Fundamental Rights in Peril: The State of Emergency in Tunisia

Sit-in “Errahil” des députés de l’Assemblée Nationale Constituante IMG_2383, Amine Ghrabi, Creative Commons

As Tunisia is placed under a state of emergency, the survival of a framework of fundamental rights will be critical for addressing the inequality and poverty that prompted the 2011 popular uprising and culminated in Tunisia’s new 2014 Constitution.

Tunisia’s 1959 Constitution provided for a hyperpresidential system of government in which the president had full control over the executive, controlled parliament through a range of means, and was also nominally the head of the judiciary. It provided for some civil and political rights as well as a limited number of socioeconomic rights, but lacked guidance on how those rights should be protected.

The courts were not empowered to challenge governmental and legislative action and were instead subsumed by the hyperpresidential system, which pervaded all the levers of state.  The impact of the courts as a constraint on state power was limited.

In December 2010, a major popular uprising broke out in the impoverished centre of the country. Many individuals participated out of a desire to improve the protection of socioeconomic rights. As the protest spread to the far wealthier coastal areas of the country, there was near unanimity that the old hyperpresidential system had to end and that the then president should vacate his position.  For many protesters, however, the ultimate aim of these actions remained to bring an end to inequality and poverty.

Shortly after the 2011 uprising started, the president fled, the 1959 Constitution was suspended, a constituent assembly was elected, and a new Constitution was adopted in January 2014. That new text was only a partial success. Commentators tend to mainly focus on the Constitution’s positive aspects, which include that the negotiators managed to reach an agreement without descending into conflict.

Little to no attention is usually paid to whether the new constitutional dispensation provides any hope to the individuals who were hoping to bring an end to inequality. In the years since the 2014 Constitution entered into force, standards of living have not significantly improved, with some studies suggesting that inequality between north and south has actually grown.

The 2014 Constitution did introduce one major improvement. Article 49 of the new text incorporated a robust limitation clause, which for the first time provides a clear guideline for what types of restrictions on basic rights are legitimate.

“The 2014 Constitution incorporates Tunisia into an international network of countries that apply proportionality, which includes a growing number of African countries including South Africa and Kenya.”

This includes the requirement that any limitation of rights must respect the principle of proportionality. In so doing, the 2014 Constitution incorporates Tunisia into an international network of countries that apply proportionality (which includes a growing number of African countries, including South Africa and Kenya).

Article 49 therefore represents a real step towards greater protection of fundamental rights and effective judicial independence as it sets out clear guidance for how judges should rule on certain cases, independently of what result the government or legislature might try to achieve.

Since its entry into force, however, Article 49 has only been partially applied. Many institutions and officials, including many judges, did not adapt their working methods and proceeded as if nothing had changed. Many lawyers are still not aware of Article 49’s significance, which means they do not reference proportionality in their pleadings and, in turn, courts do not refer to it in their reasonings.

Since 2014, many high profile cases saw defendants sentenced to unreasonable prison sentences (e.g. several decades in jail for consuming a marijuana cigarette, or six months in prison for publishing a facebook post criticizing the government’s COVID response). In many of those cases, an argument could have been made (but was not) that the underlying legislation (which typically predates the 2011 uprising and was therefore passed in another, far less democratic time) was not in conformity with Article 49.

This is not to say that Article 49 is never applied. As lawyers, judges and others are becoming increasingly aware of proportionality and its impact on the entire framework for the protection of rights, a growing number of court decisions have applied proportionality. However, even in those cases, courts do not always fully elaborate their reasoning which makes it difficult to analyse the decisions and therefore to predict how proportionality might be applied in the future.

In one case, a parking company lost its entire business after its only entrance was shut because of a ministry decision to cut all traffic adjacent to a foreign embassy. In another, a young man brought a claim against a ministry after he said that he was being harassed by the police who suspected him of terrorist activities. In both cases, the court overturned the government decision on the basis that the relevant ministry’s decision was not in conformity with Article 49. From the context, it appears that those courts applied the necessity subtest, but the decisions themselves do not specifically say so.

“For now, the 2014 Constitution’s first two chapters remain in force, but it is unclear if the framework for the protection of fundamental rights will survive.”

In July 2021, six and a half years after the 2014 Constitution entered into force, President Kais Saied declared a state of emergency. As of the time of writing, the president has not clearly defined the nature of the emergency, but from his various statements it is more than likely that he considers that the country was suffering from a crisis in governance that only a clear rupture could solve.

Many (but not all) Tunisians appeared to agree that the post revolutionary government was not bringing the type of relief that many had hoped would follow the uprising. He dissolved the government, suspended parliament, formed a new government unilaterally, granted himself the power to rule by decree and to issue legislation directly himself, and declared that a new constitutional committee will amend the country’s political system.

For now, the 2014 Constitution’s first two chapters (of which Article 49 is a part) remain in force, but it is unclear if the framework for the protection of fundamental rights discussed above will survive. If it does not, it will mean that this growing body of law in Tunisia, which is still bringing so much promise to the country, will be abruptly and unjustifiably ended.