DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

LKORIMRTYIU9UIJ9UI VISHAKAPATNAM

PROJECT TITLE

JASMINE REVOLUTION – SALVATION TO RIGHTS

SUBJECT

LEGAL LANGUAGE

FACULTY

Ms.Aruna Kammila

Name of the Candidate: Indhu Sri Mangapuram

Roll no. : 2018035

Semester: 2nd
1|Page
 TABLE OF CONTENTS

Serial no. TOPICS PAGE NO.

I Acknowledgement 3

II Introduction 4-5

III Women and Tunisian Revolution 6-11

IV Demand for Rights 12-14

V Key issues in Tunisian Revolution 15-28

VI Conclusion and Reccomendations 28-31

2|Page
 ACKNOWLEDGEMENT

I, M. Indhu Sri of 2nd semester is highly obliged for the oppurtunity provided by our Sociology of
Law faculty(Mr.Prof. M. Lakshmipathi Raju, M.A., M.S.W., Ph.D.Adjunct Professor of Sociology) in
Damodaram Sanjivayya National Law University, Vishakapatnam in encouraging me to research
on the topic –Coercion and Undue Influence . This would help me in building up knowledge on
these topics and even help in improving my mooting skills on Contracts law help for effective
implementation of the statutes.

3|Page
JASMINE REVOLUTION- SALVATION TO RIGHTS

1. INTRODUCTION

The Tunisian Revolution, which began in December 2010, caught most Middle East and Political
Science scholars by surprise and inspired similar uprisings in other Arab countries. The success of
Islamists in post-revolutionary elections has however surprised few. The revolutions of the Arab
Spring have offered fertile ground for research on social movements from a variety of perspectives.

Three persistent theoretical explanations for the outbreak of these revolutions, all of which have a
“

demographic component, seem to have gained significant prominence in the brief space of the past
two years. These are the theories of youth bulge, demographic disparities and digital media
revolution. Together, these can be seen as reinventions of previous Neo-Malthusian theories of
grievances or “deprivation1 , relative deprivation, and “technologies of freedom” (Pool 1983)
respectively. To some extent, each of these has also been posited as a demographic explanation for
the rise of Islamist movements, and the success of Islamist parties in elections from Algeria’s in 1991
to Turkey, Gaza, Tunisia and Egypt in more recent times2. In this paper I propose to test these three
theories in the sub-national context of Tunisia by looking at the effects of the youth bulge,
demographic disparities, and technological diffusion on three outcomes: protests, repressive anti-
revolutionary violence, and elections voting patterns in time-spatial perspective . ”

Despite the celebration of Tunisia's 2011 revolution as a unique and almost successful transition to
democracy among the Arab countries that underwent the “Arab Spring”, several years later, 72% of
Tunisians were not satisfied, according to opinion polls.3

The Tunisian League for the Defense of Human Rights (LTDH) documented 173 physical and
nonphysical attacks, 41 cases of rights violations on 9 April 2012 (the day when violent clashes broke
out between security forces and demonstrators who wanted to commemorate martyrs of the
revolution), 97 cases of state violence, torture and persecution by security agencies in 2012 compared
to 28 cases in 2013. Security agents came on top of the list of perpetrators of these violations, followed
by alleged Salafis, while unidentified individuals were responsible for the remainder of the cases
(violent theft or criminal cases). The various forms of violence included violation of academic
freedoms, freedom of dress, trade union rights, political activities, etc. 4

In its monthly report of December 2016, the Tunisian Organization Against Torture (OCTT)
confirmed the increased number of violations during November 2016 compared to the two previous

1
(Malthus 1888; Opp 1988).
2
(Brown 2006; Santos Bravo and Mendes Dias 2006; Khamis 2011; Stepanova 2011; Bunt 2003)
3
Tunisian Statistics, National Survey on Perceptions of Security, Liberties, and Local Governance 2014 , March
2016. Available in Arabic at beta.ins.tn/sites/default/files/pdf_actualites/gouvernance%20%287%29.pdf
4
2 LTDH Freedoms Observatory, The Situation of Freedoms in Tunisia, Two Years after the E lection s (2012-
2013), pp. 64-87. Available in Arabic at festunis.org/media/2014/pdf/Rapport%20LTDH_final.pdf

4|Page
months. OCTT had received reports on 12 cases of torture and ill-treatment inside prisons and security
centers. 5 It attributed the rise in violations to entrenched impunity and lack of accountability.

Despite these reports, a new political and legal reality had become evident in law and in practice in
Tunisia, during the six years following the 2011 revolution, which could be considered a break from
the country's history since its independence in the mid-1950s. Awareness of the importance of human
rights has increased, as well as the need to continue the struggle for them, despite the bullets and tear
gas protesters had to face especially in the early days of the revolution. However, this new reality has
also been unstable with the human rights movement succeeding in certain fields and failing in others,
achieving limited reforms in response to some demands or fully realizing what they advocated for.

In view of this new reality, the human rights movement developed tactics and strategies to add to the
conventional and limited repertoire of documentation, naming and shaming. It has become an
important actor which mobilizes public action, lobbies policy and decision makers, and drafts and
advocates for important legislations. For example, human rights defenders took part in working on
the law for funding political parties and civil society organizations and the bill on the quota system
in the elections of the National Constituent Assembly in 2011, whereby women were allocated 50%
of the slots for candidate. The quota system was a main demand by the High Council for the
Achievement of the Objectives of the Revolution, Political Reform and Democratic Transition, but
this very organization had several representatives of human rights and women rights associations,
such as the LTDH, Tunisian Association of Democratic Women (ATFD), the Association of Tunisian
Women for Research and Development (AFTURD) and others.
This paper seeks to examine the impact of the human rights movement in creating public pressure
through campaigns on women's rights and gender issues, combatting torture, economic and social
rights, freedom of religious practice and belief, etc. The paper then attempts to explain how the rights
movement articulated this discourse in dealing with various parts of the community on the one hand
and then in recasting the popular pressure into demands on the legal and legislative establishments
either directly or through mass media platforms.

In this context, the paper examines the media not merely as a conveyor channel, but also as a medium
that influences the formulation of what is being presented to the public, and how the human rights
discourse, in itself, gets formulated through its very dissemination. This is not limited to the choice
of words and language but also includes the timing and the packaging. Both mass media and human
rights actors influence each other in this manner.
It is easier to assess the success of the human rights movement in Tunisia in pushing for the adoption
of a rights-based approach in policies and legislations, but it is more difficult to assess its impact on
actual state and social practices, both of which change as a result of many factors. Measuring that
change needs extensive research over a reasonable time span, which this paper could not undertake
due to time and financial constraints.

5
Babnet, “OCTT: Increased Incidence of Torture in November”, 10 December 2016, available in Arabic at
www.babnet.net/cadredetail-135285.asp.

5|Page
2. WOMEN AND THE TUNISIAN REVOLUTION

The Jasmine Revolution of 2011 and the cascade of revolutions that followed created a crucial, albeit
narrow, window of opportunity for political changes that could shape legal system reform across the
Middle East and North African (MENA) region. Revolutionaries in Tunisia, Egypt, Morocco, and
Libya pushed for constitutional change as a necessary first step towards transitioning to a more
democratic state. Within this discourse, constitutional reform movements became platforms for
addressing deep-seated gender inequalities. Women in Tunisia used their country’s constitution-
making process as a vehicle for mobilizing local efforts, connecting with gender rights advocates in
other MENA countries, and participating in a transnational dialogue.4 As a result, women’s
participation became a key determinant of some of the final draft’s constitutional guarantees on
gender equality, religion-state relations, rights in the family, rights to political participation, and the
employment of programmatic rights.

The constitution-making process in Tunisia built upon a long history of attempts in other countries to
shift from a top-down model of constitution making, also known as the Lancaster Model, to one based
on popular participation. The more open a constitution-making process is to the public and the
institutions of civil society, the more likely the process will be more democratic and representative.

Based on these underlying principles, a nation’s drafting process has been characterized generally by
a greater degree of deliberation and is most often led either by the standing legislature or by a
nationally elected constituent assembly. Although the emphasis is on creating a text that embodies a
people’s history and values, countries in transition will often draw on a “collage of constitutional
mechanisms and principles” at the international level to “produce hybrid solutions tailored to” local
imperatives.” A more recent approach among legal scholars has been to look at the degree to which
newly drafted constitutions are “intermestic” – drawing on both domestic and international
influences.

The hybridization of state reconstruction and the degree to which it occurs has been particularly
informative in the area of women’s rights. In many instances, women who have played an active role
in advancing gender equality through constitutional reform have relied at least in part on a common
core of international norms reflected in instruments such as the Convention for the Elimination of
Discrimination Against Women (CEDAW), the International Covenant on Civil and Political
Rights (ICCPR), and the International Covenant for Economic Social and Cultural Rights
(ICESCR).
They have used such texts to reinforce their assertion that participation in the drafting process is not
just critical to the end result, rather it must be acknowledged as a normative claim in and of itself.
The right to participate in the decision-making affecting women’s lives is one of the most significant
rights to be claimed by women. The United Nations Entity for Gender Equality and the
Empowerment of Women has supported a women’s right to engage in constitution-making,
stating:
“[G]ender-sensitive processes (e.g., guaranteeing women’s representation in constitutional drafting
bodies) and decisions on substance (e.g., adoption of a constitutional guarantee of gender equality)
set a precedent for women’s participation in social, economic, and political life in the post-conflict
period, as well as providing a legal base from which women’s rights advocates can demand other

6|Page
types of gender-responsive reform that unfolds in transitional periods when laws and institutions are
in flux.”6

Women’s equal engagement can inform the constitutive and transformative nature of constitution
drafting. Such engagement allows civil society to address challenges to the empowerment of women,
create new narratives of nation building, and ensure that constitutional provisions are drafted in a
gender-sensitive manner.

