We do not have to choose between laxity in the fight against terrorism or the despotism of the State, a choice which many an ill-intentioned individual would like to make people believe. Nothing prevents us from undertaking an effective fight against terrorism while preserving our fundamental rights and liberties that we have worked so hard to gain. Riadh Guerfali, Terrorism and Brainwashing
On 25 March, Tunisian press announced the government’s approval of draft law n°2014-9 concerning the fight against terrorism and the prohibition of money laundering. After being signed by Prime Minister Habib Essid, the document was handed over to the Assembly of Representatives of the People (ARP) and published online in Arabic. An unofficial French translation has since been provided by the Geneva Centre for the Democratic Control of Armed Forces (DCAF), an international organization which offers assistance “in the development of good security sector governance, within a democratic framework and in respect of the rule of law.”
‘Stop Defending the Human Rights of Terrorists’
A part from the distilled information and tones of alarmism and pessimism that stifle quality discussions on terrorism in mainstream media, one finds valuable insight in the Facebook and Twitter accounts of engaged members of civil society, activists, government officials. Such a plurality of perspectives is important for fleshing out and expanding a discussion that is commonly portrayed as a two-sided debate between human rights advocates who demand the protection of civil liberties at the expense of effective security measures, and conservative political figures whose rhetoric of national security and unity in the face of terrorism is construed to harbor power and by extension repress fundamental rights.
Human Rights Watch (HRW) Director for Tunisia Amna Guellali is among those who challenge this simplified and unproductive portrayal. Prompted by a comment on her Facebook page—“Madame, I hope you will now stop defending the human rights of terrorists”— Guellali formally addressed the issue in an article published on the HRW website:
The voices denouncing rights drive us into a mimicry of savagery that could well escalate the violence and atrocities … Abuses and gratuitous acts of violence…provide fertile breeding ground for terrorism, which feeds off these abuses and injustices as well as the failure of officials to see its deeper social and political causes. They can indeed exacerbate the resentment some youths feel against security forces they see as an army of repression, and aggravate their day-to-day sense of alienation, pushing them into the arms of extremist groups. Amna Guellali, Post-Bardo, Anti-Rights Rhetoric in Tunisia
On 8 April, HRW published Tunisia: Flaws in Revised Counterterrorism Bill which summarizes its analysis and recommendations for Tunisian legislators responsible for examining the revised draft law. While minimally distinctive from the predecessor version elaborated by the Ministry of Justice in 2014, the new form of the draft law allegedly represents a graver threat to human rights.1 “The parliament,” HRW advises accordingly, “should revise the bill to strengthen its protections for human rights.”
Among the points discussed in the Analysis of Tunisia’s Draft Counterterrorism Law published by Human Rights Watch:
Flaws retained from the previous text:
– Broad and ambiguous language, namely in the definition of terrorist activities, which can be construed to repress rights.
– The possibility to maintain the anonymity of a witness who testifies in the case of security concerns for the witness or his/her family potentially restricts the defendant’s right to challenge evidence.
Improvements from the law currently in place (adopted in 2003):
– Reparation provisions for terrorism victims including free health care and judicial assistance, a ban on the deportation to countries where they would face repercussions.
– Creation of a commission dedicated to elaborating how to address terrorism.
– Judicial supervision of surveillance and intelligence services, including the infiltration, monitoring, and interception of groups associated with terrorism. It is worth noting that this supervision does not fall entirely within the domain of the judges, but is extended to prosecutors who are linked to the executive branch.
Human Rights Watch estimates that the pre-charge detention (Articles 38 and 40)2 for up to 15 days (current law permits a detention of up to six days) and the death penalty (Article 28)3 designated in the text are the gravest threats to human rights in the newest version of the draft law. Since 1991, Tunisia has been named among the countries considered to be abolitionist in practice.4 On 21 December 2012, Tunisia signed a moratorium on the death penalty. At the begining of April, the International Federation for Human Rights (FIDH) declared its solidarity with Tunisia after the Bardo attack and stated its concerns regarding the counterterrorism law: «This draft is extremely worrying for its provisions that restrict individual freedoms but also in its provision of the death penalty for perpetrators of terrorist acts…if adopted, the draft law thus goes against the growing international shift towards the abolition of the death penalty.”
In sum and in the words of HRW deputy Middle East and North Africa director Eric Goldstein, “Tunisia’s efforts to restore the rule of law after the abuses under Ben Ali will take a step backward if the new counterterrorism proposals are adopted in their present form.”
Broadening the Scope of Discussions Concerning Terrorism
“Veritable sea serpent of post-revolution political life in Tunisia, a new antiterrorist law is to replace the one adopted under Ben Ali’s government in 2003: “Changing this repressive law was a priority after the revolution,” recalls Tunisian political analyst Selim Kharat. But an agreement was not reached at the time of the Parliamentary vote in July 2014. Today, I am afraid that we are voting on a poorly-conceived text with little regard for public freedoms.” While the text is currently under examination by the Parliamentary Commission of General Legislation, a number of deputies, including Sayida Ounissi (Ennahda), are attempting to alert public opinion to the flaws of a text that is “too rigid,” as Ounissi divulged to Mediapart, particularly in its articles concerning surveillance, confidentiality, human rights, and detention.”
