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Tunisia: Protecting Freedom of Expression and Freedom of Information in the New Constitution March 2012

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Tunisia: Protecting Freedom of Expression and Freedom of Information in the New Constitution March 2012 Tunisia: Protecting Freedom of Expression and Freedom of Information in the New Constitution March 2012 Executive Summary The Constituent Assembly of Tunisia, elected in October 2011, is currently drafting a new Constitution of Tunisia. In response to these efforts and to support the work of the drafters, ARTICLE 19 has produced a comprehensive policy brief outlining how the new Constitution should protect the right to freedom of expression and freedom of information. The brief is based on international legal standards on freedom of expression, including the decisions of international and regional human rights courts as well as the authoritative interpretation of international human rights law by the UN Human Rights Committee and the Special Rapporteur on Freedom of Opinion and Expression. The brief also lists specific examples of constitutional provisions in a range of other countries. ARTICLE 19 hopes that international and regional standards and comparative examples indicating the best practices of states on the protection of the right to freedom of expression and freedom of information shall provide a useful source of reference for drafters of the new Tunisian Constitution. More specifically, ARTICLE 19 believes that the new Tunisian Constitution must contain a substantive chapter or section devoted to the protection of human rights, in the form of a Bill or Charter of Rights or equivalent. Such protection of human rights should be at the heart of the new Constitution. It is also of paramount importance that the new Constitution states that all international treaties ratified by Tunisia, customary international law and general international law have legal force in Tunisia, and that the core international human rights treaties which Tunisia has ratified are applicable and binding in domestic law. ARTICLE 19 also strongly urges the drafters to ensure that the new Constitution defines freedom of expression broadly to include the right to seek, receive and impart information and ideas, to cover all types of expression and modes of communication. The Constitution should grant this right to every person and should explicitly require that all limitations to the right to freedom of expression strictly meet the three-part test set by the international law. The brief makes a whole range of specific recommendations for the protection of the right to freedom of expression and freedom of information, including the access to information, and details how the new Constitution should protect freedom of media and freedom of expression through Information and Communication Technologies (ICTs). The policy brief also examines the place of religion in the Constitution. Finally, it describes the most appropriate mechanisms to effectively protect constitutional rights through a tribunal or constitutional court. Crucially, ARTICLE 19 calls on the Tunisian Government to ensure that the process of drafting the new Tunisian Constitution is genuinely participatory for all groups in society, including women and minorities, and transparent so that there is a real sense of ownership over the final text.! ARTICLE 19 hopes to continue to be engaged in assisting the Constituent Assembly and Tunisian stakeholders to formulate the best possible constitutional framework for the Tunisian people, one to meet the state’s international obligations but also serve to make human rights protection and promotion part of daily life and social consciousness in the country. ARTICLE 19 – Free Word Centre, 60 Farringdon Rd, London EC1R 3GA – www.article19.org – +44 20 7324 2500 Page 2 of 90 ARTICLE 19 – Free Word Centre, 60 Farringdon Rd, London EC1R 3GA – www.article19.org – +44 20 7324 2500 Page 3 of 90 Table of Contents ! About ARTICLE 19 Law Programme ................................................................................................... 6! Summary of Recommendations ....................................................................................... 7! Introduction ................................................................................................................ 10! The Constitutional Entrenchment of Human Rights ......................................................... 12! The 1959 Constitution of Tunisia ............................................................................................. 12! Arguments for the protection of human rights in the new Constitution ......................... 14! Arguments for the specific constitutional protection of freedom of expression and freedom of information ............................................................................................................................... 16! International and Regional Human Rights Law on Freedom of Expression and Freedom of Information ........................................................................................................................................... 22! International law .................................................................................................... 22! International Covenant on Civil and Political Rights ............................................ 22! Other international instruments ........................................................................ 23! Regional instruments .................................................................................................................. 24! African Union ........................................................................................................................ 24! League of Arab States ...................................................................................... 26! Other regional standards ..................................................................................................... 26! Comparative Constitutional examples ............................................................................................... 30! The Scope and Limits of Freedom of Expression and Freedom of Information .......................... 36! Scope of freedom of expression and freedom of information ................................................ 36! Permissible limitations on freedom of expression and freedom of information .................. 38! Comparative Constitutional examples ....................................................................................... 42! Freedom of Information ...................................................................................................................... 44! The right of access to information ............................................................................................. 45! Comparative Constitutional examples ....................................................................................... 47! Freedom of Media ................................................................................................................................ 51! No prior censorship .............................................................................................................. 53! Independence of media bodies .......................................................................................... 53! Protection of sources ....................................................................................... 54! Licensing and registration ................................................................................ 57! Print media ........................................................................................................................... 58! Freedom of association ....................................................................................................... 59! ARTICLE 19 – Free Word Centre, 60 Farringdon Rd, London EC1R 3GA – www.article19.org – +44 20 7324 2500 Page 4 of 90 Comparative Constitutional examples ....................................................................................... 60! Freedom of Expression and ICTs ....................................................................................................... 64! Comparative Constitutional examples ....................................................................................... 65! The Place of Religion in the Constitution. ....................................................................... 67! Enforcement of Rights ........................................................................................................................ 76! First and foremost, it should be distinguished which rights are guaranteed by the Constitution, and which are guaranteed under international law. ................................ 76! Enforcement of rights guaranteed by the Constitution ................................................... 76! Enforcement of international law in domestic legal order .............................................. 84! Democratic Participation Mechanisms ............................................................................................. 89! The Kenyan experience ....................................................................................................... 89! The Liberian experience ...................................................................................................... 89! The Senegalese experience ................................................................................................. 90! ARTICLE 19 – Free Word Centre, 60 Farringdon Rd, London EC1R 3GA – www.article19.org – +44 20 7324 2500 Page 5 of 90 About ARTICLE 19 Law Programme The ARTICLE 19 Law Programme advocates for the development
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