Women’s engagement should be premised on a dialogic, human rights, analytical framework. While
the primacy of rights must guide constitutional change, international human rights must be premised
on an ongoing discourse that calls for simultaneous internal and cross-cultural dialogue involving a
plurality of voices, including the equal representation of women. The emphasis here is on “ongoing.”
Constitutional guarantees are not guarantees until they are enforced without bias or exception.
Participation in constitution-drafting projects should not end with the final text, but must continue
with the formation of institutions that reflect and maintain the constitution’s blue print for nation
building.

2.1. HISTORICAL EVOLUTION OF ELEVATION OF WOMENS RIGHTS

Women’s activism has a long history in Tunisia. The literary works of the author and reformer Tahar
el-Haddad are hailed by many today as the genesis of progressive women’s rights in Tunisia.20 His
book, Our Women in Shari’a and in Society (1930) inspired debate over the role of women in Tunisian
society and laid the groundwork for future popular struggles.

Haddad’s works seemed to have influenced the reforms included in Tunisia’s Personal Status Code
(CSP), issued by the country’s first president Habib Bourguiba in 1956. The purpose behind the CSP,
however, seems to have been less about feminism than about doing away with traditions that impeded
Bourguiba’s greater modernization program. The Code abolished polygamy and the practice of
repudiation, and granted women suffrage and the right to initiate divorce, but did not explicitly make
men and women equal in all respects.
For example, the CSP adopted a male preference in inheritance law. Though the CSP was hailed by
Western observers as a marked improvement in the institutionalization of women’s rights, it had the
paradoxical effect of creating a Jacobin-like form of feminism that effectively silenced alternative
feminist viewpoints. State feminism thus became a strategy to silence opposition while gaining the
affections of external allies.

This strategy evolved during the Ben Ali regime to include methods of cooptation and division for
the purposes of creating a narrow spectrum of activism that allowed women’s organizations to exist
only within a limited, heavily monitored sphere.
Those who resisted the regime’s tactics ultimately lost out on political resources and influence but
maintained an independent form of feminism that took hold after the regime’s fall.
For example, The Tunisian Association of Democratic Women (ATFD) and The Association of
Tunisian Women for Research on Development (AFTURD), both established in 1989,
successfully avoided “dictatorial drift” to become powerful forces of post-regime activism, as we will

6
Benjamin Flick, The Next Tunisian Struggle: Enforcing Constitutional Social Rights, 46 Geo. Wash. Int'l L.
Rev. 171 (2013) .

7|Page
see below. On the international front, Tunisia continued to hold itself as a progressive Arab state,
ratifying CEDAW in 1985, albeit with numerous reservations related to Article 9(2) on equal rights
with regard to nationality of children, Article 16 on equality in marriage and family life, and Article
29(1) relating to the administration of CEDAW provisions. Ben Ali became a vocal proponent of
women’s economic participation, touting state laws with regards to maternity leave and equal
employment, but made little actual efforts towards placing women in positions of leadership or
providing them with enforceable safeguards against substandard working conditions.

The old hegemonic framework for women’s rights with a new bottom-up model based on popular
discourse and civil society-led initiatives was replaced by introducing the national constituent
assembly which appointed women in the significant positions and even in the members of the
committees dealing with the human rights which included women’s rights and its empowerment. This
was seen in the Article 46 which required the state to take steps towards eliminating violence against
women. Women’s organizations were also effective as poll-watchers, rigorously monitoring the NCA
while identifying inadequacies in the drafting process.

2.2. PUBLIC PARTICIPATORY FRAMEWORK FOR GENDER RIGHTS

National constitutions are recognized today as the supreme law of the land and, as the source of their
power, they define both the citizenship rights and the responsibilities that then serve to regulate
institutions and government and hold decision makers of the state accountable to those rights.
The specific way in which a country’s constitution shapes each aspect of state power will either
facilitate or limit the opportunities for advancing gender equality. Over the last four decades, over
200 new constitutions have been drafted, including many in post-conflict countries. These
constitutions have been written in the Balkans, Cambodia, Lebanon, East Timor, Rwanda, Chad,
Mozambique, Bougainville-Papua New Guinea, Nepal, and the Comoros, to name a few. They
include countries emerging from colonization from French and British colonial empires and countries
in Eastern and Central Europe after the collapse of Soviet Communist rule in 1991.

Though the constitution-making process differs from country to country, it usually involves the
following stages:-
(1) Assessment of the need for a new constitution
(2) Agreement on the rules concerning how to proceed with constitution-building
(3) Establishment of a representative body to prepare a draft of the new constitution that includes the
public consultation process
(4) Consideration and debate of the draft
(5) Referendum
(6) Adoption of the new constitution
(7) Implementation

Democratic empowerment can help in shaping the nation-building process that the constitution and
democratic governance may lose legitimacy if people feel disenfranchised by the process.
Public participation allows women and others who have been marginalized from democratic
processes to claim a constitution as their own. 7

7
Chibli Mallat, The Arab Spring: An Essay on Revolution and Constitutionalism, 66 Am. J. Comp. L. 224
(2018).

8|Page
National dialogue and civic education can address underlying causes of conflict and help citizens
to define a national identity and a shared vision for the future. Although international law does not
spell out rules for drafting constitutions, most of the constitution-making processes of the past two
decades have attempted this in different ways. Preparatory civic education, teaching both large
constitutional principles and the finer details of the drafting and adoption processes has become a
cornerstone of constitution-making.

The goal should be to design rules that promote a broad representation of women and overcome
traditional gender biases that have led to women’s comparative social, economic, or educational
disadvantage. For example, South Africa was the first country in which men and women sat in equal
numbers in the constitution-making body. Its constitution-making process is regarded as a good
example of a participatory constitution-making process.

Efforts to foster long-term public participation through adequate transparency have also been
effective in other African countries, such as Namibia and Eritrea. . For example, in Nicaragua, the
influential Luisa Amanda Espinoza Association of Nicaraguan Women (AMNLAE) helped
women to understand the intricacies of writing a constitution and helped to explain technicalities by
describing the constitution as the mother law and statutes as its progeny as well as Seven forays were
held specifically for women.

Women’s participation not only helped to change both the content of the Constitution and the
discourse that followed its promulgation. In calling for a more inclusive definition of family, the
women’s groups challenged discrimination against children born out of wedlock. Women also
advocated for equal pay for equal work and equality in the military. Even when they failed to reach
their goals, such as establishing a right to divorce, women’s participation helped ignite a debate on
issues that were hitherto considered taboo.

Local governments are also often mandated to implement laws that have particular relevance to
women, such as family law, meaning that women may have a greater opportunity to participate more
directly in government decisions that significantly impact their lives.
Moreover, devolution of power tends to benefit groups that are regionally or territorially defined (e.g.
indigenous or other minority groups); because women are not a homogenous group, decentralization
will not strengthen their autonomy but instead mean that their rights will vary from region to region.

2.3. RECONCILING ISLAM AND HUMAN RIGHTS IN THE CONSTITUTION

As per the Article 21 of the Tunisian Constitution guarantees men and women “equal rights and
duties” and equality “before the law” but fails to reach greater specificity or include clear enforcement
provisions. The role of women in Tunisia, as well as conflicting de jure and de facto realities had
brought out difficulties for practical implementation of law and right-duties.8

A journalist and young Tunisian women’s rights activist notes that inconsistencies between what is
law and what is practiced will persist if rights are only acknowledged in the text and not more:-

8
Dan E. Stigall, Law and the Lodestar: Tunisian Civil Law and the Task of Ordering Plurality in the Aftermath
of the Jasmine Revolution, 7 J. Civ. L. Stud. 1 (2014).

9|Page
“Tunisia fascinates people because it is a paradox when it comes to gender equality. And it has
always been this way.”

This tension between what is law and what is practiced is particularly visible with the hijab. Prior to
the revolution, women were banned from wearing the hijab or headscarves in all state institutions
including universities, hospitals, and public administrations. Thus, many women after the revolution
asserted their right to independent expression by wearing the hijab or niqab.
Some Ennahda members went so far as to endorse student protests at Manouba University, among
others, that called for the right to wear a hijab or niqab in all public settings. Conversely, women who
did not cover their face or hair feared that though Ennahda’s leadership championed women’s rights
and freedom of expression in broad terms, its policy while in power would be to shift towards
enforcing such freedoms selectively.
Indeed, Arfaoui notes that the revolution sparked for the first time in Tunisia’s history “a wave of
abuses of women without a covering” that then fueled not only a general sense of insecurity, but also
a greater concern that if Ennahda did not impose its religious preferences by law, it would find
opportunities to permit imposition by popular might.

All women’s associations at that time were headed by Ben Ali’s wife, who propped up Tunisia as a
false paragon of women’s rights. Such obvious statism created some semblance of a women’s national
machinery that formally aligned with UN mandates and acquired praise from the international
community but had little impact on the actual status of Tunisian women. To ensure a uniformly
progressive image of women’s rights, alternative viewpoints were either watered down or heavily
suppressed. Hence the constitution-making process was thus driven by a desire to replace a state-
defined culture of rights with a text reflecting broad consensus between “values of Islam and
values of modernity.

