
• Reflect Tunisia's international legal obligations, which stipulate that any restrictions to rights and freedoms should also be limited to those necessary and proportional to secure a legitimate aim. This would require adding language to the Article 48 (general limitation clause) to bring the clause into conformity with international law.
• Provide for full protection for fundamental rights, including those pertaining to freedom of expression, assembly, association, and the right of access to information. The current limitations in these articles remain vague and vary in scope, which could cause an erosion of individual rights in the future.
• Guarantee that domestic law reflects and respects Tunisia's international commitments. Article 19 should refer to treaties "duly approved and ratified" so as to encompass all international treaties ratified by Tunisia.
• Give the Constitutional Court full power to consider the constitutionality of laws from the moment of its creation under the constitution.
• Clearly specify allowable limitations on rights during a state of emergency situation, and to restrict potential limitations by time and scope to meet the exigencies of the situation. Further, the constitution should protect rights that are considered non-derogable in international law, and ban their restrictions under emergency powers.
• Open the requirements for the presidency to all qualified Tunisians, regardless of religious affiliation, and reconsider maximum age restrictions for the office.
• Include a reference to the equality of the vote to each article related to voting rights.
• Include references to the fundamental characteristics of genuine elections in the provisions on referenda.
• Set clear deadlines for the entry into force of the various provisions of the constitution.

In addition, The Carter Center:

• Calls upon all political parties to ensure the presence and active participation of their respective NCA members during the article-by-article vote of the constitution and urges members to fulfill the duties for which they were elected, or if they are unable to do so, to consider stepping down in favor of the next candidate from their electoral list. The NCA should implement the provisions of the Rules of Procedure providing penalties for members who do not comply with these guidelines.
• Urges the NCA to launch a comprehensive information campaign using all forms of media during the article-by-article vote on the draft constitution. Citizens should be made aware of the final content of the draft and its importance in establishing the fundamental legal principles of Tunisian society. To this end, the NCA should hold regular press conferences to allow media access to reliable information to perform their role in disseminating news to the public.
• Encourages the NCA to consider amending the "little constitution" to provide for the case in which an eventual referendum on adoption of the constitution is unsuccessful.

Background: Following its observation of National Constituent Assembly elections in October 2011, The Carter Center maintained a presence in Tunisia to monitor and assess the constitution drafting process and preparations for the next electoral cycle. The Center assesses these processes against Tunisia's international treaty obligations, including, among others, the International Covenant on Civil and Political Rights.

This report presents the Carter Center's findings and recommendations based on meetings with a wide range of stakeholders including assembly members and staff, political party representatives, civil society organizations, and academics. The Center's staff attended commission meetings and plenary sessions of the assembly, and the Center is grateful for the cooperation demonstrated by all interlocutors in sharing information and discussing potential areas for improvement.

Read the Center's full report (PDF) >

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"Waging Peace. Fighting Disease. Building Hope." A not-for-profit, nongovernmental organization, The Carter Center has helped to improve life for people in more than 70 countries by resolving conflicts; advancing democracy, human rights, and economic opportunity; preventing diseases; and improving mental health care. The Carter Center was founded in 1982 by former U.S. President Jimmy Carter and former First Lady Rosalynn Carter, in partnership with Emory University, to advance peace and health worldwide.

Translations

Le Centre Carter félicite l'Assemblée Nationale Constituante pour le projet de constitution et appelle à garantir la protection des droits humains lors de la finalisation de ce projet

مركز كارتر یهنئ المجلس الوطني التأسيسي على المسودة النهائية للدستور ویحثه على تكریس حقوق الانسان