Tunisia blazes trail in Arab world with embrace of human rights in new legal code

Tunisia blazes trail in Arab world with embrace of human rights in new legal code
7 min read
19 November, 2018
Tunisia is again set to be a pioneer in the Arab world by placing the rights of the individual at the heart of its legal system, writes Alessandra Bajec.
LGBTQ+ solidarity protest during Tunisia's national women's day in August [Getty]
A group of Tunisian parliamentarians are hoping to advance a bill seeking protection of an individual's private life - a first in any Arab culture. 

Last month, fourteen members of Tunisia's parliament put forward a draft law to create a Code of Individual Rights and Liberties, an important initiative that takes inspiration from a report by the Individual Freedoms and Equality Committee (COLIBE) released in June.

"The idea of having a new code that encompasses all individual liberties will deepen the debate and ensure some balance between the different voices," said Jamel Salem, head of the Tunisian Human Rights League (LTDH).
 

"We hope all those who support equality and personal freedoms will group and lobby the parliament to pass the draft," the LTDH's president added. "For our association, now is the time for individual rights."

Set up in the summer of 2017 by President Beji Caid Essebsi, COLIBE was tasked with harmonising Tunisian laws with the 2014 constitution - which places a strong focus on the rights and dignity of individuals, largely neglected during the authoritarian rule of former President Zine el Abidine Ben Ali.

We are ruled by old, regressive laws

"The code translates freedom of conscience in legal terms, and means that the state must guarantee personal rights and freedoms," said Leila Hamrouni, one of the parliamentary members who put forward the new bill.

"We are ruled by old, regressive laws," emphasised Hamrouni, who is also the deputy of the National Coalition bloc.

"After
the COLIBE report, it would be a waste not to move on to adapting laws to the constitution. That's why we have proposed the adoption of the code."

Last August, which marked Tunisia's National Women's Day, Essebsi vowed to submit a bill to parliament granting women equal inheritance rights, in line with one of several proposals made by the government-backed committee in its report.

Read also: Anti-discrimination law 'a huge victory for Tunisia'

In an interview with Business News, Bochra Belhaj Hmida, the committee's head, expressed her satisfaction with the presidential approval of the inheritance equality measure.

"The rest of the report [connected with the code of individual liberties] would be handed over to parliament," she said at the time. 

The proposal to establish equal inheritance is one of the most hotly disputed reforms presented by the commission. Currently, under Islamic law, women are restricted to half of what men are entitled to. 

The proposal to establish equal inheritance is one of the most hotly disputed reforms presented by the commission. Currently, under Islamic law, women are restricted to half of what men are entitled to

The committee also recommended abolishing the death penalty, decriminalising homosexuality, and eliminating offences relating to "public indecency" and "morality" laws.

It also
called for the right to take the mother's last name as well as the right of Tunisian women to pass on citizenship to their foreign husbands. In addition, it proposed repeal of a directive that prohibits cafes and restaurants from opening during Ramadan fasting hours.

A lifelong feminist and human rights advocate, Hmida said COLIBE's immediate goal was to start a debate about the state of individual freedoms in the country.

Read also: The battle between secularism and Muslim identity in Tunisia during Ramadan

The proposal to introduce a code of individual rights and freedoms brings forth an unprecedented advance in the Tunisian society and in Arab societies overall.

"For the first time, I think, a commission in the Arab world is concerned with discussing the status of the individual within society," stressed Slaheddine Jourchi, who is a member of the Higher Committee of Human Rights and of COLIBE.

"In our Tunisian culture, it is the family or society that comes ahead of the individual - whose existence as an independent being is rarely upheld. This is why we have posed a question about the need to change certain laws that limit personal liberties."

For the first time, I think, a commission in the Arab world is concerned with discussing the status of the individual within society

Jourchi highlighted the necessity to reconcile Tunisian laws with the new constitution in the personal sphere, given that the laws have remained unchanged. Introducing a specific code to embrace individual liberties would signal a rupture with the traditional, socially accepted pattern of the group dominating over the person.

Protection of the individual's private life does not contradict the Tunisian constitution, the human rights activist assured.

The presidential decree issued in 2017 to form COLIBE declared that "the committee must base its work on the provisions of the 2014 constitution, international conventions, and contemporary trends in the fields of individual rights, freedoms and equality".

That said, the decree also stated the proposed reforms should take into account the Islamic culture of the Tunisian people, in accordance with Article 1 of the Constitution which reads that Islam is an integral part of Tunisia.

The COLIBE commission identified provisions of Tunisian legislation that violate or undermine individual freedoms and equality.

MP Hamrouni explained that the suggested code would fill in the gaps in the legislative system related to individual rights and fundamental freedoms, hinting at inheritance rights, gay rights, and freedom of conscience - among other issues.

"Since the revolution we've made gains in the area of public freedoms which are guaranteed by the constitution and the law," the parliamentarian said, "now we need to meet the gap in the private sphere."

At the core of the text of the code are provisions that guarantee 13 rights - including the right to life, to dignity and physical integrity, freedom of thought, of belief and conscience as well as academic freedoms. Another part of the code sets the mechanisms to protect individual rights and liberties, particularly legal protection.

Signatories of the draft law believe the current legislative system is outdated and no longer meets the aspirations of Tunisians to freedom.  

Salem welcomed the new code as a "plus" that followed the COLIBE report, aiming to create societal discussion around questions of equality and private liberties across the country.

He also said that the LTDH encouraged promotion, debating of individual freedoms, and adoption of safeguarding mechanisms for such freedoms.

"We've been expecting a bill for the introduction of a comprehensive code that covers all aspects of individual liberties," the human rights defender noted.

While secularists hailed the progressive report, conservative forces view such reforms as a threat to Tunisia's Islamic identity. The battle over personal liberties versus Islamic principles has sparked heated debate in the Muslim-majority country.

Read also: How religiously free is the Arab world's most democratic country?

Muslim moderate party Ennahdha is said to be in favour of some of the committee's recommendations, such as the revocation of the death penalty, however it has distanced itself from the more controversial issues.

Following Essebsi's proposal to pass legislation to make inheritance rights equal for men and women, Ennahdha publicly rejected the presidential initiative - even though it offered a compromise. What the president proposed, in fact, was to allow families to continue following Islamic guidelines if they wish to, otherwise to default to equal inheritance.

The debate over inheritance is likely to become a major divisive issue ahead of the 2019 elections.

If on one hand Ennahdha has worked hard to present itself internationally as a moderate Muslim democratic movement, on the other it has been careful in pleasing its conservative electoral base.

Jourchi is optimistic, anticipating that a new, "sensible" phase of public discussion should follow in the coming months in which the Islamist party will likely take a more conciliatory stance on the COLIBE report.

Statements made by Ennahdha's leaders show the movement does not categorically reject equality or individual rights and freedoms.

How far the moderate Islamist movement will go in terms of changing existing laws will be the question.

That said, Tunisia is once again set to be a pioneer in the Arab world by placing the rights of the individual at the heart of its legal system.


Alessandra Bajec is a freelance journalist currently based in Tunis. 

Follow her on Twitter: @AlessandraBajec