The Tunisian constitution’s preamble expresses both a “commitment to teachings of Islam” and to
“the principals of universal human rights,” without clarifying the nature of the relationship between
these two sources.
Similar confusion emerges when we look at Article 1 and its assertion that Tunisia is a
free…sovereign state and Islam is its religion, but Article 2 states that the state is based on the
will of the people, and the supremacy of law. In regards to “Islam is its religion,” it is not clear to
what “it” refers. Is “it” Tunisia as a society, or the political nature of its government? If the intent is
the latter, then Article 2 declaring Tunisia as a “civil state” creates a contradiction that the
constitutional court, once established, must address. This contradiction is exacerbated by the last
sentence in Article 1 stating, “ this article cannot be amended,” and Article 146, which requires
that “the Constitution’s provisions shall be interpreted as a harmonious whole.
Cross-cultural, cross-gender, and cross-class dialogue is critical to resolving conflicts within Islam as
well as between Islam and human rights dialogues also triggers discussions on controversial issues
implicating Islamic values and human rights norms and dispels notions that there is one absolute or
final notion of Islam or that any one person can claim to have the one true teaching. This allows
women activists to articulate a Muslim feminist jurisprudential basis that is consistent with
gender equality.9

9
Draft Constitution of the Tunisian Republic, 17 Y.B. Islamic & Middle E. L. 561 (2011-2012).

10 | P a g e
2.4. FREEDOM FROM VIOLENCE AS A CONSTITUTIONAL RIGHT

The remainder of this section will take a look at how a guarantee of gender equality in the constitution
applies to other guarantees for women, namely, protection against violence, political guarantees, and
programmatic rights. The Tunisian Constitution under Article 46 outlaws violence against women
and assures that “the State shall take the necessary measures to eradicate violence against
women.” Although Article 46 recognizes national security not just in the context of border security
and armed forces, but also as security at home and in the streets, inconsistencies in the law prevent
the state from further considering the latter.

Several existing national laws are in indirect conflict with the new constitution’s commitment to end
violence against women in all its forms. For example, men are legally recognized as the head of the
household, which as one Tunisian analyst noted “only works to reinforce economic and social
patriarchal structures.” Civil society groups are also urging for changes to the penal code, which,
similar to laws in other Arab countries, does not explicitly acknowledge marital rape and grants a
man convicted with rape the option to marry his victim with the benefit of dropping charges.
In terms of economic violence, labour laws make room for gender wage disparity and have
historically failed to protect female agricultural workers from substandard working conditions and
abusive contractual relationships.

To date the law on violence against women remains a draft law. Though still in draft form, many
seem hopeful that the law will pass. To date the law on violence against women remains a draft law.
Though still in draft form, many seem hopeful that the law will pass.
Efforts to draft an anti-violence against women law were present even before the revolution which
included physical, psychological, economic, and inter-family.
“Unfortunately, public officials at the top are removed and thus create a lot of push back. But judges
in penal courts recognize this law as necessary”- in relation to establishment of the victims shelter
homes. Moreover, the Tunisian provision defines domestic violence against a woman as a crime
against the personal security of the woman.10

2.5. POLITICAL RIGHTS

Another focus has been on fixing parliamentary and election laws, with a particular emphasis on
increasing women’s participation at the local level. Well established civil society groups are involved
in reforming the electoral law to mandate horizontal as well as vertical parity.

Both Articles 34 and 46 in the constitution provide certain political guarantees for women, including
quotas in government offices. While Article 34 upholds a general commitment to guarantee women
representation in elected councils, Article 46 specifically creates a state obligation to achieve gender
parity, creating a strong constitutional foundation for legislation to increase women’s political
participation at the national, regional and local levels.

In an attempt to embody political gender equality in principle, elections lists during the 2011 election
of the constituent assembly were “vertically zippered” such that every second candidate on each list

10
Haider Ala Hamoudi, Arab Spring, Libyan Liberation and the Externally Imposed Democratic Revolution, 89
Denv. U. L. Rev. 699 (2012).

11 | P a g e
was supposed to be a woman. Some hailed this rule as a good first step: women composed over 25
percent (57 out of 217 seats) of the national assembly post-2011 and in the 2014 elections, which
mandated similar rules, women voter turnout was marginally higher than that in 2011, even while the
youth turnout took a significant dive. Yet, some women’s activists argue these rules do not fully
embrace the guarantees provided in the constitution, noting that many of the women elected were
already plugged into the political system or else used as spot-fillers with little opportunity to
contribute as representatives of their electors.
Furthermore, male candidates headed the vast majority of the lists submitted. Critics of the current
election rules have thus made a push for horizontal zippering on top of vertical zippering in the next
election. Critics also believe that in order to increase public support given to women who seek
political office, there must be greater solidarity among women in local municipalities and heightened
political awareness among young women nationally.

3. DEMAND OF RIGHTS MOVEMENT

3.1. ENDING TORTURE

Tunisia needed a revolution to ratify the Optional Protocol against Torture in July 2011. The Protocol
obliges ratifying states to establish a national independent mechanism for the prevention of torture.
On 21 October 2013, Tunisia established the National Commission for the Prevention of Torture.
The election of the 16 members of the Commission by the People's Assembly was delayed until 30
March 2016 to ensure a quorum. Many MPs practically boycotted the meetings to elect the
commissioners and there was a “wish among some absent MPs not to establish the commission …
[since] it was sufficient to have the human rights commission … there was no need for another
commission for the prevention of torture.” The term of membership of the Commission was set at six
years, not renewable. To ensure the independence of the Commission of any political pressures, it
was decided that members should neither be parliamentarians nor have political responsibilities. The
task of the commission was to monitor various detention centres, to conduct unannounced visits, and
receive complaints. The Commission had to publicly report its activities on regular basis. 11

Tunisia was one of the states that ratified the UN Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment adopted by the United Nations High Commissioner
for Human Rights on 10 December 1984. Tunisia's delay in ratifying the Optional Protocol against
Torture (OPT) was due to the decision by the Ben Ali regime not to report to the Committee against
Torture every four years in compliance with the Convention. In 1998, the Committee had concluded
in its second report that torture was systematic in Tunisia. After having signed the OPT, the
government submitted regular reports. A third report was presented in April 2016 to the Committee
against Torture at the Human Rights Council in Geneva.

Despite these positive developments, the political will of the evolving regime to put an end to torture
has not turned into a sustained reality backed by the right legal framework yet. In a memorandum to
the UN Committee against Torture in 2016, Amnesty International confirmed that torture still exists
in Tunisia. Torture practices are likely to continue by security agencies which have not undergone a

11
Intissar Kherigi; Khalil Amiri, Public Policy Making in Tunisia: The Contribution of Policy Research
Institutes, 7 Middle E. L. & Governance 76 (2015).

12 | P a g e
serious restructuring process nor had its employees benefitted from any meaningful rehabilitation.
However, it is clear that torture is no longer a systematic state policy.

Human rights organizations continue to document violations including cases of torture and lobby
policy makers and raise public awareness about such incidents. Reporting and publicizing these cases
contribute to prevention efforts. Organizations also have been helping victims to take their cases to
court. Tunisian human rights defenders maintain the continued use of torture and other forms of ill-
treatment in detention centres as well as the continuation of gender-based violence by both state actors
and non-state actors. For example, in June 2016, OCTT reported six cases of violence, ill-treatment
and medical negligence in detention centres, during arrests and in incarceration. In the same report,
the organization noted a decline in the number of complaints received that month and suggested that
this decrease may be attributed to the enforcement of “the new law related to the obligatory presence
of a lawyer at the beginning of interrogations”. It also considered this to be an encouraging start and
a confirmation of the position of human rights organizations, which had predicted that the rate of
violations should decline with the enforcement of the new law.12

3.2. RIGHTS- BASED FOR DEFENDANTS

With the enforcement of Act No. 05 of 2016 on the revision and finalization of certain provisions of
the Code of Criminal Procedure, Tunisia began a new era of accountability. The law enshrined the
right of a suspect to have a lawyer since the very first encounter with the police. One of the most
important changes brought about by the law was that a lawyer had the right to be present with suspect
or a defendant in any crime whether or not that latter person was in custody, and has the right to visit
his or her client privately and for no longer than 30 minutes during every stage of detention. The
lawyer has the right to demand inclusion of his comments in the police report, and if denied this right,
may do that by himself while signing the report. The lawyer can also request medical examination of
his client for evidence of torture in court.

Although the human rights movement has not yet succeeded in its efforts to fully reform the security
sector and to consolidate and establish new practices, the security sector underwent several changes
since the 2011 revolution, including the establishment of a code of conduct for internal security
forces, whereby security became premised on rule of law and respect for human rights and individual
and public freedoms in line with provisions of the Constitution, international treaties and laws
governing the work of the internal security forces. This code includes a set of rules of conduct and
principles that apply to all internal security forces, irrespective of individual ranks or command
positions.

The OCTT stressed the need to amend legislations governing the mechanisms of complaints against
public officials, accused of rights violations, including how to ensure better witness protection and
suspend police officers who have been administratively found culpable in cases of torture, pending a
judicial decision. A number of human rights activists put together various proposals and plans
including a roadmap to reform of the security institution. The Tunisian Institutional Reform
organization provided training courses on law enforcement, human rights and conflict resolution for
the security agencies staff members. The Regional Academy for Security submitted a proposal with

12
John Hursh, The Tunisian Spring: Women's Rights in Tunisia and Broader Implications for Feminism in
North Africa and the Middle East, 46 U. Balt. L. Rev. 277 (2017).

13 | P a g e
the aim of training exemplary security personnel, eager to enforce the law while respecting rights. In
the same context, a ministerial policy for community policing was drawn up as a new approach to
security work, to be implemented in a number of model centers in order to strengthen the relationship
between security agencies and the citizens at large. Also, a unified legal manual was compiled for
cases of detention to be implemented in all security centers, in addition to a booklet on best practices
of police officers at places of detention.