Whereas in the past several weeks Sayida Ounissi has been interviewed by a number of big-name news networks (CNN, Sky News, Daily Motion) to answer banal questions about terrorism and Tunisian jihadis (“Do you condemn these radical groups?”),5 the AٌRP deputy’s posts on Facebook and Twitter are an enriching supplement to what is offered on mainstream outlets. Following a discussion with Amna Guellali, Nawaat spoke with Ounissi who reiterated the similarity between the new text and the July 2014 version of the counterterrorism draft law, and also commented on people’s increased tolerance for human rights violations in the name of security measures in the immediate wake of tragedy or crisis. Ounissi and the deputies of four commissions—General Legislation, Rights and Liberties, Administrative Reform, and Finances (of which Ounissi herself is a member)—were to begin reviewing the counterterrorism draft law on Friday, 10 April. Normally, our interlocutor explained, one commission presides over such a task, but given the length of the text (in Arabic, a total of 139 articles fill 46-plus pages), the four delegations will work to pass the articles to a vote as quickly as possible.
It is, of course, the first obligation of deputies to pass laws that reflect the citizenry’s needs and demands, and though public pressure to pass a new counterterrorism law is palpable, it is not, Ounissi explained, this particular law that will effect sweeping changes in the so-called fight against terrorism. Since 10 December 2003, the government has operated according to Law 2003-75 concerning support for international counterterrorism efforts and the repression of money laundering. Although certainly far from ideal and having notoriously served as an instrument of repression under the Ben Ali regime, Law 2003-75 is a functioning legal framework that governs the State response to terrorism.
In this vein, precipitating the adoption of a new law is more symbolic than urgently imperative, more reactionary than strategically vital. To make this point, Ounissi referred to the widely diffused story of the Bardo Attack which holds that deputies were in the midst of examining the counterterrorism draft law when Abidi and Kachanoui attempted an initial attack on Parliament. Ounissi clarified that, the text in question not having yet been submitted to Parliament, Assembly members were in fact auditioning military representatives on March 18 in preparation for reviewing the draft law. If a minor case of misinformation, the detail is nonetheless reflective of the exaggerated bearing that draft law n°2014-9 has to play in addressing terrorism.
As media and public attention have been absorbed by this topic, more imminently consequential draft laws concerning justice system reform and access to information have remained at the outskirts of discussions. Technical and tedious to dissect as they may be, these texts are as essential in developing a well-informed and broad-reaching response to terrorism which, contrary to the common one-dimensional presentation in mainstream media, is not a mere question of national security but the sum of international social, economic, and political factors.
The international consulting agency affiliated with the development of this draft law is the Venice Commission of the Council of Europe (European Commission for Democracy through Law).
Draft Law n°55/2014 concerning the Right of Access to Information: Approved in July 2014 by the Council of Ministers and submitted to the ARP on 18 August 2014, the draft law mandates the creation of a council to oversee public access to information. This week, the Parliamentary Commission of Rights and Liberties auditioned concerned parties in preparation for reviewing the text.
1. Note that, in contrast, many outlets have portrayed the new text as an improved version of its predecessors. In March, La Presse de Tunisie described “a clearer law,” whose adoption will “enable law enforcement authorities to more effectively confront terrorism.”
2. Under Chapter III – Judiciary Police Offers, Article 38 specifies that Judiciary police offers are obligated to immediately report terrorist violations to the public prosecutor; the accused can not be held for a period exceeding five days. Under Chapter IV – Judiciary Branch and Counterterrorism, Article 40 elaborates that the public prosecutor of the court of first instance in Tunis alone holds the authority to prolong the period of detention up to two times and for the same period designated in Article 38 [in other words, a total detention period of fifteen days], and this pursuant to a decision substantiated by factual and legal motives.
3. Article 28 holds, “In the case of death, the death penalty and a fine of two hundred thousand dinars. In the context of a terrorist crime, the deliberate perpetration of rape without the consent of the victim is also punishable by death.” [Quote translated from DCAF French language version of draft law n°2014-9]
4. For information on the classification of Tunisia and other countries as “abolitionist in practice” with respect to the death penalty, see:
“Abolitionist and Retentionist Countries,” Death Penalty Information Center (DPIC).
“The Death Penalty in the World,” Le Nouvel Observateur, 10 October 2012.
“Death Sentences and Executions Between 2007 and 2014,” Amnesty International.
ISIS Claims Tunisia Museum Attack, Interview with Hala Gorani on CNN. 20 March 2015.
Tunisia: Headed for a Jihadi Spring? on the Program “This Concerns You,” of the LCP, National Assembly. 19 March 2015.
Tunisian MP Sayida Ounissi Says Country Is Strong Despite Terror Attack, Sky News. 19 March 2015.