Freedom of expression and opinion in the Tunisian Constitution Mehdi BENCHELAH The adoption of Article 30, which guarantees the freedom of expression,1 and of article 31 regarding the freedom of information2 on 6 January 2014 by members of the National Constituent Assembly (NCA) gathered in the Bardo, old Beylical palace, followed by the vote for article 48 of the new Constitution, which restricted the legal limitations for all fundamental rights (an imperative basis for proportionality and essential to a democracy,)3 mark the end of an open and participative process that lasted almost two years, a process that is, in many ways, unique in the Arab world. These articles are as follows:4 Article 30 The freedoms of opinion, thought, expression, information and publication are guaranteed. It is prohibited for these rights to be subjected to prior control. Article 31 The State guarantees the right to information and access to information. Article 48 The law establishes the restrictions relating to rights and freedoms guaranteed by the Constitution and their implementation, without detriment to their essence. Its limits are only implemented in case of necessity justified by a civil and democratic State and with the purpose of protecting the rights of others or for reasons of public security, national defence or public health and general moral values, meanwhile respecting the principles of proportionality between these limits and their justification. The jurisdictional bodies ensure the protection of rights and freedoms from any violation. No amendment must be detrimental to the human rights or freedoms stated in this Constitution.5 For the first time in Tunisia's modern history, an elected democratic assembly, representing diverse political sensitivities, has agreed to guarantee the right to the freedom of expression and opinion – a standard which is in compliance with widely-accepted international standards. The United Nations Human Rights Committee highlighted the importance of both of these rights: "The freedom of opinion and the freedom of expression are two conditions essential to the complete development of individuals. They are essential for any society.6 They constitute the basis for any free and democratic society. The two rights are closely connected, the latter constituting the driving force for exchange and development of opinions.”7 The freedom of expression occupies a unique position within the corpus of fundamental rights. Indeed, the freedom of expression, and associated freedoms – the freedom of opinion, freedom of the press or media, freedom of information, artistic freedom, or freedom of publication, for example – all 1 Article 30 was adopted by 173 votes in favour, 9 abstentions et 0 votes against 2 Article 31 was adopted by 170 votes in favour, 4 abstentions, 2 against 3 Article 48 was adopted by 164 votes in favour, 5 abstentions et 6 against 4 Articles 30, 31 and 48 respectively became articles 31, 32 et 48 in the final text of the Constitution 5 Unofficial translation from Arabic to English conducted by Democracy Reporting International (DRI) 6 See communications no. 1173/2003, Benhadj c. Algeria, views adopted on 20 July 2007, and no. 628/1995, Park c. Republic of Korea, views adopted on 5 July 1996. 7 General observation no. 34. 102nd session. Geneva, 11-29 July 2011 1 together have the characteristic of being a single right, while also guaranteeing and promoting all the other fundamental rights. Once the freedom of expression is done away with, it is typical that other fundamental rights fall to the wayside. On the other hand, when freedom of expression is guaranteed, the scope of other rights tend to progressively broaden within the society thanks to the free transmission of information, images, ideas, proposals, and to the free political debate that stems from these freedoms amongst members of the society. Despite some blunders, the Tunisian Republic's Constitutional text, whose final draft was adopted on 26 January 2014 by 200 votes in favour, 12 against, and 4 abstentions, represents a remarkable and encouraging change that places Tunisia ahead of other countries in the Arab world in terms of democratic transition and the protection of fundamental rights, particularly with regards to the freedom of expression and opinion. The Constitution specifies that prior censorship of the freedom of expression is strictly prohibited, which rules out the possibility of a law advocating for the systematic control of the press a priori. Moreover, the Constitution also protects the right to information, and the right to access public documents. Unlike the 1959 Constitution, the restrictions to fundamental rights, provided for by article 49 of the Constitution of 14 January 2014, fulfil the triple condition of being provided for by a law, aimed at protecting rights of others, national security, public order, health and public morals, and are necessary for the protection of these interests. This implies the ongoing respect to the principle of proportionality. In theory, any legislation that violates these principles would be deemed unconstitutional, and could thus be invalidated by the future Tunisian Constitutional Court whose statutes guarantee independence. Regarding this matter, and many others, the 2014 Constitution marks a profound break from the 1959 Tunisian Constitution that failed to prevent the authoritarian abuses of Ben Ali's regime. Indeed, the latter set out that: "Freedom of opinion, expression, press, publication, assembly, and association are guaranteed and implemented in the conditions provided for by the law."8 No restrictions were provided in the 1959 Constitution against oppressive laws against the freedom of expression, effectively making it very easy for Ben Ali's regime to silence any dissenting voices by means of the 1975 Press Code and the Penal Code fabricating issues with the media and journalist who were broadcasting information deemed to be anti-establishment.9 Moreover, the Tunisian Constitution of 14 January provides for the creation of an Audiovisual Communication Body responsible for regulating audiovisual media, including the method of appointment: Article 127 The body for audiovisual communication is responsible for regulating and developing the audio-visual communication sector. It ensures the guarantee of freedom of expression and information, and the establishment of a pluralist and upstanding media sector. The body shall benefit from regulatory power in its field of competency. It must be consulted on draft laws pertaining to its remit. The body shall comprise of nine independent, neutral, competent and upstanding members, who shall undertake their mission for one six-year mandate. One third of their members shall be replaced every two years. 8 Constitution of the Tunisian Republic, 1st June 1959, article 8. 9 Study on media development in Tunisia, UNESCO, 2011. Page 27. 2 The body's regulatory power, its area of competence – the audiovisual media sector – and the method for the appointment of its members through the qualified majority of the members of the Parliamentary Assembly – should contribute to giving it the means for protecting the freedom of expression and information and the establishment of free, independent, and pluralist media that is in compliance with international standards.10 Recognizing the fundamental importance of the freedom of expression, international law enshrines this freedom through Article 19 of the Universal Declaration of Human Rights (UDHR) adopted on 10 December 1948: "Everyone has the right to freedom of opinion and expression; this right includes the freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of borders." Articles 19 and 20 of the International Covenant on Civil and Political Rights (ICCPR), adopted on 16 December 1966 in New York, also enshrine the principle of freedom of expression and precisely define the restrictions that can be applied to this freedom: Article 19 1. Everyone shall have the right to hold opinions without interference. 2. Everyone shall have the right to freedom of expression; this right shall include the freedom to seek, receive and impart information and ideas of all kinds, regardless of borders, either orally, in writing or in print, in the form of art, or through any other media of his choice. 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore by subject to certain restrictions, but these shall only be such as provided by law and are necessary: a) For respect of the rights or reputations of others; b) for the protection of national security or of public order, or of public health or morals. Moreover, the ICCPR defines the limit where this protection stops: Article 20 1. Any propaganda for war shall be prohibited by law. 2. Any advocacy for national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law. The Human Rights Committee, made up of 18 independent legal experts, is responsible for judging whether the laws of States that are party to the treaty are in compliance with the ICCPR and its optional protocols. The UDHR, the ICCPR, and the jurisprudence of the Human Rights Committee make up the basis for what is commonly referred to as international law. One of the major challenges of post-revolution Tunisia was to equip itself with a legal framework that guaranteed the freedom of opinion and expression in line with international standards, in order to avoid past mistakes and to pave the way for a true democratic transition. As the Constitution establishes the foundation and framework for any national legal system, it was essential, in the case of Tunisia, at this pivotal moment in its history, to provide all the possible expertise and technical support 10 http://www.un.org/en/events/pressfreedomday/windhoek.shtml. Windhoek Declaration. Article 1 3 regarding this matter, as such expertise was crucial for the country's successful transition.