Terrorist threats and operations in Tunisia provided a justification for security agencies to engage in
practices that could violate human rights. Human rights defenders invariably maintain that violations
are not excusable regardless of the nature of the nature of allegations against a suspect. Politicians
have a different view on the matter. Former Prime Minister Habib Al-Seid claimed that “there was a
difficulty in striking the right balance between counterterrorism and respect for human rights, not
only in Tunis, but in all countries of the world, such as France and Italy, which have changed a number
of laws to in response to the exceptional situation in countries threatened by terrorism.” The claim by
Al-Seid was repeated in many countries, but it becomes especially alarming in countries, like Tunisia,
where security agencies had routinely violated the basic rights of suspects and defendants using
various means of torture and coercion.

Human rights defender argued that such violations are not only anathema to human rights and the
laws of the land but that there was no evidence that they were helpful counterterrorism tools. Also,
resorting to such measures automatically means the need to suspend accountability measures and
obstruct any serious reform of the security sector under the pretext that security agencies needed to
act freely and promptly against terrorist suspects. During deliberations of the Tunisian anti-terrorism
law, eight international human rights organizations, issued a statement to express concern regarding
what they described as a loose definition of terrorism which could lead to the suppression of peaceful
demonstrations or any act of protest. Mokhtar Yahyaoui (former head of the National Commission
for the Protection of Personal Data and a former judge), argued in a seminar organized by the Rights
and Freedoms Monitor in Tunisia (“Counterterrorism: A Security Approach or Respecting Rights”)
in April 2015, that the ambiguity of terrorism law makes it a double-edged sword that can be directed
against citizens it is meant to protect.

3.3. ABOLITION OF THE DEATH PENALTY

Although not a single person on death row has been executed in Tunisia since 1991, capital
punishment is still on the books.Though, Tunisia signed the UN General Assembly moratorium on
the death penalty in 2012, courts continue to impose the death sentence in accordance with existing
laws as a punishment for certain felonies. Since the head of state no longer endorsed such rulings, the
sentenced convicts remained on an unmovable death row in prisons, as confirmed by the Minister of
Justice and Human Rights in the Ben Ali regime in 2008.40 Until the 2011 revolution such convicts
had no visitation rights nor were they allowed to receive food packages once a month from relatives
as is the case with other inmates. 13

13
M. Cherif Bassiouni, The Arab Revolution and Transitions in the Wake of the Arab Spring, 17 UCLA J. Int'l
L. Foreign Aff. 133 (2013).

14 | P a g e
Tunisian human rights defenders argued that the death penalty became unconstitutional after the 2014
constitution came into force replacing the 1959 constitution. The new constitution protects the right
to life, but 21 different crimes are still punishable by death in various Tunisian laws.

Human rights defenders and organizations including the LTDH, the Tunisian chapter of Amnesty
International, and the Arab Institute for Human Rights worked together but still failed to bring about
a legal change to abolish the penalty despite their constitutionally strong position. Tunisia's National
Coalition for the Abolition of the Death Penalty has been established in June 2007 with the support
of seven independent organizations, including the LTDH, AFTURD, ATFD, the Tunisian branch of
Amnesty International, the Arab Institute for Human Rights, the Tunisian Federation of Cinema
Clubs, and the Association of Tunisian Journalists, replaced by the National Syndicate for Tunisian
Journalists. More than 100 public figures are members of the open coalition, including former
ministers, lawyers, filmmakers, media personalities, and writers.

The coalition has long worked to change the public opinion on this issue that can put pressure on the
state for a legislative change. The coalition efforts led to a bill tabled in parliament to abolish capital
punishment. The draft, prepared by two MPs, Mostafa-Yahyaoui and Abdelmalek Obaidi, was
submitted to parliament in March 2008. Another 23 deputies from opposition parties endorsed the
bill, tabled with the parliamentary secretariat, so that the speaker of the House could decide if it could
be presented to a plenary session for review. This was a bold and unprecedented step in Tunisian
legislative history since the first parliament was elected in 1956, however the bill was never presented
to a plenary session. 14In 2013, the Coalition and the International Organization Against Torture
called for a serious and concerted effort to abolish capital punishment.

All the efforts did not succeed. On the contrary, the death penalty was included for certain offences
in the new counterterrorism law.

4. KEY ISSUES IN THE TUNISIAN CONSTITUTION

The NCA released four drafts of the constitution over the two-year period. There was also a “Draft
2bis,” which refers to the compilation of all the chapters prepared by the constituent commissions
after having incorporated comments emanating from various sources on the second draft. On April
10, 2013, this text was submitted to the drafting committee for review, but it was not publicly released
though it formed the basis of the third draft released by the NCA on April 22, 2013. The Carter Center
assessed a number of key constitutional issues throughout the various drafts.

The text evolved significantly over time, in most instances toward greater clarity and a higher degree
of protection for fundamental freedoms and human rights. Throughout the drafts, NCA members
strengthened women’s rights, improved the guarantees for an independent judiciary, and removed
excessive restrictions on rights and freedoms from most provisions. They also strengthened
fundamental political and civil liberties and granted the Constitutional Court full power immediately
upon its creation. Nevertheless, concerns remain regarding some provisions where the wording could
lead to insufficient protection of internationally recognized fundamental freedoms and rights. These

14
Mohammad Fadel, Modernist Islamic Political Thought and the Egyptian and Tunisian Revolutions of 2011, 3
Middle E. L. & Governance 94 (2011).

15 | P a g e
include measures to protect citizens from discrimination, provide security of tenure for judges, and
safeguard fundamental freedoms during a state of emergency, all of which should be strengthened.

The adoption of the constitution is a key step in the country’s transition from authoritarianism to
democracy, but it is not sufficient on its own to guarantee a successful transition. Tunisian authorities
should take legislative action both to address remaining concerns and to ensure that the existing legal
framework is brought into alignment with the new constitution.15

4.1. INTERNATIONAL LAW

International law defines the legal responsibilities of states in their conduct with each other as well as
their treatment of the people within their boundaries. Its domain encompasses a wide range of issues,
including human rights, migration, international trade, and the use of force. States have developed a
variety of international instruments by which they establish rights and obligations among themselves,
such as treaties, agreements, conventions, charters, protocols, declarations, memoranda of
understanding, modus vivendi, and exchange of notes. These international documents, once ratified
by a state, are binding and supersede domestic law.

The NCA took a conservative approach in the first two drafts of the constitution with regard to the
status of international law and its hierarchy vis-à-vis Tunisian law and the constitution. These drafts
made Tunisia’s respect of its international commitments conditional upon those commitments’
conformity with domestic law, a position that contradicted Tunisia’s obligations under the Vienna
Convention on the Law of Treaties, which states that “a party may not invoke the provisions of its
internal law as justification for its failure to perform a treaty.”205 The drafting committee specified
in the third and fourth drafts that international treaties approved and ratified by Tunisia are above
domestic law and beneath the constitution. The language in the fourth draft, however, referred to
treaties approved by “the Assembly of the People’s Deputies,” the new legislative body. This implied,
perhaps unintentionally, that treaties which had been approved by former legislative bodies would
not necessarily have the same legal status. The Carter Center had called for a different phrasing of
the article and welcomes the final wording of this provision in the constitution. It now extends it to
“the legislative body,” which should encompass all legislative bodies, past, present, and future.

However, the NCA did not clarify the weight of international law and the scope of its influence in
relation to Tunisia’s legal framework. The constitution does not state clearly that Tunisia commits
itself to respect all of its international obligations, including those based on customary law. The
constitution also fails to give courts explicit incentives to make wider use of international human
rights instruments.

The Carter Center encourages authorities to interpret the domestic legislation in conformity with
Tunisia’s international commitments, including customary law, which is recognized as part of
international law. Provisions of international treaties should also always be interpreted in conformity
with their universally accepted meanings.

15
Nadia Marzouki; Hamza Meddeb, The Struggle for Meanings and Power in Tunisia after the Revolution, 8
Middle E. L. & Governance 119 (2016).

16 | P a g e
4.2. HUMAN RIGHTS IN THE CONSTITUTION AND THEIR UNIVERSALITY

The final version of the constitution includes several references to human rights and provides for the
establishment of a national human rights commission to help ensure respect for human rights and to
investigate human rights violations. At various moments of the drafting process, NCA members
discussed the universality of these rights, a discussion influenced by debates on the place of religion
in the constitution. The preamble of the first draft referred to “noble human values.” In the second
draft, the preamble included a reference to “principles of human rights.” While the word “universal”
was added in the third draft, this reference was undermined by the simultaneous addition of the phrase
“insofar as they are in harmony with the cultural specificities of the Tunisian people.” This wording
resulted in significant protests by civil society and some members of the opposition. In the fourth and
final draft, this limitation was removed; however, it remained implicit, through the qualification of
universal human rights values as “supreme.”

The General Report on the Constitution Project, issued by the drafting committee on June 14, 2013,
reads:-
The text evolved significantly over time, in most instances toward greater clarity and a higher degree
of protection for fundamental freedoms and human rights.

“In describing the human values and principles of human rights as ‘noble/supreme,’ the committee
wanted to emphasize the fact that we should build on only those values and principles that have
attained supremacy due to their noble content, thus encompassing the meaning intended by the
previous formulation [of the third draft], which required building on this second basis insofar as it
was ‘consistent with the cultural characteristics of the Tunisian people.’ This is particularly the case
when taking in consideration the reference following it [in the preamble], to drawing inspiration from
the civilizational heritage and reform movements based on the elements of the Arab–Muslim identity
and the civilizational gains of humanity.”

