The New York-based organisation is, in particular, concerned about six points contained in as many articles of the constitution which, if approved, would challenge important international agreements already ratified in the past (and perhaps not always respected). The level of concern is so high that in recent day HRW’s executive director for the Middle East and North Africa, Sarah Leah Whitson, sent a letter to members of the Constituent Assembly in which she asked for the charter, made public last August, to be changed in order to guarantee respect for human rights.
The egg or the chicken?
All eyes are therefore on Articles 3, 17, 22, 26, 27 and 28. The crucial issue, emphasized Sarah Leah Whitson, is to understand whether international treaties, “will apply directly to Tunisian Law or whether national legislation will have supremacy over them.”
While Article 38 seems to provide a positive answer to this dilemma, clearly stating that “international conventions promulgated by the president of the Republic and ratified by the parliament have supremacy over domestic law”, Article 17 provides the first contradiction, affirming that “respect for international conventions is compulsory if they do not contravene this constitution.” Article 7, again, emphasizes that “it is possible to invoke provisions contained in national laws to justify the non-application of international obligations.”
There are also ambiguities in Article 26, which addresses the subject of freedom of expression, when it states that “freedom of opinion, expression, information and creation is guaranteed and can be limited only by laws designed to protect the rights of others, their reputation, security and health.” Rights, reputation, security and health are vague words however, a vagueness HRW has already observed in Article 3, “The state guarantees freedom of belief and religious practice and criminalizes all attacks on the sacred”, without clearly outlining what is “sacred” and what is meant by “attack”. The same article affirms that the state guarantees freedom of belief and religious practice, “but omits wording that would affirm freedoms of thought and of conscience, including the right to replace one’s religion with another or to embrace atheism.” “This,” says the letter, “opens the door to laws that criminalize speech.”
Women: equal or complementary?
What has certainly been more widely reported by the press, and has caused the largest protests among the female population, is the much-debated Article 28 outlining the social role of women. “The state guarantees the protection of women’s rights and supports their advances, considering them as men’s partners in building the nation, and their roles within the family complement each other. The state guarantees equal opportunity between men and women to assume various responsibilities. The state guarantees the elimination of all forms of violence against women.” So what problem has to be posed by Human Rights Watch?
The issue lies in the use if the word “complementary” instead of “equal,” which risks “diluting the principle of equality between men and women as required by article 2 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)”, ratified by Tunisia in 1985. “The CEDAW committee responsible for monitoring and interpreting the treaty has recognized that complementarity is a lesser standard than full equality.”
The current outrage, however, seems to be outdated, if one considers that already in 2011, the interim Tunisian authorities had signed a statement affirming that in the new Tunisia no decision would be taken that might come into conflict with the state’s Islamic status. This is confirmed in the draft for the new constitution which emphasizes that only a Muslim can become president of the republic, in spite of the fact that Article 22 states that “all citizens are equal in rights and freedoms before the law, without discrimination of any kind.” Another ambiguity that once again places Islam at the centre.
New Tunisia and old Islam
This is not a new debate and is one that has been ongoing in the country for over a year, ever since, following the fall of Ben Ali, veiled women began to appear and in some cases even wearing the niqab, a garment that was not permitted during the regime. Initially there was simply talk of a reaction to the dictator’s secularism and westernisation, supported by all the political change throughout the region, the electoral wins of Islamic movements (not only in Tunisia, but also in Egypt, Morocco and Libya) and the rediscovery of a more traditional Islam. But while it is true that easy equations produce results that are not always precise, it is no longer possible to deny a strengthening of the Salafite groups that makes the alarmism of human rights organisations look even more serious. The most worrying problem in Tunisia and in all new democracies in the area could be precisely this one.
Beyond easy tendencies to fault previous events and the various hypotheses, it is evident that the Tunisian government is experiencing problems in containing manifestations of extremism. It is also true that for months there have been both episodes of intolerance aimed at more secular forms of behaviour, and clashes between Salafites and the police, long before the recent protests that have resulted in increased security measures in the capital.
Even the leader of Ennahda, Rached Ghannouchi publicly acknowledged that Salafism is a threat when he spoke last week of repression and the need to insist on public order. In an interview with Time magazine, President Moncef Marzouki, known for his laicism and progressivism, spoke of the need to “interrupt this phenomenon” and of people who hate democracy and, in particular, “this democracy.”
Translated by Francesca Simmons