LONDON - A deeply flawed draft state of emergency law currently being discussed in parliament could grant Tunisian authorities sweeping powers to ban demonstrations and strikes, suspend activities of NGOs, impose arbitrary restrictions on movement of individuals and carry out unwarranted searches of properties based on vague national security grounds, said Amnesty International. A parliamentary debate on the proposed law has started and is expected to go to a vote in the coming weeks.
The organization is calling on Tunisia’s parliament not to adopt the new bill unless fundamental changes are made to bring it in line with international law and the country’s own constitution.
“Tunisia has operated under a continuous state of emergency for more than three years. What should be an exceptional temporary state has become the new normal. Tunisia’s authorities should be urgently working to restore full respect for the rule of law – not approving a repressive draft law that will further endanger human rights,” said Magdalena Mughrabi, Deputy Middle East and North Africa Director at Amnesty International.
“If this law is approved it will give the authorities free rein to restrict human rights whenever they feel like it, seriously threatening the progress Tunisia has made since the 2011 uprising.”
The proposed law is intended to replace a 1978 presidential decree that has been used to impose a continuous state of emergency since November 2015. The decree, which grants Tunisia’s president the power to suspend certain rights such as the right to freedom of expression, assembly, association and movement, has been deemed unconstitutional. It has been repeatedly used to impose emergency measures in an often arbitrary, discriminatory and disproportionate manner leading to a range of human rights violations.
The 1978 decree violates both international law and Article 49 of Tunisia’s new 2014 constitution, both of which require that restrictions on human rights be necessary, proportionate and prescribed by law. However, the new proposed bill fails to address these shortcomings.
The new draft law would allow the president to declare a state of emergency for six months, renewable for a three-month period. However, it does not impose a limit on the number of times it can be applied, leaving it open to being renewed indefinitely. It also leaves the decision to declare or renew a state of emergency at the exclusive discretion of presidential and executive branches of government, without requiring involvement of parliament or the constitutional court.
The bill, like the current decree, would give Tunisia’s executive authorities permission to ban any strike or demonstration perceived to threaten public order, search places frequented by anyone suspected of threatening national security including accessing their computers or other equipment without prior judicial authorization. It would also allow authorities to seize passports or place under house arrest or electronic or administrative surveillance anyone whose “activities are deemed to endanger security” without obtaining a court order. The draft law also fails to provide sufficient judicial oversight for emergency measures and empowers the Ministry of Interior to suspend associations suspected of undermining public order and security or obstructing the work of the authorities.
To address these flaws, the law must clearly stipulate that it is necessary for authorities to obtain prior judicial authorization when issuing or enforcing any decision to subject an individual to exceptional emergency measures such as house searches or assigned residence orders. The bill must also grant individuals the right to appeal such measures before an independent and impartial judicial body.
“Tunisia’s members of parliament should not consider adopting this law until strong human rights safeguards are incorporated. Under international law emergency powers should only be applied in exceptional circumstances when it is strictly necessary to protect national security from a threat to ‘the life of the nation’. As it stands, this law gives the Tunisian authorities a free pass to crack down on human rights on vague national security grounds,” said Magdalena Mughrabi.
Since the state of emergency was declared in 2015 security forces have carried out thousands of arrests, many of them arbitrarily, and thousands of raids across the country on security grounds, often using excessive and unnecessary force, as well as searching houses without judicial warrants. The authorities have also used emergency measures to impose night-time curfews in areas of unrest, and to detain and pass harsh sentences against those accused of “breaking the curfew”. They have placed at least 138 people under assigned residence orders, restricting their movement to specific areas amounting at times to house arrest. Often these orders have been applied in an arbitrary and discriminatory manner based on appearance, religious beliefs or previous criminal convictions, and without any means to challenge them.
“The repeated abuse of emergency measures since 2015 highlights the urgent need for the new law to contain provisions that will prevent such human rights violations. It should clearly state that the objective is to return to normalcy as soon as possible,” said Magdalena Mughrabi.
President Béji Caid Essebsi submitted the state of emergency bill to Tunisia’s parliament on 30 November 2018 to replace a 1978 presidential decree. Discussion of the bill within the Parliament’s Rights and Freedoms Committee began on 18 January 2019.
Tunisia’s authorities initially declared a state of emergency, invoking the 1978 decree, on 15 January 2011 and repeatedly renewed it until March 2014, when it was allowed to expire. President Beji Caid Essebsi then re-imposed the state of emergency on 4 July 2015 following the mass shooting on the beach at Sousse. The state of emergency was lifted in October of that year, but was reinstated on 24 November 2015, immediately after the attack on the Presidential Guard in Tunis. It has been regularly renewed since, most recently on 5 March 2019.
In his report following his last visit to Tunisia in 2017, The then UN special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism expressed “concern about the legality and persistent extension by the President of the far-reaching emergency powers provided to law enforcement officials.” The report also urged Tunisian authorities to “take immediate measures to discontinue the abusive, and internationally illegal, practice of routinely extending the extraordinary powers conferred to law enforcement institutions under the state of emergency, which de facto normalizes what should be an extraordinary legal regime.”