Despite advocacy by various human rights organizations, including The Carter Center, this issue was
never seriously considered by the Consensus Commission. The word “supreme” was retained in the
final version of the preamble of the constitution, despite the fact that it implies a hierarchy of human
rights whereby some may be more important than others. This places a burden on the Tunisian
judiciary to interpret the phrase in a way that does not compromise the rights and freedoms enshrined
in the constitution and that remains consistent with the Vienna Declaration, which states that “all
human rights are universal, indivisible, interdependent, and interrelated.” The declaration further
states that regardless of political, economic, and cultural systems, states have an obligation to “treat
human rights globally in a fair and equal manner, on the same footing, and with the same emphasis.”
Tunisia’s 1959 constitution was more precise than the 2014 constitution in this regard, stating, “The
Republic of Tunisia shall guarantee fundamental freedoms and human rights in their universality,
comprehensiveness, complementarity, and interdependence.

4.3. RELIGION IN THE CONSTITUTION

From the outset, the place of religion in the new constitution mobilized political parties and civil
society. The heart of the debate was how best to find a balance between the Arab–Muslim identity of
the vast majority of the Tunisian people and the desired secular nature of the state. The debate also

17 | P a g e
extended to how best to guarantee full equality to all people regardless of their religion while
recognizing Tunisia as a predominantly Muslim country.

In the first draft, the preamble contained both explicit and implicit references to religion. Even before
the release of the first draft, political parties reached a consensus not to mention Sharia directly and
to keep the emblematic first article of the 1959 constitution, which affirms Tunisia’s Arab–Muslim
identity without clearly defining Islam as the state religion. It reads: “Tunisia is a free, independent,
and sovereign state. Its religion is Islam, its language is Arabic, and its form of government is a
Republic.”

A debate arose, however, with the introduction of a subsequent article which, instead of stating that
certain provisions could not be amended, enumerated several inviolable concepts of the new
constitution, including “Islam as the state religion.”210 This change resulted in controversy, with
many politicians and academics arguing that the concept of a state religion exceeded the intentionally
ambiguous wording of Article 1, “Tunisia is a free, independent, and sovereign state. Its religion is
Islam.” The Consensus Commission addressed the issue, reaching agreement to state clearly at the
end of Article 1 that it could not be amended. The NCA’s plenary honored this agreement during the
vote.16

The adopted constitution also forbids amending Article 2, which proclaims “the civil nature of the
state.” Some civil society representatives have argued that defining the state as both civil and Islamist
in nature is contradictory. For that reason, they fear that prohibiting amendments to both Articles 1
and 2 could create conflict.
The NCA also debated vigorously the concepts of freedom of religion and conscience. Freedom of
conscience, included in the fourth and final draft of the constitution, had been absent prior to that. Its
inclusion in the fourth draft was the product of months of debate and the result of extended
negotiations between political parties and other stakeholders during the national dialogues that took
place in spring 2013. The NCA eventually stipulated in Article 6 of the fourth draft that “the state
protects religion, guarantees freedom of belief and conscience and religious practices, protects the
sacred, and ensures the impartiality of mosques and places of worship away from partisan
instrumentalization.” The issue appeared settled but the plenary vote on the constitution proved
otherwise. Clashes between NCA members of different ideologies and political affiliations around
the issue of the status of religion in the constitution resulted in calls to amend the article.

Some NCA members felt that the state should be a protector of religion and of “the sacred.” Others
believed that the constitution should leave each person the freedom of religious choice, without
intrusion or interference by the state. In the end, the NCA plenary voted on three different
During formulations before finding a compromise between the major political blocs, though some
deputies remained vehemently opposed to the article or parts of it. Article 6 of the adopted
constitution tries to accommodate both concerns:-
“The state protects religion, guarantees freedom of belief and conscience and religious practices,
protects the sacred, and ensures the impartiality of mosques and places of worship away from
partisan instrumentalization. The state commits itself to the dissemination of the values of moderation
and tolerance and to the protection of the sacred and the prohibition of any offense thereto. It commits

16
Peter J. Schraeder, Tunisia's Jasmine Revolution, International Intervention, and Popular Sovereignty, 13
Whitehead J. Dipl. & Int'l Rel. 75 (2012).

18 | P a g e
itself, equally, to the prohibition of, and the fight against, appeals to takfir and incitement to violence
and hatred.”

The Center is concerned that the obligation for the state to “protect the sacred” — a vague notion —
could be used in the future to curb free speech if that speech is considered an attack against religion.
According to the United Nations Human Rights Council, accusations of defamation of religion should
never be used to limit freedom of expression.

The judiciary will likely play an important role in interpreting Article 6 should conflict arise.
Therefore, The Carter Center encourages judges and legislators to protect freedoms of speech,
conscience, and religion as defined by international standards, including the freedom to adopt,
change, or renounce a religion or belief. Notably, freedoms of religion and conscience are the only
rights addressed in the general principles chapter of the constitution, as opposed to the chapter on
rights and freedoms. Their exclusion from the latter should not be interpreted to mean that they merit
less protection than other fundamental rights and freedoms, and they are still subject to the general
limitations clause (Article 49).

Additional religious elements included in all four drafts and in the final version of the constitution
are the prescribed oaths of office sworn by elected officials, which are religious in nature, and the
requirement for candidates running for president of the republic to be Muslim, a legacy of the 1959
constitution.17

4.4. RIGHTS AND FREEDOM

The scope and interaction of fundamental rights and freedoms sparked heated discussions throughout
the process. The rights and freedoms chapter was one of the most dynamic, evolving to a significant
degree over time. While for much of the process, several rights were listed in the chapter on general
principles, all fundamental rights were consolidated in the fourth draft into a chapter on rights and
freedoms, with the exception of the freedoms of religion and conscience18.

The final text of the constitution upholds several key civil and political rights, such as freedom of
expression, gender equality, and the protection of women’s rights. Several key economic, social, and
cultural rights are also protected. The rights and freedoms chapter ends with the statement that “no
amendment is allowed that undermines any human rights acquisitions or freedoms guaranteed in this
constitution.”

4.5. THE PRINCIPLE OF NON-DICRIMINATION

During the drafting process, debates around the principle of non-discrimination revolved mainly
around gender issues. While Article 48 also prohibits discrimination against people with disabilities,
other possible grounds of discrimination -including race, colour, language, religion, political or other
opinion, and national or social origin- received far less attention. The unofficial version (draft 2bis)
of the constitution mentioned “all forms of discrimination.” However, this specification was not

17
Promises and Challenges: the Tunisian Revolution of 2010-2011, 68 Nat'l Law. Guild Rev. 129 (2011).
18
Women in the Revolution: Gender and Social Justice after the Arab Spring, 18 J. Gender Race & Just. 437
(2016).

19 | P a g e
incorporated into the third and fourth drafts. As a result, while language regarding gender equality
improved in each successive draft, the adopted constitution does not explicitly prohibit other grounds
of discrimination as warranted by international law.

Article 21 specifies only that “all citizens, male and female alike, shall have equal rights and duties,
and shall be equal before the law with no discrimination.” Not only are grounds for discrimination
other than gender not mentioned, but the clause also does not conform to Tunisia’s obligations under
the ICCPR, which specifies that equality before the law is a right of the individual and is not limited
only to citizens.

The Carter Center recommends that legislators revisit relevant laws, taking into account Tunisia’s
international obligations, and incorporate clear prohibitions of discrimination on all grounds,
including race, color, language, religion, political or other opinion, national or social origin, property,
birth, or other status, toward all people and not only citizens.

It is noteworthy that, while Article 21 does not refer to other grounds of discrimination, its
contribution to the protection of Tunisian women’s rights is significant, a central issue during the
entire constitution-making process.19

4.6. SOCIO-ECONOMIC AND CULTURAL RIGHTS

The constitution guarantees many economic, social, and cultural rights, including the right to health
(Article 38), education (Article 39), culture (Article 42), water (Article 44), and more broadly to a
clean environment (Article 45). But the area of economic, social, and cultural rights is one of the few
that did not consistently evolve toward stronger protections over successive drafts of the constitution.
In some instances, the language in the adopted constitution does not fulfill the vision of the rights and
freedoms constituent commission, which worked on these issues.

Further, many economic, social, and cultural rights in the constitution were not spelled out to explain
how they are to be exercised and achieved. In addition, the constitution does not obligate the state to
realize these rights to the maximum of its available resources and in a progressive manner, as
stipulated in the International Covenant on Economic, Social, and Cultural Rights, to which Tunisia
is a party.

In some cases, subsequent drafts of the constitution actually diluted the state’s obligation to enforce,
fulfill, or protect a given right. This is illustrated, for example, by a closer examination of the right to
water (Article 44). It should be recalled that U.N. General Comment No. 15, which provides
guidelines for the interpretation of the right to water under the ICESCR, states that “the human right
to water is indispensable for leading a life in human dignity. It is a prerequisite for the realization of
other human rights.”20

19
De Silva de Alwis, Rangita; Mnasri, Anware; and Ward, Estee, "Women and the Making of the Tunisian
Constitution" (2017).Faculty Scholarship. 1756.
20
See Sylvia Colombo (2010), Implications of violent conflicts and neoauthoritarianism on state sustainability,
MEDPRO Technical Paper, October, 2017.

20 | P a g e
In the draft 2bis that was submitted by the constituent commissions to the drafting committee prior
to the release of the third draft, the right to drinkable water was guaranteed, with the state being
obligated to protect water resources, use them efficiently, and distribute them fairly. The third draft
read merely, “The right to water is guaranteed.” The final draft reintroduced the obligation to protect
water resources and use them efficiently, but both the “state and society” were obligated to do so in
this version. However, the state’s obligation to work for a fair distribution of water resources was
eliminated, and the plenary eventually adopted the following formulation: “The right to water shall
be guaranteed. The conservation and the rational use of water shall be a duty of the state and society.”

The Carter Center had urged the NCA to strengthen economic, social, and cultural rights and
welcomes the fact that a new provision was added in the last days of the article-by-article vote that
stipulated that “natural resources are the property of the Tunisian people, and the state exercises
sovereignty over them on the people’s behalf. Investment contracts related to these resources shall be
submitted to the competent committee of the Assembly of the Representatives of the People.
Agreements ratified in relation to these resources shall be submitted to the assembly for approval”
(Article 13).

The realization of economic, social, and cultural rights often has financial implications and requires
the establishment of concrete enforcement mechanisms. The Center encourages Tunisian authorities
to devote appropriate resources to the implementation of these rights, in order to meet the new
constitution’s human rights commitments and the aspirations of the Tunisian people.

4.7. ELECTION RIGHTS AND VOTING BEHAVIOUR

Guarantees for electoral rights evolved significantly from the first draft of the constitution to its
adoption. While the right to vote did not appear in the first draft — an unfortunate omission addressed
in the second draft — the requirements for genuine elections in the adopted constitution align closely
with those elaborated in international law.

The Carter Center commends the NCA for its efforts to protect the electoral process and voting rights,
which form the foundation of the modern democratic state. The constitution requires that legislative,
presidential, and local elections be universal, free, direct, secret, fair, and transparent.233 The words
“fair and transparent” were added in the fourth draft, a positive step that reinforces the democratic
nature of elections. The adopted constitution, however, omits the principle of equality in the articles
related to voting rights. Equality is a fundamental element of the right to vote and is directly
mentioned in the Universal Declaration of Human Rights as well as the ICCPR.

The equality of the vote, or “equal suffrage,” refers to the principle of “one person, one vote” so that
no citizen’s right to vote is greater or less than that of another citizen. It is one of the basic measures
to combat election fraud, since such fraud is a violation of equality. Equality of the vote also means
that every citizen’s vote should have the same value. For example, the number of citizens or voters
per elected representative should be generally equal when representatives are elected from different
constituencies. This omission is significant, and lawmakers should make every effort to incorporate
the principle when taking decisions regarding the demarcation of Tunisia’s future electoral districts.

21 | P a g e
Concerns remain regarding the restriction of the right to vote. Article 34 on electoral rights is one of
the few articles that retained a specific limitation, and thus it may escape the stringent conditions set
in the general limitations clause (Article 49). The article gives wide scope to the law to determine the
limits that could be placed on electoral rights. While this could be beneficial in certain circumstances,
The Carter Center recommends that should any measures be placed to restrict these rights, the
restrictions should be reasonable, proportional, and necessary in a democratic society, as per the
conditions spelled out in the general limitations clause.

Furthermore, the criteria for candidacy for election to the office of president of the republic were
hotly debated during the entire constitutionmaking process. Discussion centered on the question of
whether to place an upper age limit on candidates as well as on the restrictions on dual nationals. Both
measures directly affected several potential candidates.

The second and subsequent drafts of the constitution stipulated that candidates for the office of the
president of the republic have a minimum age of 40 and a maximum age of 75. Key political
stakeholders and members of the Consensus Commission managed to reach an agreement to remove
the upper age restrictions on presidential nominees, to lower the minimum age to 35, and to soften
the interdiction of candidacy for people holding dual citizenship. During the final plenary vote, these
issues remained controversial. The assembly was forced to vote twice on the article (Article 74) but
retained the Consensus Commission’s format in the end.

The removal of the age ceiling in the constitution as well as the lowering of the minimum age to 35
for candidates are positive and consistent with the Center’s recommendations to bring the criteria for
candidacy in closer alignment with international norms and may encourage wider participation by
youth in the political affairs of their country.

The nationality of the president also generated debate. Until the fourth draft, people possessing only
the Tunisian nationality (and not dual nationals) could run for the president. This condition was
refined in the fourth draft, which specified that on the date of the submission of the application the
candidate is not allowed to hold another nationality, obliging dual nationals to give up any other
nationalities before presenting their candidacy to run for president. After advocacy efforts by dual
nationals serving within the assembly, the NCA eventually opted to ease the conditions for candidacy.
The final text stipulates that a candidate must sign a commitment to revoke his or her non-Tunisian
citizenship if elected president of the republic and abandon the second nationality only if elected
(Article 74).

All drafts made reference to the candidate being Muslim. While this triggered no debate, the
requirement for a candidate for elected office to be of a particular faith contravenes Articles 25 and
26 of the ICCPR, which address the principle of participation in public affairs, non-discrimination,
and equality before the law.

4.8 STRUCTURE OF THE POLITICAL SYSTEM

International law does not dictate a specific political system, as “every state possesses a fundamental
right to choose and implement its own political, economic, and social systems.”

22 | P a g e
 The content of the constitution should, however, ensure that all elements of a democratic system that
guarantee the implementation of rights are respected. The separation and balance of powers are
fundamental principles of democratic systems, and the idea of balance of power implies collaboration
between the different branches of the state and the creation of mechanisms of mutual control and of
countervailing authorities.

The choice of the political system was particularly contentious during the drafting process. Although
the first draft of the constitution established the principle of separation of powers, the debate revolved
around the balance of powers between the executive and the legislative and between the president of
the republic and the head of government (prime minister), in a mixed system with an executive power
with two “heads.”

In both the first and second drafts, several aspects of the political system remained unresolved. In
the absence of consensus within the Commission on Executive and Legislative Powers, its members
put forth two or three options of several articles for consideration. In the third draft, the drafting
committee incorporated one of the options presented by the powers commission. The selected
political system granted considerable power to the Parliament and the government, while providing
for the direct election of the president, whose prerogatives would be strictly limited. The fourth draft
of the constitution did not substantially change the prerogatives of the two heads of the executive but
introduced details to clarify their respective roles and attempted to create a more even balance
between them. A new provision (Article 70 in the fourth draft and 71 in the constitution) clearly stated
that both the president of the republic and the government, led by a head of government, “hold the
executive power.” These changes, emanating to some extent from the national dialogues, were
criticized by some NCA members, who considered them insufficient.

In the end, the plenary adopted measures that clarified the competence of the head of government and
the president of the republic, but some gray areas remain. In several instances, the constitution
foresees that the president of the republic shall take decisions after consultation with the head of
government.
These provisions may prove complicated to implement, should the executive powers fail to reach
agreement. The constitution stipulates in Article 101 that in the case of a dispute arising between the
heads of the executive, the “most concerned” of the two parties may refer the matter to the
Constitutional Court for a ruling, which must be issued within a week. While the court could, in
principle, act as arbitrator, there is a danger of it becoming politicized if it is called upon to arbitrate
between the actors frequently, and the constitution does not offer specific guidelines for making
judgments. In addition, the Constitutional Court may not be established for up to a year following the
upcoming legislative elections, leaving a vacuum should conflicts arise in the immediate term.

Another issue that may generate future difficulties concerns the ratification of international treaties.
Article 77 stipulates that the president of the republic is responsible for ratifying treaties and
authorizing their publication, while the head of government is “exclusively competent to present draft
laws relating to the approval of ratification of treaties” (Article 62). The constitution is silent,
however, on how to deal with a scenario in which the head of government chooses not to present a
draft law or fails to do so in a timely manner, thereby blocking the ratification process. 21

21
Constitution.project.org. Tunisia.in.

23 | P a g e
Finally, some provisions regarding the political system are very complex and may prove challenging
to implement. The president of the republic is allowed to ask the assembly to renew or withdraw
confidence from the government up to two times during his or her term (Article 99). Should the
assembly choose to withdraw confidence, the president is tasked with designating someone to form
the new government in a period not exceeding 30 days. Should this person fail to do that, or should
the assembly fail to give confidence to the new government, the president is authorized to dissolve
the assembly and to call for elections. On the other hand, should the assembly give the government
its confidence twice, the president must submit his or her resignation. The system does not give either
party strong incentive to practice checks and balances, since the cost of failure is extremely high for
both parties.

In order to avoid such political stalemates, Tunisian political actors should continue seeking
consensus in the current phase of the transition and beyond, as they did in the months leading up to
the constitution’s adoption. Maintaining this spirit will help to integrate this positive aspect of the
Tunisian constitution-making process into the wider political culture of the country and may help
reduce the potential for conflict, particularly until permanent institutions, including the Constitutional
Court, are set in place.

4.9. ROLES AND RIGHTS OF THE POLTICAL OPPOSITION

The role and rights of the political opposition, which were not specified in the first and the second
drafts, are a key positive outcome of the national consultations held in December 2012 and January
2013. The third draft includes a reference to the opposition as an integral element of the Assembly of
the Representatives of the People, and in the fourth draft similar language is used to grant “the
opposition the right to create and preside over an inquiry commission every year,” but without giving
further information on the status and prerogatives of such a commission.

The final text of the constitution not only retains the explicit recognition that the opposition is an
“essential component” of the legislature but also provides for a member of the opposition to head the
legislative assembly’s finance committee. Such committees play a key role in controlling the state’s
funds and are charged with reviewing the state’s annual budget before it is voted on in Parliament as
well as with assessing whether the state’s monies are being used wisely. The constitution also extends
the right to refer a draft law to the Constitutional Court not only to the president of the republic and
the head of government but also to any 30 members of the assembly. This provision should further
boost the rights of the opposition and, by extension, the democratic nature of the state.

4.10. ROLE OF JUDICIARY

The judiciary under former President Zine el Abidine Ben Ali was subservient to the executive branch
and lacked independence. Therefore, it was essential that Tunisia’s new constitution fully guarantee
the independence of the judiciary and the impartiality of justice. As the NCA was discussing the
chapter on the judicial powers during the article-by-article vote, The Carter Center, together with
Human Rights Watch, Al Bawsala, and Amnesty International, issued several joint recommendations
to ensure that the judiciary had the sufficient power and independence.

24 | P a g e
The Center welcomes the fact that the Tunisian Constitution lays a strong foundation for the
independence of the judiciary. The chapter on judicial authority contains important guarantees in this
regard, including Article 102, which affirms that “the judiciary is an independent authority
that ensures the administration of justice, the supremacy of the constitution, the sovereignty of the
law, and the protection of rights and freedoms.” Article 109 prohibits outside interference with the
judiciary.

The language concerning the appointment of judges was significantly improved in the adopted text
of the constitution (Article 106). Initially, this provision noted that judges would be appointed by
presidential decree based on decisions by the High Judicial Council, the independent supervisory
body for the judiciary. There were no specific provisions made for the appointment of senior judges,
which meant that they would be appointed according to the provisions of Article 92 that gives the
head of government the responsibility of appointing senior civil servants. In the final text, the NCA
put in place stronger guarantees to ensure that the judiciary does not fall hostage to the government.
The final draft gives the president the responsibility of appointing senior judges but only in
consultation with the head of government and based on a proposal by the High Judicial Council
(Article 106).

Similarly, later drafts strengthened the immunity of judges. Until the fourth draft, it was possible to
lift the immunity of a judge in the event that he or she is caught red-handed (in flagrante delicto). In
the final text, the judge must be caught red-handed committing a crime. Only then could his or her
immunity be lifted. It should be noted that there were no provisions in the 1959 constitution to protect
judicial independence. The guarantees of judicial independence in the new constitution can be seen
as a key turning point in Tunisian history, in light of past practices of authorities — both prior to the
revolution and to a lesser extent since — that made the judiciary vulnerable to the executive power.

vulnerable to the executive power. The NCA also improved the text as it pertains to the establishment
of the High Judicial Council, including its composition. According to the adopted constitution, the
council must be established within six months of the upcoming legislative elections and will play an
important role, among others, in selecting the members of the Constitutional Court. A key aspect of
the council’s work will be to deal with all matters relating to the appointment, promotion, dismissal,
and career progression of judges. Initially and until the fourth draft, it was foreseen that half the
members of the council would be judges, while the other half would not be judges. This measure was
amended to increase the percentage of judges to two-thirds. The adopted constitution also
strengthened selection measures, requiring the election and not the nomination of most judges and
those who are not judges. Article 112 stipulates, moreover, that “the remaining third (those who are
not judges) shall be composed of specialized independent individuals” and that “elected members
shall undertake their functions for a single six-year term,” which are further guarantees of
independence.

Although this issue was apparently not discussed prior to the adoption phase of the process, a group
of NCA members proposed an amendment to enshrine the profession of lawyers in the constitution
for the first time in Tunisian history. The resulting article (Article 105) states: “The profession of
lawyer is a free independent profession that contributes to the establishment of justice and to the
defense of rights and freedoms. Lawyers are entitled to the legal guarantees that ensure their
protection and the fulfillment of their task.” This article should be read in the context of Tunisia’s

25 | P a g e
authoritarian past, in which lawyers were frequently subjected to harassment by state security. In this
sense, the adopted language could play a role in strengthening a lawyer’s right to provide defense and
the right of individuals to a fair trial. The right to appeal — an ingredient of the right to a fair trial —
first appeared in the second draft (Article 104) but was removed in the fourth, then eventually
reintroduced in the final version of the constitution (Article 108).

Despite these strong guarantees, security of tenure requires further elaboration in the law. Article 107
states that no judge may be transferred, dismissed, expelled, or subjected to disciplinary punishment
“except in accordance with the guarantees provided for by law.” Though the article requires a decision
by the High Judicial Council before any of the above actions can be taken, it leaves wide scope to the
law to determine the criteria for dismissal. These could be used in future to undermine the judiciary.

The Carter Center recommends that the government, the NCA, and the legislative assembly
incorporate stronger provisions on the independence of the judiciary into the legal framework,
consistent with international standards. This should include the unambiguous affirmation of security
of tenure with regard to appointment, promotion, and discipline, with removal of judges possible only
for serious misconduct and only following a fair trial.

The constitution accords the judiciary wide powers to interpret the constitution and, by extension, to
enforce the freedoms and rights guaranteed therein. Furthermore, authorities have up to a year
following the legislative elections to establish the Constitutional Court. This leaves a void in
constitutional oversight that may not be met entirely by the Provisional Commission to Review the
Constitutionality of Draft Laws, the IPCCPL, foreseen by the constitution’s transitional provisions,
which has only a priori oversight of laws (Article 148, paragraph 7).

The Carter Center recommends that judges be required to interpret the law, including the constitution,
to favor the enforcement of a right or fundamental freedom. In addition, the interpretation of human
rights treaties from any official treaty body, including courts and commissions, should be taken into
account as a minimum standard.

A further concern is the question of the supremacy of the constitution. Until the fourth draft of the
constitution, Article 102 paragraph 2 stipulated that “judges are independent.246 No power shall be
exercised over their rulings other than the power of the constitution and the law.” In the final text, the
reference to the constitution in that paragraph was removed, a move that puts in question the
provisions of the first paragraph, which instructs judges to enforce the supremacy of the constitution
yet in the second paragraph essentially asks them now to refer only to the law. This may lead to the
prevalence of the law over the constitution where contradictions exist between the two as well as a
systematic referral of cases to the Constitutional Court, even where the constitutionality of the issue
in question is clear. This could result, on a practical level, in an overburdening of the Constitutional
Court and delays in judgment.

However, given that Article 102 instructs the judiciary to ensure the constitution’s supremacy, the
article assumes paramount importance during the remainder of the transitional phase, particularly in
the absence of the Constitutional Court. It should be read in the context of the larger constitution,
which sets limits on the scope of permissible restrictions to rights and freedoms (Article 49).

26 | P a g e
4.11. COMPETENCE AND COMPOSITION OF THE CONSTITUTIONAL COURT

Until the fourth draft, the assembly was mandated to elect 12 Constitutional Court members from
among candidates proposed by the president of the republic, the head of government, the president of
the assembly, and the president of the High Judicial Council. The final version specifies that the
president of the republic, the assembly, and the High Judicial Council each appoint four members of
the court. This measure was a positive step that strengthens the balance of powers and ensures that
no single branch controls the court.

The first and second drafts mandated that the Constitutional Court be composed entirely of
legal specialists with a minimum of 20 years of professional experience. The drafting committee
lowered these prerequisites in the third draft, requiring a majority of legal specialists with a minimum
of 10 years’ experience. 247 Opposition members, civil society representatives, and some members
of the judicial powers commission that had initially drafted the article protested these changes. The
fourth draft proposed a compromise of a two-thirds composition of legal specialists with a minimum
of 15 years of experience (Article 115). NCA members eventually opted for an intermediate solution,
namely an increase of the number of legal specialists to three-quarters and a return to the initial 20
years of professional experience requirement initially foreseen by the judicial powers commission
(Article 118).

The second draft of the constitution articulated the Constitutional Court’s competencies, including
the mandatory referral to the Constitutional Court of any proposed amendments to the constitution,
draft organic laws, and ratification of treaty laws as well as an optional referral under certain
conditions for draft legislation (Article 117). Further, the second draft indicates that any five assembly
members, in addition to the president of the republic, the president of the assembly, and the head of
government, could refer legislative matters to the court. Although the judicial powers commission
increased the number of deputies to 10, the drafting committee kept only the mandatory referrals and
removed the mechanism of optional referral in the third draft. National and international organizations
criticized this decision.248 A Consensus Commission proposal allowing a minimum of 30 assembly
members to address the court was adopted in the plenary votes. This measure will allow deputies,
particularly the opposition, the power to challenge draft laws before the Constitutional Court while
at the same time reducing the risk of blockage by a small number of deputies.

4.12. TRANSITIONAL PROVISIONS

A new chapter was added to the final draft of the constitution, which dealt with the transitional
provisions intended to ensure a smooth transition between the former and new constitutional orders.
The drafting process was unique with regard to transitional provisions. The constituent commissions
did not discuss their content, nor did any of the commissions have a mandate to address these
provisions. Instead, the drafting committee adopted the transitional provisions late in the process,
leaving little time for members to discuss and reflect on their implications. Stakeholders widely
criticized both the process and the content of the chapter. It was the only chapter that was re-evaluated
in full by the Consensus Commission, which debated, among other issues, the timeline of the
establishment of the Constitutional Court, the prerogatives of the NCA, and the deadlines for the entry
into force of the various provisions of the constitution, including the date for upcoming elections.

27 | P a g e
The Carter Center notes that the transitional provisions that were finally adopted set clear timelines
and deadlines for the entry into force of the various provisions of the constitution. The Center
applauds the NCA’s decision to grant the Constitutional Court full jurisdiction to examine the
constitutionality of laws immediately upon its creation, rather than three years later, as previously
specified. The establishment of the Constitutional Court, however, is dependent on the timing of the
legislative elections and could take up to one year from that date, leaving a void in judicial review
that will not necessarily be met by the court system at large, given that Article 148 paragraph 7 of the
constitution explicitly states that the court system is not allowed to review the constitutionality of
laws.

The constitution calls for the establishment of an interim commission charged with considering the
constitutionality of draft laws until the permanent body is in place. This commission, the IPCCPL,
was established by an organic law adopted by the NCA on April 15, 2014.249 As this body does not
have a mandate to consider the constitutionality of current laws, including those inherited from Ben
Ali’s regime, there is no way of ensuring that Tunisia’s legal framework is in conformity with the
new constitution. In addition, prior to the establishment of the Constitutional Court, there is no
mechanism to arbitrate potential conflicts between the two heads of the executive, leaving a vacuum
should conflicts arise in the short term.

A new chapter was added to the final draft of the constitution, which dealt with the transitional
provisions intended to ensure a smooth transition between the former and new constitutional orders.

Furthermore, the transition between temporary and permanent governments is regulated currently by
the transitional provisions as well as the OPPP law. It would have been preferable to integrate the
still-applicable provisions of the OPPP into the transitional provisions to ensure greater coherence
and to fully reflect the force of the new constitution.

One issue that The Carter Center highlighted in the months immediately following the adoption of
the constitution is the need for the NCA and the new government to put in place the legal framework
necessary to implement the provisions of the constitution, in particular the timely establishment of
the IPCCPL. The Center particularly encouraged the NCA to establish the IPCCPL in time to review
the draft election law, which came under discussion by the assembly’s plenary in April 2014. The
NCA adopted an organic law to establish the IPCCPL on April 15, 2014, and the commission went
on to examine several challenges to the constitutionality of the law.

The Center further recommended that the commission be mandated to review the Assembly of the
Representatives of the People Rules of Procedure. Article 120 of the constitution mandates the future
Constitutional Court to review the legislative body’s Rules of Procedure as presented to it by the
president of the assembly. However, there is no mechanism foreseen in the transitional provisions to
review the Rules of Procedure that will be put in place by the Assembly of the Representatives of the
People, following the legislative elections. The assembly is expected to be in place for approximately
one year before the establishment of the court.

Despite this likely vacuum in oversight of the assembly’s Rules of Procedure, the NCA chose to keep
the IPCCPL’s mandate very narrow, i.e., to limit it to the examination of the constitutionality of draft
laws. The Carter Center maintains that enabling the commission to review the future assembly’s Rules

28 | P a g e
of Procedure would respect the spirit of Article 120. This review would be critical in guaranteeing
that the exercise of legislative power is in conformity with the prerequisites of the constitution .
”

5. CONCLUSION AND RECCOMMENDATIONS

Tunisia’s new constitution lays a solid foundation for the establishment of the rule of law and the
protection of rights and freedoms in the country. It also puts in place strong guarantees for an
independent judiciary, thus breaking away decisively from the 1959 constitution. Some articles are
broadly worded, however, and risk being interpreted in ways that contradict other provisions of the
constitution. Measures to protect citizens from discrimination, provide security of tenure for judges,
and safeguard fundamental freedoms during a state of emergency should be strengthened. Tunisian
authorities are encouraged to take legislative action to address these concerns.

The adoption of the constitution is a key step in the country’s transition, but on its own it is not
sufficient to guarantee a successful transition from authoritarianism to democracy. The
implementation phase, specifically the process to bring the country’s laws and regulations into
alignment with the human rights commitments laid down in the constitution, will be important in
securing a strong foundation for the respect of these commitments. This process should be carried out
in a way that provides the highest degree of protection of human rights for Tunisians and non-Tunisian
residents of the country alike.

The process of constitution making adopted by the NCA was highly sensitive to internal and external
political dynamics, in that it allowed for deliberation and extensive consultation and constantly sought
consensus within the assembly on contentious issues. This, more than anything, is the strength of the
Tunisian model and though time-consuming, has proved its value. The assembly was successful in
producing a text that is not only generally sound on key human rights issues but that is also
overwhelmingly backed by deputies from many political ideologies. This was of critical symbolic
value during a political transition of this kind. However, the Tunisian model also offers rich lessons
regarding what to avoid when engaging in constitution making, from a process standpoint.

Based on the Carter Center’s observation of the constitution-making process, and in a spirit of respect
and support, the Center offers the recommendations below to the NCA, Assembly of the
Representatives of the People, Tunisian civil society, and policymakers and scholars engaged in
constitution-making processes elsewhere in the region and beyond.

Implementation of the Constitution

The Tunisian government and the Assembly of the Representatives of the People should consider the
following:
Rights
• Review and reform Tunisia’s existing legal framework to ensure that domestic law and regulations
reflect and respect the country’s international commitments on human rights and the rights enshrined
in the new constitution.
• Prohibit discrimination on the grounds of race, color, language, religion, political or other opinion,
national or social origin, property, birth, and other status. Ensure that these rights apply to all people
in Tunisia, citizens and foreigners alike, in accordance with international law.

29 | P a g e
• Commit to fight not only violence against women but all kinds of discrimination against women.
To this end, adopt concrete measures within the assembly to protect women’s rights and to advance
gender parity in elected assemblies.
• Specify in relevant legislation Tunisia’s obligation to adopt specific mechanisms to guarantee the
progressive realization of economic, social, and cultural rights to the maximum of the country’s
available resources.

Enforcement

• Judges should interpret the law, including the constitution, to favor the enforcement of a right or
fundamental freedom, and to take into account the interpretation of human rights treaties by
international or regional courts and commissions, as a minimum standard.
• Judges and legislators should protect the freedom of religion or belief, including the freedom to
adopt, change, or renounce a religion or belief, and ensure that any limitations are consistent with the
general limitations clause, which delineates how rights should be interpreted in their application.
• In the event that a state of emergency is declared, ensure that any restrictions to rights and freedoms
are specific, necessary, proportionate, and subject to judicial review and that they will expire after a
defined period of time. Furthermore, specify that rights considered absolute in international law
remain protected and ban their restriction under emergency powers.

Tunisian Institutions

• Incorporate provisions into the legal framework to ensure the independence of the judiciary in regard
to appointment, promotion, and discipline, including the security of tenure. The removal of judges
should be restricted to cases of serious misconduct, following a fair trial, and, in accordance with the
constitution, by reasoned
decision of the High Judicial Council following its establishment.
• Put in place and implement a medium- to long-term plan to educate the public about the constitution.

To the Assembly of the Representatives of the People

• Conduct extensive lessons-learned exercises ahead of drafting Rules of Procedure.

• Consider enabling the commission on Rules of Procedure to meet on a regular basis to evaluate the
functioning and application of the rules; not just at times of crisis.
• Ensure that the Rules of Procedure provisions on attendance and participation are clear and detailed
and implement these provisions in a rigorous and transparent manner.
• Consider giving the Provisional Commission to Review the Constitutionality of Draft Laws the
mandate to review the new assembly’s Rules of Procedure.
• Ensure that the assembly’s secretariat offers appropriate logistical and administrative support to the
commissions. Ensure that legal advisers are able to focus on research and drafting instead of logistical
support.
• Consider stating in unequivocal terms in the Rules of Procedure that commission meetings as well
as plenary sessions are open to the general public. The assembly should establish formal and fair
criteria and procedures to grant access and observer status to civil society organizations and interested
citizens.

30 | P a g e
• Establish a communication department and devote sufficient resources to devising and
implementing a communication strategy and to liaising with the media. Such a strategy should include
a website with important information and documentation, sufficient resources to disseminate
information on the assembly’s work, including through social media, and official staff spokesmen
and communication experts.
• Create an interparty working group in charge of liaising with civil society, the media, and the
international community and prepare strategic plans and budgets to present to potential donors.
• Fully commit to the principle of transparency and the right to information enshrined in the
constitution by publishing and disseminating in a timely manner all official assembly documents —
minutes, reports, decisions, submissions, attendance records, and details of the votes — including by
posting them on the assembly’s website.
• Plan and pursue mechanisms to genuinely engage the public in the legislative process and the work
of the assembly at large. Deputies should be provided with logistical and administrative backstopping
to conduct outreach.
• Consider putting in place informal, issue-based caucuses. Experiences from other countries suggest
that such groups can help to build trust between political groups in the assembly, increase the visibility
of certain issues, and contribute to better legislative and policy agendas. The assembly should also
consider providing both political blocs and these informal groups with logistical and administrative
support to increase their effectiveness.

To the International Community

• Continue to support the capacity of media, civil society, and constituent and legislative bodies in
conducting outreach and communication in a coordinated and responsive manner.
• Improve coordination among international actors working with constituent bodies and legislative
assemblies to avoid duplication. Be sensitive to the rhythm of the institution and its priorities and
workload.
• Ensure sufficient support to civil society work outside the capital and encourage regionally sensitive
projects and initiatives.

To Tunisian Civil Society

• Build capacity in lobbying and monitoring the work of the Assembly of the Representatives of the
People and other state institutions.
• Conduct awareness-raising on the constitution in all parts of the country.

To Constitution-Making Bodies in Other Countries

• Devote careful thought to the Rules of Procedure and internal decision-making processes.
• Consider putting in place detailed provisions regarding participation of members in assembly work
and enforce sanctions fairly, transparently, and consistently.
• Formalize the role of legal and linguistic experts in the Rules of Procedure to ensure greater clarity
of their role and maximize their impact.

31 | P a g e
• Establish a detailed work plan and time table for the adoption of the constitution at the very
beginning of the process to ensure realistic planning and progress as well as to provide the public
with greater visibility on the way forward.
• Design comprehensive public participation mechanisms in the drafting process and put in place the
necessary means for its effective realization.
• Plan and implement awareness-raising and information campaigns on a regular basis using the full
range of media and other tools available. Campaigns should present the limitations of public
participation as well in order to avoid disappointment and frustration.
• Set up a formal procedure to analyze, process, and record inputs made during consultations with
civil society and the public.
Appoint people at the constitution-making body in charge of liaising with civil society, the media,
and the international community and prepare strategic plans and budgets to present to potential
donors.
• Conduct extensive hearings prior to and while drafting and integrate consensus-building
mechanisms in the process from the outset.
• Open to the public the debates and discussions within the constitution-making body. Establish
formal and objective procedures to grant access and observer status to media, civil society
organizations, and interested citizens.
• Publish and disseminate all important documentation in a timely manner. This recommendation
requires devoting thought and resources to logistical and administrative issues.
• Develop outreach activities once the constitution is adopted and use all means available,
including in-person meetings, to engage the public on the content of the constitution and to respond
to questions.

32 | P a g e